Long-Term Financial Assurance for Mining, 74045-74050 [2023-23526]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 88, Number 208 (Monday, October 30, 2023)]
[Rules and Regulations]
[Pages 74045-74050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23526]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 228

RIN 0596-AD58


Long-Term Financial Assurance for Mining

AGENCY: Forest Service, Agriculture.

ACTION: Interim final rule; request for public comment.

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SUMMARY: The Forest Service is amending its locatable minerals rules to 
provide mine operators with a broader array of options for securing 
financial assurance for funding reclamation work. Locatable mineral 
operations on National Forest System lands must be conducted to 
minimize adverse environmental impacts on National Forest surface 
resources, which often includes reclamation at the conclusion of 
operations. Current regulations provide that the Forest Service may 
require the operator to furnish a ``bond'' to fund reclamation work. 
However, the financial assurance mechanisms are limited to surety 
bonds, cash, and negotiable securities. This rule will expand those 
options. It does not change requirements for surface resource and 
environmental protection. Rather, it provides additional options for 
obtaining the financial assurance

[[Page 74046]]

necessary to be sure that those requirements will be met.

DATES: This rule is effective November 29, 2023. Comments concerning 
this rule must be received by December 29, 2023.

ADDRESSES: Comments, identified by RIN 0596-AD58, should be sent via 
one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for sending comments;
    2. Mail: Director, Lands, Minerals and Geology Management, 201 14th 
Street SW, Washington, DC 20250-1124; or
    3. Hand Delivery/Courier: Director, Lands, Minerals and Geology 
Management, 1st Floor South East, 201 14th Street SW, Washington, DC 
20250-1124.
    Please confine written comments to issues pertinent to the interim 
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 this proposed rule at the 
Office of the Director, Lands, Minerals and Geology Management, 201 
14th Street SW, 1st Floor Southeast, Sidney R. Yates Federal Building, 
Washington, DC, on business days between 8:30 a.m. and 4 p.m. Visitors 
are encouraged to call ahead at 202-205-1680 to facilitate entry into 
the building. Comments may also be viewed on the Federal eRulemaking 
Portal: https://www.regulations.gov. In the Searchbox, enter ``RIN 
0596-AD58'' and click the ``Search'' button.

FOR FURTHER INFORMATION CONTACT: Sarah Shoemaker, Geologist at 907-586-
7886 or [email protected]. Individuals who use telecommunication 
devices for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339 between 8 a.m. and 8 p.m., Eastern 
Daylight Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

Background and Need for Rule

    Locatable mineral operations on National Forest System (NFS) lands 
have been regulated under the rules currently codified at 36 CFR part 
228, subpart A, since 1974, including provisions for requiring 
financial assurance for completion of reclamation. Under 36 CFR 228.5 
and 228.7, an operator is required to conduct operations in accordance 
with an approved plan of operations when one is required under 36 CFR 
228.4, and with the regulations at 36 CFR 228 Subpart A. Under 36 CFR 
228.8, all operations must be conducted to minimize adverse 
environmental impacts on National Forest surface resources as specified 
in the regulation, including the requirements to complete reclamation 
at the conclusion of operations. 36 CFR 228.8(g). Under 228.8(g), 
reclamation may include continuation of actions required to mitigate or 
stabilize elements that might otherwise adversely impact surface 
resources long after exhaustion of the mineral deposit and cessation of 
mining operations for as long as necessary to accomplish the specified 
requirements of the regulations to minimize the adverse environmental 
impacts on National Forest surface resources to the extent feasible.
    Current regulations at Sec.  228.13 provide that the authorized 
officer of the Forest Service may require the operator to furnish a 
``bond,'' conditioned upon compliance with the reclamation requirements 
in current 228.8(g), prior to approval of a plan of operations. The 
regulations further provide that, if a bond is required by the 
authorized officer, the operator may elect to furnish cash or 
negotiable securities of the United States in the amount of the bond in 
lieu of the bond required by the authorized officer. All operations 
conducted by the operator can have implications for the ability to 
successfully complete reclamation. Therefore, the bond, cash, or 
securities provided by the operator under 36 CFR 228.13 provide 
financial assurance by securing compliance with and completion of all 
obligations for environmental protection created by the plan of 
operations and the regulations. However, the financial assurance 
mechanisms expressly contemplated by the regulations are limited to 
surety bonds, cash, and negotiable securities. While the current 
regulation does not preclude the use of other mechanisms for financial 
assurance, it does not allow the authorized officer to unilaterally 
require any form of financial assurance other than a surety bond or 
provide the operator with the entitlement to use a form of financial 
assurance other than cash or negotiable securities in lieu of the bond. 
Where other forms of financial assurance may be more cost effective, or 
provide greater assurance for long-term obligations, the authorized 
officer and the operator may negotiate an alternative, but there 
currently are no regulatory standards for when such alternatives may be 
required by the authorized officer, must be accepted by the authorized 
officer in lieu of a bond, or for the acceptable terms of such 
instruments. In particular, the forms of financial assurance 
contemplated by the current regulation do not provide for sufficient 
income generation, which, given the time value of money, can be 
critically important for long-term financial assurance (LTFA) of the 
obligations of mine operators to meet the requirements of their plan of 
operations and the regulations many years into the future. The upfront 
cost of financial assurance for long-term obligations can be cost-
prohibitive when there is no mechanism allowing for income generation 
on financial assurance funds.
    Current Policy at Forest Service Manual (FSM) 6561.5 requires the 
use of trusts to provide LTFA in lieu of the instruments expressly 
contemplated in 36 CFR 228.13, when agreed to by the authorized officer 
and the operator. However, FSM 6561.5 limits the investment of trust 
funds to U.S. Treasury and other negotiable securities of the U.S. 
Government and certain bank deposits. These investment options offer 
such low potential rates of return as to be of little benefit in 
reducing the upfront cost of funding requirements for LTFA or long-term 
viability of trust funding. While FSM 6560.5 acknowledges that trust 
assets must adequately protect the Government from loss, and that 
allowable trust investments must therefore have limited risk of loss, 
the current limitations limit the investments in a way that makes it 
more difficult to adequately fund reclamation obligations.
    The ability of the Forest Service to require other forms of 
financial assurance, or the right of operators to offer other forms of 
financial assurance in lieu of bonding for long-term obligations that 
will continue once an operation ceases production will allow for 
greater financial assurance for the protection of surface resources and 
reduction of costs to operators. Allowing for a reasonable rate of 
investment return on LTFA funds will provide greater assurance of the 
availability of funds in the long-term and reduce the cost of upfront 
funding.
    The interim final rule at 36 CFR 228.13 will allow the authorized 
officer to require the operator to provide alternative LTFA when 
necessary to prevent or control damage after operations have ceased. 
This provision of the regulations will codify the options allowed by 
FSM 6561.5. Further, the regulation will allow for a broader range of 
investment options to realize the advantages and benefits of

[[Page 74047]]

the use of income-earning accounts. This interim rule does not change 
requirements for surface resource and environmental protection in the 
current rule. Rather, it provides additional options for obtaining the 
financial assurance necessary to be sure that those requirements will 
be met. The generation of reasonable income streams on financial 
assurance accounts will provide greater assurance that long-term 
obligations will be met and will be more cost-effective for operators.
    The interim final rule allows trust funds to be comprised of a mix 
of government bonds and public stocks, consistent with Bureau of Land 
Management (BLM) regulations at 43 CFR 3809.555 and practices. Future 
Forest Service Manual direction (manual or handbook) will supply 
guidance for allowable investment portfolio composition, similar to BLM 
Handbook Direction at H-3809-1 (2012). Forest Service direction will be 
adopted after implementation of the proposed rule.
    The Forest Service believes this change is needed immediately to 
clarify options and alternatives for LTFA for mining operations, both 
to protect the public interest in assuring that long-term obligations 
for environmental and surface resource protection are met, and to 
reduce unnecessary, and sometimes cost-prohibitive, financial burdens 
on operators. The regulation clarifies when alternative forms of 
financial assurance for long-term operations may be required by the 
authorized officer or must be accepted by the authorized officer if 
offered by the operator. Further, the interim final rule sets standards 
for when such alternative LTFA is acceptable, including the range of 
allowable investments for income generation.
    The current number of operations requiring LTFA and operations 
approved after adoption of the proposed rule is expected to be small. 
In 2018, the Forest Service reported 140 mining operations on National 
Forest system land that are approved for ``production phase'' 
development, which are the type of operations most likely to require 
financial assurance for long-term operations and final closure. Of the 
140 approved operations, approximately nine, or 6%, are large-scale 
operations with plans of operation that have a potential to result in 
the need for post-closure maintenance and may require LTFA to ensure 
funding for post-closure reclamation. Of the nine approved plans of 
operations, four have currently identified the need for long-term post-
closure water treatment or other maintenance operations (3% of total 
approved operations; 44% of approved large-scale operations). These 
four operations carry approximately 49% of the total financial 
assurance held by the Forest Service (approximately $196M of $400M, as 
of June 2023). Traditional third-party surety bond financial assurances 
are in place for the four operations, but lack a sustainable income-
generating component, and therefore may not be adequate for assuring 
long-term post-reclamation needs. The interim final rule, by clarifying 
requirements and expanding investment options, will increase the array 
of available options for financial assurance that can provide greater 
LTFA to protect the interests of the United States and the public, and 
reduce unnecessary financial burdens on operators.
    While the Forest Service views these changes as critically 
important for the administration of mining operations on the national 
forests, their impact will be limited primarily to the small number of 
large locatable mineral operations on National Forest System lands 
where the needs for funding long-term post-reclamation activities is 
the greatest. Allowing for an expanded range of investment options with 
potentially higher rates of return is expected to reduce the risk of 
public funds being needed to complete reclamation or other long-term 
obligations in the event of operator default and reduce the upfront 
cost to operators to provide financial assurance. While the investment 
options allowed may have greater risk of short-term volatility, 
appropriate management of trust funds through diversification of 
investment over the long-term is projected to generate higher rates of 
return.
    The interim final rule also clarifies language in 36 CFR 228.13 
regarding the types of financial assurances the agency may require, may 
accept, and under what circumstances. Currently, 36 CFR 228.13 refers 
only to bonds and limited instruments that must be accepted by the 
authorized officer in lieu of bonds which can be interpreted as 
implying that bonds are required, or at least the preferred, instrument 
for financial assurances. The interim final rule instead refers to 
financial assurances, and lists every acceptable mechanism, including 
instruments that the agency currently accepts in policy (FSM 6561.4) 
but are not listed in the current regulation, such as irrevocable 
letters of credit. The agency believes this change to be administrative 
and clarifying in nature, which will not result in any changes in 
practice or policy.

Regulatory Certifications

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will 
determine whether a regulatory action is significant and will review 
significant regulatory actions. The Office of Information and 
Regulatory Affairs has determined that this interim final rule is not 
significant. Executive Order 13563 reaffirms the principles of 
Executive Order 12866 while calling for improvements in the nation's 
regulatory system to promote predictability; to reduce uncertainty; and 
to use the best, most innovative, and least burdensome tools for 
achieving regulatory ends. The Agency has developed this rule 
consistent with Executive Order 13563.

Congressional Review Act

    Pursuant to subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs has 
designated this interim final rule as not a major rule as defined by 5 
U.S.C. 804(2).

National Environmental Policy Act

    This interim final rule will amend the Agency's locatable minerals 
regulations to allow mine operators to secure financial assurance for 
funding reclamation work through the use a broader range of investment 
options. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from 
documentation in an environmental assessment or environmental impact 
statement ``rules, regulations, or policies to establish service wide 
administrative procedures, program processes, or instructions.'' The 
Agency's preliminary assessment is that this rule falls within this 
category of actions and that no extraordinary circumstances exist which 
would require preparation of an environmental assessment or 
environmental impact statement. A final determination will be made upon 
adoption of the final rule.

Regulatory Flexibility Act

    The Agency considered the impacts of the interim final rule on 
small entities consistent with requirements of the Regulatory 
Flexibility Act (RFA), as amended by the Small Business Regulatory 
Flexibility Enforcement Fairness Act of 1996 (SBREFA), and Executive 
Orders 13272 (Proper Consideration of Small Entities in Agency 
Rulemaking). The provisions of the rule are not expected to have

[[Page 74048]]

economic effects on small entities, and no separate threshold 
regulatory flexibility analysis was prepared for this rule.
    Small entities potentially affected by the interim rule include 
small businesses (firms) involved in precious and heavy metal mining 
(e.g., North American Industry Classification System (NAICS) 2122, 
iron, gold, silver copper, nickel, lead, zinc, uranium, and other 
metals), limestone and clay mining and quarrying (NAICS 2123, crushed/
broken limestone, kaolin and ball clay, ceramic and refractory 
minerals, other chemical/fertilizer minerals, and other nonmetallic 
minerals); and geophysical surveying and mapping (NAICS 541360). A 
majority (75% to 80%) of existing locatable operations on National 
Forest System lands fall within the precious and heavy metal sectors, 
and within the gold ore sector specifically. The interim final rule 
would apply to the fraction of businesses that engage in locatable 
mineral development or operations on National Forest System lands that 
are projected to involve levels of closure and post-closure activities 
that require operators to provide financial assurances to cover closure 
or post-closure obligations (costs).
    The interim final rule clarifies the types of financial assurance 
instruments that can be used by operators, and explicitly lists 
instruments (e.g., irrevocable letters of credit, trust funds) that are 
omitted in current regulation, though allowed in current policy. The 
interim final rule allows stocks to be used in the mix of investments 
forming a trust fund, whereas current regulations limit those 
investments to United States securities. Allowances for stocks is 
consistent with current Department of Interior regulations and policy 
for the Bureau of Land Management (43 CFR 3809.555 and handbook 
direction at H-3809-1) and Office of Surface Mining Reclamation and 
Enforcement (30 CFR 942.800). Interest bearing accounts are necessary 
for providing financial assurances for long-term (e.g., into 
perpetuity) post-reclamation obligations, and trust funds are likely to 
be the only viable instrument that the Agency finds acceptable for 
those situations under the current regulations as well as the interim 
final rule. However, allowances for stocks can provide operators with 
access to an expanded range of rates of return for trust fund 
investments, offering opportunities to establish trust funds with lower 
initial investment than would be possible under current regulations.
    These interim final rule provisions are likely to clarify and 
expand opportunities for small business operators to establish 
financial assurances for mine closure and post-closure actions and not 
expected to result in direct or adverse economic effects to small 
businesses. The small business operators with substantial closure or 
post-closure obligations will be a subset of small businesses operating 
on National Forest System lands. Additional policy for monitoring the 
performance of trust funds, composition of investment mixes (e.g., 
types of stocks, investment composition over time), as well as 
requiring contributions or allowing withdrawals from trust funds in 
response to trust fund performance, will be addressed through Agency 
policy direction.
    The Agency certifies that the interim final rule will not have a 
significant impact on a substantial number of small entities.

Federalism

    The Agency has considered this interim final rule under the 
requirements of Executive Order 13132, Federalism. The Agency has 
determined that the 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 Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, the Agency has concluded that 
the rule does not have federalism implications.

Consultation and Coordination With Indian Tribal Governments

    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, requires Federal agencies to consult and coordinate 
with Tribes on a government-to-government basis on policies that have 
Tribal implications. This includes regulations, legislative comments or 
proposed legislation, and other policy statements or actions that have 
substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. This interim final rule will amend the 
Agency's locatable minerals regulations to allow mine operators to 
secure financial assurance for funding reclamation work through the use 
a broader range of investment options. The Agency has reviewed this 
rule in accordance with the requirements of Executive Order 13175 and 
has determined that this proposed rule would not have substantial 
direct effects on Indian Tribes, on the relationship between the 
Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
Therefore, consultation and coordination with Indian Tribal governments 
is not required for this rule.

No Takings Implications

    The Agency has analyzed this interim final rule in accordance with 
the principles and criteria in Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights. The Agency has determined that the proposed rule would not pose 
the risk of a taking of private property.

Energy Effects

    The Agency has reviewed this interim final rule under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use. The Agency has determined that the 
proposed rule would not constitute a significant energy action as 
defined in Executive Order 13211. The rule is administrative in nature 
and does not impact Agency decisions about leasing and subsequent 
development of energy resources on NFS lands.

Civil Justice Reform

    The Forest Service has analyzed this interim final rule in 
accordance with the principles and criteria in Executive Order 12988, 
Civil Justice Reform. After adoption of the rule, (1) all State and 
local laws and regulations that conflict with the proposed rule or that 
impede its full implementation would be preempted; (2) no retroactive 
effect would be given to the proposed rule; and (3) it would not 
require 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), the Agency has assessed the effects of this interim 
final rule on State, local, and Tribal Governments and the private 
sector. The rule will 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 
required.

[[Page 74049]]

Controlling Paperwork Burdens on the Public

    This interim final rule does not contain recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

Administrative Procedure Act

    Section 553(b)(3)(B) of the Administrative Procedures Act (APA) (5 
U.S.C. 551 et seq.) authorizes agencies to dispense with notice and 
comment procedures for rules when the agency, for ``good cause,'' finds 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' Under this section, an agency, upon finding good 
cause, may issue a final rule without providing notice and seeking 
comment prior to issuance. The Forest Service is promulgating this rule 
on an interim final basis because the agency has found that notice and 
public comment procedures are unnecessary and contrary to the public 
interest.
    The agency finds that requiring public notice and comment before 
this IFR is implemented would be contrary to the public interest 
because the IFR is expected to help streamline Forest Service review 
and approval of future critical mineral project proposals. The 
Infrastructure Investment and Jobs Act (Pub. L. 117-58), E.O. 14017 
``America's Supply Chains,'' and E.O. 13593 ``Addressing the Threat to 
the Domestic Supply Chain From Reliance on Critical Minerals From 
Foreign Adversaries and Supporting the Domestic Mining and Processing 
Industries,'' all direct the agency to process critical minerals 
approvals timely and efficiently. The changes proposed in this IFR will 
improve the Forest Service's ability to develop adequate funding for 
long-term post-closure reclamation activities.
    In some cases, the Forest Service has found that arriving at an 
acceptable funding vehicle has slowed the processing of mineral 
operations approvals because of the limited number of investment 
options available under current authorities. This results in slower 
approval times and increased risk for the agency. The agency has at 
times experienced challenges in obtaining adequate LTFA because the 
current investment limitations are a practical barrier to operators: 
the fixed-income investments do not generate sufficient growth at 
reasonable initial fund rates, while traditional third-party surety 
bond financial assurances lack a sustainable income-generating 
component, and therefore may not be adequate for assuring long-term 
post-reclamation needs.
    The agency has also experienced challenges in getting LTFA because 
the lack of clarity in the current regulations regarding trust funds 
creates confusion, which creates a procedural barrier to operators: 
delays while basic questions and concepts are repeatedly tested. Over 
time the agency has experienced that many of these mines have increased 
awareness of long-term operational needs, such as in the case of 
ongoing operations approved prior to consideration of LTFA as common 
agency practice. In addition to existing operations that are not able 
to capitalize a trust fund at fixed income U.S. securities rates, the 
current rule has significantly slowed approval and processing of new 
proposals, including for critical minerals such as the nation's only 
domestic source of cobalt. This revision to 36 CFR 228.13 will help 
ensure that those projects can achieve adequate LTFA, resulting in more 
effective and efficient processing of not just critical minerals 
proposals, but of all mineral operations.
    The IFR's additional flexibility will also allow the agency to 
better assure available funds for continued environmental mitigation 
and protection, thus removing this potential burden from the taxpayers.
    Presenting this revision as a proposed rule and collecting public 
comment prior to implementation is contrary to public interest because 
time is of the essence to critical minerals and other mineral proposals 
struggling to complete the process to obtain adequate LTFA, which 
delays the production of critical minerals. The interim final rule, by 
clarifying requirements and expanding investment options, will increase 
the array of available options for financial assurance that can provide 
greater long-term financial assurance to protect the interest of the 
United States and the public, and reduce unnecessary financial burdens 
on operators.
    The agency also believes it is unnecessary to request public 
comment prior to implementation of this revision to 36 CFR 228.13 
because the changes are ministerial in nature and not likely to be 
controversial. The revised Sec.  228.13 clarifies that trusts can be 
accepted and removes unnecessary restrictions to investment options. 
While this revision will greatly increase the agency's ability to 
better administer the Long-Term Financial Assurance program internally, 
it does not fundamentally change agency operations. This revision to 
investment options also brings the Forest Service in line with BLM 
regulation and policy, successfully in operation since 2001. Because 
these changes are bringing the Forest Service in line with longstanding 
BLM practice in this area, and the IFR is simply broadening the array 
of arrangements that can satisfy the requirements of LTFA, public 
comment before publication of the rule is unnecessary under the APA.
    As noted above, the Forest Service is concurrently accepting 
comments on this IFR. The Forest Service will consider all comment 
received in response to this IFR in publishing the final rule.

List of Subjects in 36 CFR Part 228

    Bonding, National forests, Public lands-mineral resources.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service amends 36 CFR part 228 as follows:

PART 228--MINERALS

0
1. The authority citation for part 228 continues to read:

    Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94 
Stat. 2400.


0
2. Amend Sec.  228.13 by:
0
a. revising the section heading;
0
b. revising paragraphs (a), (b), (c) and (d); and
0
c. adding new paragraph (e).
    The addition and revisions read as follows:


Sec.  228.13  Financial Assurance.

    (a) Any operator required to file a plan of operations shall, when 
required by the authorized officer, furnish financial assurance for 
completion of the obligations set forth in these regulations and the 
approved plan of operations in the amount determined by the authorized 
officer to be required to provide reasonable financial assurance of 
such obligations prior to approval of such plan of operations, or by 
providing blanket assurance for multiple defined operations conducted 
by the operator such as within a particular State or nation-wide. The 
operator may elect to provide such financial assurance in the form of 
any of the following instruments that are acceptable to the authorized 
officer, singly or in combination:
    (1) cash in an amount equal to the required dollar amount of the 
reclamation cost estimate and the estimated cost of stabilizing, 
rehabilitating, and reclaiming the area of operations deposited into a 
Federal depository, as directed by the Forest Service, and maintained 
therein;

[[Page 74050]]

    (2) negotiable securities of the United States having market value 
at the time of deposit of not less than the required dollar amount of 
the bond;
    (3) a surety bond provided by a third party that is certified by 
the Department of the Treasury and listed in Treasury Circular 570 as 
financial assurance for the obligations for specific operations, or 
providing blanket assurance for multiple defined operations conducted 
by the operator such as within a particular State or nation-wide, and/
or;
    (4) an irrevocable letter of credit provided by an institution 
acceptable to the authorized officer.
    (b) In determining the amount of the required financial assurance, 
the authorized officer shall give consideration to the reclamation cost 
estimate which shall be submitted by the operator prior to the approval 
of the final plan of operations, and the estimated cost of stabilizing, 
rehabilitating, and reclaiming the area of operations.
    (c) In the event that an approved plan of operations is modified in 
accordance with Sec.  228.4 (d) and (e), the authorized officer will 
review the financial assurance for adequacy and, if necessary, will 
adjust the financial assurance amount to conform to the operations plan 
as modified.
    (d) When reclamation has been completed in accordance with Sec.  
228.8(g), the authorized officer will notify the operator that 
obligations covered by the financial assurance have been met: Provided, 
however, that when the Forest Service has accepted any portion of the 
reclamation as completed, the authorized officer shall notify the 
operator of such acceptance and proportionally reduce the required 
financial assurance amount thereafter to be required for the remaining 
obligations of the operator.
    (e) When an operator is required to continue to operate or maintain 
certain aspects of the operation after the mine has closed, the 
authorized officer may require the operator to establish a trust fund 
to ensure that adequate funds are available for long-term post-closure 
reclamation activities required by the regulations or the approved plan 
of operations following mine closure. The authorized officer shall 
determine which activities may be secured through a trust fund, and 
which activities may be secured through another form of financial 
assurance. Establishing a trust fund does not relieve the operator of 
the responsibility to provide long-term management, maintenance, and 
reclamation of the site. A trust fund for long-term post closure 
obligations shall be comprised of financial instruments limited to 
negotiable securities of the United States Government; State and 
Municipal securities or bonds; money market funds; certificates of 
deposits; investment-grade securities; and stock equity shares listed 
on a national exchange.

Andrea Delgado Fink,
Chief of Staff, Natural Resources and Environment.
[FR Doc. 2023-23526 Filed 10-27-23; 8:45 am]
BILLING CODE 3411-15-P