[Federal Register Volume 73, Number 58 (Tuesday, March 25, 2008)]
[Proposed Rules]
[Pages 15694-15716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5746]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 223, 228, 261, 292, and 293
RIN 0596-AB98
Locatable Minerals Operations
AGENCY: Forest Service, USDA.
ACTION: Proposed rule; request for comments.
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SUMMARY: This proposed rule would revise the regulations for locatable
minerals operations conducted on National Forest System lands. The
revised rule would apply to prospecting, exploration, development,
mining and processing operations, and reclamation under the Mining Law
of May 10, 1872, as amended. The Forest Service invites written
comments on this proposed rule.
DATES: Comments must be received by May 27, 2008. Pursuant to the
Paperwork Reduction Act, comments on the information collection burden
that would result from this proposal must be received by May 27, 2008.
ADDRESSES: Send written comments to Forest Service, USDA, Attn:
Director, Minerals and Geology Management (MGM) Staff, (2810), Mail
Stop 1126, Washington, DC 20250-1125; by electronic mail to
[email protected]; by fax to (703) 605-1575; or by the electronic
process available at Federal eRulemaking portal at http://
www.regulations.gov. If comments are sent by electronic mail or by fax,
the public is requested not to send duplicate written comments via
regular mail. Please confine written comments to issues pertinent to
the proposed rule; explain the reasons for any recommended changes;
and, where possible, reference the specific wording being addressed.
All comments, including names and addresses when provided, will be
placed in the record and will be available for public inspection and
copying. The public may inspect comments received on the proposed rule
in the Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza
Central, 1601 North Kent Street, Arlington, Virginia, on business days
between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect
comments are encouraged to call ahead at (703) 605-4646 to facilitate
entry into the building.
Comments concerning the information collection requirements
contained in this action should reference OMB No. 0596-New, the docket
number, date, and page number of this issue of the Federal Register.
Comments should be sent to the address listed in the above paragraph.
FOR FURTHER INFORMATION CONTACT: Mike Doran, Minerals and Geology
Management Staff, (208) 373-4132. Individuals who use telecommunication
devices for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern
Daylight Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background and Need for Proposed Rule
Locatable mineral operations on National Forest System (NFS) lands
have been regulated under the rules now at 36 CFR part 228, subpart A,
since 1974. Under these rules, the Forest Service requires operators
proposing to conduct such operations to file with the agency a notice
of intent, or a plan of operation, or to amend a plan of operation, as
appropriate, whenever the
[[Page 15695]]
proposed mineral operations might or would likely cause significant
disturbance of surface resources.
The regulations at 36 CFR part 228, subpart A, apply to all
prospecting, exploration, and mining operations, whether within or
outside the boundaries of a mining claim, conducted under the Mining
Law of May 10, 1872, as amended. These regulations were originally
promulgated in 1974 as 36 CFR part 252, and were based on the Forest
Service's authority under the Organic Administration Act of 1897. The
rules were redesignated as 36 CFR part 228, subpart A, in 1981. In
2005, a final rule clarifying when a plan of operations is required
(Sec. 228.4(a)) also was adopted. However, the regulations have not
been significantly revised since 1974.
The Forest Service recognizes that prospectors and miners have a
statutory right, not a mere privilege, under the Mining Law of May 10,
1872, the Surface Resources Act of 1955, 30 U.S.C. 611-615 (sometimes
referred to as the Multiple Use Mining Act of 1955 or as Public Law
167), and the Organic Administration Act of 1897, to go upon certain
National Forest System lands for the purposes of locatable mineral
exploration, development, and production. The Forest Service may not
unreasonably restrict the exercise of that right. Under the revised
regulation, Forest Service administrators would at all times apply the
test of reasonableness, in that the regulations and their
administration cannot extend beyond what is needed to preserve and
protect the National Forests from needless surface resource damage.
Particular consideration would be given to the economics of operations,
the stage of the operations, along with other factors in applying the
test of reasonableness.
The regulations at 36 CFR part 228, subpart A, have served the
Forest Service fairly well in bonding and otherwise administering
exploration, mining, and processing operations on National Forest
System lands. However, since 1974, several inefficiencies and problems
associated with these regulations have become apparent and field
managers are asking that the regulations be revised and updated.
This proposed rule would implement recommendations contained in the
1999 National Research Council (NRC) publication ``Hard Rock Mining on
Federal Lands.'' This publication resulted when Congress asked the NRC
to assess the adequacy of the regulatory framework for locatable
mineral operations on Federal lands. In September 1999, the NRC
published its conclusions and recommendations. Although the report
concluded that the overall regulatory structure for locatable mineral
operations on Federal lands is effective, the report recommended
revision of several aspects of the Forest Service's regulations. Some
of the concerns identified by the NRC are the same concerns the Forest
Service has about the existing regulations, specifically, revising the
regulations to improve the process for modifying and suspending
injurious operations and adjusting reclamation bonds. The report also
recommended major changes in the way the Forest Service approves
exploratory operations causing less than 5 acres of surface resource
disturbance. In response to this recommendation, the Forest Service
proposes to adopt regulations similar to the Bureau of Land
Management's (BLM) regulations governing notice level operations set
forth in 43 CFR subpart 3809.
The Forest Service contacted representatives of the mining industry
about its effort to revise 36 CFR part 228, subpart A. The Forest
Service briefed those representatives as to what the agency then saw as
its six main concerns with its current locatable mineral operations.
These were:
(a) New provisions that essentially formalize the current process
for, reviewing and approving proposed plans of operations;
(b) Streamlining the process for approving short-term, low impact
operations;
(c) New provisions that improve the process and criteria for
modification of an approved plan of operations;
(d) Providing additional detail with respect to the process the
Forest Service uses to inspect operations and to remedy the operator's
or the operations' noncompliance with applicable requirements;
(e) A new provision that explains the Forest Service's and the
operator's responsibilities under the Clean Water Act in connection
with the review and approval of proposed plans of operations; and
(f) Providing additional detail with respect to the process the
Forest Service uses to review and adjust reclamation bonds to ensure
that those bonds cover the full cost of reclaiming National Forest
System lands.
Description of Substantive Proposed Changes by Section
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
Section 223.14 Where Timber May Be Cut
Section 223.14(d) would be amended to add a citation to 36 CFR part
228, subpart A, to permit certain cutting of timber on a mining claim
pursuant to a bonded notice as well as a plan of operations, and to
otherwise reflect 36 CFR part 228, subpart A, as it would be revised by
this proposed rule.
PART 228--MINERALS
Subpart A--Locatable Minerals
Section 228.3 Definitions
Eleven new terms would be added to the definitions section.
Definitions of the terms ``occupancy,'' ``permanent structure'', and
``residence'' would be set forth in Sec. 228.3 to provide consistent
interpretations for the public and for Forest Service personnel. These
definitions would help reduce confusion about the propriety of proposed
occupancy and residence on National Forest System lands in connection
with locatable mineral operations, part of which has resulted from
imprecise language in some Federal court decisions concerning such
occupancy and residence. The three new definitions also would make the
Forest Service regulations more consistent with the BLM Occupancy and
Use regulations for Locatable minerals, 43 CFR subpart 3715. In
addition, these definitions would be consistent with amendments to 36
CFR part 261, subpart A, proposed by this proposed rule.
The term ``reasonably incident'' would be defined to clarify that,
by law, mineral operators are restricted to using only reasonable
methods of surface disturbance that are appropriate to their stage of
operations regardless of the validity of any mining claim on which the
operations take place. This clarification is warranted by case law
(such as United States v. Richardson, 599 F. 2d 290 (1979); cert.
denied, 444 U.S. 1014 (1980)) and the Surface Resources Act of 1955 (30
U.S.C. 612). Reasonable and necessary uses of the National Forest
System lands must employ sound and accepted practices to avoid or
minimize adverse environmental impacts. These uses also must employ
sound, accepted operational methods appropriate for the applicable
stage of mining operations, including prospecting, exploration,
production (mining and processing), or
[[Page 15696]]
reclamation. The Forest Service General Technical Report INT-35,
Anatomy of a Mine, from Prospect to Production (section 10-7),
describes and gives examples of the reasonable stages of a mining
operation.
The proposed term ``reclamation'' would be redefined to include
seasonal and interim measures and long-term treatment after mineral
operations have ceased.
The term ``reclamation bond'' would be included to clarify that
interest earning escrow accounts may be used to cover the costs of
long-term reclamation measures.
The term ``significant disturbance of surface resources'' would be
defined at Sec. 228.3(n) of the proposed rule to provide general
criteria for evaluating the significance of the disturbance of surface
resources. However, as discussed in a portion of the June 6, 2005,
Federal Register notice for the final rule amending 36 CFR 228.4(a) (70
FR 32713) quoted below, it is impossible to define this term
definitively given the variability of National Forest System lands.
``Questions and Answers developed by the Forest Service when the
1974 rule was originally adopted explained that a definition cannot be
given that would apply to all lands subject to these regulations.
Disturbance by a particular type of operation on flat ground covered by
sagebrush, for example, might not be considered significant. But that
same sort of operation in a high alpine meadow or near a stream could
cause highly significant surface resource disturbance. The
determination of what is significant thus depends on a case-by-case
evaluation of proposed operations and the kinds of lands and other
surface resources involved. In general, operations using mechanized
earthmoving equipment would be expected to cause significant
disturbance. Pick and shovel operations normally would not. Nor would
explosives used underground, unless caving to the surface could be
expected. Use of explosives on the surface would generally be
considered to cause significant disturbance. Almost without exception,
road and trail construction and tree clearing operations would cause
significant surface disturbance. The Department continues to believe
that a universal definition of the term `significant disturbance'
cannot be established for NFS lands. The lands within the NFS subject
to the United States mining laws stretch from Alaska on the north, the
Mississippi River on the east, the border with Mexico on the south, and
the Pacific Ocean on the west. NFS lands within that large area occur
in widely diverse climates, hydrogeologic conditions, landforms, and
vegetative types. Due to the great variability of NFS ecosystems,
identical operations could cause significant disturbance in one
situation and insignificant disturbance in another.
However, the record for the 1974 rulemaking at 36 CFR part 228,
subpart A, does identify tests that are of use in deciding whether
proposed disturbance of NFS resources constitutes `significant
disturbance' for purposes of that rule. A March 28, 1974, letter from
Forest Service Chief John McGuire to Senator Ted Stevens in response to
Senator Stevens' comments on the rule proposed in 1973 explains that
`significant disturbance' refers to operations 'for which reclamation
upon completion of [that operation] could reasonably be required,' and
to operations that could cause impacts on NFS resources that reasonably
can be prevented or mitigated.''
Nonetheless, locatable mineral operations that fall within the
criteria set forth in proposed Sec. 228.3(n) would be judged as likely
to cause a significant disturbance of surface resources absent unusual
circumstances. It also should be understood that an operation not
meeting these criteria might nonetheless be likely to cause
``significant disturbance of surface resources'' given the nature of
the lands and surface resources that would be affected by proposed
operations. Thus, even when proposed operations would not be judged as
likely to cause significant disturbance of surface resources under the
general criteria set forth in Sec. 228.3(n), individualized evaluation
of proposed operations might reveal that those operations indeed would
be likely to cause ``significant disturbance of surface resources.''
The Federal Register notice for the final rule amending 36 CFR
Sec. 228.4(a) further notes that the March 28, 1974, letter from
Forest Service Chief John McGuire ``also emphatically makes the point
that the Forest Service's locatable mineral regulations do not use the
term `significant' in the same manner as that term is used in the
National Environmental Policy Act.'' It continues to be necessary to
distinguish between ``significant'' disturbance of National Forest
System surface resources and ``significant'' effects on the quality of
the human environment. The Forest Service does not interpret a
determination that locatable mineral operations are likely to cause
significant disturbance of surface resources as an automatic invocation
of Section 102(2) (C) of the National Environmental Policy Act of 1969,
thus requiring preparation of an environmental impact statement (or an
environmental assessment). This was never intended when what is now 36
CFR part 228, subpart A, was originally promulgated nor is it intended
now.
As the Federal Register notice for the final rule amending 36 CFR
228.4(a) additionally observed, ``Judicial decisions rendered in the 30
years since the rule at 36 CFR part 228, subpart A was promulgated also
give context to the meaning of the term `significant disturbance [of
surface resources].' For example, it is well established that the
construction or maintenance of structures, such as cabins, mill
buildings, showers, tool sheds, and outhouses on NFS lands, constitutes
a significant disturbance of NFS resources. United States v. Brunskill,
792 F.2d 938, 941 (9th Cir. 1986); United States v. Burnett, 750 F.
Supp. 1029, 1035 (D. Idaho 1990).'' These decisions demonstrate the
erroneousness of equating a ``significant'' disturbance of National
Forest System surface resources and a ``significant'' effect on the
quality of the human environment. It is extremely unlikely that the
maintenance, or even the construction, of such structures standing
alone would require preparation of either an environmental impact
statement or an environmental assessment unless the National Forest
System lands at issue possess some noteworthy status such as being part
of a proclaimed wilderness or the designated habitat for a threatened
or an endangered species.
Of course, some operations that would be likely to cause
significant disturbance of National Forest System surface resources
also would be likely to cause significant effects on the quality of the
human environment. Thus, some few, by no means all, proposed operations
would be expected to require preparation of environmental impact
statements. More frequently, but not uniformly or even regularly,
proposed operations that would be likely to cause significant
disturbance of National Forest System surface resources would trigger
preparation of an environmental assessment, which might or might not be
the basis for a Finding of No Significant Impact. (Whenever an
environmental assessment or environmental impact statement would be
required, it would be prepared by the Forest Service.)
The Forest Service requests comments on the adequacy of the
proposed definition of ``significant disturbance of surface resources''
and its discussion set forth above in drawing the distinction between
significant disturbance of
[[Page 15697]]
National Forest System surface resources and significant effects on the
quality of the human environment.
The proposed term ``surface use determination'' describes a
management tool currently used by the authorized officer to determine
if a proposed or ongoing use is reasonably incident. The inquiry would
consist of an examination and a report completed by a certified mineral
examiner that would provide information, conclusions and
recommendations to the authorized officer regarding whether a proposed
or existing use is logically sequenced, reasonably incident, and
otherwise consistent with existing laws and regulations.
This proposed rule defines the term ``United States mining laws''
as the Mining Law of May 10, 1872, as amended and supplemented. This
definition reflects the fact that the 1872 Act has since been affected
by many other laws. One such law, the Organic Administration Act of
1897, is specifically mentioned for two reasons. It reapplied the
United States mining laws to National Forest System lands following
their reservation from the public domain and it provides the Forest
Service with authority to promulgate these regulations. Another cited
law, the Surface Resources Act of 1955, is specifically mentioned
because it confirms requirements implicit in the 1872 Act itself. One
such requirement is that operators must use reasonable methods of
surface disturbance that are appropriate given the warranted stage of
locatable mineral operations.
Section 228.4 Submission of Notices of Intent To Operate, Bonded
Notices, and Plans of Operation
This section would be sequentially reorganized to first address
operations that would cause little or no disturbance of surface
resources, then operations that might cause significant disturbance of
surface resources, and finally operations that are likely to cause
significant disturbance of surface resources.
An operator would not be required to contact the Forest Service
before beginning operations that would cause little or no disturbance
of surface resources.
An operator would be required to submit a notice of intent to
operate before beginning operations that might cause significant
disturbance of surface resources. Among the operations that would
require a notice of intent to operate are those that would involve
occupancy of National Forest System lands lasting longer than the local
forest stay limit and those involving motorized use of closed roads.
Submission of a notice of intent for occupancy exceeding the local
forest stay limit would be required because such occupancy along with
the related mining operations might cause significant disturbance of
surface resources. Submission of a notice of intent for motorized use
of closed roads similarly would be required because such use along with
the related mining operations might cause significant disturbance of
surface resources. The notice of intent to operate also would provide
an efficient means of evaluating, and when reasonably necessary,
regulating occupancy that would exceed local forest stay limits and
motorized use of closed roads.
An operator would be required to have either a complete bonded
notice then in effect or an approved plan of operations then in effect
before beginning operations likely to cause significant disturbance of
surface resources. The criteria for deciding which of these instruments
the operator would be required to have would be based upon the duration
and the extent of the likely significant disturbance of surface
resources. The subset of proposed operations likely to cause
significant disturbance of surface resources which the rule addresses
by means of a complete bonded notice, rather than an approved plan of
operations, are those that would neither so disturb more than 5 acres
at any point in time nor last more than 2 years. This proposed rule
requires an operator to have an approved plan of operations before
beginning other operations likely to cause significant disturbance of
surface resources which do not satisfy both of these criteria.
The new bonded notice category of operations that this proposed
rule creates is similar to the BLM's ``notice'' category of operations.
However, the bonded notice category of operations would differ in one
respect from the BLM's notice category of operations. The BLM restricts
use of a notice to exploratory operations. The Forest Service proposes
to allow use of a bonded notice for all short-term, low impact
operations. As the rule is proposed, it is conceivable that some small
mining operations would actually progress to the removal of the
valuable locatable mineral deposit and the completion of reclamation
under the terms of one or more bonded notices.
Section 228.5 Bonded Notice--Completeness Review
The proposed rule would provide that upon receipt of a bonded
notice, the authorized officer, who usually would be the District
Ranger, would perform a completeness review to determine whether the
proposed operations satisfy the environmental protection requirements
in Sec. 228.9, assuming that the proposed operations do not require an
approved plan of operations, and respond to the operator within 15
days.
The proposed rule generally provides that when a proposed bonded
notice is found to be complete and to meet the requirements of Sec.
228.9, the District Ranger would inform the operator that the notice
would take effect upon receipt of an adequate reclamation bond.
However, Sec. 228.5(a)(5) of the proposed rule would provide that in
cases where an operator has established a pattern of noncompliance with
requirements applicable to past or ongoing operations, the operator may
be required to have an approved plan of operations rather than a
complete bonded notice. A process, which would require the authorized
officer to seek the operator's input, would be established by the
proposed rule to decide whether it would be appropriate to require the
operator to obtain an approved plan of operations. The Forest Service
specifically requests comment on the inclusion and formulation of Sec.
228.5(a)(5) in the final rulemaking.
Under the proposed rule, once a bonded notice takes effect, the
operator would be able to begin the proposed operations.
The proposed rule provides that when the authorized officer
determines that operations being conducted in accordance with a
complete bonded notice are resulting in significant disturbance of
surface resources not fully described by that notice, the operator
would be required to obtain a new complete bonded notice or an approved
plan of operations, whichever would be appropriate.
Adopting the new bonded notice category of operations would meet
recommendations contained in the NRC's 1999 report ``Hard Rock Mining
on Federal Lands.'' One of these recommendations is that: ``Forest
Service regulations should allow exploration disturbing less than 5
acres to be approved or denied expeditiously, similar to notice-level
exploration activities on BLM lands.'' (pg. 97). Another of these
recommendations is that: ``The BLM and the Forest Service should plan
for and implement a more timely permitting process, while still
protecting the environment.'' (pg. 122).
Currently, an approved plan of operations is required for
operations that would be subject to a bonded notice under the proposed
rule. The existing approval process for a plan of
[[Page 15698]]
operations often takes several months to two years. Adopting the bonded
notice category of operations would shorten the Forest Service's review
of identical low impact, short-term operations freeing up specialists
needed to process more complex proposed plans of operations and to
administer locatable mineral operations on the ground.
While the bonded notice category of operations would streamline the
permitting process for less impactive short-term, operations, the
proposed rule also ensures that any adverse impacts that operations
conducted under a bonded notice might have on National Forest System
lands would be minimized. All operations that would be conducted under
a bonded notice would have to meet the environmental protection
requirements set forth in Sec. 228.9. All operations that would be
conducted under a bonded notice also would have to be properly bonded.
Section 228.6 Plan of Operations--Approval
The procedures for the Forest Service's review of and response to a
proposed plan of operations would be very similar to those that would
be applicable to a proposed bonded notice.
Section 228.6(h) would include substantially different standards
for requiring modification of a plan of operations than those set forth
in the current rule. These changes are necessary because the provisions
of the current rule governing modification of an approved plan of
operations have been interpreted inconsistently. Questions have also
been raised as to when incidental changes of operations authorized by
the Forest Service rise to the level of requiring modification of the
approved plan of operations. The current rule also contains limited and
often ineffective criteria for requiring modification of an approved
plan of operations. The NRC recognized the existence of such problems
and recommended that: ``The BLM and the Forest Service should revise
their regulations to provide more effective criteria for modifications
to plans of operation, where necessary, to protect the federal lands.''
(pg. 99). The proposed rule would address the NRC's recommendation by
correcting these shortcomings.
Currently, 36 CFR part 228, subpart A, contains criteria for
requiring modification of a plan of operations that look backward to
focus on what should have been ``foreseen'' when the plan of operations
was approved. In this proposed rule, the criteria for requiring
modification of a plan of operations allows for a correction of
problems manifested after the approval of the plan of operations and
would keep approved operations abreast of changed circumstances. These
criteria would draw upon those adopted by the Forest Service almost a
decade ago in regulations governing locatable mineral operations within
the Smith River National Recreation Area, 36 CFR part 292, subpart G.
Under the proposed rule, modification of an approved plan of operations
might be required to reflect advances in predictive capability,
technical capacity, and mining technology. Modification of an approved
plan of operations also might be required to address uses of National
Forest System land that are no longer, or have become, reasonably
incident.
The proposed rule also would reflect the Forest Service's
conclusion that it is not reasonable for an operator to continue to
conduct any aspect of locatable mineral operations that is causing
irreparable or unnecessary injury, loss or damage to National Forest
System surface resources even if that aspect of the operations was
previously approved by the authorized officer. Thus, the proposed rule
would allow the authorized officer to require an operator to suspend
any aspect of operations that is causing such injury, loss or damage
while the process of modifying the approved plan of operations is
ongoing.
Section 228.6(i) would note the Clean Water Act (CWA) obligations
that an operator or the Forest Service itself must meet in connection
with the approval of a plan of operations. In 2006, a Federal District
Court held that the Forest Service cannot approve a proposed plan of
operations that may result in a discharge to navigable waters until the
operator has obtained a proper 401 CWA certification and presented it
to the authorized officer unless the certification requirement has been
properly waived. The proposed rule would alert operators and authorized
officers to the applicability of this requirement. (The Forest Service
Manual has also been amended to include direction for complying with
the CWA (FSM 2817.23a)).
Section 228.8 Inspecting Operations and Remedying Noncompliance
The Forest Service has experienced some difficulty in enforcing
compliance with the current regulations. A consistent and clearly
understood response to noncompliance is needed. The NRC report stated:
``* * * the committee is persuaded that more consistent and accessible
procedures for deciding when to refer apparent violations to other
agencies and the ability to issue reasonable administrative penalties,
subject to the appropriate due process, would improve the efficiency of
agency operations and enhance the protection of then environment.''
(pgs.102-103).
This section would list enforcement steps the authorized officer
can take if the operator fails to comply with a notice of
noncompliance. This proposed rule notes, as is true today, that the
authorized officer may initiate a civil action, issue a Violation
Notice under 36 CFR part 261, or use the reclamation bond to take all
necessary measures to protect the environment specified by the notice
of noncompliance.
Section 228.9 Environmental Protection Requirements
This proposed rule would update and revise the environmental
protection requirements applicable to locatable mineral operations. A
new paragraph, Sec. 228.9(e), would reference the requirements of the
Endangered Species Act (ESA). This change would be made because some
people have asserted that the ESA does not apply to locatable mineral
operations given that the ESA is not mentioned in the currently
applicable requirements for environmental protection.
Some operators also do not understand that the Forest Service may
require bond coverage that includes the cost of removing any abandoned
equipment or other property from National Forest System lands. Some
have argued that since the current regulations do not specifically
state that removal of equipment is part of reclamation, the operator
cannot be required to post a bond for the removal of that equipment. As
in the current rule, a separate section of this proposed rule (Sec.
228.11) would require removal of structures and equipment upon the
cessation of operations. However, to prevent further confusion, a new
paragraph, Sec. 228.9(i), would be included in the proposed rule to
make it clear that a required element of reclamation is the removal of
structures and equipment from National Forest System lands. Section
228.13(c)(1), would govern reclamation bonding and also would specify
that the cost of complying with proposed Sec. 228.9(i) would be
factored into a reclamation bond's required coverage.
This section also would be revised to make the environmental
protection requirements applicable to bonded notices as well as plans
of operations.
[[Page 15699]]
Section 228.10 Reasonably Incident Uses
This new section would allow an authorized officer to require an
operator to cease uses of National Forest System lands that are not
reasonably incident to locatable mineral prospecting, exploration,
development, mining, processing, or reclamation. This proposed rule
would establish a process for evaluating the reasonableness of
operations or incidental uses, and to initiate a surface use
determination.
Uses such as occupancy and in particular, residence, would be
evaluated under this section to determine whether those uses are
necessary based on the nature or stage of ongoing or proposed
operations. These proposed requirements and requirements proposed
elsewhere in this proposed rule are modeled upon the BLM's parallel
rule (43 CFR subpart 3715) governing occupancy and reasonably incident
uses and operations on the public lands.
Section 228.11 Cessation of Operations
This section would be revised to give the authorized officer a
clearly stated process and criteria to use when responding to a
proposed or actual cessation or temporary closure of operations. The
Forest Service has noticed inappropriate characterizations of closures
or cessations of operations as ``temporary.'' These characterizations
sometimes appear to be attempts to delay or avoid taking appropriate
interim or final actions to clean up and otherwise close and reclaim
completed or abandoned operations. These changes would address any such
abuse.
Section 228.12 Access for Operations
This section would be revised to clarify that all access must be
reasonable. A clarification also would be added stating that the Forest
Service may elect to regulate access on National Forest System lands
for associated work on lands patented under the United States mining
laws pursuant to 36 CFR part 228, subpart A. The vehicle for regulating
such access would be either a complete bonded notice or an approved
plan of operations.
Section 228.13 Reclamation Bonds for Bonded Notices and Plans of
Operation
The revisions in this section would clearly identify the different
types of financial instruments that can be used as a reclamation bond.
This proposed rule would retain the use of statewide or nationwide
blanket bonds while including a new mechanism to insure the adequacy of
any blanket bond.
The current regulations do not contain an appropriately detailed
process for the administration of reclamation bonds, which results in
inconsistent administration of such bonds. As it would be revised, this
section would lay out a clear process and definitive standards for
administering reclamation bonds. This would facilitate consistent
administration of reclamation bonds by Forest Service authorized
officers.
Questions have been raised as to whether the authorized officer has
authority to require periodic reviews of reclamation bonds, and to
require appropriate adjustments of reclamation bonds based upon those
reviews. To forestall such questions in the future, the proposed rule
would be expanded to set forth detailed language providing criteria and
a process for the authorized officer's review of reclamation bonds. The
proposed rule would permit review of a reclamation bond's adequacy
whenever the authorized officer believes it is necessary. However, the
proposed rule would require the authorized officer to seek input from
the operator before requiring any adjustment of the bond.
The proposed rule would provide that value should not be attributed
to any property that an operator places or creates on National Forest
System lands for purposes of determining the cost to fully reclaim such
lands in accordance with Sec. 228.13(c). Any other approach would not
be reasonable. The operator not only is entitled, but would be
required, to remove such property in accordance with Sec. 228.9(i) of
the proposed rule. The value of any property impermissibly abandoned on
the area of operations also could not be determined in advance. An
operator might not own property placed or constructed on National
Forest System lands. Even if the operator owned such property
initially, ownership of it could pass to another person during the
course of the operations voluntarily by sale or involuntarily by
bankruptcy. When operations are lengthy, property that was initially
valuable may be worth less than the cost to remove it when the
operations cease or are concluded. Liability could also be associated
with any such abandoned property that the United States would not
accept.
This proposed rule would require mandatory bonding for all bonded
notices as well as all newly approved plans of operation.
Under current practice, few, if any, operations requiring an
approved plan of operations are authorized today without reclamation
bond coverage given serious problems that have arisen with respect to
previously approved operations for which a bond was not required.
However, approved plans of operations are in effect for which a
reclamation bond was not required. This proposed rule would require an
operator to furnish a bond complying with the requirements of the
proposed rule for all existing operations subject to an approved plan
of operations, including those for which a reclamation bond initially
was not required. Operators would be given 180 days after the effective
date of the final rule to furnish such a bond. The BLM also required
bonds for existing operations subject to an approved plan of operations
to be brought into compliance with the bonding requirements of its
revised 43 CFR subpart 3809 regulations within 180 days of that rule's
effective date.
As it would be revised, this proposed rule would provide for use of
escrow accounts to cover long-term monitoring, maintenance, or
treatment measures to prevent or otherwise minimize on-site or off-site
damage. The BLM has successfully used this kind of financial instrument
to bond such obligations as long-term water treatment (see 43 CFR
3809.556).
This proposed rule also would be expanded to set forth specific
criteria and a formal process that the authorized officer must use in
deciding whether to permit the release of a reclamation bond or to
require the replacement or forfeiture of a reclamation bond. The
authorized officer also would be obligated to seek the operator's input
before requiring the replacement or forfeiture of a reclamation bond.
Section 228.14 Operations on Withdrawn or Segregated National Forest
System Lands Including National Forest Wilderness
The provisions in the current rule governing operations in National
Forest Wilderness are reorganized for clarity. Another clarification is
made concerning information gathering about any type of mineral as
authorized by the Wilderness Act on lands which that Act has withdrawn
from appropriation under the United States mining laws. Although the
United States mining laws do not govern such information gathering,
this proposed rule would make the procedures set forth in this subpart
applicable to that work given the similar methods by which such
information is gathered.
Proposed paragraphs (f) through (i) of this section would establish
the requirements for conducting locatable mineral operations on all
National Forest System lands segregated or withdrawn from the operation
of the
[[Page 15700]]
United States mining laws. National Forest System lands are withdrawn
or segregated pursuant to many authorities and there is no logical
reason to distinguish between lands segregated or withdrawn from
appropriation under one versus another authority.
These proposed provisions specify that operations generally are
allowable on all National Forest System lands segregated or withdrawn
from the mining laws only to the extent that a person has valid
existing rights to proceed, regardless of whether the operations may
proceed under a complete bonded notice or an approved plan of
operations. Thus, the proposed rule allows the Forest Service to
protect genuine valid existing rights (by requiring a determination
that such rights exist) while at the same time protecting areas that
have been withdrawn or are being proposed to be withdrawn from
operation of the mining laws. However, these proposed provisions
specify that the Forest Service may allow limited activities before the
existence of valid existing rights is established or disproven,
including certain limited sampling and limited annual assessment work.
Proposed paragraph (f) of this section would require the Forest
Service to prepare a mineral examination report before approving a plan
of operations for proposed operations on National Forest System lands
withdrawn from the operation of the mining laws. Additionally, this
section would grant the Forest Service the discretion to prepare a
mineral examination report before confirming that a bonded notice is
complete or approving a plan of operations for proposed operations on
National Forest System lands that have been segregated under section
204 of FLPMA (43 U.S.C. 1714) for consideration of a withdrawal. This
section also would provide that when a mineral examination report finds
that a mining claim is invalid but the operator declines to alter the
proposed operations to avoid the segregated or withdrawn National
Forest System lands in question, the Forest Service will request that
the BLM promptly initiate contest proceedings to determine the validity
of all such mining claims.
However, in specified limited circumstances proposed paragraph (g)
would allow the Forest Service to approve a plan of operations before a
mineral examination report for a claim located on withdrawn lands has
been prepared. Specifically, the Forest Service may allow operations to
take samples to confirm or corroborate mineral exposures that were
physically disclosed and existing on the mining claim before the
segregation or withdrawal date, whichever is earlier; and to perform
any minimum necessary annual assessment work under 43 CFR 3851.1. This
section also would permit an operator to conduct the same limited
operations on segregated lands under either a bonded notice that the
Forest Service has confirmed is complete or a plan of operations that
the Forest Service has approved.
Proposed paragraph (h) allows the Forest Service to suspend the
time limit the agency would take for final action on a proposed plan of
operations until the existence of valid existing rights is finally
established or disproven pursuant to paragraph (f) of this section,
whether by virtue of the mineral examination report, a mineral contest,
or federal court proceedings. The section also provides for the
suspension of the time limit for the Forest Service to confirm that a
proposed bonded is complete under identical terms.
Proposed paragraph (i) requires an operator to cease all
operations, except required reclamation, when the absence of valid
existing rights is finally established pursuant to paragraph (f) of
this section, whether by virtue of the mineral examination report, a
mineral contest, or federal court proceedings.
Section 228.16 Applicability of This Subpart
This section would specify how the revised rule would apply to
classes of operations such as approved and ongoing operations,
preexisting proposed plans of operation, preexisting unapproved
modifications of approved plans, and other preexisting operations. This
section would directly parallel the applicability of the BLM's revised
43 CFR subpart 3809 regulations to the same classes of ongoing or
proposed locatable mineral operations.
PART 261--PROHIBITIONS
Section 261.2 Definitions
The definition of ``operating plans'' set forth in this section
would be revised to include bonded notices within its scope. A new
definition of ``residence,'' patterned upon the definition of
``residence'' which would be set forth at 36 CFR part 228.3(m), also
would be added to this section.
Section 261.10 Occupancy and Use
Paragraphs (a), (b) and (l) of this section would be revised to
apply to bonded notices as well as to plans of operation. This change
has no substantive effect. These paragraphs presently apply to
operations requiring an approved plan of operations. Operations that
would be conducted under a complete bonded notice should the proposed
rule be adopted, presently require an approved plan of operations under
36 CFR part 228, subpart A. Thus, whether or not the proposed rule is
ultimately adopted, the same operations would be subject to these three
paragraphs.
New paragraphs (p) and (q) also would be added to this section.
Paragraph (p) would prohibit the use or occupancy of National Forest
System land or facilities without a complete bonded notice or an
approved plan of operations when the operations require such a bonded
notice or plan of operations. Paragraph (q) would prohibit the use of
National Forest System land as storage sites without a complete bonded
notice or an approved plan of operations when the operations would
require such a bonded notice or an approved plan of operations.
PART 292--NATIONAL RECREATION AREAS
Subpart D--Sawtooth Natural Recreation Area--Federal Lands
Section 292.17 General Provisions
This section would be amended to add a citation to 36 CFR part 228,
subpart A.
Subpart G--Smith River National Recreation Area
Section 292.63 Plan of Operations--Supplementary Requirements
This section would be amended to reflect the revised requirements
that would be set forth at proposed 36 CFR part 228.4(f)(1) through
(f)(4) and proposed 36 CFR part 228.9. This section also would be
revised to employ the same terminology that would be set forth at 36
CFR part 228, subpart A.
PART 293--WILDERNESS--PRIMITIVE AREAS
Section 293.2 Objectives
This section would be amended to add a citation to 36 CFR part 228,
subpart A.
Section 293.15 Gathering Information About Resources Other Than
Minerals
This section would be amended to add a citation to 36 CFR part 228,
subpart A.
Regulatory Certifications
Regulatory Planning and Review
This proposed rule has been reviewed under USDA procedures and
Executive Order 12866, amended by Executive Order 13422, Regulatory
Planning and
[[Page 15701]]
Review. It has been determined that this proposed rule is not
significant. This proposed rule will not have an annual effect of $100
million or more on the economy nor adversely affect productivity,
competition, jobs, the environment, public health or safety, nor State
or local governments. This proposed rule would not interfere with an
action taken or planned by another agency nor raise new legal or policy
issues. Finally, this action will not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients of such programs. Accordingly, this proposed
rule is not subject to OMB review under Executive Order 12866.
Moreover, this proposed rule has been considered in light of the
Executive Order 13272 regarding proper consideration of small entities
and the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). An initial small entities flexibility assessment has been made
and it has been determined that this action will not have a significant
economic impact on a substantial number of small entities as defined by
SBRFEA. Therefore, a regulatory flexibility analysis is not required.
Environmental Impacts
This proposed rule revises and updates the regulations for
locatable mineral operations on the National Forests. Section 31.1b of
Forest Service Handbook 1909.15 (57 FR 43168; September 18, 1992)
excludes from documentation in an environmental assessment or impact
statement ``rules, regulations, or policies to establish servicewide
administrative procedures, program processes, or instruction.'' This
proposed rule clearly falls within this category of actions and no
extraordinary circumstances exist which would require preparation of an
environmental assessment or an environmental impact statement. A final
determination will be made simultaneously with the adoption of the
final rule.
Energy Effects
This proposed rule has been reviewed under Executive Order 13211 of
May 18, 2001, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use. It has been determined that this
proposed rule does not constitute a significant energy action as
defined in the Executive order.
Controlling Paperwork Burdens on the Public
In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C.
Chapter 35], FS announces its intention to request an approval of a new
information collection (and recordkeeping requirements--if applicable).
Upon OMB approval, this collection will be merged into 0596-0022.
Title: Proposed Revision of 36 CFR part 228, Subpart A--Locatable
Minerals.
OMB Number: 0596-New.
Expiration Date of Approval: 3 years from approval date.
Type of Request: New information collection.
Abstract: The United States General Mining Laws, as amended, govern
prospecting for and appropriation of metallic and most nonmetallic
minerals on approximately 122 million acres of National Forest set up
by proclamation from the public domain. These laws give individuals the
right to search for and extract valuable mineral deposits, and secure
title to the lands involved. A prospector may locate a mining claim
upon the discovery of a valuable mineral deposit. Recording that claim
in the local county courthouse and with the appropriate BLM State
Office affords protection to the mining claimant from subsequent
locators. A mining claimant is entitled to reasonable access to the
claim for further prospecting, mining, or necessary related activities,
subject to other applicable laws and regulations. Locatable mineral
regulations are specific rules and procedures for use of the surface of
National Forest System lands, in connection with mineral operations
authorized by the United States mining laws, to minimize adverse
environmental impacts to surface resources.
The information collection required for: a notice of intent to
operate; proposed initial, modified, or supplemental plan of
operations; and cessation of operations, is approved and assigned
Office of Management and Budget Control (OMB) No. 0596-0022. The
information collection required for a proposed bonded notice in this
proposed rule has been submitted to OMB as a new collection.
Estimated Number of Respondents: 100.
Estimated Number of Responses per Respondent: 1.
Estimated Number of Total Annual Responses: 100.
Estimated Total Annual Burden on Respondents: 600 hours.
Comments: Comments are invited on: (1) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (2) the accuracy of the agency's estimate of
the burden of the proposed collection of information, including the
validity of the methodology and assumptions used; (3) ways to enhance
the quality, utility, and clarity of the information to be collected;
and (4) ways to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Federalism
The agency has considered this proposed rule under the requirements
of Executive order 13132, Federalism. The agency has made a preliminary
assessment that this proposed rule conforms with the federalism
principles set out in this Executive order; would not impose any
compliance costs on the States; and would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Based on
comments received on this proposed rule, the agency will consider if
any additional consultations will be needed with the State and local
governments prior to adopting a final rule.
Consultation and Coordination With Indian Tribal Governments
This proposed rule does not have tribal implications as defined by
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, and, therefore, advance consultation with tribes is not
required.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630, and it has
been determined that the proposed rule does not pose the risk of a
taking of private property.
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. The agency has not identified any State or local
laws or regulations that are in conflict with this proposed regulation
or that would impede full implementation of this proposed rule.
Nevertheless, in the event that such a conflict were to be identified,
the proposed rule, if implemented, would preempt the State or local
laws or regulations found to be in conflict. However, in that case, (1)
no retroactive effect would be given to this proposed rule; and (2) the
Department
[[Page 15702]]
would not require the use of administrative proceedings before parties
may file suit in court challenging its provisions.
Unfunded Mandates
Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the agency has assessed the effects of this proposed rule on
State, local, and tribal governments and the private sector. This
proposed rule would not compel the expenditure of $100 million or more
by any State, local, or tribal government or anyone in the private
sector. Therefore, a statement under section 202 of the act is not be
required.
List of Subjects
36 CFR Part 223
Administrative practice and procedure, Exports, Forests and forest
products, Government contracts, National Forests, Reporting and
recordkeeping requirements.
36 CFR Part 228
Environmental protection, Mines, Miners, National Forests, Natural
resources, Oil and gas exploration, Public lands--mineral resources,
Public lands-rights-of-way, Reclamation, Reporting and recordkeeping
requirements, Surety bonds, Wilderness areas.
36 CFR Part 261
Law enforcement, National Forests.
36 CFR Part 292
Mineral resources, Recreation and recreation areas.
36 CFR Part 293
National Forests, Wilderness areas.
Therefore, for the reasons set forth in the preamble, the United
States Department of Agriculture proposes to amend 36 CFR chapter II to
read as follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
1. The authority citation for part 223 continues to read as
follows:
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise
noted.
2. Revise paragraph (d) of Sec. 223.14 to read as follows:
Sec. 223.14 Where timber may be cut.
* * * * *
(d) Timber on an unpatented mining claim may be cut by the claimant
only for the actual development of the claim or for uses consistent
with the purposes for which the claim was entered. Any severance or
removal of timber, other than severance or removal to provide
clearance, must be in accordance with a complete bonded notice then in
effect or an approved plan of operations then in effect as provided by
part 228, subpart A of this chapter, and with sound principles of
forest management.
* * * * *
PART 228--MINERALS
3. Revise the authority citation for part 228 to read as follows:
Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 482,
551); 41 Stat. 437, as amended, sec. 5102(d), 101 Stat. 1330-256 (30
U.S.C. 226); 61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914,
as amended (30 U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C.
611); and 94 Stat. 2400.
4. Revise Subpart A to read as follows:
Subpart A--Locatable Minerals
Sec.
228.1 Purpose.
228.2 Scope.
228.3 Definitions.
228.4 Submission of notices of intent to operate, bonded notices,
and plans of operations.
228.5 Bonded notice--completeness review.
228.6 Plan of operations--approval.
228.7 Availability of information to the public.
228.8 Inspecting operations and remedying noncompliance.
228.9 Environmental protection requirements.
228.10 Reasonably incident uses.
228.11 Cessation of operations.
228.12 Access for operations.
228.13 Reclamation bonds for bonded notices and plans of operation.
228.14 Operations on withdrawn or segregated National Forest System
lands including National Forest Wilderness.
228.15 Administrative appeals.
228.16 Applicability of this subpart.
Subpart A--Locatable Minerals
Sec. 228.1 Purpose.
It is the purpose of the regulations in this subpart to set forth
rules and procedures under which use of the surface of National Forest
System lands for operations authorized by the United States mining laws
must be conducted so as to minimize adverse environmental impacts on
National Forest System surface resources. The United States mining
laws, which confer a statutory right to enter upon certain Federal
lands to search for locatable minerals, apply to National Forest System
lands reserved from the public domain pursuant to the Creative Act of
1891, Sec. 24, 26 Stat. 1095, 1103 (1891), by virtue of the Organic
Administration Act of 1897, 16 U.S.C. 482. It is not the purpose of the
regulations in this subpart to provide for the management of mineral
resources; the responsibility for managing such resources is in the
Secretary of the Interior.
Sec. 228.2 Scope.
(a) This subpart applies to operations hereafter conducted on
National Forest System lands under the United States mining laws as
they affect surface resources on such lands which are under the
jurisdiction of the Secretary of Agriculture: Provided, however, That
any area of National Forest System lands covered by a special act of
Congress (16 U.S.C. 482a-482q) is subject to the provisions of this
subpart and the provisions of the special act, and in the case of
conflict the provisions of the special act will apply.
(b) Certification or other approval issued by State agencies or
other Federal agencies of compliance with laws and regulations relating
to locatable mining operations the authorized officer determines are
similar or parallel to requirements of this subpart will be accepted as
compliance with the applicable requirements of this subpart.
Sec. 228.3 Definitions.
For the purposes of this subpart the following terms, respectively,
mean:
(a) Authorized officer. The Forest Service officer to whom
authority to review and approve a plan of operations has been
delegated.
(b) Day. For purposes of computing time periods, the term ``day''
refers to Mondays through Fridays, beginning the next one of these days
after the event from which the time computation period begins to run.
However, when the time computation period ends on a day a Federal
holiday appointed by the President or the Congress of the United States
is observed, the period is extended to the end of the next day not a
Federal holiday.
(c) Minimize. Limiting operations conducted to those reasonably
incident and, where practical, preventing or reducing the adverse
impact of reasonably incident operations.
(d) Mining claim. Any unpatented mining claim or unpatented mill
site authorized by the United States mining laws.
(e) Occupancy. Being present on or employing National Forest System
lands for any of the following activities or purposes:
(1) The construction, maintenance, placement, protection, repair,
retention or use of a residence as defined by
[[Page 15703]]
Sec. 228.3(m) for any purpose: Provided, however, That a temporary
structure or a temporary shelter supplying living or sleeping quarters
for any person camping in connection with locatable mineral operation
is not occupancy unless such camping will exceed any stay limit
applicable to the National Forest System lands on which such temporary
structure or temporary shelter is situated;
(2) Regular use of any area, whether or not enclosed or covered in
any way, for the storage of equipment, machinery, parts, process
materials, spent materials, supplies, tools and vehicles;
(3) The construction, maintenance, placement, repair, retention or
use of any barrier to access, including but not limited to, enclosures,
fences, gates and signs;
(4) Use of a caretaker, guard or watchman to monitor, protect, or
safeguard property, objects, workings, facilities, or the public; and
(5) Use of a means of transportation on a road or another access
facility the Forest Service has closed to such use.
(f) Operations. All functions, work, and activities in connection
with prospecting, exploration, development, mining or processing of
locatable mineral resources, reclamation and closure, and all uses
reasonably incident thereto, including roads, other means of access and
occupancy, on National Forest System lands subject to the regulations
in this subpart, regardless of whether said operations take place
within or outside the boundaries of a mining claim.
(g) Operator. A person conducting or proposing to conduct
operations.
(h) Permanent structure. Structures fixed to the ground by any of
the various types of foundations, slabs, piers, poles, and other means
and structures placed on the ground that can only be moved through
disassembly of the structure into its component parts or by techniques
commonly used in moving houses. Tents and lean-tos are temporary, not
permanent, structures.
(i) Person. Any individual, partnership, corporation, association,
or other legal entity.
(j) Reasonably incident. A shorthand reference to the statutory
standard ``prospecting, mining or processing operations and uses
reasonably incident thereto'' (30 U.S.C. 612(a)).
(1) Reasonably incident includes those actions or expenditures of
labor and resources by a person of ordinary prudence to prospect,
explore, define, develop, mine, or beneficiate a valuable locatable
mineral deposit, and reclamation of lands affected by such actions or
expenditures of labor, using work, activities, functions, practices,
facilities, structures, and equipment appropriate to the geological
terrain, mineral deposit, and stage of development and reasonably
related activities.
(2) Uses not reasonably incident include, but are not limited to,
all uses not: Allowed pursuant to the United States mining laws or
other applicable laws; necessary or reasonable on National Forest
System lands; realistically calculated to lead to the extraction and
beneficiation of valuable locatable minerals; required for the
applicable stage of prospecting, exploration, development, mining or
processing operations; warranted given the extent of available
information on the mineral deposit; or warranted given the extent, or
lack, of ongoing operations.
(k) Reclamation. Measures taken to, where practical, prevent or
otherwise minimize onsite and off-site damage to the environment and
National Forest System surface resources. It includes concurrent,
seasonal, interim, and ultimate actions, including, if necessary,
monitoring, maintenance and long-term treatment after mineral
operations have ceased. These measures must shape, stabilize,
revegetate, or otherwise treat lands affected by operations in order to
achieve a safe and environmentally stable condition.
(l) Reclamation bond. Surety bonds, cash, negotiable securities of
the United States, or escrow accounts posted by an operator to cover
the full cost of reclaiming National Forest System lands affected by
operations conducted subject to a complete bonded notice or an approved
plan of operations.
(m) Residence. Any structure or shelter, whether temporary or
permanent, including, but not limited to, buildings, buses, cabins,
campers, houses, lean-tos, mills, mobile homes, motor homes, pole
barns, recreational vehicles, sheds, shops, tents and trailers, which
is being used, capable of being used, or designed to be used, in whole
or in part, full or part-time, as living or sleeping quarters by any
person, including a guard or watchman.
(n) Significant disturbance of surface resources. Disturbance of
National Forest System surface resources requiring the use of
reclamation measures in order to return National Forest System lands
and surface resources affected by operations to a safe and
environmentally stable condition or influencing materially the
administration of National Forest System lands or surface resources
affected by operations during their pendency. Significant disturbance
of surface resources generally results from operations employing
mechanized earth-moving equipment, truck-mounted drilling equipment,
explosives or chemicals; requiring access road construction or
reconstruction; requiring construction of buildings, impoundments and
other support facilities; occurring within areas of National Forest
System lands or waters known to contain Federally listed threatened or
endangered species or their designated critical habitats; or occurring
within areas of National Forest System lands withdrawn from the
operation of the United States mining laws. Significant disturbance of
surface resources also generally occurs when operations cause fire,
health or safety hazards on National Forest System lands; preclude or
restrict other uses of National Forest System surface resources;
prevent or obstruct free passage or transit over National Forest System
lands; involve residency, other than permitted camping, on National
Forest System lands; injure or destroy any scientifically important
paleontologic remains or any historical or archaeological structure,
resource, or object; or necessitate closing National Forest System
lands or facilities to users other than an operator or exempting an
operator from closure of National Forest System lands or facilities to
other users. An operation that will cause significant disturbance of
National Forest System surface resources occasionally may, but often
will not, significantly affect the quality of the human environment for
purposes of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C) and its implementing regulations (40 CFR parts 1500-1508).
(o) Surface use determination. An inquiry conducted by a certified
Forest Service Mineral Examiner as to whether specified uses of
National Forest System lands are reasonably incident.
(p) United States mining laws. A reference to the Mining Law of May
10, 1872 (30 U.S.C. 21-54), as amended and supplemented by laws
including the Organic Administration Act of 1897 (16 U.S.C. 478, 482 &
551) and the Surface Resources Act of 1955 (30 U.S.C. 611-614).
Sec. 228.4 Submission of notices of intent to operate, bonded
notices, and plans of operations.
(a) Operations not requiring prior notice. (1) Except as provided
by paragraphs (a)(2) through (a)(4) of this section, an operator is not
required to give notice to the Forest Service before:
(i) Beginning operations that will be limited to the use of
vehicles on existing public roads or roads used and
[[Page 15704]]
maintained for National Forest System purposes;
(ii) Beginning prospecting and sampling that will not cause
significant disturbance of National Forest System surface resources and
will not involve removal of more than a reasonable amount of a mineral
deposit for analysis and study which generally might include searching
for and occasionally removing small mineral samples or specimens, gold
panning, metal detecting, non-motorized hand sluicing, using battery
operated dry washers, and collecting mineral specimens using hand
tools;
(iii) Marking and monumenting a mining claim;
(iv) Beginning underground operations that will not cause
significant disturbance of National Forest System surface resources;
(v) Beginning operations, which in their totality, will not cause
disturbance of National Forest System surface resources substantially
different than that caused by other National Forest System users who
are not required to obtain a special use authorization, contract, or
other written authorization from the Forest Service before beginning
such use; or
(vi) Beginning operations that will not involve the use of
mechanized earth-moving equipment, such as bulldozers or backhoes, or
the cutting of trees, unless those operations otherwise might cause
significant disturbance of National Forest System surface resources.
(2) Operations involving occupancy of National Forest System lands,
as defined by Sec. 228.3(e), are not subject to paragraph (a)(1) of
this section.
(i) The construction, maintenance, placement, protection, repair,
retention or use of a temporary structure or a temporary shelter
supplying living or sleeping quarters for any person camping in
connection with locatable mineral operation is not occupancy providing
that such camping will not exceed any stay limit applicable to the
National Forest System lands on which the temporary structure or
temporary shelter is situated. Accordingly, prior notice is not
required for an operation involving camping which otherwise meets the
requirements of paragraphs (a)(1)(i) through (a)(1)(vi) of this section
unless the operation is subject to any of paragraphs (a)(2)(ii) through
(a)(4) of this section.
(ii) An operator proposing to construct, maintain, place, protect,
repair, retain or use a permanent structure located on National Forest
System lands must submit a proposed plan of operations pursuant to
paragraph (d)(1)(ii)(A) of this section.
(iii) Otherwise, an operator proposing to conduct operations
involving occupancy of National Forest System lands, including use of a
means of transportation on a road or another access facility the Forest
Service has closed to such use, must submit of a notice of intent to
operate in complaince with paragraphs (b)(3) through (b)(6) of this
section.
(3) An operator proposing to conduct any operation subject to
paragraph (c)(1)(ii) of this section shall submit a proposed bonded
notice in compliance with paragraph (c)(3) through (c)(5) of this
section.
(4) An operator proposing to conduct any operation subject to
paragraphs (d)(1)(ii)(B) through (d)(1)(ii)(E) of this section shall
submit a proposed plan of operations in compliance with paragraphs
(d)(2) through (d)(4) of this section.
(b) Operations requiring a notice of intent to operate. (1) Except
as provided by paragraph (b)(2) of this section, an operator must
submit a notice of intent to operate when the operator proposes to
conduct operations that:
(i) Might cause significant disturbance of National Forest System
surface resources; or
(ii) Would involve occupancy of National Forest System lands as
defined by Sec. 228.3(e), including, but not limited to:
(A) Use of a means of transportation on a road or another access
facility the Forest Service has closed to such use; and
(B) Construction, maintenance, placement, protection, repair,
retention or use of a residence as defined by Sec. 228.3(m) unless:
(1) The residence is a permanent structure as defined by Sec.
228.3(h) for which the operator must submit a proposed plan of
operations pursuant to paragraph (d)(1)(ii)(A) of this section; or
(2) The residence is a temporary structure or a temporary shelter
supplying living or sleeping quarters for any person camping in
connection with locatable mineral operation providing that such camping
will not exceed any stay limit applicable to the National Forest System
lands on which the temporary structure or temporary shelter is
situated. Accordingly, a notice of intent is not required for an
operation involving such residence which meets the requirements of
paragraphs (a)(1)(i) through (a)(1)(vi) of this section unless the
operation is subject to paragraphs (a)(2)(ii) through (a)(4) of this
section.
(2) An operator is not required to submit a notice of intent to
operate if:
(i) The operations may proceed without prior notice pursuant to
paragraph (a) of this section.
(ii) The operator elects to submit a proposed bonded notice or a
proposed plan of operations instead of a notice of intent to operate;
(iii) The proposed operations are not likely to cause significant
disturbance of National Forest System surface resources;
(iv) The operator is required to submit a proposed bonded notice
because the proposed operations are subject to paragraph (c)(1)(ii) of
this section; or
(v) The operator is required to submit a proposed plan of
operations because the proposed operations are subject to paragraph
(d)(1)(ii) of this section.
(3) A notice of intent to operate must provide information
sufficient to identify the proposed area of operations, the nature of
the proposed operations, and the proposed mode of transportation and
route of access to the area of operations.
(4) The operator must transmit the notice of intent to operate to
the District Ranger having jurisdiction over the area within which the
proposed operations will be conducted.
(5) The operator must not begin the operations described by the
notice of intent to operate sooner than 15 days after the notice was
received by the District Ranger except as provided by paragraphs
(b)(6)(i) and (b)(6)(ii) of this section.
(6) Within 15 days of receiving a notice of intent to operate, the
District Ranger will notify the operator if the proposed operations
cannot begin until--
(i) The operator has submitted a proposed bonded notice pursuant to
paragraph (c) of this section and the requirements of Sec. 228.5 are
satisfied; or
(ii) The operator has submitted a proposed plan of operations
pursuant to paragraph (d) of this section and the requirements of Sec.
228.6 are satisfied.
(c) Operations requiring a proposed bonded notice. (1) Except as
provided by paragraph (c)(2) of this section, an operator must submit a
proposed bonded notice when the operator proposes to conduct operations
that:
(i) Will likely cause significant disturbance of National Forest
System surface resources providing that such disturbance will last no
longer than two years and will occur on no more than 5 acres of
unreclaimed National Forest System lands at any point in time; or
(ii) Will occur partially or wholly on national Forest System lands
segregated from appropriation under the United States mining laws
providing that the disturbance of National Forest System
[[Page 15705]]
surface resources the operations will likely cause will last no longer
than two years and will occur on no more than 5 acres of unreclaimed
National Forest System lands at any point in time.
(2) An operator is not required to submit a proposed bonded notice
if:
(i) The operations may proceed without prior notice pursuant to
paragraph (a) of this section.
(ii) The operations may proceed under a notice of intent to operate
pursuant to paragraph (b) of this section.
(iii) The operator elects to submit a proposed plan of operations
instead of a proposed bonded notice; or
(iv) The operator is required to submit a proposed plan of
operations because the operations are subject to paragraph (d)(1)(ii)
of this section.
(3) A proposed bonded notice must contain the information specified
by paragraph (f) of this section as foreseen for the entire operation
for the full estimated period of activity.
(4) The operator must transmit the proposed bonded notice to the
District Ranger having jurisdiction over the lands on which the
proposed operations would be conducted.
(5) The operator must not begin the operations described by the
proposed bonded notice before the bonded notice has been determined to
be complete pursuant to Sec. 228.5(b)(1) and the requirements of Sec.
228.5 are otherwise satisfied.
(d) Operations requiring a proposed plan of operations. (1) An
operator must submit a proposed plan of operations when the operator
proposes to conduct operations that:
(i) Will likely cause significant disturbance of National Forest
System surface resources lasting no longer than two years or occurring
on more than 5 acres of unreclaimed National Forest System lands at any
point in time; or
(ii) Always require an approved plan of operations because those
operations:
(A) Will involve the construction, maintenance, placement,
protection, repair, retention or use of a permanent structure on
National Forest System lands;
(B) Will occur partially or wholly on National Forest System lands
withdrawn from appropriation under the United States mining laws,
including lands within National Forest Wilderness;
(C) Will occur partially or wholly on National Forest System lands
segregateed or withdrawn from appropriation under the United States
mining laws, if the disturbance of National Forest System surface
resources that the operation will likely cause will last longer than
two years or will occur on more than 5 acres of unreclaimed National
Forest System lands at any point in time;
(D) Will sever or remove timber on National Forest System lands for
purposes other than providing clearance; or
(E) Are subject to Sec. 228.5(a)(5)(iii)(B).
(2) A proposed plan of operations must contain the information
specified by paragraph (f) of this section as foreseen for the entire
operation for the full estimated period of activity.
(i) If the development of a plan of operations for an entire
operation is not possible when the proposed plan is prepared, the
operator must:
(A) File an initial plan of operations describing the proposed
operations to the degree reasonably foreseeable then; and
(B) Thereafter, file one or more supplemental plans of operations
when the operations the operator proposes to conduct are not approved
by the current plan of operations.
(ii) A supplemental plan of operations provided for by paragraph
(d)(2)(i)(B) of this section is subject to all provisions set forth in
this subpart applicable to an initial plan of operations.
(3) The operator must transmit the proposed plan of operations to
the District Ranger having jurisdiction over the lands on which the
proposed operations would be conducted.
(4) The operator must not begin the operations described by the
proposed plan of operations before the plan of operations has been
approved pursuant to Sec. 228.6(c)(1) and the requirements of Sec.
228.6 are otherwise satisfied.
(e) Demanding a complete bonded notice or an approved plan of
operations. The District Ranger will notify the operator that the
operator must:
(1) Hold a complete bonded notice which is in effect or an approved
plan of operations which is in effect, whichever is appropriate, if the
District Ranger determines the operator intends to commence or
previously began operations that are likely to cause or are causing
significant disturbance of National Forest System surface resources
without a required bonded notice or plan of operations; or
(2) Obtain a new complete bonded notice which has taken effect, or
a new, modified or supplemental plan of operations which has taken
effect, whichever is appropriate, if significant disturbance of
National Forest System surface resources which is not fully described
by a complete bonded notice currently in effect or which is not
approved by a plan of operations currently in effect is likely to occur
or is occurring.
(f) Proposed bonded notice and plan of operations content
requirements. A proposed bonded notice or a proposed plan of operations
must include:
(1) The name and legal mailing address of all operators (and all
claimants if they are not the operators) and their lessees, assigns, or
designees.
(2) A map or sketch showing information sufficient to locate the
proposed area of operations on the ground, the location, and, if
applicable, the route, of all existing and proposed roads, trails,
bridges, landing areas for aircraft, and other access facilities to be
used in connection with the operations, and the approximate location
and size of areas where National Forest System surface resources will
be disturbed.
(3) Information sufficient to describe or identify the type of
operations proposed and how they would be conducted, the proposed mode
of transportation to be used, the type and standard of all existing and
proposed roads, trails, bridges, landing areas for aircraft, and other
access facilities, the proposed period during which the proposed
operations will occur, and proposed measures to be taken to meet the
environmental protection requirements set forth in Sec. 228.9.
(4) A preliminary estimate of the cost of reclaiming National
Forest System lands calculated in accordance with Sec. 228.13(c) but
based only upon the reclamation requirements set forth in Sec.
228.9(i) and (k), along with an explanation sufficient to show how the
estimate was calculated.
(g) Collection of information. The information collection required
for: a notice of intent to operate; proposed initial, modified, or
supplemental plan of operations; and cessation of operations, is
approved and assigned Office of Management and Budget Control (OMB) No.
0596-0022. The information collection required for a proposed bonded
notice has been submitted to OMB as a new collection.
Sec. 228.5 Bonded notice--completeness review.
(a) The District Ranger will promptly review a proposed bonded
notice submitted in accordance with Sec. 228.4(c)(1) and, as part of
that review, consider whether:
(1) The proposed bonded notice satisfies the environmental
protection requirements set forth in Sec. 228.9;
(2) The proposed bonded notice adequately minimizes the adverse
environmental impacts of the proposed operations on National Forest
System surface resources;
[[Page 15706]]
(3) The proposed bonded notice includes the information specified
by Sec. 228.12(d);
(4) The proposed bonded notice properly estimates the cost of
reclaiming all National Forest System lands that would be affected by
the proposed operations; and
(5) The operator or any person acting on the operator's behalf has
established a pattern of noncompliance with requirements applicable to
past or ongoing operations.
(i) If the District Ranger finds such a pattern of noncompliance,
the District Ranger may recommend the applicable Forest Supervisor
require the operator to submit a proposed plan of operations in lieu of
the proposed bonded notice. The District Ranger's recommendation must
be accompanied by a statement setting forth in detail the supporting
facts and reasons for the recommendation, copies of which will be sent
to the operator when they are sent to the Forest Supervisor.
(ii) The operator will have not less than 15 days to respond and
show cause why the Forest Supervisor should not require the operator to
submit a proposed plan of operations.
(iii) The Forest Supervisor will render a decision on the District
Ranger's recommendation within 30 days of receiving the operator's
response to the recommendation or the closure of the period for the
operator to submit such a response.
(A) If the Forest Supervisor disagrees with the District Ranger's
recommendation, the Forest Supervisor will direct the District Ranger
to resume prompt review of the proposed bonded notice.
(B) If the Forest Supervisor agrees with the District Ranger's
recommendation, the Forest Supervisor will advise the operator the
proposed bonded notice will not receive further review and the operator
must submit a proposed plan of operations in lieu of the notice if the
operator wishes to conduct the proposed operations.
(b) Within 15 days of receipt of a proposed bonded notice, the
District Ranger will notify the operator that:
(1) The bonded notice is complete;
(2) The proposed operations do not require a bonded notice;
(3) The proposed operations require an approved plan of operations;
(4) The Forest Service is reviewing the proposed bonded notice,
more time is necessary to conclude the review for the reasons
specified, and the District Ranger will complete the review within an
additional 15 day period: Provided, however, That days during which the
area of operations is inaccessible for inspection will not be counted
when computing the 15 day period; or
(5) The proposed bonded notice is incomplete identifying the
deficiencies the operator must remedy to meet the requirements of this
subpart.
(c) If the proposed bonded notice is incomplete and the operator
submits additional information in response to a notification pursuant
to paragraph (b)(5) of this section, the District Ranger will repeat
the review process set forth in paragraphs (a) and (b) of this section
as necessary until the District Ranger takes an action specified by
paragraphs (b)(1) through (3) of this section.
(d) When the District Ranger advises the operator in writing that a
bonded notice is complete, the operator must furnish the District
Ranger a reclamation bond complying with Sec. 228.13(a) through (c).
If the District Ranger determines the reclamation bond the operator
submitted is consistent with the complete bonded notice and Sec.
228.13(a) through (c), the District Ranger will promptly inform the
operator in writing that as of such day the complete bonded notice is
in effect and the operations described by the notice may begin. The
operator must conduct the operations in compliance with the complete
bonded notice and the requirements set forth in this subpart.
(1) A complete bonded notice has a two year term which begins on
the bonded notice's effective date.
(2) All operations described by the bonded notice, including
reclamation, must be concluded within the two year period specified by
paragraph (d)(1) of this section.
(3) A complete bonded notice may not be extended. If the operator
requires additional time to complete operations subject to Sec.
228.4(c), the operator must submit a new bonded notice to the District
Ranger in accordance with Sec. 228.4(c)(2) and (3).
(e) An operator must not segment logically related exploratory
operations within a particular area by filing a series of proposed
bonded notices for the purpose of avoiding the requirement to submit a
proposed plan of operations.
(f) The District Ranger may hold a portion of the reclamation bond
for a complete bonded notice provided by the operator in accordance
with Sec. 228.13(a) through (c) and paragraph (d) of this section for
monitoring purposes no longer than two years following completion of
reclamation. However, the District Ranger will promptly return any
portion of the reclamation bond covering reclamation activities not
requiring monitoring to the operator in accordance with Sec.
228.13(f)(2).
(g) Holding a complete bonded notice in effect does not relieve the
operator from compliance with all other applicable Federal and State
laws, including but not limited to the Federal Water Pollution Control
Act (Clean Water Act), as amended (33 U.S.C. 1251-1387), the Clean Air
Act, as amended (42 U.S.C. 1857 et seq.), and the Endangered Species
Act (16 U.S.C. 1531-1536, 1538-1540).
Sec. 228.6 Plan of operations--approval.
(a) The District Ranger will promptly acknowledge receipt of a
proposed plan of operations submitted in accordance with Sec.
228.4(d)(1) to the operator.
(b) The authorized officer will promptly review a proposed plan of
operations. As part of the review, the authorized officer will:
(1) Consider whether the proposed plan of operations satisfies the
environmental protection requirements set forth in Sec. 228.9;
(2) Consider whether the proposed plan of operations adequately
minimizes the adverse environmental impacts of the proposed operations
on National Forest System surface resources;
(3) Consider whether the proposed plan of operations includes the
information specified by Sec. 228.12(d);
(4) Consider whether the proposed plan of operations properly
estimates the cost of reclaiming all National Forest System lands that
would be affected by the proposed operations;
(5) Evaluate the operator's compliance with paragraph (i)(3) of
this section; and
(6) Conduct an environmental analysis of the proposed plan of
operations and determine whether preparation of an environmental
assessment or an environmental impact statement is required.
(i) An initial, supplemental or modified plan of operations
occasionally may, but often will not, require preparation of an
environmental assessment or an environmental impact statement.
Environmental impacts of proposed operations will vary substantially
depending on whether the nature of the operations is exploration,
development, or processing, and on the scope of operations (such as
size of operations, construction required, length of operations and
equipment required), causing varying degrees of disturbance and impacts
to vegetative resources, soil, water, air, or wildlife.
(ii) The Forest Service will prepare any required environmental
assessment or environmental impact statement.
(c) Within 30 days of receipt of a proposed plan of operations, the
[[Page 15707]]
authorized officer will notify the operator that:
(1) The plan of operations is approved;
(2) The proposed operations do not require an approved plan of
operations;
(3) The authorized officer is reviewing the proposed plan of
operations, more time is necessary to conclude the review for the
reasons specified, and the authorized officer will complete the review
within an additional 60 day period: Provided, however, That days during
which the area of operations is inaccessible for inspection will not be
counted when computing the 60 day period;
(4) The proposed plan of operations cannot be approved until an
environmental assessment has been prepared and, if appropriate, a
finding of no significant impact has been made, or a final
environmental impact statement has been prepared; or
(5) The proposed plan of operations is inadequate identifying the
deficiencies the operator must remedy to meet the requirements of this
subpart.
(d) If the proposed plan of operations is inadequate and the
operator submits additional information in response to a notification
pursuant to paragraph (c)(5) of this section, the authorized officer
will repeat the review process set forth in paragraphs (b) and (c) of
this section as necessary until the authorized officer takes an action
specified by paragraph (c)(1) or (c)(2) of this section.
(e) When the authorized officer advises the operator in writing
that the plan of operations is approved, the operator must provide to
the authorized officer a reclamation bond complying with Sec.
228.13(a) through (c). If the authorized officer determines the
reclamation bond the operator submitted is consistent with the approved
plan of operations and Sec. 228.13(a) through (c), the authorized
officer will promptly direct the operator to sign the approved plan of
operations if the operator has not already done so.
(f) After the requirements of paragraph (e) of this section have
been met, the authorized officer will promptly countersign and date the
approved plan of operations and inform the operator in writing the
approved plan of operations is in effect and the operations approved by
the plan may begin. The operator must conduct the operations in
compliance with the approved plan of operations and the requirements
set forth in this subpart.
(g) Before an approved plan of operations takes effect, the
authorized officer will approve those operations required for timely
compliance with Federal and State laws providing such operations will
be conducted so as to minimize their adverse environmental impacts on
National Forest System surface resources.
(h) The authorized officer may require an operator to obtain
approval of a modified plan of operations under following procedures.
(1) The authorized officer will not require an operator to submit
and obtain approval of a modified plan of operations unless the
authorized officer determines that:
(i) As approved, the operations do not adequately minimize adverse
impacts;
(ii) As approved, the operations do not, or likely will not, meet
the environmental protection requirements specified by Sec. 228.9;
(iii) The approved operations are causing unforeseen significant
disturbance of National Forest System surface resources;
(iv) The approved plan of operations must be brought into
conformance with applicable federal law or regulation, including newly
adopted federal law or regulation;
(v) The approved plan of operations needs to respond to new
information not available when the plan was approved; or
(vi) Errors or omissions were made when the plan of operations was
approved.
(2) An authorized officer considering whether to require an
operator to obtain approval of a modified plan of operations will:
(i) Provide notice to the operator in writing which:
(A) Sets forth the reasons why the authorized officer believes
modification of the approved plan of operations is required; and
(B) Gives the operator not less than 30 days to respond and show
cause why the authorized officer should not require modification of the
approved plan of operations;
(ii) Consider the operator's response and all other information in
the administrative record in deciding whether to require modification
of the approved plan of operations; and
(iii) Issue a decision stating whether modification of the approved
plan of operations is required, and if the decision requires
modification of the approved plan of operations, the decision also
will:
(A) Explain its basis;
(B) Identify all required modifications to the plan of operations;
(C) Specify the date by which the operator must submit the proposed
modified plan of operations; and
(D) Identify any opportunity for the operator to file an
administrative appeal of the decision.
(3) A modified plan of operations provided for by introductory text
of paragraph (h) of this section is subject to all provisions set forth
in this subpart applicable to an initial plan of operations, except as
otherwise provided by Sec. 228.16.
(4) Operations may continue in accordance with the approved plan of
operations until a modified plan is approved, unless the authorized
officer determines the operations are:
(i) Unnecessarily or unreasonably causing injury, loss or damage to
National Forest System surface resources; or
(ii) Causing irreparable injury, loss or damage to National Forest
System surface resources; and advises the operator of those measures
needed to avoid such damage.
(i) If the operations to be conducted under a plan of operations:
(1) Can reasonably be expected to result in a point source
discharge into waters of the United States, the operator may be
required to obtain permits under the Federal Water Pollution Control
Act, as amended (33 U.S.C. 1251-1387) (Clean Water Act sections 402,
404).
(2) Will result in the discharge of dredged or filled materials
into waters of the United States, the operator may be required to
obtain permits under the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251-1387) (Clean Water Act sections 402, 404).
(3) May result in any discharge into the navigable waters, the
operator must obtain the certification required by Clean Water Act
section 401(a)(1) from the appropriate Federal or state entity and
present a copy of the certification to the authorized officer.
(i) Pursuant to Clean Water Act section 401, the Forest Service
cannot approve a proposed plan of operations until the operator has
obtained the required certification and presented it to the authorized
officer unless the certification requirement has been waived by the
appropriate Federal or State entity.
(ii) If the appropriate Federal or state entity denies a required
Clean Water Act section 401(a)(1) certification, the Forest Service
cannot approve a proposed plan of operations.
(j) Holding an approved plan of operations in effect does not
relieve the operator from compliance with all other applicable Federal
and State laws, including but not limited to the Federal Water
Pollution Control Act (Clean Water Act), as amended (33 U.S.C. 1251-
1387), the Clean Air Act, as amended (42 U.S.C. 1857 et seq.), and the
Endangered Species Act (16 U.S.C. 1531-1536, 1538-1540).
[[Page 15708]]
(k) When the operator considers the operations, including
reclamation, approved by the plan of operations to have been completed,
the operator may notify the authorized officer. If the authorized
officer agrees, the authorized officer will advise the operator in
writing that the operator's obligations under the plan of operations
have been completed and the plan has been closed.
Sec. 228.7 Availability of information to the public.
Except as provided herein, all information and data submitted by an
operator pursuant to the regulations of this subpart is available for
examination by the public at the Office of the District Ranger in
accordance with the provisions of 7 CFR 1.1 through 1.24, and
Sec. Sec. 200.6 through 200.8 of this chapter. Specifically identified
information and data submitted by the operator as confidential
concerning trade secrets or privileged commercial or financial
information will not be available for public examination, except upon a
determination made pursuant to the procedures at 7 CFR 1.12, that such
information is not exempt by law from mandatory disclosure under the
Freedom of Information Act, 5 U.S.C. 552. Information and data
generally found to be exempt from disclosure that accordingly may be
withheld from public examination includes, but is not limited to:
(a) Known or estimated outline of the mineral deposits and their
location, attitude, extent, outcrops, and content;
(b) Known or planned location of exploration pits, drill holes,
excavations pertaining to location and entry pursuant to the United
States mining laws; and
(c) Other commercial information which relates to competitive
rights of the operator.
Sec. 228.8 Inspecting operations and remedying noncompliance.
(a) Forest Service officers will periodically inspect operations to
determine whether an operator is complying with the regulations of this
subpart and, if applicable, a complete bonded notice or an approved
plan of operations.
(b) If an operator fails to comply with the regulations of this
subpart or, if applicable, a complete bonded notice or an approved plan
of operations and the operator's noncompliance unnecessarily or
unreasonably is causing injury, loss or damage to National Forest
System surface resources, the authorized officer will serve a notice of
noncompliance upon the operator or, if applicable, the operator's
designated agent in person or by certified mail. The notice of
noncompliance must:
(1) Identify all requirements with which the operator's
noncompliance unnecessarily or unreasonably is causing injury, loss or
damage to National Forest System surface resources;
(2) Specify the actions which the operator must take to come into
compliance with the requirements identified pursuant to paragraph
(b)(1) of this section and to remedy all injury, loss or damage to
National Forest System surface resources which resulted from the
operator's noncompliance with those requirements; and
(3) Specify one or more dates by which the operator must complete
the actions specified pursuant to paragraph (b)(2) of this section.
Generally, an operator will not be given more than 30 days to complete
actions specified pursuant to paragraph (b)(2) of this section:
Provided, however, That days on which the authorized officer determines
the area of operations is inaccessible will not be included when
computing the period the operator is allowed to complete those actions.
(c) The authorized officer will take additional enforcement actions
if the operator fails to comply with a notice of noncompliance within
the time provided by the notice unless the authorized officer
determines there was good cause for the operator's failure to comply.
The additional enforcement actions include, but are not limited to, one
or more of the following:
(1) Requesting the initiation of a civil action in a United States
District Court seeking appropriate relief such as declaratory relief,
injunctive relief and monetary damages;
(2) Issuing a Violation Notice citing the operator for violating a
prohibition set forth in part 261 of this chapter; and;
(3) Attaching the reclamation bond provided by the operator and
using the proceeds to take all necessary measures to complete the
actions specified by the notice of noncompliance pursuant to paragraph
(b)(2) of this section.
Sec. 228.9 Environmental protection requirements.
The operator must conduct all operations, where practical, so as to
minimize the adverse environmental impacts on National Forest System
surface resources. Environmental protection requirements operations
must satisfy include, but are not limited to:
(a) Air quality. The operator must comply with applicable Federal
and State air quality standards, including the requirements of the
Clean Air Act, as amended (42 U.S.C. 1857 et seq.).
(b) Water quality. The operator must comply with applicable Federal
and State water quality standards, including regulations issued
pursuant to the Federal Water Pollution Control Act, as amended (33
U.S.C. 1151 et seq.).
(c) Solid wastes. The operator must:
(1) Comply with applicable Federal and State standards for the
disposal and treatment of solid wastes as defined by the Resources
Conservation and Recovery Act, as amended (42 U.S.C. 6901 et seq.);
(2) Remove from National Forest System lands, dispose of, or treat
all non-mine garbage, refuse, or waste to minimize, so far as is
practical, its impact upon the environment and National Forest System
surface resources; and
(3) Deploy, arrange, dispose of, or treat all tailings and other
mine wastes resulting from the operations so as to minimize their
adverse impact upon the environment and National Forest System surface
resources.
(d) Scenic values. The operator must, so far as is practical,
harmonize operations with scenic values through such measures as the
design and location of operating facilities, including roads and other
means of access, vegetative screening of operations, and construction
of structures and improvements which blend with the landscape.
(e) Endangered species of fish, wildlife and plants. The operator
must take all measures required by the Endangered Species Act, as
amended (16 U.S.C. 1538) to protect federally listed threatened or
endangered species of fish, wildlife and plants and, if applicable,
their designated critical habitats.
(f) Fisheries and wildlife habitat. In addition to complying with
the water quality requirements set forth in paragraph (b) of this
section, the solid waste requirements set forth in paragraph (c) of
this section, and the endangered species requirements set forth in
paragraph (e) of this section, the operator must take all practical
measures to maintain and protect fisheries and wildlife habitat that
may be affected by the operations.
(g) Roads. The operator must construct and maintain all roads so as
to assure adequate drainage and, where practical, to prevent or
otherwise minimize damage to soil, water, and other resource values.
Unless otherwise approved by the authorized officer, when a road is no
longer required for the operations, the operator must:
[[Page 15709]]
(1) Close the road to normal vehicular traffic;
(2) Remove bridges and culverts associated with the road;
(3) Construct cross drains, dips, or water bars required to prevent
or control water flow over or from the road surface; and
(4) Reshape the road surface to, so far as is practical, the
contour closest to the stable natural contour;
(h) Maintenance and public safety. Throughout the operations, the
operator must maintain all structures, equipment, and facilities in a
safe, neat, and workmanlike manner. Where the operations cause
hazardous sites or conditions, the operator must mark them by signs or
other identification, isolate them by fences, or otherwise make them
inaccessible to protect the public in accordance with Federal and State
laws and regulations.
(i) Removal of structures and equipment. Within the applicable
period specified by paragraph (k)(2) of this section, the operator must
remove all structures, whether temporary or permanent, facilities, and
personal property, including equipment, located within the area of
operations and otherwise clean up the area of operations. The United
States, at its discretion, may take title to any property the operator
does not remove from the area of operations within the applicable
period. Such property of the United States is subject to removal and
disposition at the Forest Service's discretion consistent with
applicable laws and regulations.
(j) Prevention and control of fire. The operator must:
(1) Comply with all applicable Federal and State fire laws and
regulations;
(2) Take all practical measures to prevent and suppress fires on
the area of operations; and
(3) Require all persons, including but not limited to employees,
contractors and subcontractors, who conduct or support the operations
to comply with paragraphs (j)(1) and (j)(2) of this section.
(k) Reclamation. The operator must reclaim National Forest System
lands disturbed by the operations by taking concurrent, seasonal,
interim and long-term measures to, where practical, prevent or
otherwise minimize onsite and off-site damage to the environment and
National Forest System surface resources.
(1) The operator must begin reclamation at the earliest possible
time during the operations.
(2) The operator must complete reclamation:
(i) Within the two-year term of a complete bonded notice provided
by Sec. 228.5(d)(1); or
(ii) Except as otherwise provided by an approved plan of
operations, within one year of the exhaustion of the valuable mineral
deposit, the conclusion of the operations, or a cessation of the
operations that is not seasonal.
(3) The reclamation measures taken by the operator must, where
practical:
(i) Prevent or control erosion and landslides;
(ii) Prevent or control water runoff;
(iii) Isolate, remove or control hazardous materials;
(iv) Reshape and revegetate disturbed areas;
(v) Reshape road surfaces to the contour closest to the stable
natural contour;
(vi) Rehabilitate fisheries and wildlife habitat; and
(vii) Protect groundwater.
Sec. 228.10 Reasonably incident uses.
(a) The operator must not occupy or use National Forest System
lands for any purpose not reasonably incident to locatable mineral
prospecting, exploration, development, mining, processing, or
reclamation except as provided by Sec. 228.12(e).
(b) The operator must not:
(1) Prevent or obstruct free passage or transit over National
Forest System lands by any person except to the extent allowed for
reasonable security and safety measures which are consistent with this
subpart; or
(2) Conduct the following activities, which are not reasonably
incident uses of National Forest System lands: Cultivating crops or
produce; rearing or pasturing animals; storing, treating, processing,
or disposing of non-mineral, hazardous, or toxic materials or waste
generated elsewhere and brought onto National Forest System lands;
operating rental, trade or manufacturing concerns; recycling or
reprocessing of manufactured material such as scrap electronic parts,
appliances, photographic film, and chemicals; searching for buried
treasure, treasure trove, or archaeological specimens; operating hobby
or curio shops, cafes, or tourist stands; maintaining, managing or
hosting hunting or fishing camps; or providing outfitting or guiding
services.
(c) When the authorized officer believes one or more proposed or
current uses of National Forest System lands, other than those uses
listed in paragraph (b) of this section, would not be or are not
reasonably incident, the authorized officer may initiate a surface use
determination.
(1) When the authorized officer initiates a surface use
determination, the authorized officer will:
(i) Notify the operator in writing that a surface use determination
will be conducted;
(ii) Identify the proposed or current uses of National Forest
System lands the authorized officer believes may not be reasonably
incident;
(iii) Give the operator not less than 30 days to respond and show
why the specified uses of National Forest System lands would be or are
reasonably incident; and
(iv) Consider, where current uses of National Forest System lands
are the subject of the surface use determination, any request included
in the operator's response for the authorized officer to allow one or
more of such uses to continue while the surface use determination
process is ongoing providing that the response contains a detailed
explanation of the reasons why the operator's request should be
granted.
(2) The authorized officer will not allow an operator to continue a
current use of National Forest System lands which is the subject of an
ongoing surface use determination if such use:
(i) Is unnecessarily or unreasonably causing injury, loss or damage
to National Forest System surface resources; or
(ii) Is causing irreparable injury, loss or damage to National
Forest System surface resources.
(3) An operator allowed, while the surface use determination
process is ongoing, to continue a use of National Forest System lands
considered by the surface use determination, must not take any action
resulting, or likely to result, in an increase in the scope, extent,
frequency, state of completion, or impact of such use.
(4) The certified Forest Service mineral examiner will consider the
operator's response in completing the surface use determination. The
mineral examiner also will prepare a report finding whether the uses of
National Forest System lands examined in the surface use determination
are reasonably incident and explaining the basis for such findings.
(5) The authorized officer will issue a decision, taking into
consideration the findings of the surface use determination report, as
to whether each use of National Forest System lands examined in the
report is reasonably incident.
(i) The decision will explain any difference between the authorized
officer's basis for concluding that a use of National Forest System
lands is not reasonably incident and the basis of the
[[Page 15710]]
surface use determination report's finding with respect to such use.
(ii) If the authorized officer concludes that any use of National
Forest System lands examined in the surface use determination is not
reasonably incident to locatable mineral prospecting, exploration,
development, mining, processing, reclamation or closure, the authorized
officer's decision also will:
(A) Direct the operator to cease such use of National Forest System
lands;
(B) Specify actions which the operator must take to remedy all
injury, loss or damage to National Forest System surface resources
which resulted from such use of National Forest System lands; and
(C) Specify one or more dates by which the operator must comply
with paragraphs (c)(5)(ii)(A) and (B) of this section.
(iii) The Forest Service will promptly provide the authorized
officer's decision and the surface use determination report to the
operator.
Sec. 228.11 Cessation of operations.
(a) When an operator proposes a cessation of operations that is not
seasonal and the applicable approved plan of operations contains
provisions governing such a cessation of operations, the operator must
immediately file a statement with the District Ranger:
(1) Specifying the date when the operator expects the cessation of
operations to end;
(2) Providing an estimate of the extended duration of the
operations;
(3) Indicating which, if any, of the structures, equipment and
facilities within the area of operations the operator intends to remove
during the cessation; and
(4) Indicates which, if any, of the structures, equipment and
facilities within the area of operations the operator intends to retain
during the cessation.
(b) When an operator proposes a cessation of operations that is not
seasonal and the applicable approved plan of operations does not
contain provisions governing such a cessation of operations, the
operator must immediately file a statement with the District Ranger:
(1) Including the information specified by paragraphs (a)(1)
through (4) of this section;
(2) Including a schedule for the removal, as soon as practical, of
all items identified by the operator in accordance with paragraph
(a)(3) of this section;
(3) Identifying all measures the operator proposes to take to
comply with Sec. Sec. 228.9 and 228.10 during such cessation of
operations; and
(4) Including a schedule for the performance of all measures
identified by the operator pursuant to paragraph (b)(3) of this
section.
(c) Where a cessation of operations statement is filed pursuant to
paragraph (b) of this section, the authorized officer will:
(1) Review any schedule the operator proposes pursuant to paragraph
(b)(2) of this section for the removal of items and specify any
practical revision of the schedule which the operator must implement to
minimize damage to the environment and National Forest System surface
resources;
(2) Review the measures the operator proposes to take pursuant to
paragraph (b)(3) of this section and specify all different or
additional practical measures which the operator must take to minimize
damage to the environment and National Forest System surface resources;
(3) Review the schedule the operator proposes pursuant to paragraph
(b)(4) of this section for the implementation of all measures
identified by the operator and specify any practical revision of the
schedule which the operator must implement to minimize damage to the
environment and National Forest System surface resources;
(4) Specify a practical schedule for the operator's implementation
of all measures required by the authorized officer pursuant to
paragraph (c)(2) of this section; and
(5) Authorize any departure from the requirements of Sec.
228.9(k)(2)(ii) which the authorized officer deems appropriate.
(d) If the duration of a cessation of operations will exceed one
year, the process set forth in paragraphs (a) through (c) of this
section, as applicable, must be completed at the beginning of the
second and successive years.
(e) Throughout any cessation of operations, the operator must
maintain a reclamation bond complying with Sec. 228.13(a) through (c).
When a cessation of operations will exceed, or has exceeded, one season
and the applicable approved plan of operations does not specify the
amount of bond coverage the operator must maintain during a cessation
of operations that is not seasonal, the operator also must:
(1) Augment the existing reclamation bond by the amount the
authorized officer required to cover the operator's interim obligations
pursuant to this section; or
(2) Provide a separate reclamation bond complying with the
applicable requirements of Sec. 228.13(a) through (c) in the amount
the authorized officer required to cover the operator's interim
obligations pursuant to this section.
(f) If the authorized officer determines an operator has ceased
operations, the cessation is not attributable to seasonal
considerations, and the operator has not filed a cessation of
operations statement with the District Ranger pursuant to paragraphs
(a) or (b) of this section, the authorized officer will require the
operator to comply with the applicable paragraph within 30 days.
Sec. 228.12 Access for operations.
(a) An operator is entitled to reasonable access to conduct
locatable mineral operations on National Forest System lands providing
that such access:
(1) Is not prohibited by Federal law or regulation; and
(2) Complies with applicable requirements set forth elsewhere in
this chapter, including, but not limited to, Sec. 228.14, and parts
212 and 261 of this chapter.
(b) The operator must utilize existing means of access when it is
economically and technically practical.
(c) The operator must not construct, reconstruct, or improve a
road, trail, bridge, landing area for aircraft, or another access
facility located on National Forest System lands before a complete
bonded notice or an approved plan of operations providing for such work
takes effect.
(d) A complete bonded notice or an approved plan of operations
must:
(1) Identify the means of access the operator will use in
conducting operations on National Forest System lands;
(2) Specify the location, and, if applicable, the route, of all
roads, trails, bridges, landing areas for aircraft, and other access
facilities located on National Forest System lands which the operator
must use in conducting the operations; and
(3) Specify the design standards for all roads, trails, bridges,
landing areas for aircraft, and other access facilities located on
National Forest System lands the operator must use in conducting the
operations.
(e) When an operator is conducting operations on National Forest
System lands, the Forest Service may elect to regulate access on
National Forest System lands sought by the operator to perform
associated work on lands for which a patent has been issued pursuant to
the United States mining laws by means of a complete bonded notice or
an approved plan of operations. Such access to perform associated work
on private lands is
[[Page 15711]]
subject to the requirements of this subpart provided that:
(1) Nothing in this subpart is deemed to abridge any independent
right the operator has to such access; and
(2) Nothing in this subpart is deemed to confer an independent
right to such access upon the operator.
Sec. 228.13 Reclamation bonds for bonded notices and plans of
operation.
(a) The operator must provide the Forest Service a reclamation bond
before a complete bonded notice or an approved plan of operations takes
effect pursuant to Sec. 228.5(d) or Sec. 228.6(e), respectively. The
reclamation bond must comply with this paragraph and paragraph (b) of
this section, and be in the amount calculated pursuant to paragraph (c)
of this section.
(1) An operator who will be authorized to conduct a single
operation requiring a complete bonded notice or an approved plan of
operations must furnish an individual reclamation bond.
(2) An operator, who will be authorized to conduct operations under
two or more bonded notices, plans of operations, or a combination
thereof, may furnish:
(i) An individual reclamation bond for any complete bonded notice
or approved plan of operations; or
(ii) A blanket reclamation bond covering statewide or nationwide
operations, providing the amount of the reclamation bond is at least
equal to the cost to reclaim all operations covered by the reclamation
bond as calculated pursuant to paragraph (c) of this section.
(A) Upon the authorized officer's request, the operator must
provide information demonstrating the amount of a blanket reclamation
bond is at least equal to the aggregate cost to reclaim all operations
covered by that reclamation bond.
(B) The operator must immediately inform all District Rangers
administering lands on which operations covered by a blanket
reclamation bond are currently authorized whenever the amount of such
reclamation bond becomes less than the aggregate cost to reclaim all
operations covered by the reclamation bond.
(b) One form of reclamation bond an operator may furnish is a
surety bond naming the USDA Forest Service as a beneficiary, satisfies
the requirements of Treasury Department Circular 570, and is available
in full to the Forest Service.
(1) In lieu of furnishing a surety bond as the required reclamation
bond, the operator may use a depository of funds approved by the Forest
Service to:
(i) Deposit cash in an amount equal to the required dollar amount
of the reclamation bond; or
(ii) Deposit negotiable securities of the United States having a
market value at the time of deposit not less than the required dollar
amount of the reclamation bond.
(2) The operator can use any combination of acceptable surety
bonds, cash or negotiable securities of the United States as the
reclamation bond providing the total amount of these instruments equals
the estimated cost to reclaim National Forest System lands calculated
pursuant to paragraph (c) of this section.
(3) When reclamation an operator is required to complete includes
long-term monitoring, maintenance, or treatment measures to prevent or
otherwise minimize onsite or off-site damage to National Forest System
surface resources, the operator also may establish an escrow account in
a depository of funds approved by the Forest Service to finance those
measures, providing the escrow account's annual earnings will be
adequate to perform all such required measures annually on National
Forest System lands. When the operator establishes an acceptable escrow
account, the amount of the reclamation bond the operator must furnish
pursuant to paragraph (a) of this section will be reduced by the amount
of the reclamation cost attributable to the performance of required
long-term monitoring, maintenance, or treatment measures as estimated
pursuant to paragraph (c) of this section.
(c) After the District Ranger or another authorized officer advises
the operator in writing that a bonded notice is complete or a plan of
operations is approved pursuant to Sec. 228.5(d) or Sec. 228.6(e),
respectively, the operator must provide the Forest Service officer an
estimate of the cost to reclaim National Forest System lands along with
an explanation sufficient to show how the estimate was calculated.
(1) The estimate must set forth the cumulative cost of fully
reclaiming all National Forest System lands affected by the operations
in accordance with the requirements of Sec. 228.9(i), Sec. 228.9(k),
and the applicable complete bonded notice or approved plan of
operations, assuming the Forest Service were to hire a contractor to
perform all required reclamation.
(2) In estimating the cost to reclaim fully National Forest System
lands, no value will be given to any property, such as structures,
whether temporary or permanent, other facilities and personal property,
including equipment, that an operator is required to remove from the
area of operations in accordance with Sec. 228.9(i).
(3) The operator's estimate of the cost to reclaim National Forest
System lands must be acceptable to the Forest Service.
(d) The operator must maintain a reclamation bond complying with
the requirements of this section until the reclamation bond is fully
released pursuant to paragraph (e) of this section or the reclamation
bond is completely forfeited pursuant to paragraph (f) of this section.
(e) When the authorized officer believes there has been a change in
conditions relevant to reclamation of an operation conducted pursuant
to an approved plan of operations, the officer may reassess the
adequacy of the existing reclamation bond. The authorized officer will
consider whether the residual amount of the reclamation bond equals the
current cost of all remaining required reclamation as estimated by the
authorized officer in accordance with paragraph (c) of this section.
The authorized officer also will consider whether the reclamation bond
otherwise currently satisfies paragraphs (a) and (b) of this section.
(1) When the authorized officer finds the residual amount of the
reclamation bond exceeds the current cost of all remaining required
reclamation, as estimated by the authorized officer in accordance with
paragraph (c) of this section, within 30 days the authorized officer
will:
(i) Calculate the amount of the reclamation bond to be released by
subtracting such estimated cost of reclamation from the residual amount
of the reclamation bond;
(ii) Release, or send the person who provided or holds the
reclamation bond written authorization to release, the amount of the
reclamation bond calculated in accordance with paragraph (e)(1)(i) of
this section; and
(iii) Send the operator a copy of any letter described in paragraph
(e)(1)(ii) of this section.
(2) When the authorized officer believes the current cost of all
remaining required reclamation, as estimated by the authorized officer
in accordance with paragraph (c) of this section, exceeds the residual
amount of the reclamation bond or such reclamation bond otherwise does
not satisfy paragraphs (a) and (b) of this section, the authorized
officer will:
(i) Provide notice to the operator in writing which:
(A) Sets forth the reasons why the authorized officer believes
augmentation of the reclamation bond's
[[Page 15712]]
amount or other adjustment of the reclamation bond is required;
(B) Explains the assumptions and calculations the authorized
officer utilized in proposing any augmentation of the reclamation
bond's amount; and
(C) Gives the operator not less than 30 days to respond and show
cause why the authorized officer should not require augmentation or
adjustment of the reclamation bond.
(ii) Consider the operator's response and all other information in
the administrative record in deciding whether to require augmentation
or adjustment of the reclamation bond.
(iii) Issue a decision stating whether augmentation or adjustment
of the reclamation bond is required, and if the decision requires
augmentation or adjustment of the reclamation bond, the decision also
will:
(A) Explain its basis;
(B) Specify any required augmentation of the reclamation bond's
amount or any other adjustment of the reclamation bond;
(C) Specify the date by which the operator must provide the
authorized officer proof the reclamation bond has been augmented or
adjusted in accordance with the terms of the authorized officer's
decision; and
(D) Identify any opportunity for the operator to file an
administrative appeal of the decision.
(3) If the operator fails to comply with a decision requiring
augmentation or other adjustment of the reclamation bond issued
pursuant to paragraph (e)(2)(iii) of this section by the date specified
in the decision, or any extension thereof, the authorized officer will
take appropriate enforcement action in accordance with Sec. 228.8.
(f) The authorized officer will release, or send the person who
provided or holds the reclamation bond written authorization to
release, the reclamation bond, in whole or in part, as specified,
after:
(1) The operator replaces the existing reclamation bond, in whole
or in part, with a new reclamation bond satisfying the requirements of
paragraphs (a) through (c) of this section, in which case the amount of
the previous bond that will be released is calculated by subtracting
the current cost of all remaining required reclamation, as estimated by
the authorized officer in accordance with paragraph (c) of this
section, from the total of the residual amount of the previous bond
plus the amount of the new bond; or
(2) The Forest Service accepts any portion of final reclamation as
having been completed in accordance with Sec. 228.9(i), Sec.
228.9(k), and the complete bonded notice or the approved plan of
operations then in effect, in which case the amount of the reclamation
bond that will be released is calculated by subtracting the current
cost of all remaining required reclamation, as estimated by the
authorized officer in accordance with paragraph (c) of this section,
from the residual amount of the reclamation bond.
(g) An authorized officer considering forfeiture of an operator's
reclamation bond will:
(1) Initiate forfeiture of all or part of the reclamation bond as
necessary to complete reclamation of National Forest System lands
affected by the operations in accordance with the requirements of Sec.
228.9(i), Sec. 228.9(k), and the applicable complete bonded notice or
approved plan of operations when:
(i) The operator refuses or is unable to complete reclamation
required by Sec. 228.9(i), Sec. 228.9(k), and the applicable complete
bonded notice or approved plan of operations;
(ii) The operator fails to take an action on which the continuation
of the reclamation bond is conditioned;
(iii) A petition has been filed under the Bankruptcy Code, 11
U.S.C. 101 et seq., by the operator or the operator's creditors; or
(iv) The authorized officer determines reclamation is necessary to
prevent environmental damage resulting from the operator's cessation of
operations.
(2) Provide notice to the operator, and the reclamation bond
surety, if applicable, in writing which:
(i) Sets forth the reasons why the authorized officer believes
forfeiture of the reclamation bond is warranted;
(ii) Identifies the required reclamation the operator has not
performed;
(iii) Specifies the amount of the bond to be forfeited based on the
current cost of all required reclamation as estimated by the authorized
officer in accordance with paragraph (c) of this section;
(iv) Gives the operator not less than 15 days to respond and show
cause why the authorized officer should not forfeit the operator's
reclamation bond; and
(v) Advises the operator may avoid forfeiture if, within 20 days or
the period otherwise specified by the authorized officer, the operator:
(A) Begins the required reclamation in accordance with Sec.
228.9(i), Sec. 228.9(k), and the complete bonded notice or the
approved plan of operations;
(B) Demonstrates, in writing, to the authorized officer's
satisfaction that the operator will promptly complete the required
reclamation in accordance with Sec. 228.9(i), Sec. 228.9(k), and the
complete bonded notice or the approved plan of operations; or
(C) Demonstrates, in writing, to the authorized officer's
satisfaction how another person will promptly complete the required
reclamation and how this person has the ability to do so in accordance
with Sec. 228.9(i), Sec. 228.9(k), and the complete bonded notice or
the approved plan of operations.
(3) Consider any response submitted by the operator and all other
information in the administrative record in deciding whether to forfeit
the reclamation bond, in whole or in part.
(4) Issue a decision stating whether forfeiture of the reclamation
bond will occur, and if the decision provides for forfeiture of the
reclamation bond, the decision also will:
(i) Explain its basis;
(ii) Specify the amount of the reclamation bond that will be
forfeited; and
(iii) Identify any opportunity for the operator to file an
administrative appeal of the decision.
(5) Take appropriate enforcement action in accordance with Sec.
228.8 when required reclamation is not promptly completed in accordance
with Sec. 228.9(i), Sec. 228.9(k), and the complete bonded notice or
the approved plan of operations after the operator demonstrated
pursuant to paragraph (g)(2)(v)(B) or paragraph (g)(2)(v)(C) of this
section the operator or another person, respectively, would promptly
complete such reclamation.
(6) Refund to the operator, or if applicable the reclamation bond
surety, any amount of the forfeited reclamation bond exceeding the cost
of completing the required reclamation.
Sec. 228.14 Operations on withdrawn or segregated National Forest
System lands including National Forest Wilderness.
(a) The United States mining laws apply to each National Forest
Wilderness for the period specified by the Wilderness Act or subsequent
establishing legislation to the same extent these laws were applicable
prior to the date the Wilderness was designated by Congress as a part
of the National Wilderness Preservation System.
(b) A person who holds a mining claim valid immediately prior to
the inclusion of the lands encompassed by the mining claim within a
National Forest Wilderness will be:
(1) Accorded the rights provided by the United States mining laws
as applicable before the lands were added to the National Wilderness
Preservation System; and
(2) Permitted access to such mining claim, providing the mining
claim is wholly within the Wilderness, by means
[[Page 15713]]
consistent with the preservation of the Wilderness that have been or
are being customarily used to access other valid mining claims
completely surrounded by National Forest Wilderness.
(c) A person who holds a mining claim located on or after the date
on which the lands encompassed by the mining claim were added to the
National Wilderness Preservation System will:
(1) Be accorded the rights provided by the United States mining
laws as then applicable to the land subject to all provisions specified
by the establishing legislation; and
(2) Have no right or interest, subject to valid existing rights, in
or to any locatable mineral deposit discovered, through prospecting,
exploration, or otherwise uncovering the deposit, after the date on
which the United States mining laws ceased to apply to the Wilderness.
(d) Within a National Forest Wilderness, an operator must:
(1) Limit the operations conducted to those then authorized by the
United States mining laws, subject to valid existing rights;
(2) Conduct all operations in compliance with an approved plan of
operations then in effect and the regulations set forth in this
subpart;
(3) Refrain from constructing roads prior to obtaining written
authorization to do so from the appropriate Forest Supervisor in
accordance with Sec. 228.12(c); and
(4) Have the right to cut and use the volume of mature timber
needed for the extraction, removal, and beneficiation of a valuable
locatable mineral deposit, providing:
(i) Such timber is not otherwise reasonably available; and
(ii) Such timber is cut in compliance with Sec. 223.30 of this
chapter and provisions set forth in the approved plan of operations
reflecting sound principles of forest management, which as a minimum
require the operator to:
(A) Harvest the timber in a manner which minimizes soil movement
and damage from water runoff; and
(B) Take precautionary measures, including disposal of slash, to
minimize damage to surface resources from forest insects, disease or
fire related to the timber harvest.
(e) As authorized by the Wilderness Act, 16 U.S.C. 1133(d)(2), the
Chief, Forest Service, will allow any activity, including prospecting,
for the purpose of gathering information about minerals occurring
within National Forest Wilderness:
(1) Drawing no distinction as to whether those minerals would be
subject to location under the United States mining laws absent their
withdrawal from those laws pursuant to 16 U.S.C. 1133(d)(3) or
subsequent establishing legislation;
(2) Specifying no person will have any right or interest in or to
any mineral deposit discovered through such activity; and
(3) Requiring that such activity be:
(i) Conducted in accordance with an approved plan of operations and
all requirements of this subpart applicable to a proposed or approved
plan of operations; and
(ii) Carried on in a manner compatible with the preservation of the
wilderness environment as specified by the approved plan of operations.
(f) After the date on which the lands are withdrawn from
appropriation under the United States mining laws, the authorized
officer will not approve a plan of operations until the Forest Service
has prepared a mineral examination report to consider whether the
mining claim was valid before the withdrawal, and whether it remains
valid. The authorized officer also may require preparation of a mineral
examination report before approving a plan of operations or determining
that a bonded notice is complete for operations on segregated National
Forest System lands. When the report finds that a mining claim is
invalid and the operator declines to revise the proposed operations to
avoid the withdrawn or segregated National Forest System lands in
question, the Forest Service will also request that BLM promptly
initiate contest proceedings to determine the validity of all mining
claims in question.
(g) If the Forest Service has not completed a mineral examination
report being prepared in accordance with paragraph (f) of this section,
if a completed mineral examination report prepared in accordance with
paragraph (f) of this section finds that a mining claim is invalid, or
if the validity of a mining claim subject to paragraph (f) of this
section is the subject of a mineral contest or a federal judicial
proceeding:
(1) Insofar as the National Forest System lands in question have
been withdrawn from the operation of the United States mining laws, the
authorized officer may:
(i) Approve a plan of operations for proposed operations on a
disputed mining claim that are limited to taking samples to confirm or
corroborate mineral exposures that were physically disclosed and
existing on the mining claim before the segregation or withdrawal date,
whichever is earlier; and
(ii) Approve a plan of operations for the operator to perform the
minimum necessary annual assessment work on a disputed mining claim.
(2) Insofar as National Forest System lands in question have been
segregated from the operation of the United States mining laws, the
authorized officer may:
(i) Take the actions specified in paragraphs (g)(1)(i) and (ii) of
this section; and
(ii) Review for completeness a bonded notice for proposed
operations on a disputed mining claim that are limited to taking
samples to confirm or corroborate mineral exposures that were
physically disclosed and existing on the mining claim before the
segregation date.
(h) While a mineral examination report is being prepared,
initiation of a mineral contest is being considered, or the validity of
the mining claim is the subject of a mineral contest or federal
judicial proceeding, the Forest Service may suspend the time limit for
responding to a proposed bonded notice or acting on a proposed plan of
operations set forth in Sec. 228.5(b) and Sec. 228.6(c),
respectively.
(i) When a mining claim has been conclusively determined to lack
valid existing rights, whether by virtue of a Forest Service mineral
examination report, a mineral contest, of Federal judicial proceedings,
the operator must cease all operations, except required reclamation.
Sec. 228.15 Administrative appeals.
Decisions made by Forest Service officers pursuant to part 228,
subpart A may be subject to appeal by the operator in accordance with
part 251, subpart C, of this chapter.
Sec. 228.16 Applicability of this subpart.
(a) Newly proposed operations. This subpart applies to all
operations proposed by an operator or after [Insert Effective Date of
the Final Rule].
(b) Preexisting notice of intent to conduct operations. The
operator may continue to conduct operations for 2 years after [Insert
Effective Date of the Final Rule] under the terms of a notice of intent
to conduct operations and the regulations in effect immediately before
that date (see 36 CFR parts 200 to 299, revised as of July 1, 2007)
providing:
(1) Such notice of intent to conduct operations was properly filed
with the Forest Service more than 15 days prior to [Insert Effective
Date of the Final Rule], the authorized officer has not since advised
the operator the operations require an approved plan of operations, and
such notice of intent to conduct operations remains in effect on
[[Page 15714]]
[Insert Effective Date of the Final Rule]; or
(2) Such notice of intent to conduct operations was properly filed
with the Forest Service 15 or fewer days before [Insert Effective Date
of the Final Rule] unless the District Ranger, within 15 days of
receiving the notice of intent to conduct operations, advises the
operator that the proposed operations require an approved plan of
operations.
(c) Preexisting proposed plans of operation. Where an operator had
properly filed a proposed plan of operations with the Forest Service
before [Insert Effective Date of the Final Rule] but such plan of
operations had not been approved or had not taken effect before that
date, the operator is subject:
(1) To the provisions of this subpart except the plan of operations
content requirements, Sec. 228.4(f)(4), and the environmental
protection requirements, Sec. 228.9; and
(2) To the plan of operations content requirements and the
requirements for environmental protection set forth in the regulations
in effect immediately before [Insert Effective Date of the Final Rule].
(See 36 CFR 228.4(c) and (d), and 36 CFR 228.8 (2007).)
(d) Preexisting approved plan of operations. Where an operator had
obtained approval of plan of operations before [Insert Effective Date
of the Final Rule] and such plan of operations remains in effect on
that date, the operator:
(1) Shall post a reclamation bond complying with the requirements
of this subpart no later than [Insert Date 180 Days After the Effective
Date of the Final Rule] unless--
(i) The operator had posted a bond prior to [Insert Effective Date
of the Final Rule] which complied with the regulations in effect
immediately before that date (see 36 CFR 228.13 (2007)); and
(ii) The bond complying with paragraph (d)(1)(i) of this section
remains in effect and satisfies the requirements of this subpart.
(2) Is otherwise subject to the provisions of this subpart except
the plan of operations content requirements, Sec. 228.4(f)(4), and the
environmental protection requirements, Sec. 228.9.
(3) Is subject to the plan of operations content requirements and
the requirements for environmental protection set forth in the
regulations in effect immediately before [Insert Effective Date of the
Final Rule]. (See 36 CFR 228.4(c) and (d), and 36 CFR 228.8 (2007).)
(4) Is subject to the terms and conditions of such approved plan of
operations.
(e) Preexisting unapproved modifications of approved plans of
operation. Where an operator had properly filed with the Forest Service
a proposed modification of a plan of operations that had been approved
and had taken effect before [Insert Effective Date of the Final Rule]
and remains in effect, but such modification had not been approved or
had not taken effect before that date, the operator is subject:
(1) To the provisions of this subpart, including paragraph (d)(1)
of this section, except the plan of operations content requirements,
Sec. 228.4(f)(4), and the environmental protection requirements, Sec.
228.9;
(2) To the plan of operations content requirements and the
requirements for environmental protection set forth in the regulations
in effect immediately before [Insert Effective Date of the Final Rule].
(see 36 CFR 228.4(c) and (d), and 36 CFR 228.8 (2007)); and
(3) With respect to all operations not governed by the plan of
operations modification, to the terms and conditions of the unmodified
plan of operations.
(f) Newly proposed modifications of preexisting approved plans of
operation. Where an operator, on or after [Insert Effective Date of the
Final Rule] files with the Forest Service a proposed modification of a
plan of operations that had been approved and had taken effect before
that date and remains in effect, the operator is subject either to
paragraph (f)(1) or (f)(2) of this section, depending upon the scope of
the proposed modification. In either case, the operator also is subject
to paragraph (f)(3) of this section.
(1) If the proposed modification will govern operations subject to
the previously approved plan of operations, the operator may seek to
show to the authorized officer's satisfaction that it is impractical
for economic, environmental, safety, or technical reasons to apply the
plan of operations content requirements, Sec. 228.4(f)(4), and the
environmental protection requirements, Sec. 228.9, to the plan of
operations modification.
(i) When the authorized officer finds such impracticality, the
operator, with respect to the operations that will be governed by the
modification, is subject:
(A) To the provisions of this subpart except the plan of operations
content requirements, Sec. 228.4(f)(4), and the environmental
protection requirements, Sec. 228.9; and
(B) To the plan of operations content requirements and the
requirements for environmental protection set forth in the regulations
in effect immediately before [Insert Effective Date of the Final Rule]
(See 36 CFR 228.4(c) and (d), and 36 CFR 228.8 (2007)).
(ii) When the authorized officer does not find such impracticality,
the operator is subject to this subpart with respect to the operations
governed by the modification.
(2) If the proposed modification will govern new operations or
additional acreage, the operator is subject to this subpart with
respect to such operations and such acreage.
(3) With respect to all operations not governed by the plan of
operations modification, the operator is subject:
(i) To the provisions of this subpart, including paragraph (d)(1)
of this section, except the plan of operations content requirements,
Sec. 228.4(f)(4), and the environmental protection requirements, Sec.
228.9;
(ii) To the plan of operations content requirements and the
requirements for environmental protection set forth in the regulations
in effect immediately before [Insert Effective Date of the Final Rule]
(see 36 CFR 228.4(c) and (d), and 36 CFR 228.8 (2007)); and
(iii) To the terms and conditions of the preexisting approved plan
of operations.
(g) Other preexisting operations. This subpart applies to all
preexisting operations not subject to paragraphs (b) through (f) of
this section that were not completed before [Insert Effective Date of
the Final Rule] in accordance with the terms and conditions of any
applicable notice of intent to conduct operations or approved plan of
operations, or in compliance with the regulations in effect immediately
before [Insert Effective Date of the Final Rule]. (See 36 CFR parts 200
to 299, revised as of July 1, 2007.)
(h) Optional applicability. An operator may choose to have this
subpart apply to any notice of intent to conduct operations or any plan
of operations submitted to the Forest Service before [Insert Effective
Date of the Final Rule], where not otherwise required.
PART 261--PROHIBITIONS
5. The authority citation for part 261 continues to read as
follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f),
1133(c), (d)(1), 1246(i).
Subpart A--General Prohibitions
6. In Sec. 261.2, revise the definition of ``operating plan'' and
add a definition of ``residence'' to read as follows:
[[Page 15715]]
Sec. 261.2 Definitions.
* * * * *
Operating plan means the following documents, providing the
document has been issued, approved, or found complete by the Forest
Service: A plan of operations as provided for by 36 CFR part 228,
subparts A and D, and 36 CFR part 292, subparts C and G; a supplemental
plan of operations as provided for by 36 CFR part 228, subpart A, and
36 CFR part 292, subpart G; a complete bonded notice as provided for by
36 CFR part 228, subpart A; an operating plan as provided for by 36 CFR
part 228, subpart C, and 36 CFR part 292, subpart G; an amended
operating plan and a reclamation plan as provided for by 36 CFR part
292, subpart G; a surface use plan of operations as provided for by 36
CFR part 228, subpart E; a supplemental surface use plan of operations
as provided for by 36 CFR part 228, subpart E; a permit as provided for
by 36 CFR 251.15; and an operating plan and a letter of authorization
as provided for by 36 CFR part 292, subpart D.
* * * * *
Residence means any structure or shelter, whether temporary or
permanent, including, but not limited to, buildings, buses, cabins,
campers, houses, lean-tos, mills, mobile homes, motor homes, pole
barns, recreational vehicles, sheds, shops, tents and trailers, which
is being used, capable of being used, or designed to be used, in whole
or in part, full or part-time, as living or sleeping quarters by any
person, including a guard or watchman.
* * * * *
7. In Sec. 261.10, revise paragraphs (a), (b) and (l); and add
paragraphs (p) and (q) to read as follows:
Sec. 261.10 Occupancy and use.
* * * * *
(a) Constructing, improving, maintaining, occupying, placing,
repairing, reconstructing, retaining, or using any kind of road, trail,
structure, fence, gate, enclosure, communications equipment, or other
improvement on National Forest System land or facilities without a
special-use authorization, contract, complete bonded notice, or
approved operating plan when such authorization is required.
(b) Constructing, improving, maintaining, placing, protecting,
repairing, reconstructing, retaining, or using a residence on National
Forest System land unless authorized by a special-use authorization, a
complete bonded notice, or an approved operating plan when such
authorization is required.
* * * * *
(l) Violating any term or condition of a special-use authorization,
contract, complete bonded notice, or an approved operating plan.
* * * * *
(p) Use or occupancy of National Forest System land or facilities
without a complete bonded notice or an approved operating plan when
such authorization is required.
(q) Storing equipment, machinery, parts, process materials, spent
materials, supplies, tools and vehicles without a complete bonded
notice or an approved operating plan when such authorization is
required.
PART 292--NATIONAL RECREATION AREAS
Subpart D--Sawtooth National Recreation Area--Federal Lands
8. The authority citation for part 292, subpart D continues to read
as follows:
Authority: Sec. 1, 30 Stat. 35, 36, as amended, 16 U.S.C. 478,
551; sec. 11, 86 Stat. 612, 16 U.S.C. 460aa-10.
9. Revise the first sentence of paragraph (a) of Sec. 292.17 to
read as follows:
Sec. 292.17 General provisions.
(a) The use, management and utilization of natural resources on the
Federal lands within the Sawtooth National Recreation Area (SNRA) are
subject to the General Management Plan and the laws, rules, and
regulations pertaining to the National Forests with the exception that
part 228, subpart A of this chapter does not apply to these resources.
* * *
* * * * *
Subpart G--Smith River National Recreation Area
10. The authority citation for part 292, subpart G continues to
read as follows:
Authority: 16 U.S.C. 460bbb et seq.
11. In Sec. 292.63, revise the introductory text of paragraph (c)
to read as follows:
Sec. 292.63 Plan of operations--supplementary requirements.
* * * * *
(c) Minimum information on proposed operations. In addition to the
requirements of paragraph (b) of this section, a proposed plan of
operations must provide the information required by Sec. 228.4(f)(1)
through (f)(4) of this chapter which includes information about the
proponent and a detailed description of the proposed operation. If the
operator and mining claim owner are different, the operator also must
submit a copy of the authorization or agreement under which the
proposed operations are to be conducted. In addition, a proposed plan
of operations must include measures to meet the environmental
protection requirements, including acceptable reclamation, set forth at
Sec. 228.9 of this chapter. A proposed plan of operations also must
include the following:
* * * * *
12. Revise paragraph (e) of Sec. 292.64 to read as follows:
Sec. 292.64 Plan of operations--approval.
* * * * *
(e) Upon completion of the review of the plan of operations, the
authorized officer will ensure the minimum information required by
Sec. 292.63(c) has been addressed and, pursuant to Sec. 228.6(c) of
this chapter, notify the operator in writing whether or not the plan of
operations is approved.
* * * * *
PART 293--WILDERNESS--PRIMITIVE AREAS
13. The authority citation for part 293 continues to read as
follows:
Authority: 16 U.S.C. 551, 1131-1136 and 92 Stat.1649.
14. In Sec. 293.2, revise the first sentence of the introductory
text to read as follows:
Sec. 293.2 Objectives.
Except as otherwise provided by the regulations of this part and
part 228, subpart A of this chapter, National Forest Wilderness will be
so administered as to meet the public purposes of recreational, scenic,
scientific, educational, conservation, and historical uses; and it also
will be administered for such other purposes for which it may have been
established in such a manner as to preserve and protect its wilderness
character. * * *
* * * * *
15. In Sec. 293.15, revise the second sentence of paragraph (a) to
read as follows:
Sec. 293.15 Gathering information about resources other than
minerals.
(a) * * * Prospecting for minerals or any activity for the purpose
of gathering information about minerals within National Forest
Wilderness is subject to the regulations set forth at part 228, subpart
A of this chapter.
* * * * *
[[Page 15716]]
Dated: March 14, 2008.
Joel D. Holthrop,
Deputy Chief, National Forest System.
[FR Doc. E8-5746 Filed 3-24-08; 8:45 am]
BILLING CODE 3410-11-P