[Code of Federal Regulations]
[Title 36, Volume 2]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR228.4]

[Page 139-141]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 228_MINERALS--Table of Contents
 
                      Subpart A_Locatable Minerals
 
Sec.  228.4  Plan of operations--notice of intent--requirements.

    (a) Except as provided in paragraph (a)(1) of this section, a notice 
of intent to operate is required from any person proposing to conduct 
operations which might cause significant disturbance of surface 
resources. Such notice of intent to operate shall be submitted to the 
District Ranger having jurisdiction over the area in which the 
operations will be conducted. Each notice of intent to operate shall 
provide information sufficient to identify the area involved, the nature 
of the proposed operations, the route of access to the area of 
operations, and the method of transport.
    (1) A notice of intent to operate is not required for:
    (i) Operations which will be limited to the use of vehicles on 
existing public roads or roads used and maintained for National Forest 
System purposes;
    (ii) Prospecting and sampling which will not cause significant 
surface resource disturbance and will not involve removal of more than a 
reasonable amount of mineral deposit for analysis and study which 
generally might include searching for and occasionally removing small 
mineral samples or specimens, gold panning, metal detecting, non-
motorized hand sluicing, using battery operated dry washers, and 
collecting of mineral specimens using hand tools;
    (iii) Marking and monumenting a mining claim;
    (iv) Underground operations which will not cause significant surface 
resource disturbance;
    (v) Operations, which in their totality, will not cause surface 
resource disturbance which is substantially different than that caused 
by other users of the National Forest System who are not required to 
obtain a Forest Service special use authorization, contract, or other 
written authorization;
    (vi) Operations which will not involve the use of mechanized 
earthmoving equipment, such as bulldozers or backhoes, or the cutting of 
trees, unless those operations otherwise might cause a significant 
disturbance of surface resources; or
    (vii) Operations for which a proposed plan of operations is 
submitted for approval;
    (2) The District Ranger will, within 15 days of receipt of a notice 
of intent to operate, notify the operator if approval of a plan of 
operations is required before the operations may begin.
    (3) An operator shall submit a proposed plan of operations to the 
District Ranger having jurisdiction over the area in which operations 
will be conducted in lieu of a notice of intent to operate if the 
proposed operations will likely cause a significant disturbance of 
surface resources. An operator also shall submit a proposed plan of 
operations, or a proposed supplemental plan of operations consistent 
with Sec.  228.4(d), to the District Ranger having jurisdiction over the 
area in which operations are being conducted if those operations are 
causing a significant disturbance of surface resources but are not 
covered by a current approved plan of operations. The requirement to 
submit a plan of operations shall not apply to the operations listed in 
paragraphs (a)(1)(i) through (v). The requirement to submit a plan of 
operations also shall not apply to operations which will not involve the 
use of mechanized earthmoving equipment, such as bulldozers or backhoes, 
or the cutting of trees, unless those operations otherwise will likely 
cause a significant disturbance of surface resources.
    (4) If the District Ranger determines that any operation is causing 
or will likely cause significant disturbance of surface resources, the 
District Ranger shall notify the operator that the operator must submit 
a proposed plan of operations for approval and that the operations can 
not be conducted until a plan of operations is approved.

[[Page 140]]

    (b) Any person conducting operations on the effective date of these 
regulations, who would have been required to submit a plan of operations 
under Sec.  228.4(a), may continue operations but shall within 120 days 
thereafter submit a plan of operations to the District Ranger having 
jurisdiction over the area within which operations are being conducted: 
Provided, however, That upon a showing of good cause the authorized 
officer will grant an extension of time for submission of a plan of 
operations, not to exceed an additional 6 months. Operations may 
continue according to the submitted plan during its review, unless the 
authorized officer determines that the operations are unnecessarily or 
unreasonably causing irreparable damage to surface resources and advises 
the operator of those measures needed to avoid such damage. Upon 
approval of a plan of operations, operations shall be conducted in 
accordance with the approved plan. The requirement to submit a plan of 
operations shall not apply: (1) To operations excepted in Sec.  228.4(a) 
or (2) to operations concluded prior to the effective date of the 
regulations in this part.
    (c) The plan of operations shall include:
    (1) The name and legal mailing address of the operators (and 
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, existing and/or proposed 
roads or access routes to be used in connection with the operations as 
set forth in Sec.  228.12 and the approximate location and size of areas 
where surface resources will be disturbed.
    (3) Information sufficient to describe or identify the type of 
operations proposed and how they would be conducted, the type and 
standard of existing and proposed roads or access routes, the means of 
transportation used or to be used as set forth in Sec.  228.12, the 
period during which the proposed activity will take place, and measures 
to be taken to meet the requirements for environmental protection in 
Sec.  228.8.
    (d) The plan of operations shall cover the requirements set forth in 
paragraph (c) of this section, as foreseen for the entire operation for 
the full estimated period of activity: Provided, however, That if the 
development of a plan for an entire operation is not possible at the 
time of preparation of a plan, the operator shall file an initial plan 
setting forth his proposed operation to the degree reasonably 
foreseeable at that time, and shall thereafter file a supplemental plan 
or plans whenever it is proposed to undertake any significant surface 
disturbance not covered by the initial plan.
    (e) At any time during operations under an approved plan of 
operations, the authorized officer may ask the operator to furnish a 
proposed modification of the plan detailing the means of minimizing 
unforeseen significant disturbance of surface resources. If the operator 
does not furnish a proposed modification within a time deemed reasonable 
by the authorized officer, the authorized officer may recommend to his 
immediate superior that the operator be required to submit a proposed 
modification of the plan. The recommendation of the authorized officer 
shall be accompanied by a statement setting forth in detail the 
supporting facts and reasons for his recommendations. In acting upon 
such recommendation, the immediate superior of the authorized officer 
shall determine:
    (1) Whether all reasonable measures were taken by the authorized 
officer to predict the environmental impacts of the proposed operations 
prior to approving the operating plan,
    (2) Whether the disturbance is or probably will become of such 
significance as to require modification of the operating plan in order 
to meet the requirements for environmental protection specified in Sec.  
228.8 and
    (3) Whether the disturbance can be minimized using reasonable means. 
Lacking such determination that unforeseen significant disturbance of 
surface resources is occurring or probable and that the disturbance can 
be minimized using reasonable means, no operator shall be required to 
submit a proposed modification of an approved plan of operations. 
Operations may continue

[[Page 141]]

in accordance with the approved plan until a modified plan is approved, 
unless the immediate superior of the authorized officer determines that 
the operations are unnecessarily or unreasonably causing irreparable 
injury, loss or damage to surface resources and advises the operator of 
those measures needed to avoid such damage.
    (f) Upon completion of an environmental analysis in connection with 
each proposed operating plan, the authorized officer will determine 
whether an environmental statement is required. Not every plan of 
operations, supplemental plan or modification will involve the 
preparation of an environmental statement. Environmental impacts will 
vary substantially depending on whether the nature of operations is 
prospecting, exploration, development, or processing, and on the scope 
of operations (such as size of operations, construction required, length 
of operations and equipment required), resulting in varying degrees of 
disturbance to vegetative resources, soil, water, air, or wildlife. The 
Forest Service will prepare any environmental statements that may be 
required.
    (g) The information required to be included in a notice of intent or 
a plan of operations, or supplement or modification thereto, has been 
assigned Office of Management and Budget Control 0596-0022. The 
public reporting burden for this collection of information is estimated 
to vary from a few minutes for an activity involving little or no 
surface disturbance to several months for activities involving heavy 
capital investments and significant surface disturbance, with an average 
of 2 hours per individual response. This includes time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding the burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing this burden, to Chief (2800), Forest Service, USDA, P.O. Box 
96090, Washington, DC 20090-6090 and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503.

[39 FR 31317, Aug. 28, 1974. Redesignated at 46 FR 36142, July 14, 1981, 
and amended at 54 FR 6893, Feb. 15, 1989; 69 FR 41430, July 9, 2004; 70 
FR 32731, June 6, 2005]