Locatable Minerals Operations, 15694-15716 [E8-5746]
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15694
Federal Register / Vol. 73, No. 58 / Tuesday, March 25, 2008 / Proposed Rules
BILLING CODE 4510–29–C
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 223, 228, 261, 292, and
293
RIN 0596–AB98
Locatable Minerals Operations
Forest Service, USDA.
Proposed rule; request for
comments.
AGENCY:
ACTION:
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.
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SUMMARY:
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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.
DATES:
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
ADDRESSES:
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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
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Signed at Washington, DC, this 18th day of
March, 2008.
Bradford P. Campbell,
Assistant Secretary, Employee Benefits
Security Administration, Department of
Labor.
[FR Doc. E8–5855 Filed 3–24–08; 8:45 am]
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Federal Register / Vol. 73, No. 58 / Tuesday, March 25, 2008 / Proposed Rules
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 (§ 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
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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.
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Description of Substantive Proposed
Changes by Section
PART 223—SALE AND DISPOSAL OF
NATIONAL FOREST SYSTEM TIMBER
Section 223.14
Cut
Where Timber May Be
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 § 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
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Federal Register / Vol. 73, No. 58 / Tuesday, March 25, 2008 / Proposed Rules
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
§ 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-bycase 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
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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 § 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
§ 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 § 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
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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
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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
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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
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be the District Ranger, would perform a
completeness review to determine
whether the proposed operations satisfy
the environmental protection
requirements in § 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 § 228.9, the District
Ranger would inform the operator that
the notice would take effect upon
receipt of an adequate reclamation
bond. However, § 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
§ 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
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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
§ 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
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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
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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,
§ 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 (§ 228.11) would require removal of
structures and equipment upon the
cessation of operations. However, to
prevent further confusion, a new
paragraph, § 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 § 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.
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Section 228.10
Uses
Reasonably Incident
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.
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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.
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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 § 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 § 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
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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
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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
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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
Subpart
Applicability of This
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
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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
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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.
rwilkins on PROD1PC63 with PROPOSALS
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.
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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;
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(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
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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 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:
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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 § 223.14 to
read as follows:
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
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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:
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.
§ 223.14
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.
*
*
*
*
*
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
§ 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
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(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.
§ 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.
§ 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
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§ 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
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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 full cost of
reclaiming National Forest System lands
affected by operations conducted
subject to a complete bonded notice or
an approved plan of operations.
(m) Residence. Any structure or
shelter, whether temporary or
permanent, including, but not limited
to, buildings, buses, cabins, campers,
houses, lean-tos, mills, mobile homes,
motor homes, pole barns, recreational
vehicles, sheds, shops, tents and
trailers, which is being used, capable of
being used, or designed to be used, in
whole or in part, full or part-time, as
living or sleeping quarters by any
person, including a guard or watchman.
(n) Significant disturbance of surface
resources. Disturbance of National
Forest System surface resources
requiring the use of reclamation
measures in order to return National
Forest System lands and surface
resources affected by operations to a
safe and environmentally stable
condition or influencing materially the
administration of National Forest
System lands or surface resources
affected by operations during their
pendency. Significant disturbance of
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surface resources generally results from
operations employing mechanized
earth-moving equipment, truckmounted drilling equipment, explosives
or chemicals; requiring access road
construction or reconstruction;
requiring construction of buildings,
impoundments and other support
facilities; occurring within areas of
National Forest System lands or waters
known to contain Federally listed
threatened or endangered species or
their designated critical habitats; or
occurring within areas of National
Forest System lands withdrawn from
the operation of the United States
mining laws. Significant disturbance of
surface resources also generally occurs
when operations cause fire, health or
safety hazards on National Forest
System lands; preclude or restrict other
uses of National Forest System surface
resources; prevent or obstruct free
passage or transit over National Forest
System lands; involve residency, other
than permitted camping, on National
Forest System lands; injure or destroy
any scientifically important
paleontologic remains or any historical
or archaeological structure, resource, or
object; or necessitate closing National
Forest System lands or facilities to users
other than an operator or exempting an
operator from closure of National Forest
System lands or facilities to other users.
An operation that will cause significant
disturbance of National Forest System
surface resources occasionally may, but
often will not, significantly affect the
quality of the human environment for
purposes of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)
and its implementing regulations (40
CFR parts 1500–1508).
(o) Surface use determination. An
inquiry conducted by a certified Forest
Service Mineral Examiner as to whether
specified uses of National Forest System
lands are reasonably incident.
(p) United States mining laws. A
reference to the Mining Law of May 10,
1872 (30 U.S.C. 21–54), as amended and
supplemented by laws including the
Organic Administration Act of 1897 (16
U.S.C. 478, 482 & 551) and the Surface
Resources Act of 1955 (30 U.S.C. 611–
614).
§ 228.4 Submission of notices of intent to
operate, bonded notices, and plans of
operations.
(a) Operations not requiring prior
notice. (1) Except as provided by
paragraphs (a)(2) through (a)(4) of this
section, an operator is not required to
give notice to the Forest Service before:
(i) Beginning operations that will be
limited to the use of vehicles on existing
public roads or roads used and
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maintained for National Forest System
purposes;
(ii) Beginning prospecting and
sampling that will not cause significant
disturbance of National Forest System
surface resources and will not involve
removal of more than a reasonable
amount of a mineral deposit for analysis
and study which generally might
include searching for and occasionally
removing small mineral samples or
specimens, gold panning, metal
detecting, non-motorized hand sluicing,
using battery operated dry washers, and
collecting mineral specimens using
hand tools;
(iii) Marking and monumenting a
mining claim;
(iv) Beginning underground
operations that will not cause
significant disturbance of National
Forest System surface resources;
(v) Beginning operations, which in
their totality, will not cause disturbance
of National Forest System surface
resources substantially different than
that caused by other National Forest
System users who are not required to
obtain a special use authorization,
contract, or other written authorization
from the Forest Service before beginning
such use; or
(vi) Beginning operations that will not
involve the use of mechanized earthmoving equipment, such as bulldozers
or backhoes, or the cutting of trees,
unless those operations otherwise might
cause significant disturbance of
National Forest System surface
resources.
(2) Operations involving occupancy of
National Forest System lands, as
defined by § 228.3(e), are not subject to
paragraph (a)(1) of this section.
(i) The construction, maintenance,
placement, protection, repair, retention
or use of 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
providing that such camping will not
exceed any stay limit applicable to the
National Forest System lands on which
the temporary structure or temporary
shelter is situated. Accordingly, prior
notice is not required for an operation
involving camping which otherwise
meets the requirements of paragraphs
(a)(1)(i) through (a)(1)(vi) of this section
unless the operation is subject to any of
paragraphs (a)(2)(ii) through (a)(4) of
this section.
(ii) An operator proposing to
construct, maintain, place, protect,
repair, retain or use a permanent
structure located on National Forest
System lands must submit a proposed
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plan of operations pursuant to
paragraph (d)(1)(ii)(A) of this section.
(iii) Otherwise, an operator proposing
to conduct operations involving
occupancy of National Forest System
lands, including use of a means of
transportation on a road or another
access facility the Forest Service has
closed to such use, must submit of a
notice of intent to operate in complaince
with paragraphs (b)(3) through (b)(6) of
this section.
(3) An operator proposing to conduct
any operation subject to paragraph
(c)(1)(ii) of this section shall submit a
proposed bonded notice in compliance
with paragraph (c)(3) through (c)(5) of
this section.
(4) An operator proposing to conduct
any operation subject to paragraphs
(d)(1)(ii)(B) through (d)(1)(ii)(E) of this
section shall submit a proposed plan of
operations in compliance with
paragraphs (d)(2) through (d)(4) of this
section.
(b) Operations requiring a notice of
intent to operate. (1) Except as provided
by paragraph (b)(2) of this section, an
operator must submit a notice of intent
to operate when the operator proposes
to conduct operations that:
(i) Might cause significant disturbance
of National Forest System surface
resources; or
(ii) Would involve occupancy of
National Forest System lands as defined
by § 228.3(e), including, but not limited
to:
(A) Use of a means of transportation
on a road or another access facility the
Forest Service has closed to such use;
and
(B) Construction, maintenance,
placement, protection, repair, retention
or use of a residence as defined by
§ 228.3(m) unless:
(1) The residence is a permanent
structure as defined by § 228.3(h) for
which the operator must submit a
proposed plan of operations pursuant to
paragraph (d)(1)(ii)(A) of this section; or
(2) The residence is a temporary
structure or a temporary shelter
supplying living or sleeping quarters for
any person camping in connection with
locatable mineral operation providing
that such camping will not exceed any
stay limit applicable to the National
Forest System lands on which the
temporary structure or temporary
shelter is situated. Accordingly, a notice
of intent is not required for an operation
involving such residence which meets
the requirements of paragraphs (a)(1)(i)
through (a)(1)(vi) of this section unless
the operation is subject to paragraphs
(a)(2)(ii) through (a)(4) of this section.
(2) An operator is not required to
submit a notice of intent to operate if:
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(i) The operations may proceed
without prior notice pursuant to
paragraph (a) of this section.
(ii) The operator elects to submit a
proposed bonded notice or a proposed
plan of operations instead of a notice of
intent to operate;
(iii) The proposed operations are not
likely to cause significant disturbance of
National Forest System surface
resources;
(iv) The operator is required to submit
a proposed bonded notice because the
proposed operations are subject to
paragraph (c)(1)(ii) of this section; or
(v) The operator is required to submit
a proposed plan of operations because
the proposed operations are subject to
paragraph (d)(1)(ii) of this section.
(3) A notice of intent to operate must
provide information sufficient to
identify the proposed area of operations,
the nature of the proposed operations,
and the proposed mode of
transportation and route of access to the
area of operations.
(4) The operator must transmit the
notice of intent to operate to the District
Ranger having jurisdiction over the area
within which the proposed operations
will be conducted.
(5) The operator must not begin the
operations described by the notice of
intent to operate sooner than 15 days
after the notice was received by the
District Ranger except as provided by
paragraphs (b)(6)(i) and (b)(6)(ii) of this
section.
(6) Within 15 days of receiving a
notice of intent to operate, the District
Ranger will notify the operator if the
proposed operations cannot begin
until—
(i) The operator has submitted a
proposed bonded notice pursuant to
paragraph (c) of this section and the
requirements of § 228.5 are satisfied; or
(ii) The operator has submitted a
proposed plan of operations pursuant to
paragraph (d) of this section and the
requirements of § 228.6 are satisfied.
(c) Operations requiring a proposed
bonded notice. (1) Except as provided
by paragraph (c)(2) of this section, an
operator must submit a proposed
bonded notice when the operator
proposes to conduct operations that:
(i) Will likely cause significant
disturbance of National Forest System
surface resources providing that such
disturbance will last no longer than two
years and will occur on no more than
5 acres of unreclaimed National Forest
System lands at any point in time; or
(ii) Will occur partially or wholly on
national Forest System lands segregated
from appropriation under the United
States mining laws providing that the
disturbance of National Forest System
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surface resources the operations will
likely cause will last no longer than two
years and will occur on no more than
5 acres of unreclaimed National Forest
System lands at any point in time.
(2) An operator is not required to
submit a proposed bonded notice if:
(i) The operations may proceed
without prior notice pursuant to
paragraph (a) of this section.
(ii) The operations may proceed under
a notice of intent to operate pursuant to
paragraph (b) of this section.
(iii) The operator elects to submit a
proposed plan of operations instead of
a proposed bonded notice; or
(iv) The operator is required to submit
a proposed plan of operations because
the operations are subject to paragraph
(d)(1)(ii) of this section.
(3) A proposed bonded notice must
contain the information specified by
paragraph (f) of this section as foreseen
for the entire operation for the full
estimated period of activity.
(4) The operator must transmit the
proposed bonded notice to the District
Ranger having jurisdiction over the
lands on which the proposed operations
would be conducted.
(5) The operator must not begin the
operations described by the proposed
bonded notice before the bonded notice
has been determined to be complete
pursuant to § 228.5(b)(1) and the
requirements of § 228.5 are otherwise
satisfied.
(d) Operations requiring a proposed
plan of operations. (1) An operator must
submit a proposed plan of operations
when the operator proposes to conduct
operations that:
(i) Will likely cause significant
disturbance of National Forest System
surface resources lasting no longer than
two years or occurring on more than 5
acres of unreclaimed National Forest
System lands at any point in time; or
(ii) Always require an approved plan
of operations because those operations:
(A) Will involve the construction,
maintenance, placement, protection,
repair, retention or use of a permanent
structure on National Forest System
lands;
(B) Will occur partially or wholly on
National Forest System lands
withdrawn from appropriation under
the United States mining laws,
including lands within National Forest
Wilderness;
(C) Will occur partially or wholly on
National Forest System lands
segregateed or withdrawn from
appropriation under the United States
mining laws, if the disturbance of
National Forest System surface
resources that the operation will likely
cause will last longer than two years or
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will occur on more than 5 acres of
unreclaimed National Forest System
lands at any point in time;
(D) Will sever or remove timber on
National Forest System lands for
purposes other than providing
clearance; or
(E) Are subject to § 228.5(a)(5)(iii)(B).
(2) A proposed plan of operations
must contain the information specified
by paragraph (f) of this section as
foreseen for the entire operation for the
full estimated period of activity.
(i) If the development of a plan of
operations for an entire operation is not
possible when the proposed plan is
prepared, the operator must:
(A) File an initial plan of operations
describing the proposed operations to
the degree reasonably foreseeable then;
and
(B) Thereafter, file one or more
supplemental plans of operations when
the operations the operator proposes to
conduct are not approved by the current
plan of operations.
(ii) A supplemental plan of operations
provided for by paragraph (d)(2)(i)(B) of
this section is subject to all provisions
set forth in this subpart applicable to an
initial plan of operations.
(3) The operator must transmit the
proposed plan of operations to the
District Ranger having jurisdiction over
the lands on which the proposed
operations would be conducted.
(4) The operator must not begin the
operations described by the proposed
plan of operations before the plan of
operations has been approved pursuant
to § 228.6(c)(1) and the requirements of
§ 228.6 are otherwise satisfied.
(e) Demanding a complete bonded
notice or an approved plan of
operations. The District Ranger will
notify the operator that the operator
must:
(1) Hold a complete bonded notice
which is in effect or an approved plan
of operations which is in effect,
whichever is appropriate, if the District
Ranger determines the operator intends
to commence or previously began
operations that are likely to cause or are
causing significant disturbance of
National Forest System surface
resources without a required bonded
notice or plan of operations; or
(2) Obtain a new complete bonded
notice which has taken effect, or a new,
modified or supplemental plan of
operations which has taken effect,
whichever is appropriate, if significant
disturbance of National Forest System
surface resources which is not fully
described by a complete bonded notice
currently in effect or which is not
approved by a plan of operations
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currently in effect is likely to occur or
is occurring.
(f) Proposed bonded notice and plan
of operations content requirements. A
proposed bonded notice or a proposed
plan of operations must include:
(1) The name and legal mailing
address of all operators (and all
claimants if they are not the operators)
and their lessees, assigns, or designees.
(2) A map or sketch showing
information sufficient to locate the
proposed area of operations on the
ground, the location, and, if applicable,
the route, of all existing and proposed
roads, trails, bridges, landing areas for
aircraft, and other access facilities to be
used in connection with the operations,
and the approximate location and size
of areas where National Forest System
surface resources will be disturbed.
(3) Information sufficient to describe
or identify the type of operations
proposed and how they would be
conducted, the proposed mode of
transportation to be used, the type and
standard of all existing and proposed
roads, trails, bridges, landing areas for
aircraft, and other access facilities, the
proposed period during which the
proposed operations will occur, and
proposed measures to be taken to meet
the environmental protection
requirements set forth in § 228.9.
(4) A preliminary estimate of the cost
of reclaiming National Forest System
lands calculated in accordance with
§ 228.13(c) but based only upon the
reclamation requirements set forth in
§ 228.9(i) and (k), along with an
explanation sufficient to show how the
estimate was calculated.
(g) Collection of information. 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 has been
submitted to OMB as a new collection.
§ 228.5 Bonded notice—completeness
review.
(a) The District Ranger will promptly
review a proposed bonded notice
submitted in accordance with
§ 228.4(c)(1) and, as part of that review,
consider whether:
(1) The proposed bonded notice
satisfies the environmental protection
requirements set forth in § 228.9;
(2) The proposed bonded notice
adequately minimizes the adverse
environmental impacts of the proposed
operations on National Forest System
surface resources;
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(3) The proposed bonded notice
includes the information specified by
§ 228.12(d);
(4) The proposed bonded notice
properly estimates the cost of reclaiming
all National Forest System lands that
would be affected by the proposed
operations; and
(5) The operator or any person acting
on the operator’s behalf has established
a pattern of noncompliance with
requirements applicable to past or
ongoing operations.
(i) If the District Ranger finds such a
pattern of noncompliance, the District
Ranger may recommend the applicable
Forest Supervisor require the operator to
submit a proposed plan of operations in
lieu of the proposed bonded notice. The
District Ranger’s recommendation must
be accompanied by a statement setting
forth in detail the supporting facts and
reasons for the recommendation, copies
of which will be sent to the operator
when they are sent to the Forest
Supervisor.
(ii) The operator will have not less
than 15 days to respond and show cause
why the Forest Supervisor should not
require the operator to submit a
proposed plan of operations.
(iii) The Forest Supervisor will render
a decision on the District Ranger’s
recommendation within 30 days of
receiving the operator’s response to the
recommendation or the closure of the
period for the operator to submit such
a response.
(A) If the Forest Supervisor disagrees
with the District Ranger’s
recommendation, the Forest Supervisor
will direct the District Ranger to resume
prompt review of the proposed bonded
notice.
(B) If the Forest Supervisor agrees
with the District Ranger’s
recommendation, the Forest Supervisor
will advise the operator the proposed
bonded notice will not receive further
review and the operator must submit a
proposed plan of operations in lieu of
the notice if the operator wishes to
conduct the proposed operations.
(b) Within 15 days of receipt of a
proposed bonded notice, the District
Ranger will notify the operator that:
(1) The bonded notice is complete;
(2) The proposed operations do not
require a bonded notice;
(3) The proposed operations require
an approved plan of operations;
(4) The Forest Service is reviewing the
proposed bonded notice, more time is
necessary to conclude the review for the
reasons specified, and the District
Ranger will complete the review within
an additional 15 day period: Provided,
however, That days during which the
area of operations is inaccessible for
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inspection will not be counted when
computing the 15 day period; or
(5) The proposed bonded notice is
incomplete identifying the deficiencies
the operator must remedy to meet the
requirements of this subpart.
(c) If the proposed bonded notice is
incomplete and the operator submits
additional information in response to a
notification pursuant to paragraph (b)(5)
of this section, the District Ranger will
repeat the review process set forth in
paragraphs (a) and (b) of this section as
necessary until the District Ranger takes
an action specified by paragraphs (b)(1)
through (3) of this section.
(d) When the District Ranger advises
the operator in writing that a bonded
notice is complete, the operator must
furnish the District Ranger a reclamation
bond complying with § 228.13(a)
through (c). If the District Ranger
determines the reclamation bond the
operator submitted is consistent with
the complete bonded notice and
§ 228.13(a) through (c), the District
Ranger will promptly inform the
operator in writing that as of such day
the complete bonded notice is in effect
and the operations described by the
notice may begin. The operator must
conduct the operations in compliance
with the complete bonded notice and
the requirements set forth in this
subpart.
(1) A complete bonded notice has a
two year term which begins on the
bonded notice’s effective date.
(2) All operations described by the
bonded notice, including reclamation,
must be concluded within the two year
period specified by paragraph (d)(1) of
this section.
(3) A complete bonded notice may not
be extended. If the operator requires
additional time to complete operations
subject to § 228.4(c), the operator must
submit a new bonded notice to the
District Ranger in accordance with
§ 228.4(c)(2) and (3).
(e) An operator must not segment
logically related exploratory operations
within a particular area by filing a series
of proposed bonded notices for the
purpose of avoiding the requirement to
submit a proposed plan of operations.
(f) The District Ranger may hold a
portion of the reclamation bond for a
complete bonded notice provided by the
operator in accordance with § 228.13(a)
through (c) and paragraph (d) of this
section for monitoring purposes no
longer than two years following
completion of reclamation. However,
the District Ranger will promptly return
any portion of the reclamation bond
covering reclamation activities not
requiring monitoring to the operator in
accordance with § 228.13(f)(2).
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(g) Holding a complete bonded notice
in effect does not relieve the operator
from compliance with all other
applicable Federal and State laws,
including but not limited to the Federal
Water Pollution Control Act (Clean
Water Act), as amended (33 U.S.C.
1251–1387), the Clean Air Act, as
amended (42 U.S.C. 1857 et seq.), and
the Endangered Species Act (16 U.S.C.
1531–1536, 1538–1540).
§ 228.6
Plan of operations—approval.
(a) The District Ranger will promptly
acknowledge receipt of a proposed plan
of operations submitted in accordance
with § 228.4(d)(1) to the operator.
(b) The authorized officer will
promptly review a proposed plan of
operations. As part of the review, the
authorized officer will:
(1) Consider whether the proposed
plan of operations satisfies the
environmental protection requirements
set forth in § 228.9;
(2) Consider whether the proposed
plan of operations adequately
minimizes the adverse environmental
impacts of the proposed operations on
National Forest System surface
resources;
(3) Consider whether the proposed
plan of operations includes the
information specified by § 228.12(d);
(4) Consider whether the proposed
plan of operations properly estimates
the cost of reclaiming all National Forest
System lands that would be affected by
the proposed operations;
(5) Evaluate the operator’s compliance
with paragraph (i)(3) of this section; and
(6) Conduct an environmental
analysis of the proposed plan of
operations and determine whether
preparation of an environmental
assessment or an environmental impact
statement is required.
(i) An initial, supplemental or
modified plan of operations
occasionally may, but often will not,
require preparation of an environmental
assessment or an environmental impact
statement. Environmental impacts of
proposed operations will vary
substantially depending on whether the
nature of the operations is exploration,
development, or processing, and on the
scope of operations (such as size of
operations, construction required,
length of operations and equipment
required), causing varying degrees of
disturbance and impacts to vegetative
resources, soil, water, air, or wildlife.
(ii) The Forest Service will prepare
any required environmental assessment
or environmental impact statement.
(c) Within 30 days of receipt of a
proposed plan of operations, the
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authorized officer will notify the
operator that:
(1) The plan of operations is
approved;
(2) The proposed operations do not
require an approved plan of operations;
(3) The authorized officer is reviewing
the proposed plan of operations, more
time is necessary to conclude the review
for the reasons specified, and the
authorized officer will complete the
review within an additional 60 day
period: Provided, however, That days
during which the area of operations is
inaccessible for inspection will not be
counted when computing the 60 day
period;
(4) The proposed plan of operations
cannot be approved until an
environmental assessment has been
prepared and, if appropriate, a finding
of no significant impact has been made,
or a final environmental impact
statement has been prepared; or
(5) The proposed plan of operations is
inadequate identifying the deficiencies
the operator must remedy to meet the
requirements of this subpart.
(d) If the proposed plan of operations
is inadequate and the operator submits
additional information in response to a
notification pursuant to paragraph (c)(5)
of this section, the authorized officer
will repeat the review process set forth
in paragraphs (b) and (c) of this section
as necessary until the authorized officer
takes an action specified by paragraph
(c)(1) or (c)(2) of this section.
(e) When the authorized officer
advises the operator in writing that the
plan of operations is approved, the
operator must provide to the authorized
officer a reclamation bond complying
with § 228.13(a) through (c). If the
authorized officer determines the
reclamation bond the operator
submitted is consistent with the
approved plan of operations and
§ 228.13(a) through (c), the authorized
officer will promptly direct the operator
to sign the approved plan of operations
if the operator has not already done so.
(f) After the requirements of
paragraph (e) of this section have been
met, the authorized officer will
promptly countersign and date the
approved plan of operations and inform
the operator in writing the approved
plan of operations is in effect and the
operations approved by the plan may
begin. The operator must conduct the
operations in compliance with the
approved plan of operations and the
requirements set forth in this subpart.
(g) Before an approved plan of
operations takes effect, the authorized
officer will approve those operations
required for timely compliance with
Federal and State laws providing such
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operations will be conducted so as to
minimize their adverse environmental
impacts on National Forest System
surface resources.
(h) The authorized officer may require
an operator to obtain approval of a
modified plan of operations under
following procedures.
(1) The authorized officer will not
require an operator to submit and obtain
approval of a modified plan of
operations unless the authorized officer
determines that:
(i) As approved, the operations do not
adequately minimize adverse impacts;
(ii) As approved, the operations do
not, or likely will not, meet the
environmental protection requirements
specified by § 228.9;
(iii) The approved operations are
causing unforeseen significant
disturbance of National Forest System
surface resources;
(iv) The approved plan of operations
must be brought into conformance with
applicable federal law or regulation,
including newly adopted federal law or
regulation;
(v) The approved plan of operations
needs to respond to new information
not available when the plan was
approved; or
(vi) Errors or omissions were made
when the plan of operations was
approved.
(2) An authorized officer considering
whether to require an operator to obtain
approval of a modified plan of
operations will:
(i) Provide notice to the operator in
writing which:
(A) Sets forth the reasons why the
authorized officer believes modification
of the approved plan of operations is
required; and
(B) Gives the operator not less than 30
days to respond and show cause why
the authorized officer should not require
modification of the approved plan of
operations;
(ii) Consider the operator’s response
and all other information in the
administrative record in deciding
whether to require modification of the
approved plan of operations; and
(iii) Issue a decision stating whether
modification of the approved plan of
operations is required, and if the
decision requires modification of the
approved plan of operations, the
decision also will:
(A) Explain its basis;
(B) Identify all required modifications
to the plan of operations;
(C) Specify the date by which the
operator must submit the proposed
modified plan of operations; and
(D) Identify any opportunity for the
operator to file an administrative appeal
of the decision.
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(3) A modified plan of operations
provided for by introductory text of
paragraph (h) of this section is subject
to all provisions set forth in this subpart
applicable to an initial plan of
operations, except as otherwise
provided by § 228.16.
(4) Operations may continue in
accordance with the approved plan of
operations until a modified plan is
approved, unless the authorized officer
determines the operations are:
(i) Unnecessarily or unreasonably
causing injury, loss or damage to
National Forest System surface
resources; or
(ii) Causing irreparable injury, loss or
damage to National Forest System
surface resources; and advises the
operator of those measures needed to
avoid such damage.
(i) If the operations to be conducted
under a plan of operations:
(1) Can reasonably be expected to
result in a point source discharge into
waters of the United States, the operator
may be required to obtain permits under
the Federal Water Pollution Control Act,
as amended (33 U.S.C. 1251–1387)
(Clean Water Act sections 402, 404).
(2) Will result in the discharge of
dredged or filled materials into waters
of the United States, the operator may
be required to obtain permits under the
Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251–1387) (Clean
Water Act sections 402, 404).
(3) May result in any discharge into
the navigable waters, the operator must
obtain the certification required by
Clean Water Act section 401(a)(1) from
the appropriate Federal or state entity
and present a copy of the certification
to the authorized officer.
(i) Pursuant to Clean Water Act
section 401, the Forest Service cannot
approve a proposed plan of operations
until the operator has obtained the
required certification and presented it to
the authorized officer unless the
certification requirement has been
waived by the appropriate Federal or
State entity.
(ii) If the appropriate Federal or state
entity denies a required Clean Water Act
section 401(a)(1) certification, the Forest
Service cannot approve a proposed plan
of operations.
(j) Holding an approved plan of
operations in effect does not relieve the
operator from compliance with all other
applicable Federal and State laws,
including but not limited to the Federal
Water Pollution Control Act (Clean
Water Act), as amended (33 U.S.C.
1251–1387), the Clean Air Act, as
amended (42 U.S.C. 1857 et seq.), and
the Endangered Species Act (16 U.S.C.
1531–1536, 1538–1540).
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(k) When the operator considers the
operations, including reclamation,
approved by the plan of operations to
have been completed, the operator may
notify the authorized officer. If the
authorized officer agrees, the authorized
officer will advise the operator in
writing that the operator’s obligations
under the plan of operations have been
completed and the plan has been closed.
§ 228.7 Availability of information to the
public.
Except as provided herein, all
information and data submitted by an
operator pursuant to the regulations of
this subpart is available for examination
by the public at the Office of the District
Ranger in accordance with the
provisions of 7 CFR 1.1 through 1.24,
and §§ 200.6 through 200.8 of this
chapter. Specifically identified
information and data submitted by the
operator as confidential concerning
trade secrets or privileged commercial
or financial information will not be
available for public examination, except
upon a determination made pursuant to
the procedures at 7 CFR 1.12, that such
information is not exempt by law from
mandatory disclosure under the
Freedom of Information Act, 5 U.S.C.
552. Information and data generally
found to be exempt from disclosure that
accordingly may be withheld from
public examination includes, but is not
limited to:
(a) Known or estimated outline of the
mineral deposits and their location,
attitude, extent, outcrops, and content;
(b) Known or planned location of
exploration pits, drill holes, excavations
pertaining to location and entry
pursuant to the United States mining
laws; and
(c) Other commercial information
which relates to competitive rights of
the operator.
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§ 228.8 Inspecting operations and
remedying noncompliance.
(a) Forest Service officers will
periodically inspect operations to
determine whether an operator is
complying with the regulations of this
subpart and, if applicable, a complete
bonded notice or an approved plan of
operations.
(b) If an operator fails to comply with
the regulations of this subpart or, if
applicable, a complete bonded notice or
an approved plan of operations and the
operator’s noncompliance unnecessarily
or unreasonably is causing injury, loss
or damage to National Forest System
surface resources, the authorized officer
will serve a notice of noncompliance
upon the operator or, if applicable, the
operator’s designated agent in person or
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by certified mail. The notice of
noncompliance must:
(1) Identify all requirements with
which the operator’s noncompliance
unnecessarily or unreasonably is
causing injury, loss or damage to
National Forest System surface
resources;
(2) Specify the actions which the
operator must take to come into
compliance with the requirements
identified pursuant to paragraph (b)(1)
of this section and to remedy all injury,
loss or damage to National Forest
System surface resources which resulted
from the operator’s noncompliance with
those requirements; and
(3) Specify one or more dates by
which the operator must complete the
actions specified pursuant to paragraph
(b)(2) of this section. Generally, an
operator will not be given more than 30
days to complete actions specified
pursuant to paragraph (b)(2) of this
section: Provided, however, That days
on which the authorized officer
determines the area of operations is
inaccessible will not be included when
computing the period the operator is
allowed to complete those actions.
(c) The authorized officer will take
additional enforcement actions if the
operator fails to comply with a notice of
noncompliance within the time
provided by the notice unless the
authorized officer determines there was
good cause for the operator’s failure to
comply. The additional enforcement
actions include, but are not limited to,
one or more of the following:
(1) Requesting the initiation of a civil
action in a United States District Court
seeking appropriate relief such as
declaratory relief, injunctive relief and
monetary damages;
(2) Issuing a Violation Notice citing
the operator for violating a prohibition
set forth in part 261 of this chapter; and;
(3) Attaching the reclamation bond
provided by the operator and using the
proceeds to take all necessary measures
to complete the actions specified by the
notice of noncompliance pursuant to
paragraph (b)(2) of this section.
§ 228.9 Environmental protection
requirements.
The operator must conduct all
operations, where practical, so as to
minimize the adverse environmental
impacts on National Forest System
surface resources. Environmental
protection requirements operations
must satisfy include, but are not limited
to:
(a) Air quality. The operator must
comply with applicable Federal and
State air quality standards, including
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the requirements of the Clean Air Act,
as amended (42 U.S.C. 1857 et seq.).
(b) Water quality. The operator must
comply with applicable Federal and
State water quality standards, including
regulations issued pursuant to the
Federal Water Pollution Control Act, as
amended (33 U.S.C. 1151 et seq.).
(c) Solid wastes. The operator must:
(1) Comply with applicable Federal
and State standards for the disposal and
treatment of solid wastes as defined by
the Resources Conservation and
Recovery Act, as amended (42 U.S.C.
6901 et seq.);
(2) Remove from National Forest
System lands, dispose of, or treat all
non-mine garbage, refuse, or waste to
minimize, so far as is practical, its
impact upon the environment and
National Forest System surface
resources; and
(3) Deploy, arrange, dispose of, or
treat all tailings and other mine wastes
resulting from the operations so as to
minimize their adverse impact upon the
environment and National Forest
System surface resources.
(d) Scenic values. The operator must,
so far as is practical, harmonize
operations with scenic values through
such measures as the design and
location of operating facilities,
including roads and other means of
access, vegetative screening of
operations, and construction of
structures and improvements which
blend with the landscape.
(e) Endangered species of fish,
wildlife and plants. The operator must
take all measures required by the
Endangered Species Act, as amended
(16 U.S.C. 1538) to protect federally
listed threatened or endangered species
of fish, wildlife and plants and, if
applicable, their designated critical
habitats.
(f) Fisheries and wildlife habitat. In
addition to complying with the water
quality requirements set forth in
paragraph (b) of this section, the solid
waste requirements set forth in
paragraph (c) of this section, and the
endangered species requirements set
forth in paragraph (e) of this section, the
operator must take all practical
measures to maintain and protect
fisheries and wildlife habitat that may
be affected by the operations.
(g) Roads. The operator must
construct and maintain all roads so as
to assure adequate drainage and, where
practical, to prevent or otherwise
minimize damage to soil, water, and
other resource values. Unless otherwise
approved by the authorized officer,
when a road is no longer required for
the operations, the operator must:
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(1) Close the road to normal vehicular
traffic;
(2) Remove bridges and culverts
associated with the road;
(3) Construct cross drains, dips, or
water bars required to prevent or control
water flow over or from the road
surface; and
(4) Reshape the road surface to, so far
as is practical, the contour closest to the
stable natural contour;
(h) Maintenance and public safety.
Throughout the operations, the operator
must maintain all structures,
equipment, and facilities in a safe, neat,
and workmanlike manner. Where the
operations cause hazardous sites or
conditions, the operator must mark
them by signs or other identification,
isolate them by fences, or otherwise
make them inaccessible to protect the
public in accordance with Federal and
State laws and regulations.
(i) Removal of structures and
equipment. Within the applicable
period specified by paragraph (k)(2) of
this section, the operator must remove
all structures, whether temporary or
permanent, facilities, and personal
property, including equipment, located
within the area of operations and
otherwise clean up the area of
operations. The United States, at its
discretion, may take title to any
property the operator does not remove
from the area of operations within the
applicable period. Such property of the
United States is subject to removal and
disposition at the Forest Service’s
discretion consistent with applicable
laws and regulations.
(j) Prevention and control of fire. The
operator must:
(1) Comply with all applicable
Federal and State fire laws and
regulations;
(2) Take all practical measures to
prevent and suppress fires on the area
of operations; and
(3) Require all persons, including but
not limited to employees, contractors
and subcontractors, who conduct or
support the operations to comply with
paragraphs (j)(1) and (j)(2) of this
section.
(k) Reclamation. The operator must
reclaim National Forest System lands
disturbed by the operations by taking
concurrent, seasonal, interim and longterm measures to, where practical,
prevent or otherwise minimize onsite
and off-site damage to the environment
and National Forest System surface
resources.
(1) The operator must begin
reclamation at the earliest possible time
during the operations.
(2) The operator must complete
reclamation:
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(i) Within the two-year term of a
complete bonded notice provided by
§ 228.5(d)(1); or
(ii) Except as otherwise provided by
an approved plan of operations, within
one year of the exhaustion of the
valuable mineral deposit, the
conclusion of the operations, or a
cessation of the operations that is not
seasonal.
(3) The reclamation measures taken
by the operator must, where practical:
(i) Prevent or control erosion and
landslides;
(ii) Prevent or control water runoff;
(iii) Isolate, remove or control
hazardous materials;
(iv) Reshape and revegetate disturbed
areas;
(v) Reshape road surfaces to the
contour closest to the stable natural
contour;
(vi) Rehabilitate fisheries and wildlife
habitat; and
(vii) Protect groundwater.
§ 228.10
Reasonably incident uses.
(a) The operator must not occupy or
use National Forest System lands for
any purpose not reasonably incident to
locatable mineral prospecting,
exploration, development, mining,
processing, or reclamation except as
provided by § 228.12(e).
(b) The operator must not:
(1) Prevent or obstruct free passage or
transit over National Forest System
lands by any person except to the extent
allowed for reasonable security and
safety measures which are consistent
with this subpart; or
(2) Conduct the following activities,
which are not reasonably incident uses
of National Forest System lands:
Cultivating crops or produce; rearing or
pasturing animals; storing, treating,
processing, or disposing of non-mineral,
hazardous, or toxic materials or waste
generated elsewhere and brought onto
National Forest System lands; operating
rental, trade or manufacturing concerns;
recycling or reprocessing of
manufactured material such as scrap
electronic parts, appliances,
photographic film, and chemicals;
searching for buried treasure, treasure
trove, or archaeological specimens;
operating hobby or curio shops, cafes, or
tourist stands; maintaining, managing or
hosting hunting or fishing camps; or
providing outfitting or guiding services.
(c) When the authorized officer
believes one or more proposed or
current uses of National Forest System
lands, other than those uses listed in
paragraph (b) of this section, would not
be or are not reasonably incident, the
authorized officer may initiate a surface
use determination.
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15709
(1) When the authorized officer
initiates a surface use determination, the
authorized officer will:
(i) Notify the operator in writing that
a surface use determination will be
conducted;
(ii) Identify the proposed or current
uses of National Forest System lands the
authorized officer believes may not be
reasonably incident;
(iii) Give the operator not less than 30
days to respond and show why the
specified uses of National Forest System
lands would be or are reasonably
incident; and
(iv) Consider, where current uses of
National Forest System lands are the
subject of the surface use determination,
any request included in the operator’s
response for the authorized officer to
allow one or more of such uses to
continue while the surface use
determination process is ongoing
providing that the response contains a
detailed explanation of the reasons why
the operator’s request should be granted.
(2) The authorized officer will not
allow an operator to continue a current
use of National Forest System lands
which is the subject of an ongoing
surface use determination if such use:
(i) Is unnecessarily or unreasonably
causing injury, loss or damage to
National Forest System surface
resources; or
(ii) Is causing irreparable injury, loss
or damage to National Forest System
surface resources.
(3) An operator allowed, while the
surface use determination process is
ongoing, to continue a use of National
Forest System lands considered by the
surface use determination, must not take
any action resulting, or likely to result,
in an increase in the scope, extent,
frequency, state of completion, or
impact of such use.
(4) The certified Forest Service
mineral examiner will consider the
operator’s response in completing the
surface use determination. The mineral
examiner also will prepare a report
finding whether the uses of National
Forest System lands examined in the
surface use determination are
reasonably incident and explaining the
basis for such findings.
(5) The authorized officer will issue a
decision, taking into consideration the
findings of the surface use
determination report, as to whether each
use of National Forest System lands
examined in the report is reasonably
incident.
(i) The decision will explain any
difference between the authorized
officer’s basis for concluding that a use
of National Forest System lands is not
reasonably incident and the basis of the
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surface use determination report’s
finding with respect to such use.
(ii) If the authorized officer concludes
that any use of National Forest System
lands examined in the surface use
determination is not reasonably incident
to locatable mineral prospecting,
exploration, development, mining,
processing, reclamation or closure, the
authorized officer’s decision also will:
(A) Direct the operator to cease such
use of National Forest System lands;
(B) Specify actions which the operator
must take to remedy all injury, loss or
damage to National Forest System
surface resources which resulted from
such use of National Forest System
lands; and
(C) Specify one or more dates by
which the operator must comply with
paragraphs (c)(5)(ii)(A) and (B) of this
section.
(iii) The Forest Service will promptly
provide the authorized officer’s decision
and the surface use determination report
to the operator.
rwilkins on PROD1PC63 with PROPOSALS
§ 228.11
Cessation of operations.
(a) When an operator proposes a
cessation of operations that is not
seasonal and the applicable approved
plan of operations contains provisions
governing such a cessation of
operations, the operator must
immediately file a statement with the
District Ranger:
(1) Specifying the date when the
operator expects the cessation of
operations to end;
(2) Providing an estimate of the
extended duration of the operations;
(3) Indicating which, if any, of the
structures, equipment and facilities
within the area of operations the
operator intends to remove during the
cessation; and
(4) Indicates which, if any, of the
structures, equipment and facilities
within the area of operations the
operator intends to retain during the
cessation.
(b) When an operator proposes a
cessation of operations that is not
seasonal and the applicable approved
plan of operations does not contain
provisions governing such a cessation of
operations, the operator must
immediately file a statement with the
District Ranger:
(1) Including the information
specified by paragraphs (a)(1) through
(4) of this section;
(2) Including a schedule for the
removal, as soon as practical, of all
items identified by the operator in
accordance with paragraph (a)(3) of this
section;
(3) Identifying all measures the
operator proposes to take to comply
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with §§ 228.9 and 228.10 during such
cessation of operations; and
(4) Including a schedule for the
performance of all measures identified
by the operator pursuant to paragraph
(b)(3) of this section.
(c) Where a cessation of operations
statement is filed pursuant to paragraph
(b) of this section, the authorized officer
will:
(1) Review any schedule the operator
proposes pursuant to paragraph (b)(2) of
this section for the removal of items and
specify any practical revision of the
schedule which the operator must
implement to minimize damage to the
environment and National Forest
System surface resources;
(2) Review the measures the operator
proposes to take pursuant to paragraph
(b)(3) of this section and specify all
different or additional practical
measures which the operator must take
to minimize damage to the environment
and National Forest System surface
resources;
(3) Review the schedule the operator
proposes pursuant to paragraph (b)(4) of
this section for the implementation of
all measures identified by the operator
and specify any practical revision of the
schedule which the operator must
implement to minimize damage to the
environment and National Forest
System surface resources;
(4) Specify a practical schedule for the
operator’s implementation of all
measures required by the authorized
officer pursuant to paragraph (c)(2) of
this section; and
(5) Authorize any departure from the
requirements of § 228.9(k)(2)(ii) which
the authorized officer deems
appropriate.
(d) If the duration of a cessation of
operations will exceed one year, the
process set forth in paragraphs (a)
through (c) of this section, as applicable,
must be completed at the beginning of
the second and successive years.
(e) Throughout any cessation of
operations, the operator must maintain
a reclamation bond complying with
§ 228.13(a) through (c). When a
cessation of operations will exceed, or
has exceeded, one season and the
applicable approved plan of operations
does not specify the amount of bond
coverage the operator must maintain
during a cessation of operations that is
not seasonal, the operator also must:
(1) Augment the existing reclamation
bond by the amount the authorized
officer required to cover the operator’s
interim obligations pursuant to this
section; or
(2) Provide a separate reclamation
bond complying with the applicable
requirements of § 228.13(a) through (c)
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in the amount the authorized officer
required to cover the operator’s interim
obligations pursuant to this section.
(f) If the authorized officer determines
an operator has ceased operations, the
cessation is not attributable to seasonal
considerations, and the operator has not
filed a cessation of operations statement
with the District Ranger pursuant to
paragraphs (a) or (b) of this section, the
authorized officer will require the
operator to comply with the applicable
paragraph within 30 days.
§ 228.12
Access for operations.
(a) An operator is entitled to
reasonable access to conduct locatable
mineral operations on National Forest
System lands providing that such
access:
(1) Is not prohibited by Federal law or
regulation; and
(2) Complies with applicable
requirements set forth elsewhere in this
chapter, including, but not limited to,
§ 228.14, and parts 212 and 261 of this
chapter.
(b) The operator must utilize existing
means of access when it is economically
and technically practical.
(c) The operator must not construct,
reconstruct, or improve a road, trail,
bridge, landing area for aircraft, or
another access facility located on
National Forest System lands before a
complete bonded notice or an approved
plan of operations providing for such
work takes effect.
(d) A complete bonded notice or an
approved plan of operations must:
(1) Identify the means of access the
operator will use in conducting
operations on National Forest System
lands;
(2) Specify the location, and, if
applicable, the route, of all roads, trails,
bridges, landing areas for aircraft, and
other access facilities located on
National Forest System lands which the
operator must use in conducting the
operations; and
(3) Specify the design standards for all
roads, trails, bridges, landing areas for
aircraft, and other access facilities
located on National Forest System lands
the operator must use in conducting the
operations.
(e) When an operator is conducting
operations on National Forest System
lands, the Forest Service may elect to
regulate access on National Forest
System lands sought by the operator to
perform associated work on lands for
which a patent has been issued
pursuant to the United States mining
laws by means of a complete bonded
notice or an approved plan of
operations. Such access to perform
associated work on private lands is
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subject to the requirements of this
subpart provided that:
(1) Nothing in this subpart is deemed
to abridge any independent right the
operator has to such access; and
(2) Nothing in this subpart is deemed
to confer an independent right to such
access upon the operator.
rwilkins on PROD1PC63 with PROPOSALS
§ 228.13 Reclamation bonds for bonded
notices and plans of operation.
(a) The operator must provide the
Forest Service a reclamation bond
before a complete bonded notice or an
approved plan of operations takes effect
pursuant to § 228.5(d) or § 228.6(e),
respectively. The reclamation bond
must comply with this paragraph and
paragraph (b) of this section, and be in
the amount calculated pursuant to
paragraph (c) of this section.
(1) An operator who will be
authorized to conduct a single operation
requiring a complete bonded notice or
an approved plan of operations must
furnish an individual reclamation bond.
(2) An operator, who will be
authorized to conduct operations under
two or more bonded notices, plans of
operations, or a combination thereof,
may furnish:
(i) An individual reclamation bond for
any complete bonded notice or
approved plan of operations; or
(ii) A blanket reclamation bond
covering statewide or nationwide
operations, providing the amount of the
reclamation bond is at least equal to the
cost to reclaim all operations covered by
the reclamation bond as calculated
pursuant to paragraph (c) of this section.
(A) Upon the authorized officer’s
request, the operator must provide
information demonstrating the amount
of a blanket reclamation bond is at least
equal to the aggregate cost to reclaim all
operations covered by that reclamation
bond.
(B) The operator must immediately
inform all District Rangers
administering lands on which
operations covered by a blanket
reclamation bond are currently
authorized whenever the amount of
such reclamation bond becomes less
than the aggregate cost to reclaim all
operations covered by the reclamation
bond.
(b) One form of reclamation bond an
operator may furnish is a surety bond
naming the USDA Forest Service as a
beneficiary, satisfies the requirements of
Treasury Department Circular 570, and
is available in full to the Forest Service.
(1) In lieu of furnishing a surety bond
as the required reclamation bond, the
operator may use a depository of funds
approved by the Forest Service to:
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(i) Deposit cash in an amount equal to
the required dollar amount of the
reclamation bond; or
(ii) Deposit negotiable securities of the
United States having a market value at
the time of deposit not less than the
required dollar amount of the
reclamation bond.
(2) The operator can use any
combination of acceptable surety bonds,
cash or negotiable securities of the
United States as the reclamation bond
providing the total amount of these
instruments equals the estimated cost to
reclaim National Forest System lands
calculated pursuant to paragraph (c) of
this section.
(3) When reclamation an operator is
required to complete includes long-term
monitoring, maintenance, or treatment
measures to prevent or otherwise
minimize onsite or off-site damage to
National Forest System surface
resources, the operator also may
establish an escrow account in a
depository of funds approved by the
Forest Service to finance those
measures, providing the escrow
account’s annual earnings will be
adequate to perform all such required
measures annually on National Forest
System lands. When the operator
establishes an acceptable escrow
account, the amount of the reclamation
bond the operator must furnish
pursuant to paragraph (a) of this section
will be reduced by the amount of the
reclamation cost attributable to the
performance of required long-term
monitoring, maintenance, or treatment
measures as estimated pursuant to
paragraph (c) of this section.
(c) After the District Ranger or another
authorized officer advises the operator
in writing that a bonded notice is
complete or a plan of operations is
approved pursuant to § 228.5(d) or
§ 228.6(e), respectively, the operator
must provide the Forest Service officer
an estimate of the cost to reclaim
National Forest System lands along with
an explanation sufficient to show how
the estimate was calculated.
(1) The estimate must set forth the
cumulative cost of fully reclaiming all
National Forest System lands affected
by the operations in accordance with
the requirements of § 228.9(i),
§ 228.9(k), and the applicable complete
bonded notice or approved plan of
operations, assuming the Forest Service
were to hire a contractor to perform all
required reclamation.
(2) In estimating the cost to reclaim
fully National Forest System lands, no
value will be given to any property,
such as structures, whether temporary
or permanent, other facilities and
personal property, including equipment,
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that an operator is required to remove
from the area of operations in
accordance with § 228.9(i).
(3) The operator’s estimate of the cost
to reclaim National Forest System lands
must be acceptable to the Forest Service.
(d) The operator must maintain a
reclamation bond complying with the
requirements of this section until the
reclamation bond is fully released
pursuant to paragraph (e) of this section
or the reclamation bond is completely
forfeited pursuant to paragraph (f) of
this section.
(e) When the authorized officer
believes there has been a change in
conditions relevant to reclamation of an
operation conducted pursuant to an
approved plan of operations, the officer
may reassess the adequacy of the
existing reclamation bond. The
authorized officer will consider whether
the residual amount of the reclamation
bond equals the current cost of all
remaining required reclamation as
estimated by the authorized officer in
accordance with paragraph (c) of this
section. The authorized officer also will
consider whether the reclamation bond
otherwise currently satisfies paragraphs
(a) and (b) of this section.
(1) When the authorized officer finds
the residual amount of the reclamation
bond exceeds the current cost of all
remaining required reclamation, as
estimated by the authorized officer in
accordance with paragraph (c) of this
section, within 30 days the authorized
officer will:
(i) Calculate the amount of the
reclamation bond to be released by
subtracting such estimated cost of
reclamation from the residual amount of
the reclamation bond;
(ii) Release, or send the person who
provided or holds the reclamation bond
written authorization to release, the
amount of the reclamation bond
calculated in accordance with paragraph
(e)(1)(i) of this section; and
(iii) Send the operator a copy of any
letter described in paragraph (e)(1)(ii) of
this section.
(2) When the authorized officer
believes the current cost of all
remaining required reclamation, as
estimated by the authorized officer in
accordance with paragraph (c) of this
section, exceeds the residual amount of
the reclamation bond or such
reclamation bond otherwise does not
satisfy paragraphs (a) and (b) of this
section, the authorized officer will:
(i) Provide notice to the operator in
writing which:
(A) Sets forth the reasons why the
authorized officer believes
augmentation of the reclamation bond’s
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amount or other adjustment of the
reclamation bond is required;
(B) Explains the assumptions and
calculations the authorized officer
utilized in proposing any augmentation
of the reclamation bond’s amount; and
(C) Gives the operator not less than 30
days to respond and show cause why
the authorized officer should not require
augmentation or adjustment of the
reclamation bond.
(ii) Consider the operator’s response
and all other information in the
administrative record in deciding
whether to require augmentation or
adjustment of the reclamation bond.
(iii) Issue a decision stating whether
augmentation or adjustment of the
reclamation bond is required, and if the
decision requires augmentation or
adjustment of the reclamation bond, the
decision also will:
(A) Explain its basis;
(B) Specify any required
augmentation of the reclamation bond’s
amount or any other adjustment of the
reclamation bond;
(C) Specify the date by which the
operator must provide the authorized
officer proof the reclamation bond has
been augmented or adjusted in
accordance with the terms of the
authorized officer’s decision; and
(D) Identify any opportunity for the
operator to file an administrative appeal
of the decision.
(3) If the operator fails to comply with
a decision requiring augmentation or
other adjustment of the reclamation
bond issued pursuant to paragraph
(e)(2)(iii) of this section by the date
specified in the decision, or any
extension thereof, the authorized officer
will take appropriate enforcement
action in accordance with § 228.8.
(f) The authorized officer will release,
or send the person who provided or
holds the reclamation bond written
authorization to release, the reclamation
bond, in whole or in part, as specified,
after:
(1) The operator replaces the existing
reclamation bond, in whole or in part,
with a new reclamation bond satisfying
the requirements of paragraphs (a)
through (c) of this section, in which case
the amount of the previous bond that
will be released is calculated by
subtracting the current cost of all
remaining required reclamation, as
estimated by the authorized officer in
accordance with paragraph (c) of this
section, from the total of the residual
amount of the previous bond plus the
amount of the new bond; or
(2) The Forest Service accepts any
portion of final reclamation as having
been completed in accordance with
§ 228.9(i), § 228.9(k), and the complete
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bonded notice or the approved plan of
operations then in effect, in which case
the amount of the reclamation bond that
will be released is calculated by
subtracting the current cost of all
remaining required reclamation, as
estimated by the authorized officer in
accordance with paragraph (c) of this
section, from the residual amount of the
reclamation bond.
(g) An authorized officer considering
forfeiture of an operator’s reclamation
bond will:
(1) Initiate forfeiture of all or part of
the reclamation bond as necessary to
complete reclamation of National Forest
System lands affected by the operations
in accordance with the requirements of
§ 228.9(i), § 228.9(k), and the applicable
complete bonded notice or approved
plan of operations when:
(i) The operator refuses or is unable to
complete reclamation required by
§ 228.9(i), § 228.9(k), and the applicable
complete bonded notice or approved
plan of operations;
(ii) The operator fails to take an action
on which the continuation of the
reclamation bond is conditioned;
(iii) A petition has been filed under
the Bankruptcy Code, 11 U.S.C. 101 et
seq., by the operator or the operator’s
creditors; or
(iv) The authorized officer determines
reclamation is necessary to prevent
environmental damage resulting from
the operator’s cessation of operations.
(2) Provide notice to the operator, and
the reclamation bond surety, if
applicable, in writing which:
(i) Sets forth the reasons why the
authorized officer believes forfeiture of
the reclamation bond is warranted;
(ii) Identifies the required reclamation
the operator has not performed;
(iii) Specifies the amount of the bond
to be forfeited based on the current cost
of all required reclamation as estimated
by the authorized officer in accordance
with paragraph (c) of this section;
(iv) Gives the operator not less than
15 days to respond and show cause why
the authorized officer should not forfeit
the operator’s reclamation bond; and
(v) Advises the operator may avoid
forfeiture if, within 20 days or the
period otherwise specified by the
authorized officer, the operator:
(A) Begins the required reclamation in
accordance with § 228.9(i), § 228.9(k),
and the complete bonded notice or the
approved plan of operations;
(B) Demonstrates, in writing, to the
authorized officer’s satisfaction that the
operator will promptly complete the
required reclamation in accordance with
§ 228.9(i), § 228.9(k), and the complete
bonded notice or the approved plan of
operations; or
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(C) Demonstrates, in writing, to the
authorized officer’s satisfaction how
another person will promptly complete
the required reclamation and how this
person has the ability to do so in
accordance with § 228.9(i), § 228.9(k),
and the complete bonded notice or the
approved plan of operations.
(3) Consider any response submitted
by the operator and all other
information in the administrative record
in deciding whether to forfeit the
reclamation bond, in whole or in part.
(4) Issue a decision stating whether
forfeiture of the reclamation bond will
occur, and if the decision provides for
forfeiture of the reclamation bond, the
decision also will:
(i) Explain its basis;
(ii) Specify the amount of the
reclamation bond that will be forfeited;
and
(iii) Identify any opportunity for the
operator to file an administrative appeal
of the decision.
(5) Take appropriate enforcement
action in accordance with § 228.8 when
required reclamation is not promptly
completed in accordance with § 228.9(i),
§ 228.9(k), and the complete bonded
notice or the approved plan of
operations after the operator
demonstrated pursuant to paragraph
(g)(2)(v)(B) or paragraph (g)(2)(v)(C) of
this section the operator or another
person, respectively, would promptly
complete such reclamation.
(6) Refund to the operator, or if
applicable the reclamation bond surety,
any amount of the forfeited reclamation
bond exceeding the cost of completing
the required reclamation.
§ 228.14 Operations on withdrawn or
segregated National Forest System lands
including National Forest Wilderness.
(a) The United States mining laws
apply to each National Forest
Wilderness for the period specified by
the Wilderness Act or subsequent
establishing legislation to the same
extent these laws were applicable prior
to the date the Wilderness was
designated by Congress as a part of the
National Wilderness Preservation
System.
(b) A person who holds a mining
claim valid immediately prior to the
inclusion of the lands encompassed by
the mining claim within a National
Forest Wilderness will be:
(1) Accorded the rights provided by
the United States mining laws as
applicable before the lands were added
to the National Wilderness Preservation
System; and
(2) Permitted access to such mining
claim, providing the mining claim is
wholly within the Wilderness, by means
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consistent with the preservation of the
Wilderness that have been or are being
customarily used to access other valid
mining claims completely surrounded
by National Forest Wilderness.
(c) A person who holds a mining
claim located on or after the date on
which the lands encompassed by the
mining claim were added to the
National Wilderness Preservation
System will:
(1) Be accorded the rights provided by
the United States mining laws as then
applicable to the land subject to all
provisions specified by the establishing
legislation; and
(2) Have no right or interest, subject
to valid existing rights, in or to any
locatable mineral deposit discovered,
through prospecting, exploration, or
otherwise uncovering the deposit, after
the date on which the United States
mining laws ceased to apply to the
Wilderness.
(d) Within a National Forest
Wilderness, an operator must:
(1) Limit the operations conducted to
those then authorized by the United
States mining laws, subject to valid
existing rights;
(2) Conduct all operations in
compliance with an approved plan of
operations then in effect and the
regulations set forth in this subpart;
(3) Refrain from constructing roads
prior to obtaining written authorization
to do so from the appropriate Forest
Supervisor in accordance with
§ 228.12(c); and
(4) Have the right to cut and use the
volume of mature timber needed for the
extraction, removal, and beneficiation of
a valuable locatable mineral deposit,
providing:
(i) Such timber is not otherwise
reasonably available; and
(ii) Such timber is cut in compliance
with § 223.30 of this chapter and
provisions set forth in the approved
plan of operations reflecting sound
principles of forest management, which
as a minimum require the operator to:
(A) Harvest the timber in a manner
which minimizes soil movement and
damage from water runoff; and
(B) Take precautionary measures,
including disposal of slash, to minimize
damage to surface resources from forest
insects, disease or fire related to the
timber harvest.
(e) As authorized by the Wilderness
Act, 16 U.S.C. 1133(d)(2), the Chief,
Forest Service, will allow any activity,
including prospecting, for the purpose
of gathering information about minerals
occurring within National Forest
Wilderness:
(1) Drawing no distinction as to
whether those minerals would be
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subject to location under the United
States mining laws absent their
withdrawal from those laws pursuant to
16 U.S.C. 1133(d)(3) or subsequent
establishing legislation;
(2) Specifying no person will have
any right or interest in or to any mineral
deposit discovered through such
activity; and
(3) Requiring that such activity be:
(i) Conducted in accordance with an
approved plan of operations and all
requirements of this subpart applicable
to a proposed or approved plan of
operations; and
(ii) Carried on in a manner compatible
with the preservation of the wilderness
environment as specified by the
approved plan of operations.
(f) After the date on which the lands
are withdrawn from appropriation
under the United States mining laws,
the authorized officer will not approve
a plan of operations until the Forest
Service has prepared a mineral
examination report to consider whether
the mining claim was valid before the
withdrawal, and whether it remains
valid. The authorized officer also may
require preparation of a mineral
examination report before approving a
plan of operations or determining that a
bonded notice is complete for
operations on segregated National Forest
System lands. When the report finds
that a mining claim is invalid and the
operator declines to revise the proposed
operations to avoid the withdrawn or
segregated National Forest System lands
in question, the Forest Service will also
request that BLM promptly initiate
contest proceedings to determine the
validity of all mining claims in
question.
(g) If the Forest Service has not
completed a mineral examination report
being prepared in accordance with
paragraph (f) of this section, if a
completed mineral examination report
prepared in accordance with paragraph
(f) of this section finds that a mining
claim is invalid, or if the validity of a
mining claim subject to paragraph (f) of
this section is the subject of a mineral
contest or a federal judicial proceeding:
(1) Insofar as the National Forest
System lands in question have been
withdrawn from the operation of the
United States mining laws, the
authorized officer may:
(i) Approve a plan of operations for
proposed operations on a disputed
mining claim that are limited to taking
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
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15713
(ii) Approve a plan of operations for
the operator to perform the minimum
necessary annual assessment work on a
disputed mining claim.
(2) Insofar as National Forest System
lands in question have been segregated
from the operation of the United States
mining laws, the authorized officer may:
(i) Take the actions specified in
paragraphs (g)(1)(i) and (ii) of this
section; and
(ii) Review for completeness a bonded
notice for proposed operations on a
disputed mining claim that are limited
to taking samples to confirm or
corroborate mineral exposures that were
physically disclosed and existing on the
mining claim before the segregation
date.
(h) While a mineral examination
report is being prepared, initiation of a
mineral contest is being considered, or
the validity of the mining claim is the
subject of a mineral contest or federal
judicial proceeding, the Forest Service
may suspend the time limit for
responding to a proposed bonded notice
or acting on a proposed plan of
operations set forth in § 228.5(b) and
§ 228.6(c), respectively.
(i) When a mining claim has been
conclusively determined to lack valid
existing rights, whether by virtue of a
Forest Service mineral examination
report, a mineral contest, of Federal
judicial proceedings, the operator must
cease all operations, except required
reclamation.
§ 228.15
Administrative appeals.
Decisions made by Forest Service
officers pursuant to part 228, subpart A
may be subject to appeal by the operator
in accordance with part 251, subpart C,
of this chapter.
§ 228.16
Applicability of this subpart.
(a) Newly proposed operations. This
subpart applies to all operations
proposed by an operator or after [Insert
Effective Date of the Final Rule].
(b) Preexisting notice of intent to
conduct operations. The operator may
continue to conduct operations for 2
years after [Insert Effective Date of the
Final Rule] under the terms of a notice
of intent to conduct operations and the
regulations in effect immediately before
that date (see 36 CFR parts 200 to 299,
revised as of July 1, 2007) providing:
(1) Such notice of intent to conduct
operations was properly filed with the
Forest Service more than 15 days prior
to [Insert Effective Date of the Final
Rule], the authorized officer has not
since advised the operator the
operations require an approved plan of
operations, and such notice of intent to
conduct operations remains in effect on
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[Insert Effective Date of the Final Rule];
or
(2) Such notice of intent to conduct
operations was properly filed with the
Forest Service 15 or fewer days before
[Insert Effective Date of the Final Rule]
unless the District Ranger, within 15
days of receiving the notice of intent to
conduct operations, advises the operator
that the proposed operations require an
approved plan of operations.
(c) Preexisting proposed plans of
operation. Where an operator had
properly filed a proposed plan of
operations with the Forest Service
before [Insert Effective Date of the Final
Rule] but such plan of operations had
not been approved or had not taken
effect before that date, the operator is
subject:
(1) To the provisions of this subpart
except the plan of operations content
requirements, § 228.4(f)(4), and the
environmental protection requirements,
§ 228.9; and
(2) To the plan of operations content
requirements and the requirements for
environmental protection set forth in
the regulations in effect immediately
before [Insert Effective Date of the Final
Rule]. (See 36 CFR 228.4(c) and (d), and
36 CFR 228.8 (2007).)
(d) Preexisting approved plan of
operations. Where an operator had
obtained approval of plan of operations
before [Insert Effective Date of the Final
Rule] and such plan of operations
remains in effect on that date, the
operator:
(1) Shall post a reclamation bond
complying with the requirements of this
subpart no later than [Insert Date 180
Days After the Effective Date of the
Final Rule] unless—
(i) The operator had posted a bond
prior to [Insert Effective Date of the
Final Rule] which complied with the
regulations in effect immediately before
that date (see 36 CFR 228.13 (2007));
and
(ii) The bond complying with
paragraph (d)(1)(i) of this section
remains in effect and satisfies the
requirements of this subpart.
(2) Is otherwise subject to the
provisions of this subpart except the
plan of operations content requirements,
§ 228.4(f)(4), and the environmental
protection requirements, § 228.9.
(3) Is subject to the plan of operations
content requirements and the
requirements for environmental
protection set forth in the regulations in
effect immediately before [Insert
Effective Date of the Final Rule]. (See 36
CFR 228.4(c) and (d), and 36 CFR 228.8
(2007).)
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(4) Is subject to the terms and
conditions of such approved plan of
operations.
(e) Preexisting unapproved
modifications of approved plans of
operation. Where an operator had
properly filed with the Forest Service a
proposed modification of a plan of
operations that had been approved and
had taken effect before [Insert Effective
Date of the Final Rule] and remains in
effect, but such modification had not
been approved or had not taken effect
before that date, the operator is subject:
(1) To the provisions of this subpart,
including paragraph (d)(1) of this
section, except the plan of operations
content requirements, § 228.4(f)(4), and
the environmental protection
requirements, § 228.9;
(2) To the plan of operations content
requirements and the requirements for
environmental protection set forth in
the regulations in effect immediately
before [Insert Effective Date of the Final
Rule]. (see 36 CFR 228.4(c) and (d), and
36 CFR 228.8 (2007)); and
(3) With respect to all operations not
governed by the plan of operations
modification, to the terms and
conditions of the unmodified plan of
operations.
(f) Newly proposed modifications of
preexisting approved plans of operation.
Where an operator, on or after [Insert
Effective Date of the Final Rule] files
with the Forest Service a proposed
modification of a plan of operations that
had been approved and had taken effect
before that date and remains in effect,
the operator is subject either to
paragraph (f)(1) or (f)(2) of this section,
depending upon the scope of the
proposed modification. In either case,
the operator also is subject to paragraph
(f)(3) of this section.
(1) If the proposed modification will
govern operations subject to the
previously approved plan of operations,
the operator may seek to show to the
authorized officer’s satisfaction that it is
impractical for economic,
environmental, safety, or technical
reasons to apply the plan of operations
content requirements, § 228.4(f)(4), and
the environmental protection
requirements, § 228.9, to the plan of
operations modification.
(i) When the authorized officer finds
such impracticality, the operator, with
respect to the operations that will be
governed by the modification, is subject:
(A) To the provisions of this subpart
except the plan of operations content
requirements, § 228.4(f)(4), and the
environmental protection requirements,
§ 228.9; and
(B) To the plan of operations content
requirements and the requirements for
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environmental protection set forth in
the regulations in effect immediately
before [Insert Effective Date of the Final
Rule] (See 36 CFR 228.4(c) and (d), and
36 CFR 228.8 (2007)).
(ii) When the authorized officer does
not find such impracticality, the
operator is subject to this subpart with
respect to the operations governed by
the modification.
(2) If the proposed modification will
govern new operations or additional
acreage, the operator is subject to this
subpart with respect to such operations
and such acreage.
(3) With respect to all operations not
governed by the plan of operations
modification, the operator is subject:
(i) To the provisions of this subpart,
including paragraph (d)(1) of this
section, except the plan of operations
content requirements, § 228.4(f)(4), and
the environmental protection
requirements, § 228.9;
(ii) To the plan of operations content
requirements and the requirements for
environmental protection set forth in
the regulations in effect immediately
before [Insert Effective Date of the Final
Rule] (see 36 CFR 228.4(c) and (d), and
36 CFR 228.8 (2007)); and
(iii) To the terms and conditions of
the preexisting approved plan of
operations.
(g) Other preexisting operations. This
subpart applies to all preexisting
operations not subject to paragraphs (b)
through (f) of this section that were not
completed before [Insert Effective Date
of the Final Rule] in accordance with
the terms and conditions of any
applicable notice of intent to conduct
operations or approved plan of
operations, or in compliance with the
regulations in effect immediately before
[Insert Effective Date of the Final Rule].
(See 36 CFR parts 200 to 299, revised as
of July 1, 2007.)
(h) Optional applicability. An
operator may choose to have this
subpart apply to any notice of intent to
conduct operations or any plan of
operations submitted to the Forest
Service before [Insert Effective Date of
the Final Rule], where not otherwise
required.
PART 261—PROHIBITIONS
5. The authority citation for part 261
continues to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472,
551, 620(f), 1133(c), (d)(1), 1246(i).
Subpart A—General Prohibitions
6. In § 261.2, revise the definition of
‘‘operating plan’’ and add a definition of
‘‘residence’’ to read as follows:
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§ 261.2
Definitions.
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Operating plan means the following
documents, providing the document has
been issued, approved, or found
complete by the Forest Service: A plan
of operations as provided for by 36 CFR
part 228, subparts A and D, and 36 CFR
part 292, subparts C and G; a
supplemental plan of operations as
provided for by 36 CFR part 228,
subpart A, and 36 CFR part 292, subpart
G; a complete bonded notice as
provided for by 36 CFR part 228,
subpart A; an operating plan as
provided for by 36 CFR part 228,
subpart C, and 36 CFR part 292, subpart
G; an amended operating plan and a
reclamation plan as provided for by 36
CFR part 292, subpart G; a surface use
plan of operations as provided for by 36
CFR part 228, subpart E; a supplemental
surface use plan of operations as
provided for by 36 CFR part 228,
subpart E; a permit as provided for by
36 CFR 251.15; and an operating plan
and a letter of authorization as provided
for by 36 CFR part 292, subpart D.
*
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*
Residence means any structure or
shelter, whether temporary or
permanent, including, but not limited
to, buildings, buses, cabins, campers,
houses, lean-tos, mills, mobile homes,
motor homes, pole barns, recreational
vehicles, sheds, shops, tents and
trailers, which is being used, capable of
being used, or designed to be used, in
whole or in part, full or part-time, as
living or sleeping quarters by any
person, including a guard or watchman.
*
*
*
*
*
7. In § 261.10, revise paragraphs (a),
(b) and (l); and add paragraphs (p) and
(q) to read as follows:
§ 261.10
Occupancy and use.
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*
*
*
(a) Constructing, improving,
maintaining, occupying, placing,
repairing, reconstructing, retaining, or
using any kind of road, trail, structure,
fence, gate, enclosure, communications
equipment, or other improvement on
National Forest System land or facilities
without a special-use authorization,
contract, complete bonded notice, or
approved operating plan when such
authorization is required.
(b) Constructing, improving,
maintaining, placing, protecting,
repairing, reconstructing, retaining, or
using a residence on National Forest
System land unless authorized by a
special-use authorization, a complete
bonded notice, or an approved operating
VerDate Aug<31>2005
16:26 Mar 24, 2008
Jkt 214001
plan when such authorization is
required.
*
*
*
*
*
(l) Violating any term or condition of
a special-use authorization, contract,
complete bonded notice, or an approved
operating plan.
*
*
*
*
*
(p) Use or occupancy of National
Forest System land or facilities without
a complete bonded notice or an
approved operating plan when such
authorization is required.
(q) Storing equipment, machinery,
parts, process materials, spent materials,
supplies, tools and vehicles without a
complete bonded notice or an approved
operating plan when such authorization
is required.
PART 292—NATIONAL RECREATION
AREAS
Subpart D—Sawtooth National
Recreation Area—Federal Lands
8. The authority citation for part 292,
subpart D continues to read as follows:
Authority: Sec. 1, 30 Stat. 35, 36, as
amended, 16 U.S.C. 478, 551; sec. 11, 86 Stat.
612, 16 U.S.C. 460aa–10.
9. Revise the first sentence of
paragraph (a) of § 292.17 to read as
follows:
§ 292.17
General provisions.
(a) The use, management and
utilization of natural resources on the
Federal lands within the Sawtooth
National Recreation Area (SNRA) are
subject to the General Management Plan
and the laws, rules, and regulations
pertaining to the National Forests with
the exception that part 228, subpart A
of this chapter does not apply to these
resources. * * *
*
*
*
*
*
Subpart G—Smith River National
Recreation Area
10. The authority citation for part 292,
subpart G continues to read as follows:
Authority: 16 U.S.C. 460bbb et seq.
11. In § 292.63, revise the
introductory text of paragraph (c) to
read as follows:
§ 292.63 Plan of operations—
supplementary requirements.
*
*
*
*
*
(c) Minimum information on
proposed operations. In addition to the
requirements of paragraph (b) of this
section, a proposed plan of operations
must provide the information required
by § 228.4(f)(1) through (f)(4) of this
chapter which includes information
about the proponent and a detailed
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
15715
description of the proposed operation. If
the operator and mining claim owner
are different, the operator also must
submit a copy of the authorization or
agreement under which the proposed
operations are to be conducted. In
addition, a proposed plan of operations
must include measures to meet the
environmental protection requirements,
including acceptable reclamation, set
forth at § 228.9 of this chapter. A
proposed plan of operations also must
include the following:
*
*
*
*
*
12. Revise paragraph (e) of § 292.64 to
read as follows:
§ 292.64
Plan of operations—approval.
*
*
*
*
*
(e) Upon completion of the review of
the plan of operations, the authorized
officer will ensure the minimum
information required by § 292.63(c) has
been addressed and, pursuant to
§ 228.6(c) of this chapter, notify the
operator in writing whether or not the
plan of operations is approved.
*
*
*
*
*
PART 293—WILDERNESS—PRIMITIVE
AREAS
13. The authority citation for part 293
continues to read as follows:
Authority: 16 U.S.C. 551, 1131–1136 and
92 Stat.1649.
14. In § 293.2, revise the first sentence
of the introductory text to read as
follows:
§ 293.2
Objectives.
Except as otherwise provided by the
regulations of this part and part 228,
subpart A of this chapter, National
Forest Wilderness will be so
administered as to meet the public
purposes of recreational, scenic,
scientific, educational, conservation,
and historical uses; and it also will be
administered for such other purposes
for which it may have been established
in such a manner as to preserve and
protect its wilderness character. * * *
*
*
*
*
*
15. In § 293.15, revise the second
sentence of paragraph (a) to read as
follows:
§ 293.15 Gathering information about
resources other than minerals.
(a) * * * Prospecting for minerals or
any activity for the purpose of gathering
information about minerals within
National Forest Wilderness is subject to
the regulations set forth at part 228,
subpart A of this chapter.
*
*
*
*
*
E:\FR\FM\25MRP1.SGM
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15716
Federal Register / Vol. 73, No. 58 / Tuesday, March 25, 2008 / Proposed Rules
Dated: March 14, 2008.
Joel D. Holthrop,
Deputy Chief, National Forest System.
[FR Doc. E8–5746 Filed 3–24–08; 8:45 am]
BILLING CODE 3410–11–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
RIN 0648–AP60
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Atlantic
Mackerel, Squid, and Butterfish
Fisheries; Amendment 9
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability of a fishery
management plan amendment; request
for comments.
rwilkins on PROD1PC63 with PROPOSALS
AGENCY:
SUMMARY: NMFS announces that the
Mid-Atlantic Fishery Management
Council (Council) has submitted
Amendment 9 to the Atlantic Mackerel,
Squid, and Butterfish (MSB) Fishery
Management Plan (FMP) (Amendment
9), incorporating the public hearing
document and the Initial Regulatory
Flexibility Analysis (IRFA), for review
by the Secretary of Commerce and is
requesting comments from the public.
The goal of Amendment 9 is to remedy
deficiencies in the FMP and to address
other issues that have arisen since
Amendment 8 to the FMP became
effective in 1999. Amendment 9 would
establish multi-year specifications for
all four species managed under the FMP
(mackerel, butterfish, Illex squid (Illex),
and Loligo squid (Loligo)) for up to 3
years; extend the moratorium on entry
into the Illex fishery, without a sunset
provision; adopt biological reference
points recommended by the Stock
Assessment Review Committee (SARC)
for Loligo; designate essential fish
habitat (EFH) for Loligo eggs based on
best available scientific information;
and prohibit bottom trawling by MSBpermitted vessels in Lydonia and
Oceanographer Canyons.
DATES: Comments must be received on
or before May 27, 2008.
ADDRESSES: A final supplemental
environmental impact statement (FSEIS)
was prepared for Amendment 9 that
describes the proposed action and other
considered alternatives and provides a
VerDate Aug<31>2005
16:26 Mar 24, 2008
Jkt 214001
thorough analysis of the impacts of the
proposed measures and alternatives.
Copies of Amendment 9, including the
FSEIS, the Regulatory Impact Review
(RIR), and the Initial Regulatory
Flexibility Analysis (IRFA), are
available from: Daniel Furlong,
Executive Director, Mid-Atlantic
Fishery Management Council, Room
2115, Federal Building, 300 South New
Street, Dover, DE 19904–6790. The
FSEIS/RIR/IRFA is accessible via the
Internet at https://www.nero.nmfs.gov.
Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking portalhttps://
www.regulations.gov;
• Fax: (978) 281–9135, Attn: Carrie
Nordeen;
• Mail to Patricia A. Kurkul, Regional
Administrator, NMFS, Northeast
Regional Office, One Blackburn Drive,
Gloucester, MA 01930. Mark the outside
of the envelope ‘‘Comments on MSB
Amendment 9.’’
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information
(e.g., name, address, etc.) voluntarily
submitted by the commenter may be
publicly accessible. Do not submit
Confidential Business Information or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments. Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF formats only.
SUPPLEMENTARY INFORMATION:
Background
This amendment is needed to remedy
deficiencies in the FMP and to address
other issues that have arisen since
Amendment 8 to the FMP (64 FR 57587,
October 26, 1999) became effective in
1999. Although Amendment 8 was
partially approved in 1999, NMFS noted
that the amendment inadequately
addressed some Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act)
requirements for Federal FMPs.
Specifically, the amendment was
considered deficient with respect to:
Consideration of fishing gear impacts on
EFH as they relate to MSB fisheries;
designation of EFH for Loligo eggs; and
the reduction of bycatch and discarding
of target and non-target species in the
MSB fisheries.
An earlier draft of Amendment 9,
adopted by the Council on February 15,
2007, contained several management
measures intended to address
deficiencies in the MSB FMP that relate
to discarding, especially as they affect
PO 00000
Frm 00039
Fmt 4702
Sfmt 4702
butterfish. Specifically, these
management measures would have
attempted to reduce finfish discards by
MSB small-mesh fisheries through mesh
size increases in the directed Loligo
fishery, removal of mesh size
exemptions for the directed Illex fishery,
and establishment of seasonal Gear
Restricted Areas (GRAs). However, these
specific management alternatives were
developed in 2004, prior to the
butterfish stock being declared
overfished.
In February 2005, NMFS notified the
Council that the butterfish stock was
overfished and this triggered MagnusonStevens Act requirements to implement
rebuilding measures for the stock. In
response, Amendment 10 to the FMP
was initiated by the Council in October
2005. Amendment 10 contains a
rebuilding program for butterfish with
management measures designed to
reduce the fishing mortality on
butterfish that occurs through
discarding. Management measures that
reduce the discarding of butterfish are
expected to also reduce the bycatch of
other finfish species in MSB fisheries.
On June 13, 2007, the Council
recommended that all management
measures developed as part of
Amendment 9 to correct deficiencies in
the FMP related to bycatch of finfish,
especially butterfish, be considered in
Amendment 10. Accordingly, no action
is proposed in Amendment 9 to address
these issues. Through the development
and implementation of Amendment 10,
each of the measures to reduce the
bycatch of finfish will be given full
consideration. Additionally,
Amendment 10 will include updated
analyses on the effects of the
alternatives and, as Amendment 10 is
expected to be implemented soon after
Amendment 9, no meaningful delay in
addressing the bycatch deficiencies in
the FMP should occur.
The final version of Amendment 9
contains alternatives that consider
allowing for multi-year specifications
and management measures, extending
or eliminating the moratorium on entry
to the directed Illex fishery, revising the
biological reference points for Loligo,
designating EFH for Loligo eggs,
implementing area closures to reduce
gear impacts from MSB fisheries on EFH
of other federally-managed species,
increasing the incidental possession
limit for Illex vessels during a closure of
the Loligo fishery, and requiring realtime electronic reporting via vessel
monitoring systems in the Illex fishery.
The Council held four public meetings
on Amendment 9 during May 2007.
Following the public comment period
that ended on May 21, 2007, the Council
E:\FR\FM\25MRP1.SGM
25MRP1
Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
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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