Rule2023-23526
Long-Term Financial Assurance for Mining
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 30, 2023
Effective
November 29, 2023
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The Forest Service is amending its locatable minerals rules to provide mine operators with a broader array of options for securing financial assurance for funding reclamation work. Locatable mineral operations on National Forest System lands must be conducted to minimize adverse environmental impacts on National Forest surface resources, which often includes reclamation at the conclusion of operations. Current regulations provide that the Forest Service may require the operator to furnish a "bond" to fund reclamation work. However, the financial assurance mechanisms are limited to surety bonds, cash, and negotiable securities. This rule will expand those options. It does not change requirements for surface resource and environmental protection. Rather, it provides additional options for obtaining the financial assurance necessary to be sure that those requirements will be met.
Full Text
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<title>Federal Register, Volume 88 Issue 208 (Monday, October 30, 2023)</title>
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[Federal Register Volume 88, Number 208 (Monday, October 30, 2023)]
[Rules and Regulations]
[Pages 74045-74050]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23526]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 228
RIN 0596-AD58
Long-Term Financial Assurance for Mining
AGENCY: Forest Service, Agriculture.
ACTION: Interim final rule; request for public comment.
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SUMMARY: The Forest Service is amending its locatable minerals rules to
provide mine operators with a broader array of options for securing
financial assurance for funding reclamation work. Locatable mineral
operations on National Forest System lands must be conducted to
minimize adverse environmental impacts on National Forest surface
resources, which often includes reclamation at the conclusion of
operations. Current regulations provide that the Forest Service may
require the operator to furnish a ``bond'' to fund reclamation work.
However, the financial assurance mechanisms are limited to surety
bonds, cash, and negotiable securities. This rule will expand those
options. It does not change requirements for surface resource and
environmental protection. Rather, it provides additional options for
obtaining the financial assurance
[[Page 74046]]
necessary to be sure that those requirements will be met.
DATES: This rule is effective November 29, 2023. Comments concerning
this rule must be received by December 29, 2023.
ADDRESSES: Comments, identified by RIN 0596-AD58, should be sent via
one of the following methods:
1. Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for sending comments;
2. Mail: Director, Lands, Minerals and Geology Management, 201 14th
Street SW, Washington, DC 20250-1124; or
3. Hand Delivery/Courier: Director, Lands, Minerals and Geology
Management, 1st Floor South East, 201 14th Street SW, Washington, DC
20250-1124.
Please confine written comments to issues pertinent to the interim
rule; explain the reasons for any recommended changes; and, where
possible, reference the specific wording being addressed. All comments,
including names and addresses when provided, will be placed in the
record and will be available for public inspection and copying. The
public may inspect comments received on this proposed rule at the
Office of the Director, Lands, Minerals and Geology Management, 201
14th Street SW, 1st Floor Southeast, Sidney R. Yates Federal Building,
Washington, DC, on business days between 8:30 a.m. and 4 p.m. Visitors
are encouraged to call ahead at 202-205-1680 to facilitate entry into
the building. Comments may also be viewed on the Federal eRulemaking
Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Searchbox, enter ``RIN
0596-AD58'' and click the ``Search'' button.
FOR FURTHER INFORMATION CONTACT: Sarah Shoemaker, Geologist at 907-586-
7886 or <a href="/cdn-cgi/l/email-protection#5d2e3c2f3c35732e353238303c36382f1d282e393c733a322b"><span class="__cf_email__" data-cfemail="5f2c3e2d3e37712c37303a323e343a2d1f2a2c3b3e71383029">[email protected]</span></a>. Individuals who use telecommunication
devices for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 800-877-8339 between 8 a.m. and 8 p.m., Eastern
Daylight Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background and Need for Rule
Locatable mineral operations on National Forest System (NFS) lands
have been regulated under the rules currently codified at 36 CFR part
228, subpart A, since 1974, including provisions for requiring
financial assurance for completion of reclamation. Under 36 CFR 228.5
and 228.7, an operator is required to conduct operations in accordance
with an approved plan of operations when one is required under 36 CFR
228.4, and with the regulations at 36 CFR 228 Subpart A. Under 36 CFR
228.8, all operations must be conducted to minimize adverse
environmental impacts on National Forest surface resources as specified
in the regulation, including the requirements to complete reclamation
at the conclusion of operations. 36 CFR 228.8(g). Under 228.8(g),
reclamation may include continuation of actions required to mitigate or
stabilize elements that might otherwise adversely impact surface
resources long after exhaustion of the mineral deposit and cessation of
mining operations for as long as necessary to accomplish the specified
requirements of the regulations to minimize the adverse environmental
impacts on National Forest surface resources to the extent feasible.
Current regulations at Sec. 228.13 provide that the authorized
officer of the Forest Service may require the operator to furnish a
``bond,'' conditioned upon compliance with the reclamation requirements
in current 228.8(g), prior to approval of a plan of operations. The
regulations further provide that, if a bond is required by the
authorized officer, the operator may elect to furnish cash or
negotiable securities of the United States in the amount of the bond in
lieu of the bond required by the authorized officer. All operations
conducted by the operator can have implications for the ability to
successfully complete reclamation. Therefore, the bond, cash, or
securities provided by the operator under 36 CFR 228.13 provide
financial assurance by securing compliance with and completion of all
obligations for environmental protection created by the plan of
operations and the regulations. However, the financial assurance
mechanisms expressly contemplated by the regulations are limited to
surety bonds, cash, and negotiable securities. While the current
regulation does not preclude the use of other mechanisms for financial
assurance, it does not allow the authorized officer to unilaterally
require any form of financial assurance other than a surety bond or
provide the operator with the entitlement to use a form of financial
assurance other than cash or negotiable securities in lieu of the bond.
Where other forms of financial assurance may be more cost effective, or
provide greater assurance for long-term obligations, the authorized
officer and the operator may negotiate an alternative, but there
currently are no regulatory standards for when such alternatives may be
required by the authorized officer, must be accepted by the authorized
officer in lieu of a bond, or for the acceptable terms of such
instruments. In particular, the forms of financial assurance
contemplated by the current regulation do not provide for sufficient
income generation, which, given the time value of money, can be
critically important for long-term financial assurance (LTFA) of the
obligations of mine operators to meet the requirements of their plan of
operations and the regulations many years into the future. The upfront
cost of financial assurance for long-term obligations can be cost-
prohibitive when there is no mechanism allowing for income generation
on financial assurance funds.
Current Policy at Forest Service Manual (FSM) 6561.5 requires the
use of trusts to provide LTFA in lieu of the instruments expressly
contemplated in 36 CFR 228.13, when agreed to by the authorized officer
and the operator. However, FSM 6561.5 limits the investment of trust
funds to U.S. Treasury and other negotiable securities of the U.S.
Government and certain bank deposits. These investment options offer
such low potential rates of return as to be of little benefit in
reducing the upfront cost of funding requirements for LTFA or long-term
viability of trust funding. While FSM 6560.5 acknowledges that trust
assets must adequately protect the Government from loss, and that
allowable trust investments must therefore have limited risk of loss,
the current limitations limit the investments in a way that makes it
more difficult to adequately fund reclamation obligations.
The ability of the Forest Service to require other forms of
financial assurance, or the right of operators to offer other forms of
financial assurance in lieu of bonding for long-term obligations that
will continue once an operation ceases production will allow for
greater financial assurance for the protection of surface resources and
reduction of costs to operators. Allowing for a reasonable rate of
investment return on LTFA funds will provide greater assurance of the
availability of funds in the long-term and reduce the cost of upfront
funding.
The interim final rule at 36 CFR 228.13 will allow the authorized
officer to require the operator to provide alternative LTFA when
necessary to prevent or control damage after operations have ceased.
This provision of the regulations will codify the options allowed by
FSM 6561.5. Further, the regulation will allow for a broader range of
investment options to realize the advantages and benefits of
[[Page 74047]]
the use of income-earning accounts. This interim rule does not change
requirements for surface resource and environmental protection in the
current rule. Rather, it provides additional options for obtaining the
financial assurance necessary to be sure that those requirements will
be met. The generation of reasonable income streams on financial
assurance accounts will provide greater assurance that long-term
obligations will be met and will be more cost-effective for operators.
The interim final rule allows trust funds to be comprised of a mix
of government bonds and public stocks, consistent with Bureau of Land
Management (BLM) regulations at 43 CFR 3809.555 and practices. Future
Forest Service Manual direction (manual or handbook) will supply
guidance for allowable investment portfolio composition, similar to BLM
Handbook Direction at H-3809-1 (2012). Forest Service direction will be
adopted after implementation of the proposed rule.
The Forest Service believes this change is needed immediately to
clarify options and alternatives for LTFA for mining operations, both
to protect the public interest in assuring that long-term obligations
for environmental and surface resource protection are met, and to
reduce unnecessary, and sometimes cost-prohibitive, financial burdens
on operators. The regulation clarifies when alternative forms of
financial assurance for long-term operations may be required by the
authorized officer or must be accepted by the authorized officer if
offered by the operator. Further, the interim final rule sets standards
for when such alternative LTFA is acceptable, including the range of
allowable investments for income generation.
The current number of operations requiring LTFA and operations
approved after adoption of the proposed rule is expected to be small.
In 2018, the Forest Service reported 140 mining operations on National
Forest system land that are approved for ``production phase''
development, which are the type of operations most likely to require
financial assurance for long-term operations and final closure. Of the
140 approved operations, approximately nine, or 6%, are large-scale
operations with plans of operation that have a potential to result in
the need for post-closure maintenance and may require LTFA to ensure
funding for post-closure reclamation. Of the nine approved plans of
operations, four have currently identified the need for long-term post-
closure water treatment or other maintenance operations (3% of total
approved operations; 44% of approved large-scale operations). These
four operations carry approximately 49% of the total financial
assurance held by the Forest Service (approximately $196M of $400M, as
of June 2023). Traditional third-party surety bond financial assurances
are in place for the four operations, but lack a sustainable income-
generating component, and therefore may not be adequate for assuring
long-term post-reclamation needs. The interim final rule, by clarifying
requirements and expanding investment options, will increase the array
of available options for financial assurance that can provide greater
LTFA to protect the interests of the United States and the public, and
reduce unnecessary financial burdens on operators.
While the Forest Service views these changes as critically
important for the administration of mining operations on the national
forests, their impact will be limited primarily to the small number of
large locatable mineral operations on National Forest System lands
where the needs for funding long-term post-reclamation activities is
the greatest. Allowing for an expanded range of investment options with
potentially higher rates of return is expected to reduce the risk of
public funds being needed to complete reclamation or other long-term
obligations in the event of operator default and reduce the upfront
cost to operators to provide financial assurance. While the investment
options allowed may have greater risk of short-term volatility,
appropriate management of trust funds through diversification of
investment over the long-term is projected to generate higher rates of
return.
The interim final rule also clarifies language in 36 CFR 228.13
regarding the types of financial assurances the agency may require, may
accept, and under what circumstances. Currently, 36 CFR 228.13 refers
only to bonds and limited instruments that must be accepted by the
authorized officer in lieu of bonds which can be interpreted as
implying that bonds are required, or at least the preferred, instrument
for financial assurances. The interim final rule instead refers to
financial assurances, and lists every acceptable mechanism, including
instruments that the agency currently accepts in policy (FSM 6561.4)
but are not listed in the current regulation, such as irrevocable
letters of credit. The agency believes this change to be administrative
and clarifying in nature, which will not result in any changes in
practice or policy.
Regulatory Certifications
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget will
determine whether a regulatory action is significant and will review
significant regulatory actions. The Office of Information and
Regulatory Affairs has determined that this interim final rule is not
significant. Executive Order 13563 reaffirms the principles of
Executive Order 12866 while calling for improvements in the nation's
regulatory system to promote predictability; to reduce uncertainty; and
to use the best, most innovative, and least burdensome tools for
achieving regulatory ends. The Agency has developed this rule
consistent with Executive Order 13563.
Congressional Review Act
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), the Office of Information and Regulatory Affairs has
designated this interim final rule as not a major rule as defined by 5
U.S.C. 804(2).
National Environmental Policy Act
This interim final rule will amend the Agency's locatable minerals
regulations to allow mine operators to secure financial assurance for
funding reclamation work through the use a broader range of investment
options. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from
documentation in an environmental assessment or environmental impact
statement ``rules, regulations, or policies to establish service wide
administrative procedures, program processes, or instructions.'' The
Agency's preliminary assessment is that this rule falls within this
category of actions and that no extraordinary circumstances exist which
would require preparation of an environmental assessment or
environmental impact statement. A final determination will be made upon
adoption of the final rule.
Regulatory Flexibility Act
The Agency considered the impacts of the interim final rule on
small entities consistent with requirements of the Regulatory
Flexibility Act (RFA), as amended by the Small Business Regulatory
Flexibility Enforcement Fairness Act of 1996 (SBREFA), and Executive
Orders 13272 (Proper Consideration of Small Entities in Agency
Rulemaking). The provisions of the rule are not expected to have
[[Page 74048]]
economic effects on small entities, and no separate threshold
regulatory flexibility analysis was prepared for this rule.
Small entities potentially affected by the interim rule include
small businesses (firms) involved in precious and heavy metal mining
(e.g., North American Industry Classification System (NAICS) 2122,
iron, gold, silver copper, nickel, lead, zinc, uranium, and other
metals), limestone and clay mining and quarrying (NAICS 2123, crushed/
broken limestone, kaolin and ball clay, ceramic and refractory
minerals, other chemical/fertilizer minerals, and other nonmetallic
minerals); and geophysical surveying and mapping (NAICS 541360). A
majority (75% to 80%) of existing locatable operations on National
Forest System lands fall within the precious and heavy metal sectors,
and within the gold ore sector specifically. The interim final rule
would apply to the fraction of businesses that engage in locatable
mineral development or operations on National Forest System lands that
are projected to involve levels of closure and post-closure activities
that require operators to provide financial assurances to cover closure
or post-closure obligations (costs).
The interim final rule clarifies the types of financial assurance
instruments that can be used by operators, and explicitly lists
instruments (e.g., irrevocable letters of credit, trust funds) that are
omitted in current regulation, though allowed in current policy. The
interim final rule allows stocks to be used in the mix of investments
forming a trust fund, whereas current regulations limit those
investments to United States securities. Allowances for stocks is
consistent with current Department of Interior regulations and policy
for the Bureau of Land Management (43 CFR 3809.555 and handbook
direction at H-3809-1) and Office of Surface Mining Reclamation and
Enforcement (30 CFR 942.800). Interest bearing accounts are necessary
for providing financial assurances for long-term (e.g., into
perpetuity) post-reclamation obligations, and trust funds are likely to
be the only viable instrument that the Agency finds acceptable for
those situations under the current regulations as well as the interim
final rule. However, allowances for stocks can provide operators with
access to an expanded range of rates of return for trust fund
investments, offering opportunities to establish trust funds with lower
initial investment than would be possible under current regulations.
These interim final rule provisions are likely to clarify and
expand opportunities for small business operators to establish
financial assurances for mine closure and post-closure actions and not
expected to result in direct or adverse economic effects to small
businesses. The small business operators with substantial closure or
post-closure obligations will be a subset of small businesses operating
on National Forest System lands. Additional policy for monitoring the
performance of trust funds, composition of investment mixes (e.g.,
types of stocks, investment composition over time), as well as
requiring contributions or allowing withdrawals from trust funds in
response to trust fund performance, will be addressed through Agency
policy direction.
The Agency certifies that the interim final rule will not have a
significant impact on a substantial number of small entities.
Federalism
The Agency has considered this interim final rule under the
requirements of Executive Order 13132, Federalism. The Agency has
determined that the rule conforms with the federalism principles set
out in this executive order; would not impose any compliance costs on
the States; and would not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, the Agency has concluded that
the rule does not have federalism implications.
Consultation and Coordination With Indian Tribal Governments
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, requires Federal agencies to consult and coordinate
with Tribes on a government-to-government basis on policies that have
Tribal implications. This includes regulations, legislative comments or
proposed legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. This interim final rule will amend the
Agency's locatable minerals regulations to allow mine operators to
secure financial assurance for funding reclamation work through the use
a broader range of investment options. The Agency has reviewed this
rule in accordance with the requirements of Executive Order 13175 and
has determined that this proposed rule would not have substantial
direct effects on Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
Therefore, consultation and coordination with Indian Tribal governments
is not required for this rule.
No Takings Implications
The Agency has analyzed this interim final rule in accordance with
the principles and criteria in Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights. The Agency has determined that the proposed rule would not pose
the risk of a taking of private property.
Energy Effects
The Agency has reviewed this interim final rule under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use. The Agency has determined that the
proposed rule would not constitute a significant energy action as
defined in Executive Order 13211. The rule is administrative in nature
and does not impact Agency decisions about leasing and subsequent
development of energy resources on NFS lands.
Civil Justice Reform
The Forest Service has analyzed this interim final rule in
accordance with the principles and criteria in Executive Order 12988,
Civil Justice Reform. After adoption of the rule, (1) all State and
local laws and regulations that conflict with the proposed rule or that
impede its full implementation would be preempted; (2) no retroactive
effect would be given to the proposed rule; and (3) it would not
require administrative proceedings before parties may file suit in
court challenging its provisions.
Unfunded Mandates
Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Agency has assessed the effects of this interim
final rule on State, local, and Tribal Governments and the private
sector. The rule will not compel the expenditure of $100 million or
more by any State, local, or Tribal Government or anyone in the private
sector. Therefore, a statement under section 202 of the Act is not
required.
[[Page 74049]]
Controlling Paperwork Burdens on the Public
This interim final rule does not contain recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 that are not already required by law or not already
approved for use. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing
regulations at 5 CFR part 1320 do not apply.
Administrative Procedure Act
Section 553(b)(3)(B) of the Administrative Procedures Act (APA) (5
U.S.C. 551 et seq.) authorizes agencies to dispense with notice and
comment procedures for rules when the agency, for ``good cause,'' finds
that those procedures are ``impracticable, unnecessary, or contrary to
the public interest.'' Under this section, an agency, upon finding good
cause, may issue a final rule without providing notice and seeking
comment prior to issuance. The Forest Service is promulgating this rule
on an interim final basis because the agency has found that notice and
public comment procedures are unnecessary and contrary to the public
interest.
The agency finds that requiring public notice and comment before
this IFR is implemented would be contrary to the public interest
because the IFR is expected to help streamline Forest Service review
and approval of future critical mineral project proposals. The
Infrastructure Investment and Jobs Act (Pub. L. 117-58), E.O. 14017
``America's Supply Chains,'' and E.O. 13593 ``Addressing the Threat to
the Domestic Supply Chain From Reliance on Critical Minerals From
Foreign Adversaries and Supporting the Domestic Mining and Processing
Industries,'' all direct the agency to process critical minerals
approvals timely and efficiently. The changes proposed in this IFR will
improve the Forest Service's ability to develop adequate funding for
long-term post-closure reclamation activities.
In some cases, the Forest Service has found that arriving at an
acceptable funding vehicle has slowed the processing of mineral
operations approvals because of the limited number of investment
options available under current authorities. This results in slower
approval times and increased risk for the agency. The agency has at
times experienced challenges in obtaining adequate LTFA because the
current investment limitations are a practical barrier to operators:
the fixed-income investments do not generate sufficient growth at
reasonable initial fund rates, while traditional third-party surety
bond financial assurances lack a sustainable income-generating
component, and therefore may not be adequate for assuring long-term
post-reclamation needs.
The agency has also experienced challenges in getting LTFA because
the lack of clarity in the current regulations regarding trust funds
creates confusion, which creates a procedural barrier to operators:
delays while basic questions and concepts are repeatedly tested. Over
time the agency has experienced that many of these mines have increased
awareness of long-term operational needs, such as in the case of
ongoing operations approved prior to consideration of LTFA as common
agency practice. In addition to existing operations that are not able
to capitalize a trust fund at fixed income U.S. securities rates, the
current rule has significantly slowed approval and processing of new
proposals, including for critical minerals such as the nation's only
domestic source of cobalt. This revision to 36 CFR 228.13 will help
ensure that those projects can achieve adequate LTFA, resulting in more
effective and efficient processing of not just critical minerals
proposals, but of all mineral operations.
The IFR's additional flexibility will also allow the agency to
better assure available funds for continued environmental mitigation
and protection, thus removing this potential burden from the taxpayers.
Presenting this revision as a proposed rule and collecting public
comment prior to implementation is contrary to public interest because
time is of the essence to critical minerals and other mineral proposals
struggling to complete the process to obtain adequate LTFA, which
delays the production of critical minerals. The interim final rule, by
clarifying requirements and expanding investment options, will increase
the array of available options for financial assurance that can provide
greater long-term financial assurance to protect the interest of the
United States and the public, and reduce unnecessary financial burdens
on operators.
The agency also believes it is unnecessary to request public
comment prior to implementation of this revision to 36 CFR 228.13
because the changes are ministerial in nature and not likely to be
controversial. The revised Sec. 228.13 clarifies that trusts can be
accepted and removes unnecessary restrictions to investment options.
While this revision will greatly increase the agency's ability to
better administer the Long-Term Financial Assurance program internally,
it does not fundamentally change agency operations. This revision to
investment options also brings the Forest Service in line with BLM
regulation and policy, successfully in operation since 2001. Because
these changes are bringing the Forest Service in line with longstanding
BLM practice in this area, and the IFR is simply broadening the array
of arrangements that can satisfy the requirements of LTFA, public
comment before publication of the rule is unnecessary under the APA.
As noted above, the Forest Service is concurrently accepting
comments on this IFR. The Forest Service will consider all comment
received in response to this IFR in publishing the final rule.
List of Subjects in 36 CFR Part 228
Bonding, National forests, Public lands-mineral resources.
Therefore, for the reasons set forth in the preamble, the Forest
Service amends 36 CFR part 228 as follows:
PART 228--MINERALS
0
1. The authority citation for part 228 continues to read:
Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94
Stat. 2400.
0
2. Amend Sec. 228.13 by:
0
a. revising the section heading;
0
b. revising paragraphs (a), (b), (c) and (d); and
0
c. adding new paragraph (e).
The addition and revisions read as follows:
Sec. 228.13 Financial Assurance.
(a) Any operator required to file a plan of operations shall, when
required by the authorized officer, furnish financial assurance for
completion of the obligations set forth in these regulations and the
approved plan of operations in the amount determined by the authorized
officer to be required to provide reasonable financial assurance of
such obligations prior to approval of such plan of operations, or by
providing blanket assurance for multiple defined operations conducted
by the operator such as within a particular State or nation-wide. The
operator may elect to provide such financial assurance in the form of
any of the following instruments that are acceptable to the authorized
officer, singly or in combination:
(1) cash in an amount equal to the required dollar amount of the
reclamation cost estimate and the estimated cost of stabilizing,
rehabilitating, and reclaiming the area of operations deposited into a
Federal depository, as directed by the Forest Service, and maintained
therein;
[[Page 74050]]
(2) negotiable securities of the United States having market value
at the time of deposit of not less than the required dollar amount of
the bond;
(3) a surety bond provided by a third party that is certified by
the Department of the Treasury and listed in Treasury Circular 570 as
financial assurance for the obligations for specific operations, or
providing blanket assurance for multiple defined operations conducted
by the operator such as within a particular State or nation-wide, and/
or;
(4) an irrevocable letter of credit provided by an institution
acceptable to the authorized officer.
(b) In determining the amount of the required financial assurance,
the authorized officer shall give consideration to the reclamation cost
estimate which shall be submitted by the operator prior to the approval
of the final plan of operations, and the estimated cost of stabilizing,
rehabilitating, and reclaiming the area of operations.
(c) In the event that an approved plan of operations is modified in
accordance with Sec. 228.4 (d) and (e), the authorized officer will
review the financial assurance for adequacy and, if necessary, will
adjust the financial assurance amount to conform to the operations plan
as modified.
(d) When reclamation has been completed in accordance with Sec.
228.8(g), the authorized officer will notify the operator that
obligations covered by the financial assurance have been met: Provided,
however, that when the Forest Service has accepted any portion of the
reclamation as completed, the authorized officer shall notify the
operator of such acceptance and proportionally reduce the required
financial assurance amount thereafter to be required for the remaining
obligations of the operator.
(e) When an operator is required to continue to operate or maintain
certain aspects of the operation after the mine has closed, the
authorized officer may require the operator to establish a trust fund
to ensure that adequate funds are available for long-term post-closure
reclamation activities required by the regulations or the approved plan
of operations following mine closure. The authorized officer shall
determine which activities may be secured through a trust fund, and
which activities may be secured through another form of financial
assurance. Establishing a trust fund does not relieve the operator of
the responsibility to provide long-term management, maintenance, and
reclamation of the site. A trust fund for long-term post closure
obligations shall be comprised of financial instruments limited to
negotiable securities of the United States Government; State and
Municipal securities or bonds; money market funds; certificates of
deposits; investment-grade securities; and stock equity shares listed
on a national exchange.
Andrea Delgado Fink,
Chief of Staff, Natural Resources and Environment.
[FR Doc. 2023-23526 Filed 10-27-23; 8:45 am]
BILLING CODE 3411-15-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.