[Federal Register: June 6, 2005 (Volume 70, Number 107)]
[Rules and Regulations]
[Page 32713-32732]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn05-4]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 228
RIN 0596-AC17
Clarification as to When a Notice of Intent To Operate and/or
Plan of Operation Is Needed for Locatable Mineral Operations on
National Forest System Lands
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule amends the regulations governing the use of
National Forest System lands in connection with operations authorized
by the United States mining laws. The final rule clarifies the
regulations at 36 CFR 228.4(a) concerning the requirements for mining
operators to submit a ``notice of intent'' to operate and requirements
to submit and obtain an approved ``plan of operations.'' Clarification
of the requirements in Sec. 228.4(a) are necessary to minimize adverse
environmental impacts to National Forest System lands and resources.
DATES: The final rule is effective July 6, 2005.
ADDRESSES: The documents used in developing this final rule are
available for inspection and copying at the office of the Director,
Minerals and Geology Management, Forest Service, USDA, 1601 N. Kent
Street, 5th Floor, Arlington, VA 22209, during regular business hours
(8:30 a.m. to 4:30 p.m.), Monday through Friday, except holidays. Those
wishing to copy or inspect these documents are asked to call ahead
(703) 605-4818 to facilitate access to the building.
FOR FURTHER INFORMATION CONTACT: Mike Doran, Minerals and Geology
Management Staff, (703) 605-4818.
SUPPLEMENTARY INFORMATION:
Background and Need for Final Rule
For purposes of this final rule, all references to 36 CFR part 228,
Subpart A, without qualifying terms ``interim rule'' or ``final rule,''
refer to language
[[Page 32714]]
in that subpart in effect prior to issuance of the interim rule (69 FR
41428, Jul. 9, 2004).
Since 1974, the Forest Service has applied the regulations now set
forth at 36 CFR part 228, subpart A, to minimize adverse environmental
impacts from mineral operations authorized by the United States mining
laws by requiring mineral operators to file proposed plans of
operations for mineral operations which the District Ranger determines
will likely cause significant surface disturbance of National Forest
System (NFS) lands. These regulated operations may include, but are not
limited to, the construction of storage facilities, mills, and mill
buildings; placement of trailers or other personal equipment;
residential occupancy and use; storage of vehicles and equipment;
excavation of holes, trenches, and pits by mechanized or non-mechanized
procedures; diversion of water; use of sluice boxes and portable
devices for separating gold from sediments; off highway vehicle use;
road and bridge construction; handling and disposal of mine and other
wastes; and signing and fencing to restrict public use of NFS lands
affected by mining operations. The Forest Service and the courts had
consistently required locatable mineral operators to obtain approval of
a plan of operations whenever such operations would likely cause a
significant surface disturbance, whether or not those operations
involve mechanized earth moving equipment or the cutting of trees.
However, two years ago, a District Court departed from this
consistent interpretation and ruled that 36 CFR 228.4(a)(2)(iii)
allowed a mining operation to occur on NFS lands without prior
notification to the Forest Service or prior Forest Service approval of
a plan of operations when the operation did not involve mechanized
earthmoving equipment, such as bulldozers or backhoes, or the cutting
of trees, irrespective of the surface disturbing impacts that the
operation would likely cause. This unprecedented ruling severely
restricted the ability of the Forest Service to regulate miners engaged
in surface disturbing operations not involving mechanized earth moving
equipment or the cutting of trees, but have serious environmental
impacts, including impacts to water quality, visual quality, natural
features, fisheries, and species listed under the Endangered Species
Act, as well as conflicts with other NFS users.
To prevent confusion as to the proper interpretation of 36 CFR
228.4(a), the Forest Service published an interim rule in the Federal
Register on July 9, 2004 (69 FR 41428), which took effect on August 9,
2004. The interim rule sought to clarify that the requirement to file a
notice of intent to operate with the District Ranger is mandatory in
any situation in which a mining operation might cause disturbance of
surface resources, regardless of whether that operation would involve
the use of mechanized earth moving equipment, such as a bulldozer or
backhoe, or the cutting of trees. The interim rule also sought to
eliminate possible confusion by more specifically addressing the issue
of what level of operation requires prior submission of a notice of
intent to operate and what level of operation requires prior submission
and approval of a plan of operations. The interim rule directs a mining
operator to submit a notice of intent to operate when the proposed
operation might cause a disturbance of surface resources. After a
notice of intent to operate is submitted, the District Ranger would
determine whether the proposed operations would likely cause a
significant disturbance of surface resources. If the District Ranger
determines that the proposed operations would likely cause a
significant disturbance of surface resources, the District Ranger would
notify the operator that prior submission and approval of a plan of
operations is required before the operations commence.
The opportunity for public comment was not legally required to
promulgate the interim rule. Nonetheless, the Forest Service provided a
60-day comment period and stated that comments received on the interim
rule would be considered in adopting a final rule. The Department has
considered those comments and has modified several provisions of the
interim rule in this final rule.
Analysis of Public Comment
Overview
The Forest Service received 2,373 responses to the interim rule (69
FR 41428), including fifteen responses which said they were responding
to the interim rule, but in actuality were nonresponsive and dealt with
different issues, such as timber harvesting and investment
opportunities. The total number also includes three challenges to the
interim rule: (1) A notice of appeal of the interim rule, (2) a
petition seeking the repeal of the interim rule pursuant to rule making
requirements that give an interested person the right to petition
repeal of the rule at 5 U.S.C. 553(e), and (3) a lawsuit seeking to
enjoin the interim rule. The three challenges to the interim rule were
disposed of separately and consequently were not independently
considered in the development of the final rule. However, every issue
raised in the three challenges to the interim rule also was raised in
one or more of the comments submitted on the interim rule. Also
included in the total number were several responses received after the
comment period ended.
There were 2,230 comments in favor of the interim rule. Most were
an identical one-page email supporting the provisions in the interim
rule, namely the long-standing requirement that miners either notify
the Forest Service or obtain Forest Service approval before conducting
proposed mining operations. Several industry organizations submitted
detailed comments which expressed general support for the interim rule,
but suggested specific revisions of the rule's text to make its
requirements clearer. Other letters of support came from State
regulatory agencies, environmental groups, and the United States
Environmental Protection Agency.
Most of the 125 comments in opposition to the interim rule were
submitted by individuals, many of whom identified themselves as miners
or prospectors engaging in small scale mining operations.
All comments submitted on the interim rule and the administrative
record are available for review in the Office of the Director, Minerals
and Geology Management Staff, 1610 N. Kent St., 5th Floor, Arlington,
Virginia, 22209, during regular business hours (8 a.m. to 5 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).
Response to Comments
1. Comments on the Validity of the Interim Rule's Promulgation
Comment: Many respondents stated that the Forest Service cannot
adopt a rule altering the interpretation of Sec. 228.4(a), a portion
of the rule promulgated in 1974, and adopted in United States v. Lex,
300 F. Supp. 2d 951 (E.D. Cal. 2003).
Response: Nothing in Lex could, or purports to, restrict the Forest
Service's clear authority to promulgate rules regulating the effects of
locatable mineral resources on NFS lands. Indeed, the court in Lex,
after noting that it was ``not unsympathetic to the problem posed by
the [former 36 CFR 228.4(a)] in this case,'' specifically stated that
``[t]he solution to this problem* * * is
[[Page 32715]]
to amend the regulations * * *'' United States v. Lex, 300 F. Supp. 2d
951, 962 n.10 (E.D. Cal. 2003). Thus, the contention that Lex somehow
precludes the Forest Service from adopting the precise solution which
the decision identified is untenable.
Comment: Four respondents said that the interim rule is a
substantive rule which substantially, and improperly, changes
exemptions to plan of operations and notice of intent to operate
requirements previously applied to small scale mining operations. These
comments appear to involve the application of the Administrative
Procedure Act (APA) to the promulgation of the interim rule.
Response: These comments are predicated upon the interpretation of
Sec. 228.4(a) adopted in United States v. Lex, 300 F. Supp. 2d 951
(E.D. Cal. 2003). As the preamble to the interim rule notes, the
departure from the long-standing interpretation of Sec. 228.4(a) is
not the interim rule, but Lex itself. The technical amendments to Sec.
228.4(a) set forth in the interim rule simply reinforce the long-
standing interpretation of that provision held by the Forest Service
and previous reviewing courts that a locatable mineral operator may be
required to submit a notice of intent to operate or to submit and
obtain approval of a proposed plan of operations whether or not the
proposed operations would involve the cutting of trees or the use of
mechanized earth moving equipment, as do the amendments set forth in
the final rule. Similarly, the technical amendments to Sec. 228.4(a)
in the interim rule simply reinforce the long-standing interpretation
of that provision held by the Forest Service and previous reviewing
courts that a locatable mineral operator is required to obtain approval
of a proposed plan of operations whenever the operator or the
applicable District Ranger determines that the proposed operations will
likely result in significant disturbance of NFS lands and resources,
irrespective of whether the operator first was required to submit a
notice of intent to operate, as do the amendments set forth in the
final rule.
Moreover, even if the changes to Sec. 228.4(a) adopted in the
interim rule were not technical amendments to that provision, the
interim rule was proper under the APA given that the Department found
for good cause that prior notice and public comment on the rule was
``impracticable, unnecessary, or contrary to the public interest'' (5
U.S.C. 553(b)(3)(B)).
Comment: A number of respondents stated that the Forest Service
violated the public participation requirements of the Forest and
Rangeland Renewable Resources Planning Act (RPA) (16 U.S.C. 1612(a)) by
not giving the public notice and an opportunity to comment before
adopting the interim rule.
Response: The public participation provisions of 16 U.S.C. 1612(a)
do not mandate prior notice and an opportunity to comment before the
Forest Service adopts a rule in every case. Rather, it requires the
Forest Service to give ``adequate'' notice and an opportunity to
comment. The Forest Service provided the public adequate notice and
opportunity to comment in connection with the technical amendment of
Sec. 228.4(a) in the interim rule by providing for a public comment
period on the interim rule and considering those comments in adopting
the final rule.
Comment: Several respondents commented that the public
participation requirements of RPA makes the exceptions of APA's rule
making requirements at 5 U.S.C. 553(b)(3) and 553(d) inapplicable to
the interim rule.
Response: The exceptions to the APA's requirements for prior notice
and opportunity for public comment on the adoption of rules and for a
delay in the effective date of certain rules are not overridden by the
public participation requirements of RPA. That provision clearly did
not specifically repeal or be construed as an implicit repeal of the
rule making requirements at 5 U.S.C. 553(b)(3)(A)-(B) or 553(d)(1)-(3).
`` `It is, of course, a cardinal principle of statutory
construction that repeals by implication are not favored.' ''
Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976) (citation
omitted). Indeed, an implied partial repeal will not be recognized
unless there is an irreconcilable conflict between the two statutes at
issue or the later statute covers the whole subject of the earlier one
and is clearly intended as a substitute. `` `But, in either case, the
intention of the legislature to repeal must be clear and manifest * *
*' '' (alteration in original) (citation omitted). Moreover, ``
`[r]epeal is to be regarded as implied only if necessary to make the
[later enacted law] work, and even then only to the minimum extent
necessary.' '' at 155 (alteration in original) (citation omitted).
In adopting the public participation requirements of RPA, Congress'
intention to repeal APA's exceptions at 5 U.S.C. 553(b)(3)(A)-(B) and
553(d)(1)-(3), insofar as Forest Service rules are concerned, certainly
is not manifest. Furthermore, it is not necessary to read 16 U.S.C.
1612(a) as repealing the exceptions set forth at 5 U.S.C. 553(b)(3)(A)-
(B) to the APA's requirement for prior notice and opportunity for
public comment on the adoption of rules in E.O. to make 16 U.S.C.
1612(a) work, even assuming that 16 U.S.C. 1612(a) is applicable to the
adoption of the interim rule. Adequate notice and opportunity to
comment for purposes of 16 U.S.C. 1612(a) can be provided by accepting
public comments on an interim rule which are considered in the adoption
of the final rule, as is being done in the context of the revision of
Sec. 228.4(a). Nor is it necessary to read 16 U.S.C. 1612(a) as
repealing the exceptions set forth at 5 U.S.C. 553(d)(1)-(3) to the
APA's requirements for a delay in the effective date of certain rules
in E.O. to make 16 U.S.C. 1612(a) work, even assuming that 16 U.S.C.
1612(a) is applicable to the adoption of the interim rule. Agencies can
delay the effective dates of rules, as was done in the context of the
interim rule.
Comment: Several respondents said that the interim rule's violation
of the public participation requirements of RPA (16 U.S.C. 1612(a))
also constitutes a violation of the Congressional Review Requirements
at 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
Response: Given that the Forest Service did not violate the public
participation requirements of RPA in promulgating the interim rule for
the reasons previously discussed, there is no cumulative violation of
the Congressional review requirements as suggested by the respondents.
Comment: Five respondents commented that the Forest Service
violated the Regulatory Flexibility Act by failing to prepare and make
available for public comment both an initial and a final regulatory
flexibility analysis on the rule and failed to list the interim rule on
its regulatory flexibility agenda. Additionally, those respondents
stated that these violations of the Regulatory Flexibility Act also
constitutes a violation of the Congressional review requirements at 5
U.S.C. 801(a)(1)(B)(iii) and (iv).
Response: The obligation to prepare and make available for public
comment an initial regulatory flexibility analysis is triggered
``[w]henever an agency is required by section 553 of this title, or any
other law, to publish general notice of proposed rulemaking for any
proposed rule * * *'' (5 U.S.C. 603(a)). As previously discussed, the
interim rule made technical, rather than substantive, changes to Sec.
228.4(a). Under the APA, a rulemaking which does not constitute a
substantive rule is exempted from the notice and comment requirements
of the Act by 5 U.S.C.
[[Page 32716]]
553(b)(3)(A) (Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 927
(Fed. Cir. 1991)). Further, even if the changes which the interim rule
made to Sec. 228.4(a) were properly viewed as substantive changes to
that provision, the APA still would not have required general notice of
proposed rulemaking for the promulgation of the interim rule because
the Department, for good cause, found that notice and public procedure
on the interim rule was impracticable and contrary to the public
interest pursuant to another of the Act's exception at 5 U.S.C.
553(b)(3)(B). Moreover, no other law required a general notice of
proposed rulemaking for the interim rule. Consequently, the Forest
Service was not under an obligation to prepare and make available for
public comment an initial regulatory flexibility analysis for the
interim rule because general notice of proposed rulemaking was not
required for the promulgation of that rule.
The obligation to prepare a final regulatory flexibility analysis
is triggered ``[w]hen an agency promulgates a final rule under section
553 of this title, after being required by that section or any other
law to publish a general notice of proposed rulemaking * * *.'' 5
U.S.C. 604(a). The interim rule is not a final rule. As the interim
rule explained, ``[c]omments received on this interim rule will be
considered in adoption of a final rule, notice of which will be
published in the Federal Register. The final rule will include a
response to comments received and identify any revisions made to the
rule as a result of the comments'' (69 FR 41428, July 9, 2004).
Any failure to list the interim rule on the Forest Service's
regulatory flexibility agenda prior to the rule's adoption does not
constitute a violation of the Regulatory Flexibility Act which
specifically provides that ``[n]othing in this section precludes an
agency from considering or acting on any matter not included in a
regulatory flexibility agenda * * *.'' 5 U.S.C. 602(d).
Given that the Forest Service did not violate the Regulatory
Flexibility Act in promulgating the interim rule, there is no
cumulative violation of the Congressional review requirements as
suggested by the respondents.
Comment: Several respondents stated that the interim rule is a
major rule for purposes of the Regulatory Flexibility Act, 5 U.S.C.
801-808.
Response: On March 15, 2004, the Administrator of the Office of
Information and Regulatory Affairs of the Office of Management and
Budget (OMB) found that the interim rule proposed for Sec. 228.4(a)
was not a major rule for purposes of 5 U.S.C. 801-808.
Comment: Three respondents said that the Forest Service violated
the Congressional review requirements of the Regulatory Flexibility Act
by failing to submit required reports on the rule to each House of
Congress and the Comptroller General.
Response: The Forest Service did comply with this requirement. On
July 19, 2004, the Forest Service submitted a Congressional Rulemaking
Report to the House of Representatives (Congressman Hastert), the
Senate (Vice President Cheney), and the General Accounting Office
(Comptroller General Walker), containing the provision of the interim
rule and therefore meeting the Congressional rulemaking reporting
requirements in the Act.
Comment: Two respondents commented that the Forest Service violated
the Unfunded Mandates Reform Act by failing to prepare a required
written statement, failing to seek input from elected officers of
State, local and tribal governments, and failing to consider regulatory
alternatives to the rule. Those respondents further stated that these
violations of the Act also constitute violations of the Congressional
review requirements.
Response: The obligation to prepare the written statement required
by the Unfunded Mandates Reform Act (act) (2 U.S.C. 1532) is triggered
by the intention to publish certain ``general notice[s] of proposed
rulemaking'' or ``any final rule for which a general notice of proposed
rulemaking was published.'' As previously discussed, the interim rule
is neither a general notice of proposed rulemaking or a final rule.
Therefore, the Forest Service was not under an obligation to prepare a
statement pursuant to the act in promulgating the interim rule.
The obligation to seek input from elected officers of State, local,
and tribal governments as required by the act at Sec. 1532 is
triggered by ``the development of regulatory proposals containing
significant Federal intergovernmental mandates.'' 2 U.S.C. 1534(a). For
purposes of this act at Sec. 15342, the term ``Federal
intergovernmental mandate'' means:
(A) any provision in legislation, statute, or regulation that--
(i) would impose [certain] enforceable dut[ies] upon State,
local, or tribal governments * * *; or
(ii) would reduce or eliminate the amount of [certain]
authorization[s] of appropriations * * *; [or]
(B)[certain] provision[s] in legislation, statute, or regulation
that relate[] to a then-existing Federal program under which
$500,000,000 or more is provided annually to State, local, and
tribal governments under entitlement authority * * *. 2 U.S.C.
658(5), 1502(1).
Nothing in the interim rule imposes enforceable duties upon State,
local, or tribal governments, reduces or eliminates appropriations, or
relates to an existing program under which money is provided annually
to State, local, or tribal governments. Consequently, the Forest
Service was not under an obligation to seek input from elected officers
of State, local, and tribal governments pursuant to this act in
promulgating the interim rule.
Compliance with the requirements of Sec. 1535 of this act
concerning consideration of regulatory alternatives to a rule is
mandated ``before promulgating any rule for which a written statement
is required under section 1532 of this title * * *'' (2 U.S.C.
1535(a)). For the reasons previously stated, the Forest Service was not
under an obligation to prepare a statement pursuant to Sec. 1532 of
the act in promulgating the interim rule.
Given that the Forest Service did not violate the Unfunded Mandates
Reform Act in promulgating the interim rule, there is no cumulative
violation of the Congressional review requirements.
Comment: Two respondents said that the Forest Service violated the
Paperwork Reduction Act by failing to have a control number for the
collection of information in paragraph 228.4(a) of the interim rule.
Response: The OMB control number for Sec. 228.4 is 0596-0022 and
was current upon adoption of the interim rule and is approved through
July 31, 2005. While the interim rule amended the language of Sec.
228.4(a), the amended language was a clarification which did not alter
the meaning of that provision and did not change the scope of
information or number of burden hours associated with this collection
number. Therefore, the Forest Service did not need to obtain another
control number or modify control number 0596-0022 prior to the adoption
of the interim rule. Nothing in the Paperwork Reduction Act renders the
interim rule or the final rule unenforceable.
Comment: Two respondents commented 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
rule. Those respondents further said that the violation of the ESA also
constitutes a violation of Congressional review requirements.
Response: The assertion that formal consultation was required for
the
[[Page 32717]]
promulgation of the interim rule is predicated upon a conclusion that
the purpose of the interim rule was to prevent undue degradation
coupled with an assumption that the undue degradation of concern
involved threatened and endangered species. However, the purpose of the
interim rule is not the prevention of undue degradation as is made
evident by the rule's preamble. Indeed, the term ``undue degradation''
is not employed in either the text of the interim rule or its preamble.
Moreover, the interim rule itself has no impact on any threatened
or endangered specie or the habitat of a threatened or endangered
specie. Rather, in the context of 36 CFR part 228, subpart A, the
action which the Forest Service takes which might have such an effect
is approving a proposed plan of operations. 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 interim rule, there is no cumulative violation of
Congressional review requirements.
Comment: Several respondents said that the Forest Service violated
the National Environmental Policy Act (NEPA) by failing to prepare an
environmental impact statement (EIS).
Response: The respondents' assertion that an EIS was required for
the promulgation of the interim rule is solely predicated upon the
conclusion that the rule's promulgation was a major Federal action
which, under NEPA, requires the preparation of an EIS. However, NEPA
requires the preparation of an EIS only for those major Federal actions
significantly affecting the quality of the human environment (42 U.S.C.
4332(2)(C)) and does not require an EIS for a major action which does
not have a significant impact on the environment. Sierra Club v.
Hassell, 636 F.2d 1095, 1097 (5th Cir. 1981); Cf. Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 374 (1989).
The respondents do not identify or describe the significant
environmental impacts which they believe resulted from promulgation of
the interim rule. In fact, the interim rule has no impact on the human
environment. For these reasons, NEPA did not require the preparation of
an EIS prior to the promulgation of the interim rule.
Comment: Several respondents said that the Forest Service violated
NEPA by failing to prepare both an environmental assessment (EA) and an
EIS.
Response: The respondents did not explain the reasons for their
conclusion that the interim rule should have been deemed a proposal for
major Federal action significantly affecting the quality of the human
environment such that an EIS should have been prepared in connection
with the promulgation of the rule. Nor did the respondents explain why
they concluded that an EA should have been prepared in connection with
the promulgation of the interim rule. However, the comments do seem to
imply that the interim rule should not have been categorically excluded
from documentation in an EIS or an EA because extraordinary
circumstances listed in Forest Service Handbook (FSH) 1905.15, section
30.3, paragraphs 1 & 2 are present. The comments also appear to suggest
that an EA must always be prepared prior to the preparation of an EIS.
The assumption that an EA always must be prepared prior to an EIS
clearly is incorrect, because an EA is not necessary if the agency has
decided to prepare an EIS (40 CFR 1501.3(a)).
The Department has not independently identified a reason to
conclude that the interim rule was inappropriately categorically
excluded from documentation in an EIS or an EA. The interim rule
squarely fits within the Forest Service's categorical exclusion for
``[r]ules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instructions.'' (FSH
1909.15, sec. 31.1b, para 2).
Even if an action falls within a category of proposed actions
normally excluded from further analysis and documentation in an EIS or
an EA, the presence of certain resource conditions, such as wilderness
or flood plains, specified in the Forest Service's NEPA procedures may,
in some cases, constitute extraordinary circumstances warranting such
analysis and documentation. Nonetheless, the mere existence of such
resource conditions is not determinative in deciding whether it is
proper to categorically exclude an action from documentation in an EIS
or an EA. The Forest Service's NEPA procedures specifically provide
that ``[t]he mere presence of one or more of these resource conditions
does not preclude use of a categorical exclusion. It is the degree of
the potential effect of a proposed action on these resource conditions
that determines whether extraordinary circumstances exist.''
Although the interim rule will govern locatable mineral operations
which might affect the resource conditions listed in FSH 1909.15,
section 31.1b, paragraph 2, the distinction quoted in the previous
paragraph is crucial because the interim rule itself has no impact on
the human environment, including the specified resource conditions. For
these reasons, NEPA did not require the preparation of both an EA and
an EIS prior to the promulgation of the interim rule.
Comment: A number of respondents stated that the Forest Service
violated NEPA by failing to consider all reasonable alternatives to the
rule.
Response: NEPA only requires consideration of alternatives to
``proposals for * * * major Federal actions significantly affecting the
quality of the human environment'' (42 U.S.C. 4332(2)(C)(iii)). As
previously discussed, the promulgation of the interim rule does not
constitute a major Federal action significantly affecting the quality
of the human environment.
Additionally, the interim rule does not involve unresolved
conflicts concerning the alternative uses of available resources. Both
the original and revised (interim rule) Sec. 228.4(a) provide for the
development of locatable mineral resources upon the completion of
certain procedural requirements. Consequently, the promulgation of the
interim rule was not a ``proposal which involves unresolved conflicts
concerning alternative uses of available resources'' requiring the
consideration of alternatives.
For these reasons, NEPA did not require the Forest Service to
consider all reasonable alternatives to the interim rule.
Comment: A number of respondents commented that the Forest Service
violated NEPA by failing to consider and disclose the direct, indirect,
and cumulative effects of the interim rule and its reasonable
alternatives. These respondents also faulted the Forest Service for
failing to consider the cumulative adverse socio-economic impacts of
the interim rule in connection with other Federal regulatory actions.
Response: The respondents did not identify or describe the direct,
indirect, or cumulative impacts which they believe resulted from
promulgation of the interim rule which the Forest failed to consider or
assess. The respondents also neglected to identify the other Federal
regulatory actions finalized and proposed in recent years, which work
to increase the cumulative cost of the interim rule, while also
diminishing marginal environmental benefit.
As previously discussed, the Department has not independently
identified an impact on the environment
[[Page 32718]]
which would result from the promulgation of the interim rule, nor was
the consideration of reasonable alternatives required given that the
interim rule was properly categorically excluded from documentation in
an EIS or an EA (40 CFR 1508.4).
The Department also disagrees with the respondents' statements that
there have been other Federal regulatory actions proposed or finalized
in recent years which would have, or have, had any impact on locatable
mineral operations proposed or occurring on NFS lands. The rules
governing these operations at 36 CFR part 228, subpart A, have not been
substantively changed since their promulgation in 1974. Nor has a rule
contemplating such a change been proposed.
For these reasons, NEPA did not require the consideration and
disclosure of the direct, indirect, and cumulative effects of the
interim rule and its reasonable alternatives.
Comment: Several respondents stated the Forest Service violated
NEPA by failing to use reliable methodology.
Response: The respondents did not explain why they believe that the
Forest Service used unreliable methodology in promulgating the interim
rule. In fact, the totality of the respondents' description of this
issue consists of the statement that ``[t]he Interim Rule fails to use
reliable methodology in violation of NEPA and its implementing
regulations.''
The Department's review of the interim rule identified no instance
where unreliable methodology was used in the rule's promulgation.
Comment: Several respondents said that the Forest Service violated
NEPA by failing to conduct scoping on the rule.
Response: The Council on Environmental Quality regulations
implementing NEPA only require scoping where an agency is preparing an
EIS (40 CFR 1501.4(d)). As previously discussed, NEPA did not require
the preparation of an EIS prior to the promulgation of the interim
rule. Accordingly, NEPA did not require scoping prior to the
promulgation of the interim rule.
Comment: Two respondents said that the Forest Service violated 40
CFR part 25 by failing to meet the requirements for public
participation set forth in that part. Those respondents also stated
that the Forest Service's violation of the public participation
requirement at 40 CFR part 25 also constitutes a violation of
Congressional review requirements.
Response: The regulations at 40 CFR part 25 govern ``public
participation in operations under the Clean Water Act (Pub. L. 95-217),
the Resource Conservation and Recovery Act (Pub. L. 94-580), and the
Safe Drinking Water Act (Pub. L. 93-523).'' The Forest Service's
regulation of the impacts of locatable mineral operations on NFS
resources is not an activity undertaken pursuant to any of these acts.
Rather, the interim rule was adopted pursuant to authority conferred
upon the Forest Service by portions of the Organic Administration Act
(16 U.S.C. 478, 551). Consequently, 40 CFR part 25 is inapplicable to
the adoption of the interim rule.
Given that the Forest Service did not violate 40 CFR part 25 in
promulgating the interim rule, there is no cumulative violation of
Congressional reporting requirements.
Comment: Two respondents stated that the interim rule is
inconsistent with Executive Order (E.O.) 13132 because it would permit
the Forest Service to regulate locatable mineral operations which take
place in waters which the respondents believe is committed to States,
not the Federal government. More specifically, those respondents said
that the Forest Service, in promulgating the interim rule, violated the
E.O. by failing to make a required disclosure as to the effect of the
rule upon principles of Federalism. Those respondents also commented
that the Forest Service violated the E.O. by failing to consult with
affected State and local officials and that a violation of the E.O.
also constitutes a violation of the Congressional reporting
requirements.
Response: For purposes of 36 CFR part 228, subpart A, there can be
no doubt that the Forest Service's authority to regulate the
disturbance of NFS surface resources resulting from locatable mineral
operations generally encompasses the effects of those operations on
water, streambeds, or other submerged lands. Section 228.8
characterizes fisheries habitat as a ``National Forest surface
resource'' and requires rehabilitation of fisheries habitat. Fisheries
habitat, of course, can consist of nothing other than water,
streambeds, or other submerged lands. Only where adjudication has
established that watercourses were navigable at the time that a State
was admitted to the Union are those resources solely subject to State
regulation. Thus, the Forest Service has clear authority to regulate
the effects which locatable mineral operations have on water,
streambeds, or other submerged lands, whether or not those operations
are taking place in waters themselves, except where adjudication has
established that watercourses were navigable at the time that a State
was admitted to the Union.
The disclosures and consultations required by E.O. 13132 only apply
to those policies which have 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)).
Nothing in the interim rule restricts State or local government's
current regulatory powers over locatable mineral operations which take
place in waters. Thus, as explained in the interim rule's preamble,
that rule ``would not have substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government'' (69 FR 41428-41430). Consequently, the Forest Service
was not required to make the disclosures or undertake the consultation
referenced in these comments.
Given that the Forest Service did not violate E.O. 13132 in
promulgating the interim rule, there is no cumulative violation of
Congressional reporting requirements.
Comment: Two respondents commented that the Forest Service violated
E.O. 12630 by failing to disclose the potential impact of the rule on
property rights. Those respondents further commented that this
violation of the E.O. also constitutes a violation of 5 U.S.C.
801(a)(1)(B)(iii) and (iv).
Response: In their discussions of E.O. 12630, the respondents do
not specifically identify or describe the impact of the interim rule
which they believe would constitute a regulatory taking of mining
claimants' property rights. Rather, the respondents simply state that
``[a]s was established above, the Interim Rule would affect a
regulatory taking of all [mining claims].'' However, the respondents'
only other reference to a regulatory taking appears in their discussion
of the impact of requiring a bond from miners for small scale mining
operations.
The interim rule does not address, or purport to address, bonding
of locatable mineral operations. Moreover, it is well established that
a rule such as the interim rule, which in certain circumstances
requires a miner to obtain approval before conducting locatable mineral
operations, does not deprive the miner of any property right conferred
by a mining claim. Freese v. United States, 6 Cl. Ct. 1, 14-16 (1984),
aff'd mem., 770
[[Page 32719]]
F.2d 177 (Fed. Cir. 1985); Trustees for Alaska v. Environmental
Protection Agency, 749 F.2d 549, 559-60 (9th Cir. 1984); cf. Clouser v.
Espy, 42 F.3d 1522, 1530 (9th Cir. 1994), cert. denied sub nom. Clouser
v. Glickman, 515 U.S. 1141 (1995). Therefore, the Department properly
found that an analysis of the interim rule conducted pursuant to E.O.
12630 properly ``determined that the interim rule does not pose the
risk of a taking of private property'' (69 FR 41430, Jul. 9, 2004).
For these reasons, the Forest Service did not violate E.O. 12630 in
promulgating the interim rule. Given that, there is no cumulative
violation of Congressional reporting requirements.
Comment: Two respondents said that the Forest Service, in
promulgating the interim rule, violated E.O. 12866 by failing to make a
required disclosure as to the effect of the rule on the Federal budget.
Those respondents further stated that this violation of the E.O. also
constitutes a violation of Congressional reporting requirements.
Response: The respondents did not cite the applicable provision of
E.O. 12866 which they believe requires ``disclosures concerning whether
the interim rule represents a government action that would
significantly effect the Federal budget'' and the E.O. does not use the
term ``Federal budget'' or any obvious synonym. The only provision in
the E.O. to which the respondents might be referring appears to be Sec.
6(a)(3)(C)(ii) which requires ``an assessment * * * of costs
anticipated from the regulatory action (such as, but not limited to,
the direst cost * * * to the government in administering the regulation
* * *).'' However, such an assessment only is required ``for those
matters identified as, or determined by the Administrator of OIRA to
be, a significant regulatory action * * *.'' Sec. 6(a)(3)(C).
On March 15, 2004, the Administrator of the Office of Information
and Regulatory Affairs of the OMB found that the interim rule proposed
for 36 CFR 228.4(a) was non-significant for purposes of E.O. 12866.
Thus, the assessment mandated by Sec. 6(a)(3)(C)(ii) of the E.O. was
not required for the interim rule.
Given that the Forest Service did not violate E.O. 12866 in
promulgating the interim rule, there is no cumulative violation of
Congressional reporting requirements.
Comment: Two respondents commented that the Forest Service failed
to solicit comment on the interim rule from western governors which
violates the spirit of the 1998 Department of the Interior and Related
Agencies Appropriations Act, Pub. L. 105-83, Sec. 339, 111 Stat. 1543,
1602 (1997).
Response: The cited provision of the 1998 Department of the
Interior and Related Agencies Appropriations Act required the Bureau of
Land Management (BLM), Department of the Interior, to consult with the
governors from each Western State containing public lands open to
location under the United States mining laws before adopting a rule to
amend or replace 43 CFR part 3800, subpart 3809. These regulations are
the Department of the Interior's counterpart to 36 CFR part 228,
subpart A. The Department's promulgation of the interim rule did not
violate this provision because the provision, by its own terms, is not
applicable to 36 CFR part 228, subpart A.
Prior to the enactment of the 1998 Department of the Interior and
Related Agencies Appropriations Act, the Department of the Interior had
announced its intent to prepare an EIS for the proposed revision of 43
CFR part 3800, subpart 3809 (62 FR 16177). That notice described the
scope of the contemplated revisions to 43 CFR part 3800, subpart 3809,
as ``comprehensive.'' In contrast, the scope of the interim rule at
Sec. 228.4(a) is limited and only concerns the form of authorization
required for conducting locatable mineral operations on National Forest
System lands.
Given the vastly different scopes of the Department of the
Interior's 1997 proposal to a ``comprehensive'' revision of their
regulations and the clarification of Sec. 228.4(a) provided for in the
Department's interim rule, there is no reason to presume that Congress
would have intended that consultation, such as it required for the
comprehensive revision of 43 CFR part 3800, subpart 3809, be performed
for the promulgation of the interim rule. Therefore, the promulgation
of the interim rule is not in any manner inconsistent with the
``spirit'' of Sec. 339 of the 1998 Department of the Interior and
Related Agencies Appropriations Act.
Comment: Two respondents stated that the Small Business
Administration (SBA) would find that the interim 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: As discussed in the response to the previous comment, the
scope of the interim rule, which only concerns the form of
authorization required for conducting locatable mineral operations on
NFS lands, is dramatically less sweeping than the scope 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 the
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 interim rule.
Comment: Many respondents noted that the Forest Service improperly
invoked an emergency as the grounds for implementing the interim rule
before receiving and responding to public comment.
Response: The Forest Service did not rely upon the existence of an
emergency in adopting the interim rule. Neither the text of the interim
rule nor its preamble employ the term ``emergency'' or any of its
synonyms. The Forest Service consequently did not need to meet the test
advocated by the respondents to assess the existence of an emergency
prior to adopting and implementing the interim rule. Moreover, even if
such terminology had been used, the legal standards governing the
adoption of rules are set forth in the Administrative Procedure Act, 5
U.S.C. 553. The preamble to the interim rule explains the Department of
Agriculture's compliance with that Act's standards in promulgating the
interim rule.
2. Comments on the Effect of the Interim Rule
General Issues
Comment: Numerous respondents stated that the changes to 36 CFR
228.4(a) adopted by the interim rule have confused miners and are
capable of being misapplied.
Response: Given these comments and other specific comments made on
individual paragraphs of the interim rule, the Department agrees that
changes are required to make the text of the interim rule clearer to
foster the consistency of its application by Forest Service employees.
These changes generally are described in the following subsection
entitled ``Comments on Specific Sections of the Interim Rule,'' of this
section of the Response to Comments. In addition, the final rule also
reorganizes the text of the interim rule so that its sequence is more
logical and reflects an increasing level of Forest Service
consideration of the environmental impacts of locatable mining
operations on NFS resources. As reorganized by the final rule, Sec.
228.4(a)
[[Page 32720]]
will describe in sequence when an operator is required to submit a
notice of intent to operate before commencing operations, what
operations are exempt from the requirement for prior submission of a
notice of intent to operate, when an operator is required to submit and
obtain approval of a proposed plan of operations before commencing
operations, what operations are exempt from the requirement for prior
submission and approval of a proposed plan of operations, and a
District Ranger's authority to require submission and approval of a
proposed plan of operations before an operator commences proposed
operations or continues ongoing operations. This reorganization
parallels the typical progression of mining operations from the least
functions, work, or activities for prospecting or casual use, which
would not normally require prior submission and approval of a plan or
operations, through exploration, which often would require prior
submission of a notice of intent to operate, and might require prior
submission and approval of a plan of operations, to development and
production, which normally would require prior submission and approval
of a plan of operations. These changes should enhance the final rule's
clarity and comprehensibility.
Comment: Numerous respondents said that the interim rule unfairly
restricts entities or persons, whom the respondents characterized as
mining clubs, recreational miners, hobby miners, and recreational
suction dredgers. Some of the respondents also commented that the
interim rule could collapse the recreational mining industry. Other
respondents said that United States mining laws authorize recreational
and hobby mining.
Response: The Organic Administration Act (16 U.S.C. 482) makes the
United States mining laws (30 U.S.C. 22 et seq.) applicable to NFS
lands reserved from the public domain pursuant to the Creative Act of
1891 (Sec. 24, 26 Stat. 1095, 1103 (1891), repealed by Federal Land
Policy and Management Act of 1976, Sec. 704(a), 90 Stat, 2743, 2792
(1976)). Under the United States mining laws, United States citizens
may enter those NFS lands to prospect or explore for and remove
valuable deposits of certain minerals referred to as locatable
minerals.
Neither the United States mining laws or 36 CFR part 228, subpart
A, recognize any distinction between ``recreational'' versus
``commercial'' miners, or provide any exceptions for operations
conducted by ``recreational'' miners. The same rules apply to all
miners. Thus, to the extent that individuals or members of mining clubs
are prospecting for or mining valuable deposits of locatable minerals,
and making use of or occupying NFS surface resources for functions,
work or activities which are reasonably incidental to such prospecting
and mining, it does not matter whether those operations are described
as ``recreational'' or ``commercial.'' However, functions, work, or
activities proposed by individuals, members of mining clubs, or mining
clubs themselves, such as educational seminars, treasure hunts, hunting
camps, and summer homes, far exceed the scope of the United States
mining laws. Accordingly, the purpose of both the interim rule and the
final rule adopted by this rulemaking is to regulate all permissible
operations under the United States mining laws. Thus, the interim rule,
as well as the final rule being adopted by this rulemaking, apply to
every person or entity conducting or proposing to conduct locatable
mineral operations on NFS lands under the United States mining laws.
For purposes of the final rule being adopted by this rulemaking,
the requirement for prior submission of a notice of intent to operate
alerts the Forest Service that an operator proposes to conduct mining
operations on NFS lands which the operator believes might, but are not
likely to, cause significant disturbance of NFS surface resources and
gives the Forest Service the opportunity to determine whether the
agency agrees with that assessment such that the Forest Service will
not exercise its discretion to regulate those operations. For purposes
of both the interim rule and the final rule being adopted by this
rulemaking, the requirement for prior submission and approval of a
proposed plan of operations ensures that the Forest Service can
evaluate the environmental impacts of potentially more impactive
proposed mining operations on NFS resources and enables the Forest
Service to require less disruptive means of conducting those
operations. Freese v. United States, 6 Cl. Ct. 1, 15 (1984), aff'd
mem., 770 F.2d 177 (Fed. Cir. 1985). While these requirements do affect
the manner in which mining operations are conducted, they do not
deprive operators of the ability to conduct such operations. As such,
the requirements fall within the Department's ``broad discretion to
regulate the manner in which mining activities are conducted on the
national forest lands.''
For these reasons, no change has been made in the final rule as a
result of these comments.
Comment: One respondent said that a new provision should be added
to the final rule which states that the use of small portable suction
dredges, such as those with an intake of four inches or less, does not
require prior submission of a notice of intent to operate or prior
submission and approval of a proposed plan of operations. The
respondent said that various studies, including those by the United
States Environmental Protection Agency, the Department of Interior,
United States Geological Survey, and the State of Alaska Department of
Natural Resources, have shown that these dredges do not cause
significant disturbance of streams or rivers. The respondent also
stated that such a provision would be consistent with the
recommendations of the National Academy of Sciences, National Research
Council's 1999 report entitled, ``Hardrock Mining on Federal Lands.''
Response: The environmental impacts of operating suction dredges,
even small ones, are highly site-specific depending on the
circumstances and resource conditions involved. The environmental
impacts of using a suction dredge on two bodies of water which are
otherwise similar can vary greatly if a threatened or endangered specie
inhabits one body of water but not the other. Even with respect to a
particular body of water, the environmental impacts of suction dredge
operations can vary by season due to climatic conditions or the life
cycles of aquatic species. Given this variability, the Department
believes that, insofar as suction dredge operations are concerned, the
need for the prior submission of a notice of intent to operate or for
the prior submission and approval of a proposed plan of operations must
be evaluated on a site-specific basis. While the operation of suction
dredges with intakes smaller than four inches may not require either a
notice of intent to operate or an approved plan of operations in many
cases, the prior submission of a notice of intent to operate will be
required in some cases, and the prior submission and approval of a
proposed plan of operations will be required in fewer cases.
For these reasons, no change has been made in the final rule in
response to this comment.
Comment: Three respondents stated that the interim rule could be
considered a taking of private property. Specifically, one of those
respondents said that the rule could effect an unconstitutional
regulatory taking of State land because States own the beds
[[Page 32721]]
beneath all waters and, in certain states, other riparian lands.
Another respondent commented that delay inherent in the process of
submitting a notice of intent to operate or submitting and obtaining
approval of a proposed plan of operations could put a miner out of
business or deny the miner the opportunity to extract minerals from the
miner's mining claims, either of which could be considered a taking of
private property. The remaining individual did not identify the impact
of interim rule which he or she believes could constitute a regulatory
taking of private property rights.
Response: As previously discussed, NFS surface resources subject to
36 CFR part 228, subpart A, usually include streambeds or other
submerged lands. However, where adjudication has established that
watercourses were navigable at the time that a State was admitted to
the Union, those resources are solely subject to State regulation. The
provisions of 36 CFR part 228, subpart A, as amended by the interim
rule, are not applicable in a situation where streambeds or other
submerged lands passed into a State's ownership upon that State's
admission into the Union, because that subpart only applies to
``National Forest System lands'' (Sec. 228.2). Therefore, the interim
rule clearly does not have the potential to take property owned by
States.
In evaluating the effect of regulatory action on the property
rights associated with a valid mining claim, it is important to
remember that mining claims are a ``unique form of property'' (Best v.
Humboldt Placer Mining Co., 371 U.S. 334, 335 (1963)), and the ``power
to qualify [such] property rights is particularly broad * * *.''
(United States v. Locke, 471 U.S. 84, 104 (1985)).
Claimants thus must take their mineral interests with the
knowledge that the Government retains substantial regulatory power
over those interests. In addition, the property right here is the
right to a flow of income from production of the claim. Similar
vested economic rights are held subject to the Government's
substantial power to regulate for the public good the conditions
under which business is carried out and to redistribute the benefits
and burdens of economic life (Id. at 105; citations omitted).
Moreover, as previously discussed, it is well established that a
rule, such as the interim rule, which in certain circumstances requires
a miner to obtain approval before conducting locatable mineral
operations, does not deprive the miner of any property right conferred
by a mining claim.
For these reasons, the interim rule does not pose the risk of
taking private property and no change has been made in the final rule
in response to these comments.
Comment: Several respondents said that the interim rule is fatally
flawed because it has no enforcement provision and 36 CFR part 261
cannot be applied to mining operations conducted pursuant to 36 CFR
part 228, subpart A, including the interim rule.
Response: The conclusion that 36 CFR part 261 is not applicable to
locatable mineral operations conducted pursuant to the interim 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 this case, the appellants contended that they are exempted
from the prohibitions of 36 CFR part 261(b) which states that ``nothing
in this part shall preclude operations as authorized by * * * the U.S.
Mining Laws Act of 1872 as amended.'' They also contended that their
operations were authorized by statute and, therefore, the regulations
do not prohibit such operations. However, the court 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).
Further, the interim rule also is enforceable by means of civil
litigation seeking declaratory, injunctive, or other appropriate
relief.
For these reasons, no change has been made in the final rule as a
result of these comments.
Comment: Several respondents commented that the interim rule is
preclusive because it requires a bond from miners for small scale
mining operations.
Response: The interim rule did not address, or purport to address,
bonding of locatable mineral operations. Bonding of locatable mineral
operations is governed by 36 CFR 228.13, which was not affected by the
interim rule.
For this reason, no change has been made in the final rule in
response to these comments.
Comment: A number of respondents expressed concern that the interim
rule does not contain limitations on the time allowed for the Forest
Service to process either a notice of intent to operate or a proposed
plan of operations.
Response: Section 228.4(a)(2)(iii) of the rule in effect prior to
adoption of the interim rule provided that ``[i]f a notice of intent is
filed, the District Ranger will, within 15 days of receipt thereof,
notify the operator whether a plan of operations is required. This
requirement was not changed in the interim rule, but was moved to Sec.
228.4(a)(2).
Limitations on the time available to process a plan of operations
does not appear in Sec. 228.4(a). That issue is addressed in Sec.
228.5(a), which was not affected by the interim rule. However, Sec.
228.5(a) cannot circumscribe the Forest Service's obligation to comply
with statutes, such as the National Environmental Policy Act or the
Endangered Species Act, even if this compliance takes longer than the
time stated in Sec. 228.5(a). Baker v. United States Department of
Agriculture, 928 F. Supp. 1513, 1519-21 (D. Idaho 1996); cf. United
States v. Boccanfuso, 882 F.2d 666, 671 (2d Cir. 1989).
For these reasons, no change has been made in the final rule as a
consequence of these comments.
Comment: Several respondents commented that the Forest Service
lacks jurisdiction to manage suction dredge mining because suction
dredge mining has been exempted through agreements with each of the
Western States. Additionally, these respondents said that each of the
Western States regulate suction dredge mining thereby precluding Forest
Service enforcement of the interim rule insofar as suction dredge
mining operations are concerned.
Response: None of the agreements between the Forest Service and a
State government exempts persons wishing to conduct locatable mineral
operations on NFS lands from complying with the interim rule, or any
other provision of 36 CFR part 228, subpart A, in conducting those
operations, including suction dredge mining.
A State cannot preclude the Federal Government from regulating
those things over which the Federal Government has authority, including
Federal lands. Rather, Congress has absolute power to adopt legislation
governing the use of Federal lands and to delegate authority to the
executive
[[Page 32722]]
branch of government to adopt further rules for this purpose, as
Congress did in the context of the Organic Administration Act, 16
U.S.C. 478, 482, 551, which made the United States mining laws
applicable to NFS lands reserved from the public domain pursuant to the
Creative Act of 1891, Sec. 24, 26 Stat. 1095, 1103 (1891), repealed by
Federal Land Policy and Management Act of 1976, Sec. 704(a), 90 Stat,
2743, 2792 (1976), but which also made miners subject to regulations
adopted by what is now the Department of Agriculture. Thus, it is State
regulation of suction dredge mining operations which is pre-empted when
it conflicts with Federal law, including rules adopted by executive
agencies, such as the interim rule.
For these reasons, no change has been made in the final rule in
response to these comments.
Comment: Several respondents stated that the interim rule will
effectively revoke State of California Suction Dredge Permits held by
miners operating on NFS lands. Those respondents also said that the
Forest Service must provide those miners a hearing prior to that
revocation.
Response: These comments seem to presume that the Forest Service's
regulation of suction dredge mining occurring on NFS lands pursuant to
the interim rule will preclude the State of California from issuing
suction dredge permits for those same operations. However, as
previously stated, this assumption is inaccurate. It is entirely
possible that both the Forest Service and a State can permissibly
regulate suction dredge mining operations for locatable minerals
occurring on NFS lands. Indeed, the Forest Service's locatable mineral
regulations (36 CFR 228.8) specifically provide that persons conducting
locatable mineral operations on NFS lands also must comply with
applicable State imposed requirements, such as water quality
requirements.
The State of California itself recognizes that a miner who has
obtained a suction dredge permit pursuant to California Fish & Game
Code Sec. 5653 must also obtain all required authorizations from the
Federal agency managing lands on which proposed suction dredge mining
operations will occur. Specifically, Cal. Code Regs. tit. 14, Sec.
228(g) provides that ``[n]othing in any permit issued pursuant to these
regulations authorizes the permittee to trespass on any land or
property, or relieves the permittee of the responsibility of complying
with applicable Federal, State, or local laws or ordinances.''
Similarly, the State of California Department of Fish and Game's Notice
to All Suction Dredge Permittees states on the second page under the
heading ``General Information Concerning Suction Dredging'' that:
[t]he regulations in Sections 228 and 228.5 of title 14 in the
California Code of Regulations govern suction dredging in
California. In addition to those regulations, other laws,
regulations, and policies may apply, including, but not limited to,
the following:
A suction dredge permit does not allow trespassing. Be sure you
have permission from the landowner or the land managing agency
before entering private or public lands.
Thus, it is clear that the interim rule will not effect a
revocation of State of California Suction Dredge Permits held by miners
operating on NFS lands and no change has been made in the final rule as
a consequence of these comments.
Comment: A number of respondents said that the interim rule is
vague and standardless and consequently a court would construe it in
the manner most favorable to mining operators.
Response: If a rule is vague or standardless, which is not the case
insofar as the interim rule is concerned, the consequence is that the
rule is not enforceable against the public. However, only the judicial
branch of government can conclusively resolve the question of the
proper interpretation of any rule or decide whether a rule is
impermissibly vague.
For these reasons, no change has been made in the final rule in
response to these comments.
Comment: Several respondents commented that the interim rule is
inconsistent with a National Research Council report entitled
``Hardrock Mining on Federal Lands.''
Response: The comments do not identify or describe in any manner
inconsistencies between the interim rule and the National Research
Council report, whose main body is 126 pages in length. The
Department's review of the National Research Council report identified
no inconsistencies between it and the interim rule.
For these reasons, no change has been made in the final rule as a
result of these comments.
Comment: One respondent stated that the Forest Service should issue
internal guidance documents to its employees about the intent and
application of the interim rule. The respondent also commented that the
internal guidance document should state that the final rule is not
intended to change the long-standing interpretation of Sec. 228.4(a)
concerning the circumstances in which prior submission of a notice of
intent to operate or prior submission and approval of a proposed plan
of operations is required.
Response: The Forest Service has a large and active national
minerals and geology training program and certification and training
requirements for all of its mineral administrators. The Forest Service
will appropriately revise its internal agency guidance documents and
the instruction given as part of its national training curriculum to
reflect any substantive change to the requirements for prior submission
of a notice of intent to operate and prior submission and approval of a
proposed plan of operations which are adopted by the final rule.
No change was required in the final rule in response to this
comment.
Comments on Specific Sections of the Interim Rule
The following discusses and responds to public comments to specific
paragraphs in the interim rule for Sec. 228.4(a) received during the
60-day comment period. As a result of the comments received, the
section has been reorganized and revised. The reorganization of Sec.
228.4(a) is displayed in the following table:
Table 1.--Comparison of the Interim Rule and Final Rule
------------------------------------------------------------------------
Interim Rule Final Rule
------------------------------------------------------------------------
Sec. 228.4 Plan of operations-- Sec. 228.4 Notice of intent--
notice of intent--requirements plan of operations--requirements
------------------------------------------------------------------------
(a) If the District Ranger determines This provision is redesignated at
that the operation is causing or paragraph (a)(3).
will likely cause significant
surface disturbance a plan of
operations is required.
(a) A notice of intent is
required from any person
proposing to conduct operations
that might cause significant
surface disturbance.
[[Page 32723]]
(1) Unless there are significant This provision with respect to
surface disturbing activities, a plan of operations is
plan of operations is not required redesignated at paragraph
when one of the provisions in (a)(3).
paragraphs (i) through (iv) are met.
(1) A notice of intent is not
required when one of the
provisions in paragraphs (i)
through (vii) are met.
(i) A plan of operations is not This provision with respect to
required for operations limited to plan of operations is
existing roads. redesignated at paragraph (a)(3)
by referencing paragraph
(a)(1)(i).
(i) A notice of intent is not
required for operations limited
to existing roads.
(ii) A plan of operations is not This provision with respect to
required when individuals search for plan of operations is
and remove small mineral samples. redesignated at paragraph (a)(3)
by referencing paragraph
(a)(1)(ii).
(ii) A notice of intent is not
required for prospecting and
sampling not causing significant
surface disturbance and other
listed examples.
(iii) A plan of operations is not This provision with respect to
required for prospecting and plan of operations is
sampling. redesignated at paragraph (a)(3)
by referencing paragraph
(a)(1)(ii).
(iii) A notice of intent is not
required for monumenting and
marking a mining claim.
(iv) A plan of operations is not This provision with respect to
required for monumenting and marking plan of operations is
a mining claim. redesignated at paragraph (a)(3)
by referencing paragraph
(a)(1)(iii).
(iv) A notice of intent is not
required for underground
operations.
(v) A plan of operations is not This provision with respect to
required for subsurface operations. plan of operations is
redesignated at paragraph (a)(3)
by referencing paragraph
(a)(1)(iv).
(v) A notice of intent is not
required for operations, which
in their entirety, have the same
resource disturbance as other
users of NFS lands who are not
required to get a Forest Service
authorization. This provision
was not provided for in the
interim rule.
(vi) A notice of intent is not
required for operations not
involving mechanized earthmoving
equipment or the cutting of
trees unless these operations
might cause significant
disturbance to surface
resources. This provision was in
paragraph (a)(2)(iii) in the
interim rule.
(vii) A notice of intent is not
required when a plan of
operations is submitted. This
provision was in paragraph
(a)(2)(i) in the interim rule.
(2) A notice of intent is required The provision for filing a notice
from any person proposing to conduct of intent is redesignated at
operations that might cause paragraph (a); the 15-day
significant surface disturbance; the requirement is redesignated at
District Ranger has 15 days to paragraph (a)(2); and the
notify the operator if a plan of exceptions for filing a notice
operations is needed. A notice of of intent are redesignated at
intent is not needed if one of the paragraphs (a)(1)(i)-(vii).
provisions in paragraphs (a)(2)(i)
through (iii) are meet.
(2) The District Ranger has 15
days to notify the operator if a
plan of operations is needed.
(i) A notice of intent is not This provision is redesigned at
required when a plan of operations paragraph (a)(1)(vii).
is submitted.
(ii) Exempts the requirement for a This provision is redesignated in
notice of intent for operations paragraphs (a)(1)(i)-(iv).
exempt from the requirement of a
plan of operation found in paragraph
(a)(1).
(iii) A notice of intent is not This provision is redesignated at
required for operations not paragraph (a)(1)(vi).
involving mechanized earthmoving
equipment or the cutting of trees
unless these operations might cause
significant disturbance to surface
resources.
(3) Requires an operator to
submit a plan of operations when
proposed operations will likely
cause significant disturbance of
surface resources, except as
exempted in paragraph (a)(1)(i)-
(v).
(4) Requires the District Ranger
to notify an operator of the
requirement to submit a plan of
operations for operations
causing or will likely cause
significant disturbance of
surface resources and that
operations can not be conducted
until a plan of operations is
approved. These provisions were
not explicitly provided for in
the interim rule.
------------------------------------------------------------------------
The analysis and response to comments on the interim rule is
organized sequentially by the paragraphs of the interim rule.
Section 228.4(a)
Comment: One respondent commented that the term ``significant'' in
the prefatory language of Sec. 228.4(a) of the interim rule, which
requires the submission of a proposed plan of operations for operations
which a District Ranger determines are causing or will likely cause a
significant disturbance of surface resources, was not defined and
consequently was arbitrary and capricious.
Response: The interim rule did not change the requirement initially
adopted in 1974 that an operator must submit a proposed plan of
operations if the applicable District Ranger determines that the
proposed operations ``will likely cause significant disturbance of
surface resources.'' Questions and Answers developed by the Forest
Service when the 1974 rule was adopted explained that it was impossible
to precisely define the term ``significant disturbance.''
A definition cannot be given that would apply to all lands
subject to these regulations. Disturbance by a particular type of
operation
[[Page 32724]]
on flat ground covered by sagebrush, for example, might not be
considered significant. But that same sort of operation in a high
alpine meadow or near a stream could cause highly significant
surface resource disturbance. The determination of what is
significant thus depends on a case-by-case evaluation of proposed
operations and the kinds of lands and other surface resources
involved. In general, operations using mechanized earthmoving
equipment would be expected to cause significant disturbance. Pick
and shovel operations normally would not. Nor would explosives used
underground, unless caving to the surface could be expected. Use of
explosives on the surface would generally be considered to cause
significant disturbance. Almost without exception, road and trail
construction and tree clearing operations would cause significant
surface disturbance.
The Department continues to believe that a universal definition of
the term ``significant disturbance'' cannot be established for NFS
lands. The lands within the NFS subject to the United States mining
laws stretch from Alaska on the north, the Mississippi River on the
east, the border with Mexico on the south, and the Pacific Ocean on the
west. NFS lands within that large area occur in widely diverse
climates, hydrogeologic conditions, landforms, and vegetative types.
Due to the great variability of NFS ecosystems, identical operations
could cause significant disturbance in one situation and insignificant
disturbance in another.
However, the record for the 1974 rulemaking at 36 CFR part 228,
subpart A, does identify tests that are of use in deciding whether
proposed disturbance of NFS resources constitutes ``significant
disturbance'' for purposes of that rule. A March 28, 1974, letter from
Forest Service Chief John McGuire to Senator Ted Stevens in response to
Senator Stevens' comments on the rule proposed in 1973 explains that
``significant disturbance'' refers to operations ``for which
reclamation upon completion of [that operation] could reasonably be
required,'' and to operations that could cause impacts on NFS resources
that reasonably can be prevented or mitigated.
The March 28, 1974, letter also emphatically makes the point that
the Forest Service's locatable mineral regulations do not use the term
``significant'' in the same manner as that term is used in the National
Environmental Policy Act.
Significant disturbance to the environment, we find, needs to be
clearly distinguished from ``significant'' disturbance of surface
natural resources. The former could be interpreted as an automatic
invocation of Section 102(2)(C) of the National Environmental Policy
Act of 1969 for an environmental statement. This was never intended.
Some few, by no means all, proposals are expected to require
environmental statements, which would be prepared by the Forest
Service.
Judicial decisions rendered in the 30 years since the rule at 36
CFR part 228, subpart A, was promulgated also give context to the
meaning of the term ``significant disturbance.'' For example, it is
well established that the construction or maintenance of structures,
such as cabins, mill buildings, showers, tool sheds, and outhouses on
NFS lands constitutes a significant disturbance of NFS resources.
United States v. Brunskill, 792 F.2d 938, 941 (9th Cir. 1986); United
States v. Burnett, 750 F. Supp. 1029, 1035 (D. Idaho 1990).
For these reasons, no change has been made in the final rule in
response to this comment. However, the Department finds that the Forest
Service has interpreted the terms ``significant'' and ``significant
disturbance'' in the same manner since 1974, including for purpose of
the interim rule. It also is how these terms should be interpreted for
purposes of the final regulation being adopted by this rulemaking.
Comment: A number of respondents said that the interim rule did not
resolve widespread confusion about the level of activity which requires
the filing of a proposed plan of operations, and its approval, before
mining operations can be conducted.
Response: As previously stated, the interim rule did not alter the
requirement initially adopted in 1974 that an operator must submit a
proposed plan of operations if the applicable District Ranger
determines that the proposed operations ``will likely cause significant
disturbance of surface resources.'' The phrase ``will likely cause
significant disturbance of surface resources'' means that, based on
past experience, direct evidence, or sound scientific projection, the
District Ranger reasonably expects that the proposed operations would
result in impacts to NFS lands and resources which more probably than
not need to be avoided or ameliorated by means such as reclamation,
bonding, timing restrictions, and other mitigation measures to minimize
adverse environmental impacts on NFS resources.
No change has been made in the final rule in response to these
comments.
Comment: One respondent stated that the term ``surface'' in the
prefatory language of Sec. 228.4(a) of the interim rule was not
defined and that as a consequence suction dredge mining, which occurs
underwater, could be considered a subsurface activity which was beyond
the regulatory authority of the Forest Service.
Response: As previously discussed, section 228.8 characterizes
fisheries habitat as a NFS surface resource and it is clear that for
purposes of 36 CFR part 228, subpart A, including Sec. 228.4(a)(1)(v)
of the interim rule, water, streambeds, or other submerged lands
generally should be construed as a NFS surface resource. Only where
adjudication has established that watercourses were navigable at the
time that a State was admitted to the Union are those resources solely
subject to State regulation. Thus, the Forest Service has clear
authority to regulate the effects which locatable mineral operations
have on water, streambeds, or other submerged lands, whether or not
those operations are taking place wholly or partially in waters
themselves, except where adjudication has established that watercourses
were navigable at the time that a State was admitted to the Union.
For these reasons, no change was required in the final rule in
response to these comments. However, for purposes of the final
regulation being adopted by this rulemaking, the term ``surface
resources'' should be interpreted as including water, streambeds, or
other submerged lands, except where adjudication has established that
the applicable watercourse was navigable at the time that the State in
which the watercourse occurs was admitted to the Union.
The provisions in Sec. 228.4(a) in the interim rule have been
redesignated to Sec. 228.4(a)(3) in the final rule.
Section 228.4(a)(1)
Comment: Numerous respondents commented that the phrase, ``[u]nless
the District Ranger determines that an operation is causing or will
likely cause a significant disturbance of surface resources'' gives too
much discretion to District Rangers. Those respondents stated that the
phrase would permit a District Ranger to require a plan of operations
for surface disturbance of any magnitude, including that which will
likely result from the operations listed in the exemptions in
paragraphs 4(a)(1)(i)-(v) of the interim rule, such as vehicle use on
existing roads, removal of small mineral samples, and marking or
monumenting mining claims. Other respondents characterized the phrase
as eliminating the exemptions to the requirement for prior submission
and approval of a plan of operations previously in Sec.
228.4(a)(1)(i)-(v).
Two respondents specifically requested the deletion of the phrase
and its replacement by the prefatory
[[Page 32725]]
language of Sec. 228.4(a)(1) and the language of Sec. 228.4(a)(1)(i)-
(v). Those respondents commented that this change would ensure the
continuation of the historic application of the terms ``disturbance''
and ``significant disturbance.''
Response: The intent in adopting Sec. 228.4(a)(1) of the interim
rule was not to authorize a District Ranger to require a plan of
operations for operations which will not exceed the scope of one or
more of the exemptions in Sec. 228.4(a)(1)(i)-(v) of the interim rule.
To ensure that the final rule is not interpreted in such an unintended
manner, the phrase ``unless the District Ranger determines that an
operation is causing or will likely cause a significant disturbance of
surface resources'' is not included in the final rule. Thus, pursuant
to Sec. 228.4(a)(3) of the final rule, it is clear that prior
submission and approval of a proposed plan of operations is not
required if the proposed operations will be confined in scope to one or
more of the exempted operations mentioned in that paragraph.
Comment: Several respondents stated that the Forest Service should
add more specific examples of operations which do not require prior
submission and approval of a plan of operations to the listing in Sec.
228.4(a)(1)(i)-(v) of the interim rule.
Response: The Department agrees with this suggestion. By virtue of
its incorporation by reference of Sec. 228.4(a)(1)(v), Sec.
228.4(a)(3) of the final rule adds an additional category of operations
which can be conducted without prior submission and approval of a plan
of operations. This includes operations which, in their totality, will
not cause surface resource disturbance substantially different than
that caused by other users of the National Forest System who are not
required to obtain a Forest Service special use authorization,
contract, or other written authorization. Section 228.4(a)(3) of the
final rule also adds another category of operations which can be
conducted without prior submission and approval of a plan of operations
and include operations which will not involve the use of mechanized
earthmoving equipment, such as bulldozers or backhoes, or the cutting
of trees, unless those operations otherwise will likely cause a
significant disturbance of surface resources. The incorporation by
reference of Sec. 228.4(a)(1)(ii) in Sec. 228.4(a)(3) of the final
rule adds more specificity to two categories of operations exempted
from the requirement for prior submission and approval of a plan of
operations which were included in the interim rule as section
228.4(a)(1)(ii) and (iii), but are combined into one category in the
final rule at Sec. 228.4(a)(1)(ii).
These changes to the final rule better delineate the level of work,
functions, or activities which constitutes significant disturbance of
NFS resources and requires the filing of a proposed plan of operations,
and its approval, before mining operations can be conducted.
Conversely, the changes also better identify the level of work,
functions or activities which does not constitute significant
disturbance of NFS resources and therefore does not trigger the
requirement for prior submission and approval of a plan of operations.
Section 228.4(a)(3) of the final rule makes it clear that prior
submission and approval of a plan of operations is required for any
proposed operation which will not be limited to one or more of the
categories of exempted work, functions and activities mentioned in that
paragraph if the operation will likely cause a significant disturbance
of surface resources. Section 228.4(a)(3) of the final rule, also makes
it clear that an operator lacking a currently approved plan of
operations must submit and obtain approval of a proposed plan of
operations in order to continue to conduct ongoing operations which
actually are causing a significant disturbance of surface resources.
Furthermore, pursuant to Sec. 228.4(a)(3) of the final rule, an
operator holding a currently approved plan of operations must submit
and obtain approval of a supplemental plan of operations in order to
continue to conduct any portion of an ongoing operation not covered by
the currently approved plan which actually is causing a significant
disturbance of surface resources.
Comment: One respondent said that the use of small portable suction
dredges, such as those with an intake of four inches or less, should be
added to the listing of operations in 228.4(a)(1) of the interim rule
which are exempt from the requirement for prior submission and approval
of a proposed plan of operations providing that use of such a dredge is
authorized by State law. The respondent said that various studies,
including those by the United States Environmental Protection Agency,
the Department of Interior, United States Geological Survey, and the
State of Alaska Department of Natural Resources, have shown that these
dredges do not cause significant disturbance of streams or rivers. The
respondent also stated that such a provision would be consistent with
the recommendations of the National Academy of Sciences, National
Research Council's 1999 report entitled, ``Hardrock Mining on Federal
Lands.''
Response: As previously discussed, the environmental impacts of
operating suction dredges, even small ones, are highly site-specific
depending on the circumstances and resource conditions involved. Given
this variability, the Department believes that insofar as suction
dredge mining operations are concerned, the need for the prior
submission and approval of a proposed plan of operations must be
evaluated on a site-specific basis. While the operation of suction
dredges with intakes smaller than four inches may not require an
approved plan of operations in many cases, the prior submission and
approval of a proposed plan of operations will be appropriately
required in some cases.
For these reasons, no change has been made in the final rule as a
result of this comment.
Comment: Several respondents commented that Sec. 228.4(a)(1) of
the interim rule eliminated the exemptions to the requirement that an
operator proposing to conduct operations which might cause disturbance
of surface resources must submit a notice of intent to operate to the
Forest Service before commencing those operations.
Response: Section 228.4(a)(1) in effect prior to the interim rule
and Sec. 228.4(a)(1) of the interim rule only set forth exemptions to
the requirement for prior submission and approval of a plan of
operations. Section 228.4(a)(2) in effect prior to the interim rule and
Sec. 228.4(a)(2) of the interim rule set forth the exemptions to the
requirement that an operator must submit a notice of intent to operate
to the Forest Service before commencing specified operations, although
each section did so by incorporating the exemptions in (a)(1)(i)-(v).
Specifically, Sec. 228.4(a)(2) of both rules provides that ``[a]
notice of intent need not be filed * * * (ii) For operations excepted
in paragraph (a)(1) of this section from the requirement to file a plan
of operations * * *.''
Technically, the changes to Sec. 228.4(a)(1) of the interim rule
had no effect on the exemptions to the requirement for a notice of
intent to operate. As a practical matter, however, since Sec.
228.4(a)(2) of the interim rule adopts the same exemptions for purposes
of the submission of a notice of intent to operate that Sec.
228.4(a)(1) of the interim rule adopts for the submission and approval
of a proposed plan of operations, the changes made in the exemptions at
Sec. 228.4(a)(1)(i)-(v) of the interim rule do affect the exemptions
to the requirement to submit a notice of intent to operate.
[[Page 32726]]
To understand the effect of these changes, please see the comments
and responses to Sec. 228.4(a)(1) and Sec. 228.4(a)(1)(ii)-(v).
The provisions in Sec. 228.4(a)(i) in the interim rule have been
redesignated at Sec. 228.4(a)(3) in the final rule.
Section 228.4(a)(1)(i)
No specific comments were submitted regarding Sec. 228.4(a)(1)(i)
of the interim rule.
Except for redesignation of this provision to paragraph (a)(1)(i)
by reference in paragraph (a)(3), no significant changes were made in
the final rule
Section 228.4(a)(1)(ii)
Comment: A number of respondents said that Sec. 228.4(a)(1)(ii) of
the interim rule, which exempts individuals searching for and
occasionally removing small mineral samples or specimens from the
requirement for prior submission and approval of a plan of operations,
unfairly places those who use gold pans, non-motorized sluices, and
metal detectors and who do not cause a significant disturbance of NFS
resource in the same category as those who operate heavy earth-moving
equipment causing significant disturbance of NFS resources. These
respondents stated they should be treated the same as those exempted in
228.4(a)(1)(ii).
Response: The Department believes that a number of operations, such
as gold panning and non-motorized hand sluicing, are within the scope
of Sec. 228.4(a)(1)(ii) of the interim rule. Nonetheless, to eliminate
any question about this concern, the Department is including gold
panning, non-motorized hand sluicing, and the use of battery operated
dry washers to the exempted category of operations described in Sec.
228.4(a)(1)(ii) of the interim rule.
Metal detecting is another example that is being added to the
category of operations which Sec. 228.4(a)(1)(ii) of the interim rule
exempts from the requirement for prior submission and approval of a
proposed plan of operations. However, the type of metal detecting that
is permissible under 36 CFR part 228, subpart A, is metal detecting
associated with locating gold or other locatable mineral deposits
subject to the United States mining laws. This subpart does not
authorize metal detecting for other purposes, such as metal detecting
to locate treasure trove, historic or prehistoric artifacts, lost
coins, or jewelry.
The Department also notes that comments on Sec. 228.4(a)(1)(iii)
of the interim rule, which exempts closely related operations from the
requirement for prior submission and approval of a plan of operations,
suggest that a virtually identical listing of examples be included in
that section. Given the similarity and overlapping nature of paragraphs
(a)(1)(ii) and (iii) of the interim rule, these paragraphs are being
combined in Sec. 228.4(a)(1)(ii) the final rule, which by virtue of
Sec. 228.4(a)(3) of the final rule will exempt specified operations
from the requirement for prior submission and approval of a plan of
operations.
Comment: One respondent commented that Sec. 228.4(a)(1)(ii) of the
interim rule should define the phrase ``small mineral samples or
specimens.''
Response: Section 228.4(a)(1)(ii) of the interim rule, which is an
exemption to the requirement for prior submission and approval of a
plan of operations, applies ``[to individuals desiring to search for
and occasionally remove small mineral samples or specimens.'' There are
commonly accepted standards for sampling mineral deposits which can
vary depending upon surface conditions or the matrix in which the
deposit is found. The United States Bureau of Mines' publication
``Standard Procedures for Sampling,'' states that the recommended
sample size for a stream sediment sample would be about ``* * * 200
grams collected in streambeds, or pools, or accumulations of fine
grained material beneath boulders.'' That publication also recommends a
procedure for taking a soil sample: ``a shovel or hoe is usually used
with horizons as deep as 2 feet. * * * [A] 50 gram sample is usually
sufficient.'' Similarly, in discussing stream sediment sampling, a
widely accepted mining industry textbook, ``Exploration and Mining
Geology'' by William Peters, states that ``in detailed stream sediment
surveys, samples may be taken every 50 to 100 meters along a stream.
About 50 to 100 grams of 80 mesh material is taken for each sample. * *
*'' With respect to rock sampling, that textbook states that ``a 500
gram sample is commonly taken in fine-grained rocks; up to 2 kilograms
are taken in very coarse grained rock.''
Further, the examples in Sec. 228.4(a)(1)(ii) of the final rule
will give context to the outer limits of what permissibly can be
construed as the removal of ``small mineral samples or specimens.''
Those examples generally include ``gold panning, metal detecting, non-
motorized hand sluicing, using battery operated dry washers, and
collecting of mineral specimens using hand tools.''
For these reasons, the Department believes that the phrase ``small
mineral samples or specimens'' should be defined with reference to
generally accepted practices appropriate for the operations involved
and that it is not necessary to include a definition of this phrase in
the final rule. Therefore, no change has been made in the final rule as
a result of this comment.
The provisions in Sec. 228.4(a)(1)(ii) in the interim rule have
been redesignated in the final rule at Sec. 228.4(a)(1)(ii) by
reference in Sec. 228.4(a)(3).
Section 228.4(a)(1)(iii)
Comment: One respondent stated that Sec. 228.4(a)(1)(iii) of the
interim rule, which exempts certain prospecting and sampling from the
requirement for prior submission and approval of a plan of operations,
should define the phrase ``a reasonable amount of mineral deposit for
analysis and study.''
Response: Section 228.4(a)(1)(iii) of the interim rule applies ``to
prospecting and sampling which will not involve removal of more than a
reasonable amount of mineral deposit for analysis and study.'' As
discussed in response to the previous comment, there are commonly
accepted standards for sampling mineral deposits. Further, the examples
in Sec. 228.4(a)(1)(ii) of the final rule will give context to the
outer limits of what permissibly can be construed as the removal of ``a
reasonable amount of mineral deposit for analysis and study.'' For
these reasons, the Department believes that the phrase ``a reasonable
amount of mineral deposit for analysis and study'' should be defined
with reference to generally accepted practices appropriate for the
operations involved and that it is not necessary to include a
definition of this phrase in the final rule. Consequently, no change
has been made in the final rule as a result of these comments.
Comment: One respondent recommended that Sec. 228.4(a)(1)(iii) of
the interim rule be revised in the final rule to apply ``to prospecting
and sampling which will not involve removal of more than a reasonable
amount of mineral deposit for analysis and study, including but not
limited to gold panning, metal detecting, hand slushing, dry washers,
and the collecting of mineral specimens using hand tools so long as the
excavation of the material is by hand and not by mechanized
equipment.'' Another respondent recommended that Sec. 228.4(a)(1)(iii)
of the interim rule be revised in the final rule to apply ``to
prospecting and sampling which will not involve removal of more than a
reasonable amount of mineral deposit for analysis and study, including
but not limited to gold panning, metal
[[Page 32727]]
detecting, non-motorized hand slushing, battery operated dry washers,
and the collecting of mineral specimens using hand tools.'' Each
respondent explained that the suggested revision would help clarify,
for both mining operators and Forest Service employees, the level of
work, functions, or activities which do not require prior submission
and approval of a plan of operations. Each respondent also
characterized the proposed examples of operations which it recommends
be listed in this exemption as being similar to the casual use
exemptions contained in BLM's regulations at 43 CFR part 3800, subpart
3809.
Response: The Department agrees that the changes suggested by the
respondents will provide better guidance to mining operators and Forest
Service personnel on the character of mineral operations which do not
constitute a significant disturbance of NFS resources and which
consequently do not require prior submission and approval of a plan of
operations. This change will also improve the consistency of the
description of the exempted operations in Sec. 228.4(a)(1)(ii) of the
final rule and the ``casual use'' exemption set forth in BLM's
regulations at 43 CFR part 3800, subpart 3809.
For these reasons, paragraph (a)(1)(ii) of the final rule will
provide an exemption to the requirement for prior submission and
approval of a plan of operations, through reference in Sec.
228.4(a)(3), and apply to ``prospecting and sampling which will not
cause significant surface resource disturbance and will not involve
removal of more than a reasonable amount of mineral deposit for
analysis and study which generally might include searching for and
occasionally removing small mineral samples or specimens, gold panning,
metal detecting, non-motorized hand sluicing, using battery operated
dry washers, and collecting of mineral specimens using hand tools.''
The provisions in Sec. 228.4(a)(1)(iii) in the interim rule have
been redesignated in the final rule at Sec. 228.4(a)(1)(ii) by
reference in Sec. 228.4(a)(3).
Section 228.4(a)(1)(iv)
Comment: Numerous respondents commented that the interim rule
unfairly treats prospectors or miners differently than other users of
the NFS, such as campers, backpackers, and all terrain vehicle users
who cause similar disturbance of NFS resources but are not required to
submit and obtain approval of a document comparable to a plan of
operations prior to causing such disturbance.
Two respondents recommended the addition of virtually identical
language to the final rule to address this discrepancy. One suggested
that Sec. 228.4(a)(1)(iv) of the interim rule, which exempts certain
operations from the requirement for prior submission and approval of a
plan of operations, be revised in the final rule to apply to marking
and monumenting a mining claim, or to any mining-related activities and
disturbances that are substantially the same as those of other users of
the National Forests and which do not require a Forest Service permit
or approval.
Response: The Department agrees that it is inappropriate to require
prior approval of the disturbance of NFS resources caused by one
category of user but not another category of user causing identical
surface disturbance. For this reason, the Department agrees that an
exemption to the requirement for prior submission and approval of a
plan of operations should be included in the final rule to insure that
prospectors and miners are not required to obtain approval of
operations which will have no effect on the NFS beyond that which other
users can permissibly cause without prior approval of that use.
However, this exemption should set forth in a separate paragraph,
rather than being added to a dissimilar paragraph, such as paragraph
4(a)(1)(iv) of the interim rule.
Therefore, a new paragraph (a)(1)(v) is being added to the final
rule. This paragraph, incorporated by reference in Sec. 228.4(a)(3),
is an exemption to the requirement for prior submission and approval of
a plan of operations involving operations which, in their totality,
will not cause surface resource disturbance which is substantially
different than that caused by other users of the NFS who are not
required to obtain a Forest Service special use authorization,
contract, or other written authorization.
The provisions in Sec. 228.4(a)(1)(iv) in the interim rule have
been redesignated in the final rule at Sec. 228.4(a)(1)(iii) by
reference in Sec. 228.4(a)(3).
Section 228.4(a)(1)(v)
Comment: Several respondents said that Sec. 228.4(a)(1)(v) of the
interim rule, which exempts ``subsurface operations'' from the
requirement for prior submission and approval of a plan of operations,
applies to the use of suction dredges because suction dredge mining
operations occur below the water's surface and consequently are
``subsurface'' operations. One respondent also stated that if the term
``subsurface operations'' means underground operations, Sec.
228.4(a)(1)(v) should be revised to say precisely that.
Response: As previously discussed, fisheries habitat is a NFS
surface resource, and for purposes of 36 CFR part 228, subpart A,
water, streambeds, or other submerged lands generally should be
construed as a NFS surface resource. Only where adjudication has
established that watercourses were navigable at the time that a State
was admitted to the Union are those resources solely subject to State
regulation. Thus, Sec. 228.4(a)(1)(v) of the interim rule does not to
strip the Forest Service of the clear authority which the agency
generally has to regulate the effects which locatable mineral
operations have on water, streambeds, or other submerged lands, whether
or not those operations are taking place wholly or partially in waters
themselves.
Nevertheless, the Department agrees with the suggestion that for
purposes of clarity the term ``underground operations'' be substituted
for the term ``subsurface operations'' in the exemption to the
requirement for prior submission and approval of a plan of operations
in Sec. 228.4(a)(1)(iv) of the final rule.
The provisions in Sec. 228.4(a)(1)(v) in the interim rule have
been redesignated in the final rule at Sec. 228.4(a)(1)(iv) by
reference in Sec. 228.4(a)(3).
Section 228.4(a)(2)
Comment: A number of respondents said that the interim rule did not
resolve widespread confusion about the level of activity which requires
the submission of a notice of intent to operate before proposed mining
operations can be conducted.
Response: The interim rule did not change the requirement initially
adopted in 1974 that a notice of intent to operate ``is required from
any person proposing to conduct operations which might cause
disturbance of surface resources,'' although the interim rule moved
that requirement from the prefatory language of 36 CFR 228.4(a) to
paragraph 4(a)(2) of the interim rule for clarity.
The requirement for a notice of intent to operate was added to the
final rule adopted in 1974 in response to comments on that proposed
rule. A June 20, 1974, letter from Congressman John Melcher to Forest
Service Chief John McGuire explains why the Forest Service was urged to
provide for the submission of notices of intent to operate in the 1974
final rule.
The National Wildlife Federation * * *, the American Mining
Congress * * *, and the Idaho Mining Association * * * all seem
[[Page 32728]]
to agree that prior notification of proposed operations is a
reasonable requirement. The Subcommittee therefore recommends that
the Forest Service provide a simple notification procedure in any
regulations it may issue. The objective in so doing would be to
assist prospectors in determining whether their operations would or
would not require the filing of an operating plan. Needless
uncertainties and expense in time and money in filing unnecessary
operating plans could be avoided thereby.
Questions and answers developed by the Forest Service when the 1974
rule was adopted explain the purpose of a notice of intent to operate
in similar terms. In response to the question ``What should an operator
do if the operator isn't sure that the proposed operations will be
significant enough to require a plan of operations?'' the document
states:
[y]ou should file a ``notice of intent[] to operate'' with the
District Ranger. It should describe briefly what you intend to do,
where and when it is to be done, and how you intend to get yourself
and your equipment to the site. The District Ranger will analyze
your proposal and will, within 15 days, notify you as to whether or
not an operating plan will be necessary. In this way, you can avoid
advance preparation of an operating plan until you know that it is
necessary to do so and have some information as to what must be
included.
This record makes it clear that a notice of intent to operate was
not intended to be a regulatory instrument; it simply was meant to be a
notice given to the Forest Service by an operator which describes the
operator's plan to conduct operations on NFS lands. Further, this
record demonstrates that the intended trigger for a notice of intent to
operate is reasonable uncertainty on the part of the operator as to the
significance of the potential effects of the proposed operations. In
such a circumstance, the early alert provided by a notice of intent to
operate would advance the interests of both the Forest Service and the
operator by facilitating resolution of the question, ``Is submission
and approval of a plan of operations required before the operator can
commence proposed operations?''
Given the intended function of a notice of intent to operate, there
can be no definitive answer to the question of what level of activity
requires the submission of a notice of intent to conduct operations. As
previously mentioned in the discussion on Sec. 228.4(a), that given
the variability of the lands within the NFS subject to the United
States mining laws, identical operations could have vastly different
effects depending upon the condition of the lands and other surface
resources which would be affected by those mining operations. Thus,
while it is possible to identify some categories of operations which
will never require the prior submission of a notice of intent to
operate, in many cases the need for the submission of a notice of
intent to operate must be determined based upon a case-by-case
evaluation of the proposed operations and the kinds of lands and other
surface resources involved.
However, the Department notes that it is likely that some operators
will not have the same perception or understanding of the impacts which
their proposed operations may have on NFS resources that trained Forest
Service specialists will have. Indeed, Congress recognized this in
Congressman John Melcher's June 20, 1974, letter to Forest Service
Chief John McGuire:
It is unreasonable, in the judgment of the Subcommittee, to
expect operators--particularly for small prospectors and miners--to
describe * * * the effects their operations are having or may have
upon the environment and surface resources. Most operators do not
have the knowledge to do so and many cannot afford to hire
environmental consultants to do it for them.
Accordingly, in Sec. 228.4(a)(4) of the final rule, the District
Ranger shall retain final authority to decide whether prior submission
and approval of a plan of operations is required and can make this
determination at any time, whether or not the operator first submits a
notice of intent to operate.
For these reasons, no change was made in the final rule in response
to these comments.
Comment: Numerous respondents commented on the requirement in Sec.
228.4(a)(2) of the interim rule that ``a notice of intent to operate is
required from any person proposing to conduct operations which might
cause disturbance of surface resources'' stating that the test ``might
cause disturbance of surface resources'' was far too broad. Some
respondents noted that wading in a stream or rolling over a rock would
require a notice of intent to operate if a District Ranger interpreted
the term ``disturbance'' as it is commonly understood to mean ``any
change from the existing condition.'' Many of these respondents
suggested that the requirement be revised to read: ``a notice of intent
to operate is required from any person proposing to conduct operations
which might cause significant disturbance of surface resources.'' Some
respondents reasoned that this change would rationalize Sec. 228.4(a)
of the interim rule by bringing to the attention of the Forest Service,
by means of the submission of a notice of intent to operate, only those
operations which an operator thinks might cause a significant
disturbance of NFS surface resources. This act would give the District
Ranger the opportunity to evaluate the likelihood that the operations
would result in such significant disturbance and require prior
submission and approval of a proposed plan of operations, if
appropriate.
Response: As discussed in the response to the previous comment, the
interim rule did not change the requirement initially adopted in 1974
that a notice of intent to operate ``is required from any person
proposing to conduct operations which might cause disturbance of
surface resources,'' although the interim rule moved that requirement
within Sec. 228.4(a) for purposes of clarity. However, the Department
examined the record for the 1974 rulemaking to see what light it sheds
on the question of the appropriate test for assessing the need for the
submission of a notice of intent to operate before an operator conducts
proposed operations. That record reveals that the Department never
intended to require an operator to submit a notice of intent to operate
whenever there is a possibility that the proposed operations would
cause even the most inconsequential disturbance of NFS resources.
Indeed, the Questions and Answers pamphlet developed by the Forest
Service when the 1974 rule was adopted leaves no doubt that it was the
Department's intent that the test for the submission of a notice of
intent to operate should be whether the proposed operations might cause
significant disturbance of NFS surface resources. This issue was
further explained in the following question and answer in the 1974
pamphlet:
Question:
I'm a rockhound or mineral collector. How are my activities
covered by requirements for [plans of operations] or notices of
intent[ ] to operate?
Answer:
Your activities do not generally require either an operating
plan or a notice of intent[ ] to operate. However, if you have any
doubt about whether or not your activities will cause significant
surface resource disturbance, you should file a notice of intent[ ].
The Department's intent that the test for the submission of a
notice of intent to operate should be whether the proposed operations
might cause significant disturbance of NFS surface resources also is
reflected by a second question in the 1974 pamphlet which states:
``What should an operator do if the operator isn't sure that the
proposed
[[Page 32729]]
operations will be significant enough to require a plan of
operations?''
After considering this issue again, the Department agrees that an
operator only should be required to submit a notice of intent to
operate for those operations which might cause significant disturbance
of NFS resources and, therefore, conceivably might require prior
submission and approval of a proposed plan of operations. Requiring the
submission of a notice of intent to operate for operations which will
cause insignificant disturbance of NFS surface resources places an
unjustified burden upon persons exercising the rights granted by the
United States mining laws. Requiring Forest Service professionals to
review notices of intent to operate submitted for operations which have
no potential to significantly disturb NFS resources also diverts those
specialists from the important task of regulating those operations
which are likely to significantly disturb those resources.
Therefore, section 228.4(a) of the final rule will require the
operator's prior submission of a notice of intent to operate for
``operations which might cause significant disturbance of surface
resources.'' This means that the trigger for the submission of a notice
of intent to operate is the operator's reasonable uncertainty as to the
significance of the disturbance which the proposed operations will
cause on NFS resources. If the operator reasonably concludes that the
proposed operations will not cause significant disturbance of NFS
resources, the operator is not required to submit a notice of intent to
operate (or a proposed plan of operations). If the operator reasonably
concludes that the proposed operations more probably than not will
cause a significant disturbance of NFS resources, the operator should
submit a proposed plan of operations to the District Ranger. However,
if the operator reasonably concludes that the proposed operations
might, but probably will not, cause significant disturbance of NFS
resources, the operator should submit a notice of intent to operate to
the District Ranger.
Once a notice of intent to operate is filed, the Forest Service has
an opportunity to determine whether the agency agrees with the
operator's assessment that the operations are not likely to cause
significant disturbance of NFS resources such that the Forest Service
will not exercise its discretion to regulate those operations. If the
District Ranger, based on past experience, direct evidence, or sound
scientific projection, disagrees with the operator's assessment and
determines that the proposed operations, more probably than not, would
cause significant disturbance of NFS resources, the District Ranger
shall require the operator to submit and obtain approval of a proposed
plan of operations before commencing those operations. By means of the
approved plan of operations, the District Ranger shall obtain the
operator's agreement to perform specific reclamation, post a
reclamation performance bond, avoid unnecessary or unreasonable impacts
on NFS resources, and implement other mitigation measures, as
appropriate.
However, as noted in the response to the previous comment, it is
likely that some operators will not have the same perception or
understanding of the impacts which their proposed operations may have
on NFS resources that trained Forest Service specialists will have.
Therefore, in Sec. 228.4(a)(4) of the final rule the District Ranger
retains final authority to decide whether prior submission and approval
of a plan of operations is required and can make this determination at
any time, whether or not the operator first submits a notice of intent
to operate.
Comment: Numerous respondents said that the interim rule treats
prospectors or miners unfairly compared to other users of the NFS, such
as hikers, fishermen, hunters, and rock climbers, who cause similar
limited disturbance of NFS resources but are not required to submit a
document comparable to a notice of intent to operate prior to causing
this disturbance.
Response: The Department agrees that it is inappropriate to require
prior notice of the disturbance of NFS resources caused by one category
of user but not other categories of users of the NFS causing identical
surface disturbance. Therefore, for the reasons discussed in the
response to the comment on paragraph 4(a)(1)(iv) of the interim rule, a
new paragraph 4(a)(1)(v) is included in the final rule which provides
that a notice of intent to operate is not required for ``operations,
which in their totality, will not cause surface resource disturbance
which is substantially different than that caused by other users of the
National Forest System who are not required to obtain a Forest Service
special use authorization, contract, or other written authorization.''
Comment: A number of respondents stated that the Forest Service
should add more specific examples of operations which do not require
prior submission of a notice of intent to operate to the exemptions
listed in Sec. 228.4(a)(1)(i) through (v) of the interim rule. Several
other respondents said that the interim rule should contain a well-
defined description of operations that do not require the submission of
a notice of intent to operate.
Response: For the reasons cited in the response to the first
comment on Sec. 228.4(a)(2) of the interim rule, the need in many
situations for the submission of a notice of intent to operate must be
determined through a case-by-case evaluation of the proposed operations
and the kinds of lands and other surface resources which those
operations will effect. However, it is possible to identify some
categories of operations which will never require the prior submission
of a notice of intent to operate and the Department agrees that the
final rule should identify those categories with more specificity as
suggested by the respondents.
Therefore, the Department is adding to Sec. 228.4(a)(1) of the
final rule another category of operations which can be conducted
without prior submission of a notice of intent to operate. This
category will include ``operations, which in their totality, will not
cause surface resource disturbance which is substantially different
than that caused by other users of the National Forest System who are
not required to obtain a Forest Service special use authorization,
contract, or other written authorization.'' In addition, the final rule
also adds more specificity to two categories of operations exempted
from the requirement for prior submission of a notice of intent to
operate which are included in the interim rule at Sec. 228.4(a)(1)(ii)
and (iii) but combined into one category in the final rule at Sec.
228.4(a)(1)(ii).
These changes to the final rule better delineate the level of work,
functions, or activities which clearly do not constitute a significant
disturbance of NFS resources and, therefore, do require the submission
of a notice of intent to operate before proposed mining operations can
be initiated.
Comment: One respondent said that Sec. 228.4(a)(2) of the interim
rule, which requires a District Ranger to advise the operator, within
15 days of the Ranger's receipt of a notice of intent to operate,
whether approval of a plan of operations is required before the
proposed operations commence fails to give the miner any recourse if
the District Ranger does not respond within that period.
Response: The respondent's characterization of Sec. 228.4(a)(2) of
the interim rule is accurate. However, this does not mean that the
operator lacks a remedy for a District Ranger's failure to comply with
the requirement to respond within 15 days of receipt of a notice of
intent to operate. Indeed, as the respondent observed, the operator
could
[[Page 32730]]
consider filing an administrative appeal or a civil lawsuit challenging
the District Ranger's noncompliance with this requirement. These are
same remedies which an operator has with respect to any other duty
which the operator believes a District Ranger has not fulfilled. The
Department sees no reason to provide a unique remedy for a District
Ranger's failure to comply with this particular paragraph of the
interim rule.
For these reasons, no change has been made in the final rule as a
consequence of this comment.
The provisions of Sec. 228.4(a)(2) of the interim rule have been
redesignated as follows: provisions for filing a notice of intent
redesignated to Sec. 228.4(a); the 15-day requirement redesignated at
Sec. 228. 4(a)(2); and exceptions for filing a notice of intent at
Sec. 228.4(a)(1)(i)-(vii).
Section 228.4(a)(2)(i)
No specific comments were submitted on Sec. 228.4(a)(2)(i) of the
interim rule. Except for redesignation of this provision to paragraph
(a)(1)(vii) in the final rule, no changes were made in the final rule.
Section 228.4(a)(2)(ii)
No specific comments were submitted on Sec. 228.4(a)(2)(ii) of the
interim rule. Except for redesignation of this provision to paragraphs
(a)(1)(i)-(iv) in the final rule, no changes were made in the final
rule.
Section 228.4(a)(2)(iii)
Comment: With respect to the phrase ``[u]nless those operations
otherwise might cause a disturbance of surface resources'' found in
Sec. 228.4(a)(2)(iii) of the interim rule, and which qualifies an
exemption to the requirement that an operator must submit a notice of
intent to operate, numerous respondents commented that this phrase
gives too much discretion to District Rangers. Those respondents stated
that the test ``might cause a disturbance of surface resources'' was
far too broad and would permit a District Ranger to require a notice of
intent to operate for any virtually any surface disturbance. Many of
those respondents also suggested that the exemption to the requirement
for prior submission of a notice of intent to operate in Sec.
228.4(a)(2)(iii) of the interim rule be revised to apply to:
``operations which will not involve the use of mechanized earthmoving
equipment such as bulldozers or backhoes or the cutting of trees,
unless those operations otherwise might cause a significant disturbance
of surface resources.''
Response: As previously discussed, the Department agrees that an
operator should only be required to submit a notice of intent to
operate for those operations which might cause significant disturbance
of NFS resources and conceivably might require prior submission and
approval of a proposed plan of operations. Accordingly, Sec.
228.4(a)(1)(vi) of the final rule, which corresponds to Sec.
228.4(a)(2)(iii) of the interim rule, has been revised to apply to
``operations which will not involve the use of mechanized earthmoving
equipment, such as bulldozers or backhoes, or the cutting of trees,
unless those operations otherwise might cause a significant disturbance
of surface resources.''
Comment: Several respondents said that an exception to the
requirement for prior submission of a notice of intent to operate in 36
CFR Sec. 228.4(a)(2)(iii) should be broadened.
Response: 36 CFR 228.4(a)(2) provided that ``[a] notice of intent
need not be filed * * * (iii) [f]or operations which will not involve
the use of mechanized earthmoving equipment such as bulldozers or
backhoes and will not involve the cutting of trees.''
As previously discussed, identical operations could have vastly
different effects depending upon the condition of the lands and other
surface resources which would be affected by those mining operations.
In fact, identical operations might cause significant disturbance of
NFS resources in one situation and insignificant disturbance of those
resources in another. Thus, determining whether operations might cause
a significant disturbance of NFS resources necessarily depends upon a
case-by-case evaluation of a proposed operation and the kinds of lands
and other NFS surface resources involved. Consequently, the Department
does not believe that it is possible to develop exemptions to the
requirement to submit a notice of intent to operate in addition to
those in paragraphs 4(a)(1)(i) through (vii) of the final rule which
would be universally appropriate.
For these reasons, no change has been made in the final rule in
response to these comments.
The provisions in Sec. 228.4(a)(2)(iii) in the interim rule have
been redesignated at Sec. 228.4(a)(1)(vi) in the final rule.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive E.O. 12866 of September 30, 1993, ``Regulatory Planning and
Review.'' This final rule will not have an annual effect of $100
million or more on the economy, nor adversely affect productivity,
competition, jobs, the environment, public health or safety, nor State
or local governments. This final rule will not interfere with an action
taken or planned by another agency nor raise new legal or policy
issues. Finally, this final rule will not alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights and
obligations of recipients of such programs. Therefore, it has been
determined that this final rule is not an economically significant
regulatory action.
This final rule also has been considered in light of the Regulatory
Flexibility Act, as amended, (5 U.S.C. 601 et seq.). In promulgating
this final rule, publication of a general notice of proposed rulemaking
was not required by law. Further, it has been determined that this
final rule will not have a significant economic impact on a substantial
number of small business entities as defined by that Act. Therefore, it
has been determined that preparation of a final regulatory flexibility
analysis is not required for this final rule.
Environmental Impacts
This final rule clarifies the criteria for determining when a
notice of intent to operate or a plan of operations should be submitted
by a mining operator. Section 31.1b of Forest Service Handbook 1909.15
(57 FR 43168; Sept. 18, 1992) excludes from documentation in an
environmental assessment or environmental impact statement ``rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instruction.'' This final rule
clearly falls within this category of actions and the Department has
determined that no extraordinary circumstances exist which would
require preparation of an environmental assessment or an environmental
impact statement. Moreover, this rule itself has no impact on the human
environment. Rather, in the context of 36 CFR part 228, subpart A, of
which this final rule will be a part, the action which the agency takes
which might have an impact on the human environment is approving a
proposed plan of operations. Therefore, it has been determined that
preparation of an environmental assessment or an environmental impact
statement is not required in promulgating this final rule.
Energy Effects
This final rule has been reviewed under E.O. 13211 of May 18, 2001,
``Actions Concerning Regulations That
[[Page 32731]]
Significantly Affect Energy Supply, Distribution, or Use.'' This final
rule will not have a significant adverse effect on the supply,
distribution, or use of energy. Nor has the Office of Management and
Budget designated this rule as a significant energy action. Therefore,
it has been determined that this final rule does not constitute a
significant energy action requiring the preparation of a Statement of
Energy Effects.
Controlling Paperwork Burdens on the Public
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or reporting requirements for
notices of intent to operate and plans of operation contained in this
final rule were previously approved by the Office of Management and
Budget and assigned control number 0596-0022, expiring on July 31,
2005. This final rule does not contain any new recordkeeping or
reporting requirements or other information collection requirements as
defined by the Act or its implementing regulations (5 CFR part 1320)
that are not already required by law or not already approved for use.
Accordingly, it has been determined that the review provisions of the
Paperwork Reduction Act of 1995 and its implementing regulations do not
apply to this final rule.
Federalism
This final rule has been considered under the requirements of E.O.
13132 of August 9, 1999, ``Federalism.'' This final rule conforms with
the Federalism principles set out in this E.O.; would not impose any
compliance costs on the States; and would not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, it
has been determined that this final rule does not have federalism
implications.
Consultation With Indian Tribal Governments
This final rule has been reviewed under E.O. 13175 of November 6,
2000, ``Consultation and Coordination With Indian Tribal Governments.''
This final rule does not 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. Nor does this final
rule impose substantial direct compliance costs on Indian tribal
governments or preempt tribal law. Therefore, it has been determined
that this final rule does not have tribal implications requiring
advance consultation with Indian tribes.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in E.O. 12630 of March 15, 1988, ``Governmental
Actions and Interference With Constitutionally Protected Property
Rights.'' It is well established that a rule, such as the final rule,
which in certain circumstances requires a miner to obtain Federal
approval before conducting mineral operations on Federal lands, does
not deprive the miner of any property right. Therefore, it has been
determined that the final rule does not pose the risk of a taking of
Constitutionally protected private property.
Civil Justice Reform
This final rule has been reviewed under E.O. 12988 of February 7,
1996, ``Civil Justice Reform.'' The Department has not identified any
State or local laws or regulations that are in conflict with this
regulation or that would impede full implementation of this final rule.
Nevertheless, in the event that such a conflict was to be identified,
this final rule would preempt State or local laws and regulations found
to be in conflict with this final rule or that impede its full
implementation. However, in that case, (1) no retroactive effect would
be given to this final rule; and (2) this final rule does not require
use of administrative proceedings before parties may file suit in court
challenging its provisions.
Unfunded Mandates
Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the effects of this final rule on State, local, and
tribal governments and the private sector have been assessed. This
final rule does not compel the expenditure of $100 million or more by
any State, local, or tribal government or anyone in the private sector.
Nor, in promulgating this final rule, was the publication of a general
notice of proposed rulemaking required by law. Therefore, it has been
determined that a statement under section 202 of the Act is not
required for this final rule.
List of Subjects in 36 CFR Part 228
Environmental protection, Mines, National forests, Oil and gas
exploration, Public lands--mineral resources, Public lands--rights-of-
way, Reporting and-recordkeeping requirements, Surety bonds, Wilderness
areas.
Therefore, for the reasons set forth in the preamble, amend part
228 of title 36 of the Code of Federal Regulations as follows:
PART 228--MINERALS
Subpart A--Locatable Minerals
0
1. The authority citation for part 228 continues to read as follows:
Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 551);
41 Stat. 437, as amended sec. 5102(d), 101 Stat. 1330-256 (30 U.S.C.
226); 61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914, as
amended (30 U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C. 611);
and 94 Stat. 2400.
0
2. Amend Sec. 228.4 to revise paragraph (a) to read as follows:
Sec. 228.4 Notice of intent--plan of operations--requirements.
(a) Except as provided in paragraph (a)(1) of this section, a
notice of intent to operate is required from any person proposing to
conduct operations which might cause significant disturbance of surface
resources. Such notice of intent to operate shall be submitted to the
District Ranger having jurisdiction over the area in which the
operations will be conducted. Each notice of intent to operate shall
provide information sufficient to identify the area involved, the
nature of the proposed operations, the route of access to the area of
operations, and the method of transport.
(1) A notice of intent to operate is not required for:
(i) Operations which will be limited to the use of vehicles on
existing public roads or roads used and maintained for National Forest
System purposes;
(ii) Prospecting and sampling which will not cause significant
surface resource disturbance and will not involve removal of more than
a reasonable amount of mineral deposit for analysis and study which
generally might include searching for and occasionally removing small
mineral samples or specimens, gold panning, metal detecting, non-
motorized hand sluicing, using battery operated dry washers, and
collecting of mineral specimens using hand tools;
(iii) Marking and monumenting a mining claim;
(iv) Underground operations which will not cause significant
surface resource disturbance;
(v) Operations, which in their totality, will not cause surface
resource disturbance which is substantially different than that caused
by other users
[[Page 32732]]
of the National Forest System who are not required to obtain a Forest
Service special use authorization, contract, or other written
authorization;
(vi) Operations which will not involve the use of mechanized
earthmoving equipment, such as bulldozers or backhoes, or the cutting
of trees, unless those operations otherwise might cause a significant
disturbance of surface resources; or
(vii) Operations for which a proposed plan of operations is
submitted for approval;
(2) The District Ranger will, within 15 days of receipt of a notice
of intent to operate, notify the operator if approval of a plan of
operations is required before the operations may begin.
(3) An operator shall submit a proposed plan of operations to the
District Ranger having jurisdiction over the area in which operations
will be conducted in lieu of a notice of intent to operate if the
proposed operations will likely cause a significant disturbance of
surface resources. An operator also shall submit a proposed plan of
operations, or a proposed supplemental plan of operations consistent
with Sec. 228.4(d), to the District Ranger having jurisdiction over
the area in which operations are being conducted if those operations
are causing a significant disturbance of surface resources but are not
covered by a current approved plan of operations. The requirement to
submit a plan of operations shall not apply to the operations listed in
paragraphs (a)(1)(i) through (v). The requirement to submit a plan of
operations also shall not apply to operations which will not involve
the use of mechanized earthmoving equipment, such as bulldozers or
backhoes, or the cutting of trees, unless those operations otherwise
will likely cause a significant disturbance of surface resources.
(4) If the District Ranger determines that any operation is causing
or will likely cause significant disturbance of surface resources, the
District Ranger shall notify the operator that the operator must submit
a proposed plan of operations for approval and that the operations can
not be conducted until a plan of operations is approved.
* * * * *
Dated: May 31, 2005.
David P. Tenny,
Deputy Under Secretary, NRE.
[FR Doc. 05-11138 Filed 6-3-05; 8:45 am]
BILLING CODE 3410-11-P