Clarification for the Appropriate Use of a Criminal or a Civil Citation To Enforce Mineral Regulations, 65984-65999 [E8-26448]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 73, Number 216 (Thursday, November 6, 2008)]
[Rules and Regulations]
[Pages 65984-65999]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26448]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 261

RIN 0596-AC38


Clarification for the Appropriate Use of a Criminal or a Civil 
Citation To Enforce Mineral Regulations

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends certain Forest Service regulations to 
allow, if necessary, for a criminal citation to be issued for 
unauthorized mineral operations on National Forest System (NFS) lands.

DATE: The final rule is effective December 8, 2008.

ADDRESSES: The documents used to develop this final rule, along with 
comments, including names and addresses when provided are placed in the 
record and are available for inspection and copying. The public may 
copy or inspect these items at the Office of the Director, Minerals and 
Geology Management (MGM), Forest Service, USDA, 1601 N. Kent Street, 
5th Floor, Arlington, VA 22209 during regular business hours (8:30 a.m. 
to 4 p.m.), Monday through Friday except holidays. Visitors are 
encouraged to call ahead at (703) 605-4545 to facilitate entry into the 
building.

FOR FURTHER INFORMATION CONTACT: Ivette Torres, Minerals and Geology 
Management Staff, (703) 605-4792, or electronic mail to 
itorres@.fs.fed.us. 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 Standard Time, Monday 
through Friday.

SUPPLEMENTARY INFORMATION:

[[Page 65985]]

Background and Need for Proposed Rule

    The Forest Service currently uses two enforcement options, civil 
and criminal, to enforce its mining regulations at 36 CFR part 228, 
subpart A. Criminal enforcement pursuant to 36 CFR part 261, subpart A 
is often preferred in those situations that are factually 
straightforward and where immediate action is needed, and other 
resolutions have failed.
    In 1984, a federal district judge ruled in an unpublished decision, 
United States v. Craig, No. CR-82-8-H, slip op. at 9-10 (D. Mont. Apr. 
16, 1984), that the prohibitions at 36 CFR 261.10 did not apply to 
locatable mineral operations subject to 36 CFR part 228, subpart A. On 
August 4, 1983, during the pendency of the Craig prosecution, the 
Forest Service issued a proposed rule to amend 36 CFR part 261, subpart 
A. Among the proposed amendments to that subpart, were adding the 
phrase ``or approved operating plan'' at end of both 36 CFR 261.10(a) 
and the section presently designated as 36 CFR 261.10(l). On June 21, 
1984, the Forest Service adopted the proposed rule, including these 
amendments. The applicability of these sections to locatable mineral 
operations was further clarified in 1990 when a definition of the term 
``operating plan'' was added to 36 CFR 261.2.
    In United States v. McClure, 364 F. Supp.2d 1183, 1183-84 (E.D. 
Cal. 2005), the Forest Service cited the defendant for operating a gold 
mining suction dredge without obtaining prior Forest Service 
authorization. The citation charged the miner with violating 36 CFR 
261.10(k) which prohibits use or occupancy of NFS lands without a 
special use authorization. Id. 1183. The judge determined that the 
miner's gold dredging operations were subject to 36 CFR part 228, 
subpart A (id. at 1185) and consequently, pursuant to 36 CFR 251.50(a), 
those operations were not special uses for which a special use 
authorization may be issued (Id. 1186). Accordingly, the court 
dismissed the charge that the miner violated 36 CFR 261.10(k) by 
occupying NFS lands without a special use authorization. Id. 1187.
    Given the McClure decision, this Department believes it is again 
advisable to amend 36 CFR part 261, subpart A to clearly provide that 
conducting unauthorized locatable mineral operations subject to 36 CFR 
part 228, subpart A, or other unauthorized mineral operations subject 
to different subparts of 36 CFR part 228, is prohibited by 36 CFR part 
261, subpart A and may lead to the operator's criminal prosecution. The 
Regions dealing with suction dredge operators are particularly 
concerned about the effects of the two adverse rulings on their use of 
prohibitions set forth in 36 CFR part 261.
    The amendments to 36 CFR part 261, subpart A rely on the Forest 
Service's clear statutory authority to adopt regulations providing for 
the issuance of a criminal citation to persons who commit prohibited 
acts on NFS lands. The amendments reflect the clear distinction between 
a special-use authorization and an operating plan as those terms are 
defined at 36 CFR 261.2. They also define the term ``residence'' to 
clarify a prohibition concerning shelters and structures on NFS lands 
used as living or sleeping quarters. The amendments apply to all 
persons conducting mineral operations subject to any subpart of 36 CFR 
part 228, including locatable mineral operations subject to subpart A.
    The Forest Service recognizes that it cannot preclude use and 
occupancy of NFS lands for locatable mineral operations, including 
camping or residential use, if those operations are conducted so as to 
minimize their adverse environmental impacts, the operations are 
limited to locatable mineral prospecting, exploration, development, 
mining, processing, reclamation, closure and those uses reasonably 
incidental thereto, and the operations are appropriate in terms of 
their type, duration, and stage. However, this does not preclude Forest 
Service adoption of rules requiring written authorization for some or 
all of these operations by means such as a notice of intent to conduct 
operations or an approved plan of operations when the Forest Service 
deems it appropriate. Nonetheless, this rulemaking has no effect 
whatsoever on a miner conducting operations specified by 36 CFR 
228.4(a)(1) that do not require prior notice to the Forest Service. Nor 
does this rulemaking have any affect whatsoever on a miner's duty to 
submit a notice of intent to conduct locatable mineral operations, 
including reasonably incidental camping, which might cause significant 
disturbance of surface resources. Nor does this rulemaking have any 
effect whatsoever on a miner's need to obtain approval of a plan of 
operations, and if necessary, a reclamation bond, to conduct locatable 
mineral operations, including reasonably incidental camping, which will 
likely cause significant disturbance of surface resources. Those 
matters continue to be governed by 36 CFR part 228, subpart A.

Analysis of Public Comment

Overview

    The comment period opened on May 10, 2007, and closed on July 9, 
2007. Forty-three responses were received asking for an extension of 
the comment period and for public meetings. Most of these requests were 
identical in wording with just different names. The agency decided not 
to hold public meetings since it was the middle of the field season, 
but did reopen the comment period on the proposed rule for another 30 
day comment period, beginning on October 23, 2007, and closing on 
November 23, 2007. The Forest Service received a total of 86 responses 
to the proposed rule (72 FR 59979).
    Two comments were received in favor of the rule as written. Two 
industry organizations supported the basic idea of the proposed rule, 
but suggested minor revisions. Eighty-two comments were received that 
opposed the proposed rule primarily on the grounds that the Forest 
Service did not have the authority to use criminal citations for 
locatable mineral operations. Most of the 82 comments in opposition to 
the proposed rule were submitted by individuals, many of whom 
identified themselves as prospectors or miners in small scale mining 
operations.
    Commenters who opposed the rule primarily thought the Forest 
Service did not have the authority to issue criminal citations for 
locatable mineral operations. Almost invariably, they said 36 CFR part 
261, subpart A is statutorily inapplicable to persons conducting 
locatable mineral operations pursuant to the United States mining laws. 
Those respondents pointed to provisions of the Forest Service's Organic 
Administration Act of 1897 or the United States mining laws they said 
the rule would violate.
    Many of the respondents also said the rule would be inconsistent 
with existing Forest Service regulations pointing to three different 
parts of Title 36 of the Code of Federal Regulations. A small number of 
respondents opposed the rule on the ground that this rulemaking is 
invalid for other reasons. Most of them asserted that the rulemaking 
violates other Federal law or regulation. A few question the rule's 
consistency with other materials, not all of which are Federal.
    Several respondents' comments were obvious copies from comments 
sent in responding to the Federal Register Notice of July 9, 2004, (69 
FR 41428) ``Clarification as to When a Notice of Intent to operate and/
or Plan of Operations is Needed for Locatable Mineral Operations on 
National Forest System lands.'' These comments will

[[Page 65986]]

not be listed since they do not apply to this rulemaking. Many comments 
to the proposed rule were very similar in content. Consequently, 
similar comments were combined and responded to only once.
    All comments submitted on the proposed rule and the administrative 
record are available for review in the Office of the Director, Minerals 
and Geology Management, 1601 N. Kent St., 5th Floor, Arlington, 
Virginia 22209, during regular business hours (8:30 a.m. to 4 p.m.), 
Monday through Friday, except Federal holidays. Those wishing to view 
the comments and the administrative record should call in advance to 
arrange access to the building (See: For Further Information Contact).

General Comments

Occupancy and Forest ``Stay Limits''

    Several commenters asked for a clarification about how local forest 
``stay limits'' on recreational camping apply to locatable mineral 
activities. Regardless of the local stay limit, reasonably incidental 
residential use of NFS lands by persons conducting locatable mineral 
prospecting, exploration, mining, or processing that might cause 
significant disturbance of NFS surface resources requires prior 
submission of a notice of intent to conduct operations. Reasonably 
incidental residential use of NFS lands by persons conducting locatable 
mineral prospecting, exploration, mining, or processing that is likely 
to cause, or is causing, a significant disturbance of NFS surface 
resources must be authorized by an approved plan of operations. 
Reasonably incidental residential use of NFS lands by persons 
conducting locatable mineral prospecting, exploration, mining, or 
processing that will not cause significant disturbance of NFS surface 
resources does not require prior submission of a notice of intent to 
conduct operations or approval of a plan of operations. When the 
probability of significant NFS surface resource disturbance is being 
evaluated in connection with locatable mineral operations consisting of 
appropriate prospecting, exploration, development, mining, processing, 
reclamation and closure, and accompanying reasonably incident 
residential use of NFS lands, the operations in their totality, 
including the reasonably incidental residential use, must be 
considered. Residential use of NFS lands which is not reasonably 
incidental to appropriate locatable mineral prospecting, exploration, 
development, mining, processing, or reclamation and closure operations 
being conducted by miners on NFS lands pursuant to 36 CFR part 228, 
subpart A is impermissible unless it complies with requirements 
pertaining to special uses of NFS lands, including an applicable stay 
limit.
    An operator, consequently, is not required to notify the Forest 
Service prior to conducting locatable mineral operations which involve 
occupancy of NFS lands providing that those operations meet two 
conditions: (1) The occupancy is reasonably incidental to locatable 
mineral prospecting, exploration, mining, or processing and (2) those 
proposed (or ongoing) operations, including such reasonably incidental 
occupancy, cumulatively will not cause (or are not causing) significant 
disturbance of NFS surface resources. Moreover, when occupancy is 
reasonably incidental to prospecting, exploration, mining, and 
processing operations, then the level of surface disturbance, not the 
duration of the occupancy, will determine whether a Notice of Intent or 
a Plan of Operations is required. For example, no Forest Service 
authorization is needed if a miner wants to camp on his mining claim 
while suction dredging under a state permit and the authorized officer 
determines that the proposed operation meets the two conditions above.

Specific Comments

    Comment: Several commenters questioned the Forest Service's 
authority to criminally enforce any Forest Service regulation.
    Response: The Organic Administration Act of 1897 confers authority 
upon the Department to promulgate regulations protecting the NFS as 
well as making contravention of those protective rules a criminal 
offense for which a fine or imprisonment may be imposed. That authority 
flows from 16 U.S.C. 551, a portion of the Organic Administration Act 
providing in pertinent part:

    The Secretary of Agriculture shall make provisions for the 
protection against destruction by fire and depredations upon the 
public forests and national forests * * *; and he may make such 
rules and regulations * * * as will insure the objects of such 
reservations, namely, to regulate their occupancy and use and to 
preserve the forests thereon from destruction; and any violation of 
* * * such rules and regulations shall be punished by a fine * * * 
or imprisonment * * *, or both.

    Doubts regarding the legality and scope of the Department's 
authority under 16 U.S.C. 551 were dispelled in 1911 by the United 
States Supreme Court's decision in United States v. Grimaud, 220 U.S. 
506 (1911). In Grimaud, the Supreme Court rejected a challenge to 16 
U.S.C. 551 on the ground it ``was unconstitutional, in so far as 
[Congress] delegated to the Secretary of Agriculture power to make 
rules and regulations, and made a violation thereof a penal offense.'' 
The decision squarely holds that 16 U.S.C. 551 both authorizes the 
Department to adopt regulations governing the occupancy and use of NFS 
lands set aside from the public domain and provides that violation of 
such regulations is a criminal offense. Id. at 522-23.
    Comment: Two respondents stated that the Forest Service, in 
adopting this rule, is attempting to circumvent the decisions in United 
States v. Lex, 300 F. Supp. 2d 951 (E.D. Cal. 2003), and U.S. v. 
McClure, 364 F. Supp. 2d 1183 (E.D. Cal., 2005), claiming that the 
Forest Service has no authority to cite a miner under 36 CFR part 261.
    Response: Nothing in Lex or McClure could, or purports to, 
restricts the Forest Service's clear authority to promulgate rules 
regulating the effects of locatable mineral resources on Forest Service 
lands. Indeed, the court specifically recognizes that one of the 
government's remedies for the court's adverse opinion is to amend 36 
CFR part 261, subpart A.

    The Court understands that pursuing a Part 261 violation against 
a noncomplying miner is a preferred remedy since it is expeditious 
and often results in a probationary term which mandates the miner's 
compliance. Here, the Government is not without remedy. It has 
always had the option of pursuing civil abatement. Likewise, the 
Government is free to pursue criminal proceedings under appropriate 
sections of Part 261 for ``waste'' or ``resource destruction''; and 
Title 18 U.S.C. Similarly, it may simply choose to amend 261.10 to 
make criminal a miner's failure to file a notice of intent and/or 
plan of operation. See Lex & Waggener at 962.

United States v. McClure, 364 F. Supp. 2d 1183, 1186 n.7 (E.D. Cal. 
2005).
    In the earlier Lex decision, the court set aside the decision of a 
United States Magistrate convicting miners cited for violating 36 CFR 
Sec.  261.10(b) which prohibits residential use or occupancy of NFS 
lands without authorization by means of a special use authorization or 
other Federal law or regulation. Here too, the court, after noting that 
it was not unsympathetic to the problematic effect of its decision upon 
Forest Service efforts to regulate the defendants, occupancy of NFS 
lands, specifically stated that ``[t]he solution to this problem * * * 
is to amend the regulations.* * *'' United States v. Lex, 300 F. Supp. 
2d 951 (E.D. Cal. 2003).
    Comment: Many respondents claimed that the Forest Service has no 
authority

[[Page 65987]]

to apply the prohibitions at 36 CFR part 261 provisions to mining or to 
restrict or regulate mining operations by means of 36 CFR part 261. 
Several believed the regulations at 36 CFR part 228, subpart A should 
be revised to include enforcement provisions and the regulations at 36 
CFR part 261, subpart A should not be applicable to mining operations. 
Another believes that CFR part 228, subpart A precludes the application 
of the remaining regulations in Title 36, Chapter II to locatable 
mineral operations.
    Response: The conclusion that 36 CFR part 261 is not applicable to 
locatable mineral operations conducted pursuant to the proposed rule or 
the remainder of 36 CFR part 228, subpart A, is directly contrary to 
the holding of United States v. Doremus, 888 F.2d 630, 631-32 (9th Cir. 
1989). In Doremus, the appellants argued that their operations were 
authorized by the United States mining laws. Consequently, they 
contended that they were exempt from the prohibitions set forth at 36 
CFR part 261 by virtue of 36 CFR 261.1(b), which, as the respondents 
note, states that ``[n]othing in this part shall preclude operations as 
authorized by * * * the U.S. Mining Laws Act of 1872 as amended.'' 
However, the court directly rejected their argument, stating that:

    Part 228 does not contain any independent enforcement 
provisions; it only provides that an operator must be given a notice 
of noncompliance and an opportunity to correct the problem. 36 CFR 
228.7(b) (1987). The references to operating plans in Sec.  261.10 
would be meaningless unless Part 261 were construed to apply to 
mining operations, since that is the only conduct for which 
operating plans are required under Part 228. In addition, 16 U.S.C. 
478 (1982), which authorizes entry into national forests for all 
proper and lawful purposes, including that of prospecting, locating, 
and developing the mineral resources thereof, specifically states 
that such persons must comply with the rules and regulations 
covering such national forests. This statutory caveat encompasses 
all rules and regulations, not just those (such as Part 228) which 
apply exclusively to mining claimants. In this context, Sec.  
261.1(b) is merely a recognition that mining operations may not be 
prohibited nor so unreasonably circumscribed as to amount to a 
prohibition. United States v. Weiss, 642 F. 2d 296, 299 (9th Cir. 
1981).

Thus, ``[t]he law is clear that the Forest Service may proceed by 
criminal prosecution for violations of the regulations governing mining 
and protection of the National Forest lands.'' United States v. Good, 
257 F.Supp.2d 1306, 1319 (D. Colo. 2003).
    The additional regulations applicable to locatable mineral 
operations are not restricted to 36 CFR part 261, subpart A. Other 
portions of Title 36 of the Code of Federal Regulations which can 
govern locatable mineral operations include, but are not limited to, 
part 212, subpart A, which governs administration of the Forest 
Transportation System; part 215, which sets forth notice, comment and 
appeal procedures for NFS projects and activities; and part 251, 
subpart C, which sets forth procedures for appeal of decisions relating 
to NFS occupancy and use.
    The Department disagrees with the suggestion to include all 
prohibitions applicable to locatable mineral operations in 36 CFR part 
261, subpart A. While some prohibitions are uniquely applicable to 
miners, such as new Sec. 261.10(p), most are applicable to other NFS 
users, including amended Sec. 261.10(a), (b) and (l). Others such as 36 
CFR 261.4 and 261.11, governing disorderly conduct and sanitation, 
respectively are applicable to all users of the NFS, including miners. 
Repeating all these generic prohibitions in the parts of Title 36, 
Chapter II relevant to different groups of NFS users clearly would be 
unwieldy. However, having the prohibitions targeted to specific users 
of NFS lands set forth in the CFR part applicable to those users while 
having the generic prohibitions in another part of the CFR could lead 
to persons being unfairly surprised about the scope of prohibited 
conduct.
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: One respondent claimed that because 36 CFR 261.10 
regulations are not mentioned in the 36 CFR part 228 subpart A 
regulations, the Forest Service has no authority to cite, using the 36 
CFR 261.10 regulations.
    Response: The Forest Service's authority to apply the 36 CFR 261.10 
prohibitions to operations subject to 36 CFR part 228, subpart A is 
explained in the previous response.
    Comment: Several respondents were concerned that the Forest Service 
District Rangers and Mineral administrators would overstep their 
authority and unduly use criminal citations as a ``fix'' for any mining 
related problem.
    Response: The Forest Service has had the authority to use criminal 
citations for over 30 years and has not had a track record of overuse 
of the criminal citation authority. In fact, many respondents did not 
know the Forest Service had the authority to use criminal citations, 
adding weight to the fact that there is no history of abuse. Criminal 
citations have always been a tool of last resort. If noncompliance is 
not resolved through the process of communication and willing 
compliance, civil citations are usually considered before criminal 
citations. Criminal citations are only used when the facts of the 
noncompliance warrant a criminal citation. Further Forest Service 
Manual direction will be issued to ensure criminal citations are 
properly used.
    Comment: Several respondents claimed that the proposed rule would 
increase the time needed for the Forest Service to process either a 
notice of intent or a plan of operations. The respondents asserted that 
such delay would be prohibitive in the context of small-scale mining 
operations.
    Response: These comments reflect a fundamental misperception of the 
effect of this rule. The amendments to 36 CFR part 261, subpart A do 
not alter the requirements applicable to persons conducting mineral 
operations on NFS lands pursuant to 36 CFR part 228. The purpose of 36 
CFR part 261, subpart A is to give the public notice of those few 
requirements set forth in other parts of the Forest Service's rules 
where violations have been made criminal. However, 36 CFR part 261, 
subpart A does not create the underlying requirements whose violation 
that subpart prohibits.
    Comment: Many respondents complained about the fact that they were 
not personally notified about the proposed rule.
    Response: Outside of publishing the proposed rule in the Federal 
Register, there is no legal requirement to notify every ``miner'' about 
the proposed rule. Some Forest Supervisors published news releases in 
local papers; some did not. Additional notification is not legally 
required. Several national mining organizations were notified of the 
proposed rule and asked to distribute to their members and associated 
organizations. Forty-three respondents asked for an additional 30-day 
comment period. The comment period was reopened on October 23, 2007, 
and closed on November 23, 2007.
    Comment: Two respondents stated that the Small Business 
Administration (SBA) would find that the proposed rule will have a 
major impact on small entities given the SBA's finding that a 
purportedly similar rule, 43 CFR part 3800, subpart 3809, would have a 
major impact on small entities.
    Response: The scope of the proposed rule only addresses a 
clarification for criminal citations for unauthorized occupancy and use 
of the National Forest and the authorization required for conducting 
locatable mineral operations on Forest Service lands. The proposed rule 
is dramatically less

[[Page 65988]]

sweeping than the scope of the proposed changes to 43 CFR part 3800, 
subpart 3809. While 43 CFR part 3800, subpart 3809, addresses a similar 
issue for lands administered by Bureau of Land Management (BLM), it 
additionally sets forth a host of other requirements. Therefore, any 
finding which the SBA made on the effect of 43 CFR part 3800, subpart 
3809, on small entities consequently has exceedingly limited predictive 
value in terms of the SBA's possible assessment of the impact of the 
Forest Service's proposed and final rule.
    Comment: Several respondents were concerned about the possible 
misuse of the criminal citations and quoted at length from the 2810 
section of the Forest Service manual. They cautioned that before a 
person can be charged under 36 CFR part 261, the Forest Service must 
first demonstrate that a miner has violated 36 CFR part 228, subpart A.
    Response: These amendments will require the revision of the Forest 
Service Manual to better explain under what circumstances the Forest 
Service will use criminal rather than civil enforcement measures. The 
revised manual will also include how the agency will monitor, manage, 
and prevent possible abuse of the criminal citations by untrained and 
unqualified Forest Service employees. Locatable minerals administration 
training will include an extra emphasis on the proper use of criminal 
citations. The Forest Service is reinforcing the agency policy of 
requiring only certified and qualified minerals administrators involved 
in determining when an operator is in noncompliance. The final rule 
will also require that Forest Service law enforcement personnel work 
only with Forest Service Certified Mineral Administrators to determine 
and document that an operator is in violation of 36 CFR part 228 
subpart A, prior to issuing a violation notice under 36 CFR part 261, 
subpart A.
    Comment: Several respondents asked how the Forest Service intends 
to reconcile its issuance of citations pursuant to 36 CFR part 261, 
subpart A with the noncompliance procedures already existing at 36 CFR 
228.7.
    Response: The revised Forest Service Manual and locatable minerals 
training discussed in previous responses will emphasize that criminal 
citations are tools of last resort, and 36 CFR 228.7 generally requires 
that a miner be served a notice of noncompliance prior to the Forest 
Service taking any kind of enforcement action. A Forest Service notice 
of noncompliance is a Forest Service decision, and consistent with 36 
CFR 228.14, a miner will be given the opportunity to appeal the notice 
under 36 CFR part 251, subpart C. Furthermore, FSM 2817 requires that 
prior to any citation, except in emergency circumstances, the Forest 
Service has to work with the miner to secure willing compliance. Only 
after a reasonable effort has been made to secure the operator's 
willing compliance, will a notice of noncompliance generally be issued. 
Continued refusal by the miner to comply with the notice of 
noncompliance usually requires enforcement action. Enforcement action 
may be either civil or criminal in nature. The appropriate minerals 
staff, in addition to the Office of the General Counsel and the United 
States Attorney will be consulted prior to the citation of anyone 
operating under the United States mining laws.
    Comment: Several respondents asked under what circumstances a 
criminal citation under 36 CFR part 261, subpart A would be issued.
    Response: A criminal citation may be appropriate in cases where 
unnecessary and unreasonable damage is occurring and all reasonable 
attempts to obtain the operator's willing compliance with 36 CFR part 
228, subpart A, or the terms of an approved plan of operations have 
failed.
    Comment: Several respondents expressed their concern that criminal 
citations will be misused against miners who camp on their mining 
claims longer than a forest recreational camping limit.
    Response: This comment concerns Forest Orders which limit the 
duration of temporary recreational camping on many National Forests 
depending on site conditions. In many places, campers are limited to a 
14-day overnight stay, within a 30-60 day period, in a particular 
location. The purpose of such a Forest Order, also known as a ``stay 
limit,'' is to provide an enforceable standard pursuant to 36 CFR 
261.58(a) which local Forest Service offices use to protect conditions 
at camping sites and prevent unlimited, unregulated recreational 
camping and associated impacts.
    We agree that the potential for misuse of the criminal citations 
against operators camping on their mining claims exists. Additional 
training and direction will be given to the field that requires the 
Forest Service to distinguish between recreational campers and those 
who are legitimately carrying out activities under the United States 
mining laws. If an operator asserts that they are operating under the 
United States mining laws, and documents that need to camp on the site 
longer than the Forest recreational camping limit for the purpose of 
conducting locatable mineral operations that will not cause significant 
disturbance of NFS surface resources, the Forest Service is obligated 
to consider these facts prior to taking enforcement action under 36 CFR 
part 261. Furthermore, the training will emphasize that issuance of a 
citation pursuant to 36 CFR part 261, subpart A is inappropriate unless 
the Forest Service believes that the proposed or ongoing operations, 
including the reasonably incidental camping, require prior submission 
and approval of a plan of operations. This requirement flows from the 
fact that the prohibitions set forth at 36 CFR part 261, subpart A are 
predicated upon an operator's failure to obtain a required plan of 
operations under 36 CFR 228.4(a), not upon the operator's failure to 
submit a notice of intent to conduct operations.
    Thus, regardless of the local stay limit, an operator is not 
required to submit a notice of intent to conduct operations unless the 
locatable mineral prospecting, exploration or mining, and processing, 
and the reasonably incidental camping, might cause significant 
disturbance of NFS surface resources. Moreover, as discussed above, an 
approved plan of operations is not required for the locatable mineral 
prospecting, exploration or mining, and processing, and the reasonably 
incidental camping, unless those operations are likely to cause a 
significant disturbance of surface resources. An operator, 
consequently, is not required to notify the Forest Service prior to 
conducting locatable mineral operations which involve occupancy of NFS 
lands providing that those operations meet two conditions: (1) The 
occupancy is reasonably incidental to locatable mineral prospecting, 
exploration, mining, or processing and (2) those proposed (or ongoing) 
operations, including such reasonably incidental occupancy, 
cumulatively will not cause (or are not causing) significant 
disturbance of NFS surface resources.
    This process is consistent with the United States mining laws, in 
particular 30 U.S.C. 22 and 612, which grant an operator the right to 
occupy Federal lands subject to the United States mining laws for 
locatable mineral prospecting, exploration, mining, and processing 
operations and uses reasonable incidental thereto. Accordingly, where 
the proposed occupancy of NFS is reasonably incidental to prospecting, 
exploration, mining, and processing operations, the level of surface 
disturbance of the operations in totality, including

[[Page 65989]]

reasonably incidental occupancy of NFS lands, not the duration of the 
occupancy, will determine whether submission of a notice of intent to 
conduct operations or submission and approval of a plan of operations 
is required. For example, a miner is not required to give prior notice 
to the Forest Service when the miner plans to camp on the miner's 
mining claim while suction dredging under a state permit if the miner 
believes that the proposed operation meets the two conditions above. 
However, the miner should be aware that if the authorized officer 
determines that those operations, whether proposed or ongoing, will 
likely cause or are causing, significant disturbance of NFS surface 
resources, the authorized office can require the miner to submit and 
obtain approval of a plan of operations and that those operations 
cannot be conducted until the plan is approved pursuant to 36 CFR 
228.4(a)(4).
    Comment: Several respondents thought that including caves and cliff 
ledges in the new definition of the term ``residence'' at 36 CFR 261.2 
is unnecessary. Another commenter objected to the inclusion of tunnels 
in the definition because the Forest Service does not have authority 
over operations occurring underground.
    Response: The Department agrees that the Forest Service generally 
does not have authority to regulate locatable mineral operations 
conducted underground. However, the Forest Service's regulatory 
authority does extend to locatable mineral operations conducted 
underground if those operations may or are likely to cause significant 
disturbance of NFS surface resources. Nonetheless, the Department 
agrees that it is so unlikely that a miner would reside in caves or 
tunnels or on cliff ledges, with or without authorization, that 
inclusion of those terms in the new definition of residence is 
unnecessary.
    For these reasons, the final rule's definition of the term 
``residence'' does not include the caves, cliff ledges, or tunnels.
    Comment: Several respondents recommended that the final rule should 
contain a clarification that states under the United States mining laws 
an operator may ``use and occupy'' NFS lands under a notice as long as 
the use and occupancy is reasonably incidental to prospecting, 
exploration, mining, and processing, and there is no significant 
disturbance of surface resources.
    Response: The Department agrees with the respondents' conclusions 
about the scope of the United States mining laws as reflected by the 
answer to a previous comment. The Department believes that the 
extensive treatment of this issue in that answer and in the upcoming 
revision of the Forest Service Manual together with the emphasis that 
will be placed on it in Forest Service's training concerning the 
amendments adequately responds to the comment.
    Comment: Several respondents suggested that the final rule should 
clarify that the special use regulations, 36 CFR part 251, subpart B, 
do not apply to locatable mineral operations on NFS lands.
    Response: The preamble to the May 10, 2007 proposed rulemaking (72 
FR 26578) expressly makes the point that United States v. McClure, 364 
F. Supp.2d 1183, 1183-84 (E.D. Cal. 2005) directly holds that the 
special uses regulations at 36 CFR part 251, subpart B do not govern 
locatable mineral operations conducted on NFS lands themselves. (The 
same discussion appears in the preamble for this final rule.) This 
holding is based on 36 CFR 251.50(a) which this Department agrees the 
courts properly interpreted.
    However, the Department notes that a mineral operator who also is 
using NFS lands in a manner not within the scope of the statutes 
authorizing the regulations at 36 CFR part 228 might be subject to the 
special uses regulations at 36 CFR part 251, subpart B as well as 36 
CFR part 228, subpart A. Yet even assuming that the operations being 
conducted by an operator are regulated pursuant to 36 CFR part 228 
alone, the prohibitions in proposed 36 CFR 261.10(a) and (b) are 
applicable to the mineral operator if a provision in 36 CFR part 228 
requires the operator to hold an approved operating plan as that term 
is defined by proposed 36 CFR 261.2.
    Some respondents appear to have been confused by the retention of 
the reference to a ``special use authorization'' in Sec. 261.10(a) and 
(b) given that those provisions also refer to an ``operating plan.'' 
The reference to a special use authorization in proposed and final Sec. 
261.10(a) and (b) does not reflect this Department's contention that 
mineral exploration, development and mining constitute special uses 
subject to 36 CFR part 251, subpart B instead of operations subject to 
36 CFR part 228. Rather, the retention of the special use authorization 
reference reflects that fact that the prohibitions in those sections 
apply in two different contexts. One is the use of NFS lands by persons 
conducting operations pursuant to the United States mining laws subject 
to 36 CFR part 228, subpart A. The other independent category is use of 
NFS lands that constitutes a special use governed by 36 CFR par 251, 
subpart B. Indeed, the fact that 36 CFR 261.10(b) is being amended to 
reference an ``approved operating plan'' as well as a ``special use 
authorization'' demonstrates that the two documents are mutually 
exclusive. (The applicability of 36 CFR 261.10(p) is undisputable given 
that it solely pertains to those mineral operations for which an 
operating plan, as that term is defined by section 36 CFR 261.2, is 
required.)
    Comment: Several respondents believe that the amendments to 36 CFR 
part 261, subpart A will deny them due process.
    Response: The amendments to 36 CFR part 261, subpart A adopted by 
this rule do not deny locatable mineral operators due process. Miners 
are being given notice of the amended prohibitions by means of the 
rulemaking and the codification of those prohibitions in 36 CFR part 
261, subpart A. The amended prohibitions clearly are tied to locatable 
mineral operations subject to the requirements of 36 CFR part 228, 
subpart A which mandate an approved plan of operations when the 
operations are likely to cause significant disturbance of NFS surface 
resources.
    A citation issued pursuant to 36 CFR part 261, subpart A will not 
be the operator's first notice that the Forest Service believes that 
operations the operator is conducting require an approved operating 
plan. When unauthorized operations unnecessarily or unreasonably cause 
injury, loss or damage to surface resources, 36 CFR 228.7(b) requires 
the authorized officer to first serve a notice of noncompliance upon 
the operator. Pursuant to the requirements of the Forest Service 
Manual, the authorized officer then must make a reasonable effort 
through negotiation to secure the miner's willing cooperation in 
bringing the operations into compliance with 36 CFR part 228, subpart 
A. The Forest Service also will give the operator a reasonable 
opportunity to complete actions required to bring the operations into 
compliance with 36 CFR part 228, subpart A. If the operator disagrees 
with the authorized officer's decision to issue a notice of 
noncompliance, the operator may administratively appeal that decision 
utilizing the procedures in 36 CFR part 251, subpart C. Finally, an 
operator who is issued a Citation will receive all legally required due 
process procedures for the imposition of a criminal penalty when the 
operator appears for trial before a United States Magistrate Judge or a 
United States District Court Judge in accordance with

[[Page 65990]]

Rule 58 of the Federal Rules of Criminal Procedure.
    Comment: Several respondents observed that the definition of the 
term ``residence'' in proposed 36 CFR 261.2 is contradictory because it 
lists tents and recreational vehicles among the shelters and structures 
that can be a residence, yet the paragraph's final clause excludes 
``structures or objects used for camping'' from the definition.
    Response: The Department agrees that the proposed definition is not 
clear. It is revised in this final rule to provide: ``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.'' As revised, the definition is 
consistent with the Department's intent.
    Comment: Several respondents suggested adding metal detectors to 
the list of motorized equipment not requiring a plan of operation. 
Others suggested adding small hand operated drills and rocks saws.
    Response: The definition of ``motorized equipment'' in 36 CFR 261.2 
does not affect the requirements of 36 CFR part 228, subpart A which 
are applicable to locatable mineral operations conducted pursuant to 
the United States mining laws. The prefatory language in proposed 36 
CFR 261.2 specifically provides that the definitions set forth in that 
section ``apply to this part,'' that is, 36 CFR part 261. Indeed, this 
definition is only relevant to two prohibitions, 36 CFR 261.18(a) and 
36 CFR 261.21(b), which govern the conduct of all users of National 
Forest Wilderness and National Forest primitive areas, including 
mineral operators. The effect of the proposed amendment also appears to 
have been cause for great alarm to the persons who commented on the 
proposed rule. For these reasons, the definition of the term 
``motorized equipment'' is not being amended by this final rule.
    Comment: Five respondents commented that the Forest Service 
violated the Regulatory Flexibility Act by failing to prepare and make 
available for public comment a regulatory flexibility analysis on the 
rule's potential economic costs on heritage, individuals, development, 
and productivity. Additionally, those respondents stated that these 
violations of the Regulatory Flexibility Act also constitute a 
violation of the Congressional review requirements at 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: Prior to publishing the proposed rule in the Federal 
Register, the Office of Management and Budget (OMB) reviewed the 
proposed rule and determined that it was not a significant rulemaking. 
Consequently, the economic analysis described by the comment was not 
required.
    Given that the Forest Service did not violate the Regulatory 
Flexibility Act in promulgating the proposed rule, there is no 
cumulative violation of 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Comment: Several respondents believe the wording of the proposed 
rule implies that the rule would ``override'' or ``change'' the United 
States mining laws and was therefore illegal. Several respondents 
stated that the Forest Service can not amend the United States mining 
laws, the Mining and Mineral Policy Act of 1970, or the Surface 
Resource Act of 1955 by issuing administrative rules. Four respondents 
stated that the Forest Service can not substitute its regulatory 
authority under the 1897 Organic Act for that of the United States 
mining laws.
    Response: The Department agrees that only the United States 
Congress has authority to make or amend Federal laws. However, the 
changes to 36 CFR part 261, subpart A do not amend, change or alter any 
Federal laws. Nor does the proposed regulation conflict with the United 
States mining laws.
    As discussed above, the statutory authority to regulate locatable 
mineral operations conducted on NFS lands that may disturb surface 
resources clearly both exists and has been delegated to the Sectary of 
Agriculture, not the Secretary of the Interior. ``[T]here can be no 
doubt that the Department of Agriculture possesses statutory authority 
to regulate activities related to mining * * * in order to preserve the 
national forests.'' Clouser v. Espy, 42 F.3d 1522, 1530 (9th Cir. 
1994), cert. denied sub nom. Clouser v. Glickman, 515 U.S. 1141 (1995). 
Indeed, ``[s]ince 1897 the Secretary of Agriculture has had authority 
under sections 478 and 551 of Title 16 [The Organic Administration Act 
of 1897] to promulgate regulations concerning the methods of 
prospecting and mining in national forests. * * *'' United States v. 
Richardson, 599 F.2d 290, 292 (9th Cir. 1979).
    As also discussed above, this Department has authority to adopt 
regulations prohibiting conduct on NFS lands and to permit the issuance 
of a criminal citation for the violation of those prohibitions. 
Responses to previous comments demonstrate that there is no reasonable 
basis to doubt the legality of applying the prohibitions set forth in 
36 CFR part 261, subpart A to operations conducted pursuant to the 
United States mining laws.
    For these reasons, these comments did not warrant changing the 
final rule.
    Comment: Two respondents stated that the proposed rule violated 
E.O. 13132 by permitting the Forest Service to regulate locatable 
mineral operations taking place in waters, failing to disclose the 
rule's effect upon Federalism principles, and failing to consult with 
affected State and local officials. The commenters further asserted the 
Department's violation of E.O. 13132 also violates 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: E.O. 13132 is only applicable to rulemakings having 
Federalism implications which by definition are those ``regulations * * 
* that 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'' (Sec. 1(a)). This rulemaking amends the list of prohibited 
actions involving occupancy of National Forest System lands set forth 
in 36 CFR 261.10. If a person commits an act prohibited by 36 CFR 
261.10, that person may receive a citation pursuant to 36 CFR part 261, 
subpart A which initiates a criminal misdemeanor prosecution in federal 
court pursuant to Fed. R. Crim. P. 58. Such a prosecution does not have 
substantial direct effects on States, the relationship between the 
Federal government and the States, or the distribution of power and 
responsibilities among the various levels of government.''
    For these reasons, in proposing or adopting the amendments to 36 
CFR part 261, subpart A, the Department did not violate E.O. 13132 or 
cumulatively violate 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Given that the Forest Service did not violate E.O. 13132 in 
promulgating the proposed rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: One respondent claimed that the proposed rule's bonding 
requirement was preclusive in that a bond would be required for every 
mining operation regardless of size or impact level.
    Response: The proposed rule does not address bonding requirements. 
Bonding requirements are described at 36 CFR 228.13. Indeed, as 
discussed above, this rule does not impose any requirement governing 
locatable mineral operations.

[[Page 65991]]

    Comment: One respondent stated that the proposed rule is ``time 
prohibitive'' in that there are no time limits on processing either a 
notice of intent or a plan of operations.
    Response: Nothing in the proposed rule addresses time limitations 
on processing notices or plans of operation, nor should it. Time 
limitations are addressed in the regulations at 36 CFR part 228, 
subpart A. Again, this rule does not impose any requirement governing 
locatable mineral operations.
    Comment: Four respondents stated that nowhere in the history of the 
36 CFR part 228, subpart A regulations (from 1974) did the Forest 
Service ever tell Congress that the Forest Service would ever issue a 
criminal citation pursuant to 36 CFR part 261 to enforce the locatable 
mineral regulations.
    Response: Given the passage of 35 years, it is impossible to 
determine what representatives of the Department told representatives 
of Congress in connection with the promulgation of the regulations 
currently designated as 36 CFR part 228, subpart A. In any event, the 
will of an individual Congressman, or even a Congressional committee, 
must be distinguished from the will of Congress, as a legislative body 
that enacts, amends and repeals laws, usually by majority vote. Insofar 
as the Department's authority with respect to locatable mineral 
operations on NFS lands is concerned, Congress as a body passed 
legislation transferring to the Secretary of Agriculture the authority 
to administer NFS lands reserved from the public domain except as 
provided by the Transfer Act of 1905. Thus, the Department is charged 
to administer these lands under the terms of the Organic Administration 
Act.
    Members of Congress certainly have learned of judicial decisions, 
including, without doubt, United States v. Doremus, 888 F.2d 630, 632 
(9th Cir. 1989), cert. denied, 498 U.S. 1046 (1991), the first Court of 
Appeals decision holding that the prohibitions in 36 CFR part 261, 
subpart A apply to persons operating on NFS lands under the United 
States mining laws and 36 CFR part 228, subpart A. However, Congress as 
a legislative body took no action to enact legislation depriving the 
Department of this authority had it been Congress' intent to do so. 
Thus, there is no reason to suppose that Congress as a legislative body 
has an intent different from what it had in enacting the Organic 
Administration Act and the Transfer Act. As explained by the Supreme 
Court in United States v. Grimaud, 220 U.S. 506, 517 (1911), pursuant 
to that Congressional intent, the Department ``is required to make 
provision to protect [the forest reservations] from depredations and 
from harmful uses'' and ``to regulate the occupancy and use and to 
preserve the forests from destruction.'' The Department's promulgation 
of both 36 CFR part 228, subpart A and 36 CFR part 261, subpart A serve 
to fulfill those twin Congressional intents.
    Comment: Who has the right to decide what mineral operations are 
``unauthorized''?
    Response: The District Ranger, not a Forest Service Law Enforcement 
Officer, makes the determination whether mineral operations are 
consistent with 36 CFR part 228, subpart A.
    Comment: One respondent stated the Forest Service has no 
jurisdiction to administer activities conducted under the United States 
mining laws.
    Response: Clearly, the Secretary of the Interior is statutorily 
charged with the administration of the United States mining laws. 
However, there is a difference between administering the United States 
mining laws and regulating locatable mineral operations conducted on 
NFS lands that may disturb surface resources.
    United States v. Weiss, 642 F.2d 296, 298 (9th Cir. 1981) holds 
``the Act of 1897, 16 U.S.C. 478 and 551, granted to the Secretary the 
power to adopt reasonable rules and regulations regarding mining 
operations within the national forests.'' That holding has never been 
meaningfully questioned by any court. Consequently, ``[t]he Forest 
Service may properly regulate the surface use of forest lands. While 
the regulation of mining per se is not within Forest Service 
jurisdiction, where mining activity disturbs national forest lands, 
Forest Service regulation is proper.'' United States v. Goldfield Deep 
Mines Co., 644 F.2d 1307, 1309 (9th Cir. 1981), cert. denied, 455 U.S. 
907 (1982). Simply put, ``there can be no doubt that the Department of 
Agriculture possesses statutory authority to regulate activities 
related to mining * * * in order to preserve the national forests. 
Clouser v. Espy, 42 F.3d 1522, 1530 (9th Cir. 1994), cert. denied sub 
nom. Clouser v. Glickman, 515 U.S. 1141 (1995).
    Comment: Several respondents claimed that the Forest Service 
violated the Endangered Species Act (ESA) by failing to engage in 
formal consultation with the Department of the Interior before 
publishing the proposed rule. Those respondents further said that the 
violation of the ESA also constitutes a violation of Congressional 
review requirements.
    Response: This rulemaking has no impact on any threatened or 
endangered species or the habitat of a threatened or endangered 
species. As discussed previously, the rule amends 36 CFR part 261, 
subpart A, which specifies prohibited acts whose commission by a person 
conducting mineral operations pursuant to 36 CFR part 228 may result in 
that person being charged with committing a misdemeanor. However, 36 
CFR part 261, subpart A does not create the underlying requirements 
whose violation that subpart prohibits. Rather, those circumstances 
requiring an approved operating plan are set forth in the subpart of 36 
CFR part 228 applicable to the mineral operations in question. The ESA 
consequently imposes no obligation upon the Forest Service to engage in 
formal consultation before the agency receives a proposed plan of 
operations from a miner. Given that the Forest Service did not violate 
the ESA in promulgating the proposed rule, there is no cumulative 
violation of Congressional review requirements.
    Comment: A number of commenters contend that the Forest Service's 
adoption of the amendments to 36 CFR part 261, subpart A will violate 
Executive Order 12630 which requires Federal agencies to avoid 
interference with private property rights. The respondents believe that 
such interference will arise from the Forest Service's plan to use the 
amendments to prohibit occupancy of NFS lands which they further expect 
will be implemented without meaningful administrative notice and 
opportunity for a hearing. They also point to the rule's supposed 
preclusion of the use of motorized mining equipment for small scale 
mining operations as another prohibited interference with their 
property rights. Finally, the commenters see such interference 
resulting from the Forest Service's asserted intention to require a 
bond for all small scale mining operations. The commenters further say 
that the violation of the E.O. also will constitute a violation of 5 
U.S.C. 801(a)(1)(B)(iii) and (iv).
    Response: Nothing in the proposed or final rule reflects a Forest 
Service intention, desire or policy to prohibit ``mining occupancy''. 
Nor does the rule address, or purport to address, bonding requirements 
for locatable mineral operations or the use of motorized equipment 
during such operations. Moreover, as discussed above, it is plain on 
the face of proposed and final Sec. 261.10(a), (b) and (p) that those 
prohibitions do not add to the regulatory requirements applicable to 
persons subject to 36 CFR part 228. Rather, the amendments to 36 CFR 
part 261, subpart A provide for criminal prosecution of miners who 
violate critical requirements governing mineral

[[Page 65992]]

operations set forth at 36 CFR part 228, subpart A. (In actuality, the 
amendments adopted by this rulemaking do not work to halt prohibited 
aspects locatable mineral operations. The amendments simply serve to 
deter persons from committing the prohibited acts, and to provide for 
the criminal enforcement of the prohibitions should deterrence fail.)
    More fundamentally, the proposed amendments to 36 CFR part 261, 
subpart A can have no effect on any person conducting mining operations 
who complies with the requirements of 36 CFR part 228, subpart A. This 
fact itself disposes of the claim that the amendments to 36 CFR part 
261, subpart A will take the property of miners because a person has no 
constitutionally protected right to commit illegal acts. Imposing 
criminal penalties for conducting illegal operations consequently does 
not take miners' property.
    Comment: Four respondents provided a series of citations of the 
U.S. Code, along with narrative comments addressing rights granted 
under the United States mining laws. The comments center around the 
legality of the Forest Service proposing the regulatory clarifications 
as published in the Federal Register on May 10, 2007. The respondents 
state that the amendments ``are prohibitive and not merely regulatory'' 
and therefore are unlawful. The four respondents view the changes as an 
attempt to modify laws that Congress has enacted.
    Response: The Forest Service has a clear and substantial 
responsibility to regulate the occupancy and use of NFS lands, 
including those lands used for activities conducted under the United 
States mining laws, as amended. The Forest Service fulfills this 
responsibility by working with prospectors and miners to comply with 
the locatable mineral regulations at 36 CFR part 228, subpart A. It 
follows that prospectors and miners who are not complying with the 
regulations and are conducting activities without authorization, when 
it has been determined that such authorization is needed, must be 
prevented from violating the locatable mineral regulations. As a 
result, the 36 CFR 261.10 ``Prohibitions'' define the occupancy and 
uses that are in deed, prohibited activities on NFS lands.
    In the background discussion published in the Federal Register on 
May 10, 2007, it was explained that the Forest Service has two 
enforcement options, civil and criminal. The proposed regulatory 
clarification addresses only the criminal enforcement course of action. 
The regulation does not ``make miners criminals''; it is a legal course 
of action to enforce activities that fall within the locatable mineral 
regulations. In some cases, the Forest Service must initiate legal 
action to obtain compliance with the locatable mineral regulations.
    As an example, if an operator intends to construct a permanent 
structure on NFS land in connection with some mining activity and the 
District Ranger determines this activity requires an approved plan of 
operation pursuant to 36 CFR 228.4(a), then the operator is 
``prohibited'' from constructing such a structure until obtaining an 
approved Plan of Operation. If the operator began such unauthorized 
construction, the Forest Service, could issue the operator a criminal 
citation under the final rule for conducting a prohibited activity on 
NFS lands. Alternatively and depending on the facts of the case, the 
Forest Service could seek to obtain the operator's compliance through a 
civil procedure by bringing an enforcement case in civil court.
    Comment: One person suggested that the amendments to 36 CFR part 
261, subpart A, will discourage small operators from seeking approval 
of a plan of operations under 36 CFR part 228, subpart A. The 
individual identified the disincentive as he perceives it: An 
operator's admission that a plan of operations is required subjects the 
operator to the risk of fines and imprisonment if the operator simply 
runs a vehicle, generator, or other basic machinery before the Forest 
Service approves a plan of operations pursuant to 36 CFR 228.5, 
completely detailing permitted work.
    Response: The regulations at 36 CFR part 228, subpart A specify 
when a plan of operation is necessary and describe the type of 
information that must be submitted to the District Ranger. The 
regulations at 36 CFR part 261, subpart A, do not address when a plan 
of operation is needed or what information the operator is required to 
submit.
    Comment: Several respondents stated that they view the amendments 
to 36 CFR part 261, subpart A, under consideration as a Forest Service 
attempt to stymie multiple use of NFS lands by stopping mining.
    Response: Under the Multiple-Use Sustained-Yield Act of 1960, 
renewable surface resources are to be managed as multiple uses. 16 
U.S.C. 529. Mineral development is not a multiple use of NFS lands. 16 
U.S.C. 528. But this does not mean development of minerals resources 
has no role on NFS lands. In 16 U.S.C. 528, Congress provided that 
``[n]othing herein shall be construed so as to affect the use or 
administration of the mineral resources of national forest lands * * 
*''. Thus, the amendments to 36 CFR part 261, subpart A will have no 
effect on the Department's charge to administer NFS lands for multiple 
use.
    Comment: Some respondents stated that use of criminal enforcement 
options was contrary to the Mining and Mineral Policy Act of 1970, 
which promoted terms later adopted as part of the Forest Service 
Minerals and Geology Program Policy of ``fostering and encouraging the 
private development of the Nation's mineral wealth''.
    Response: It is a misunderstanding of the Mining and Minerals 
Policy Act of 1970 to conclude that enforcing the requirements of 36 
CFR part 228, subpart A on NFS lands is contrary to the Act or the 
corresponding Forest Service policy. Having the option to criminally 
enforce 36 CFR part 228, subpart A when a miner fails or refuses to 
minimize the adverse environmental impacts of the miner's operations or 
when an operator is using NFS lands for purposes that are not 
reasonably incidental to appropriate locatable mineral prospecting, 
exploration, development, mining, processing, reclamation, or closure 
does nothing to ``foster and encourage'' responsible mineral 
development.
    The Forest Service would shirk its statutorily assigned mandate to 
preserve National Forests if it countenanced non-compliant mineral 
operations under the guise of ``fostering and encouraging'' mineral 
development. As discussed above, the Act establishes that the nation is 
served by Forest Service regulation of mineral operations as provided 
for by 36 CFR part 228, and to enforce those regulations.
    Comment: A respondent expressed the opinion that 36 CFR 261.10(p), 
should be revised to provide that some types of mineral related 
activities do not require either a special use authorization under 36 
CFR part 251, subpart or an approved operating plan pursuant to 36 CFR 
part 228.
    Response: The Department does not agree with this suggestion. As 
proposed, 36 CFR 261.10(p) prohibits ``[u]se or occupancy of National 
Forest System lands or facilities without an approved operating plan 
when such authorization is required.'' This language leaves no doubt 
that there are mineral operations for which an approved plan of 
operations is not required.
    Nor does the Department agree that Sec. 261.10(p) needs to address 
the fact that mineral operations do not require a special use 
authorization. The inapplicability of the special uses regulations at 
36 CFR part 251, subpart B, to mineral operations subject to 36

[[Page 65993]]

CFR part 228 is explicitly stated by 36 CFR 251.50(a). This issue is 
also discussed extensively in the preamble.
    For this reason, no change was made in final Sec. 261.10(p) in 
response to this comment.
    Comment: Where is ``significant surface disturbance'' defined?
    Response: The term ``significant surface disturbance'' appears in 
final Sec. 261.10(a) among a listing of prohibited actions with respect 
to certain uses of NFS lands without an ``approved operating plan when 
such authorization is required. It refers to the ground disturbance 
resulting from a ``significant disturbance of NFS surface resources'' 
for purposes of 36 CFR part 228, subpart A.
    Significant surface disturbance is a site-specific term and the 
responsibility for making the determination of what disturbances are 
likely to be ``significant'' to the environment belongs to the District 
Ranger. According to published response to public comments in the final 
rule dated June 6, 2005, the District Ranger uses past experience, 
direct evidence, or sound scientific projection to determine whether a 
proposed impact is likely to cause a significant surface disturbance.
    Comment: Four respondents appear to read the proposed change as an 
outright prohibition on mine access or occupancy and conclude that the 
changes will materially interfere with existing rights to access under 
the United States mining laws.
    Response: As discussed above, the amendments to 36 CFR part 261, 
subpart A being adopted by this rulemaking do not establish 
requirements governing mineral operations. The amendments merely 
provide an avenue for the Forest Service to use the criminal judicial 
process to bring mineral operations that are not in compliance with the 
requirements set forth in the applicable subpart of 36 Code part 228. 
Those regulations continue to provide the regulatory framework for 
operators to use and occupy NFS lands for mining purposes, and 
reasonably incidental uses whi