Proposed Rule2026-03364
Locatable Minerals
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
February 20, 2026
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The U.S. Department of Agriculture, Forest Service (Agency), is proposing to revise its regulations governing occupancy and use of the surface of National Forest System lands in connection with prospecting, exploration, development, mining, processing, and reclamation and reasonably incident uses authorized by U.S. mining laws and the Organic Administration Act of 1897. Regulatory revisions are needed to improve the efficiency and transparency of Forest Service regulation of locatable mineral operations conducted on National Forest System lands under the mining laws, and to minimize, to the fullest extent practicable, adverse impacts on surface resources. In addition, the revisions will support Federal policy to secure reliable and sustainable supplies of strategic and critical minerals in the United States.
Full Text
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[Federal Register Volume 91, Number 34 (Friday, February 20, 2026)]
[Proposed Rules]
[Pages 8316-8352]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-03364]
[[Page 8315]]
Vol. 91
Friday,
No. 34
February 20, 2026
Part II
Department of Agriculture
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Forest Service
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36 CFR Part 228
Locatable Minerals; Proposed Rule
Federal Register / Vol. 91 , No. 34 / Friday, February 20, 2026 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 228
RIN 0596-AD32
Locatable Minerals
AGENCY: Forest Service, Agriculture (USDA).
ACTION: Proposed rule; request for public comment.
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SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency),
is proposing to revise its regulations governing occupancy and use of
the surface of National Forest System lands in connection with
prospecting, exploration, development, mining, processing, and
reclamation and reasonably incident uses authorized by U.S. mining laws
and the Organic Administration Act of 1897. Regulatory revisions are
needed to improve the efficiency and transparency of Forest Service
regulation of locatable mineral operations conducted on National Forest
System lands under the mining laws, and to minimize, to the fullest
extent practicable, adverse impacts on surface resources. In addition,
the revisions will support Federal policy to secure reliable and
sustainable supplies of strategic and critical minerals in the United
States.
DATES: Comments must be received in writing by April 21, 2026.
ADDRESSES: Please submit comments via one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
In the search box, enter 0596-AD32, which is the RIN for this proposed
rulemaking. Then, in the search panel on the left side of the screen,
under the Document Type heading, click on the ``Notice'' link to locate
this document. You may submit a comment by clicking on the ``Comment''
button.
<bullet> Mail: Send written comments to USDA--Forest Service,
Sidney Yates Building, 1400 Independence Avenue SW, 1SE--Mailstop Code:
1124, Attn: Director--LMG Staff, Washington, DC 20250.
We request that you send comments only by the methods described
above. Comments should be confined to issues pertinent to the proposed
rule, should explain the reasons for any recommended changes, and
should reference the specific section and wording being addressed,
where possible. All timely comments, including names and addresses when
provided, will be placed in the record and will be available for public
inspection and copying. Comments may be viewed on the Federal
eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the search box,
enter 0596-AD32 and click the ``Search'' button. Note personal
information provided such as name, telephone, and mailing address
provided will be included in the record.
FOR FURTHER INFORMATION CONTACT: Tracy Parker, Acting Director, Lands,
Minerals, and Geology Management at 202-644-5974 or by email at
<a href="/cdn-cgi/l/email-protection#37434556544e194756455c5245774244535619505841"><span class="__cf_email__" data-cfemail="86f2f4e7e5ffa8f6e7f4ede3f4c6f3f5e2e7a8e1e9f0">[email protected]</span></a>. Individuals who use telecommunications devices
for the hearing-impaired may call 711 to reach the Telecommunications
Relay Service, 24 hours a day, every day of the year, including
holidays.
SUPPLEMENTARY INFORMATION:
Background and Need
The Mining Law of 1872 (30 U.S.C. 22, et seq., as amended)
(hereafter referred to as the mining laws) states, ``except as
otherwise provided, all valuable mineral deposits in lands belonging to
the United States . . . shall be free and open to exploration and
purchase. . . .'' The mining laws originally authorized prospecting,
exploration, development, mining, processing, and uses reasonably
incident thereto, of all minerals on Federal lands that are open to the
operation of the mining laws, including National Forest System (NFS)
lands reserved from the public domain, unless they have been withdrawn
from entry and appropriation under the mining laws. Congress excluded
certain public domain lands in Michigan, Wisconsin, Minnesota,
Missouri, and Kansas from the operation of the mining laws. Congress
subsequently amended the mining laws and provided separate authority
for other methods of disposal for some mineral resources, including
coal; phosphate; sodium; oil; oil shale; gilsonite; gas; sulfur
occurring in the States of Louisiana and New Mexico; potassium;
petrified wood and common varieties of sand, stone, gravel, pumice,
pumicite, cinders and clay; and geothermal resources. Mining laws do
not apply to land acquired by the United States. This includes land
acquired through purchase, donation, condemnation, or exchange.
Minerals from acquired lands are disposed via the Mineral Leasing Act
for Acquired Lands (30 U.S.C. 351-359). Therefore, the ``locatable
minerals'' subject to the Part 228, Subpart A regulations are those
that can still be appropriated under the mining laws.
The Organic Administration Act of 1897 (16 U.S.C. 472, et seq.)
authorized the Secretary of Agriculture to make rules to regulate
occupancy and use of the land and preserve the forests from
destruction. The Act also specifically declared it does not prohibit
prospecting, locating, and developing mineral resources within the
national forests. However, the Act requires that everyone must comply
with rules and regulations covering the national forests.
In 1955, Congress passed the Surface Resources Act (30 U.S.C. 612,
et seq.), which amended the mining laws by stating that, ``. . . mining
claims shall not be used for any purposes other than prospecting,
mining, or processing operations and uses reasonably incident thereto''
(30 U.S.C. 612(a)). Congress provided that any rights under the mining
laws are subject to the right of the United States to manage and
dispose of the vegetative surface resources thereof and to manage other
surface resources (except mineral deposits subject to location under
the mining laws of the United States). The statute also amended the
mining laws by providing that mining claims are also subject to the
right of the United States, its permittees, and licensees to use as
much of the surface as may be necessary or for access to adjacent land
(30 U.S.C. 612(b)). However, the use of the surface by the United
States, its permittees, and licensees cannot endanger or materially
interfere with prospecting, mining, or processing operations or uses
reasonably incident thereto.
In the 1960 Multiple Use Sustained Yield Act (16 U.S.C. 528-531),
Congress stated the national forests are established and shall be
administered for certain purposes, namely outdoor recreation, range,
timber, watershed, and wildlife and fish. However, it was also noted
that nothing within the Act would affect the use or administration of
the mineral resources on NFS lands. Congress later passed the Mining
and Mineral Policy Act of 1970 (30 U.S.C. 21a), setting a national
policy to foster private development of domestic mineral resources to
help ensure the satisfaction of industrial, security, and environmental
needs. Acting under these established legal authorities, the Forest
Service manages surface use and occupancy associated with locatable
minerals operations within the national forests and grasslands.
The Forest Service regulations governing operations under the
mining laws conducted on NFS lands were first promulgated in 1974 at 36
CFR part 252 (39 FR 31317, Aug. 28, 1974). The regulations were later
reorganized at 36 CFR part 228, subpart A in 1981 (46 FR 36142, July
14, 1981). In 2005, the Forest Service adopted a final rule
[[Page 8317]]
clarifying when a plan of operations is required (Sec. 228.4(a); 70 FR
32731, June 6, 2005). Aside from these changes, however, the rule has
not seen significant revision since 1974.
Part 228, Subpart A regulates occupancy and use of NFS lands
authorized by the mining laws, whether within or outside the boundaries
of a mining claim, including the prospecting, exploration, development,
mining, and processing of locatable minerals (operations). This subpart
also regulates other activities, such as the subsequent reclamation and
long-term post-closure management of such operations.
NFS lands reserved from the public domain are open to operation of
the mining laws unless they have been withdrawn from entry or
appropriation. The majority of withdrawn NFS lands have been withdrawn
pursuant to designations under the Wilderness Act (16 U.S.C. 1131, et
seq.) and the Wild and Scenic Rivers Act (16 U.S.C. 1271, et seq.). The
regulations in 36 CFR part 228, subpart A apply to operations on NFS
lands that have not been withdrawn from mineral entry and on NFS lands
that are withdrawn ``subject to valid existing rights'' and such rights
have been confirmed.
In administering the 36 CFR part 228, subpart A regulations since
1974, the Forest Service has identified a number of issues that provide
opportunities to modernize the Agency's administration of surface use
and occupancy of NFS lands for mining operations, and to provide
additional clarity for operators subject to these regulations, while
continuing to minimize adverse impacts on surface resources on NFS
lands.
Other actions prompting this revision of the 36 CFR part 228,
subpart A regulations include the 2016 U.S. Government Accountability
Office (GAO) report, Hardrock Mining: BLM and Forest Service Have Taken
Some Actions to Expedite the Mine Plan Review Process but Could Do More
(GAO-16-165; <a href="https://www.gao.gov/assets/680/674752.pdf">https://www.gao.gov/assets/680/674752.pdf</a>), which found
that insufficient information provided in operator mine plan submittals
adds time to the mine plan review process and requires increased use of
limited Agency resources. The GAO report recommended the Forest Service
take action to help operators improve the quality of mine plan
submissions.
Additionally, the Administration, Congress, and stakeholders are
focusing attention on ways to improve administration of locatable
minerals, including critical minerals, on Federal lands. Products that
our military, national infrastructure, and clean energy technologies,
as well as everyday products and technologies such as smartphones,
tablets, electric vehicles, global positioning system (GPS) units,
medical devices, and other markers of modern life, require critical
minerals.
The Forest Service expends substantial resources evaluating,
conducting environmental analyses, and approving plans of operations
under the current regulations. From 2004 to 2019, the Forest Service
received 3,171 plans of operations (on average, 198 plans of operations
per year) for proposed mining operations on NFS lands that would have
been considered likely to cause a significant disturbance of surface
resources under the existing regulations. Of those 3,171 plans of
operations, 2,951 (184 plans of operations per year) were submitted for
operations that disturbed less than 5 acres of land. Many of these
plans of operations were exploration operations that generally have
minor environmental impacts and do not involve difficult mitigation
issues.
Through this revision, the Forest Service proposes to redefine the
threshold at which the operator must submit a plan of operations. The
Forest Service proposes to replace the existing subjective threshold of
``likely to cause a significant disturbance of surface resources'' with
a threshold comprising specific requirements. Under the proposed
regulations, an operation would require the approval of a plan of
operations when it meets any of the following criteria: operations
resulting in surface disturbance greater than 5 acres, operations other
than exploratory or investigative operations, and additional criteria
for protection of surface resources. Operations that do not meet any of
the criteria that require a plan of operations, but do not fit into the
``no notice'' category of operations, would be required to submit a
newly defined operating notice, which can be prepared by operators and
reviewed by the Agency much more quickly and efficiently. It is
expected this will increase the efficiency of Forest Service review of
mining operations and provide greater clarity for operators (for
example, an estimated annual average of 62 operations that currently
require a plan of operations would be conducted under an operating
notice under the proposed rule).
The Forest Service proposes to adopt measures identified in the
2016 GAO report to improve the quality of plans of operations submitted
to the Agency. One measure would require a pre-submittal meeting for
persons seeking to conduct locatable minerals operations requiring an
operating notice or a plan of operations. This will ensure the operator
is familiar with requirements that must be met for an operating notice
or a proposed plan of operations to be determined complete. Other
measures include a detailed listing of information that must be
included in a plan of operations in the proposed rule as well as a
requirement that the Forest Service must ensure all proposed plans of
operations are complete before beginning required environmental
analysis of the proposed mining operations. Improving the quality of
the plans of operations submitted to the Forest Service would increase
the Agency's ability to evaluate proposed plans and their associated
environmental impacts, better inform consultation with federally
recognized tribes, and reduce processing time.
Other provisions of the proposed rule include more detailed
requirements regarding when and how to modify approved operating
notices and plans of operations; activities considered ``reasonably
incident'' to mining; enhancements to Agency enforcement procedures;
surface resource protection requirements and operating standards; and
establishing, maintaining, and releasing financial assurances.
The Forest Service's 36 CFR part 228, subpart A regulations and the
corresponding Bureau of Land Management (BLM) surface management
regulations at 43 CFR Subparts 3715, 3802, and 3809 govern the same
types of operations and actions, which result in very similar surface
impacts. Differences between the two sets of regulations may result in
confusion and frustration among the public and operators, especially
for operators who operate on lands managed by both agencies or when a
single operation covers lands managed by both agencies. The Forest
Service seeks to minimize this potential for confusion and improve
operator compliance by revising 36 CFR part 228, subpart A, to increase
consistency with the BLM's regulations and bring the two agencies into
closer alignment regarding the management of surface operations
authorized by the mining laws, taking into account the differences in
the statutes governing the two agencies. The proposed regulations
therefore contain many similarities to the BLM's regulations, but also
contain provisions that are unique to NFS lands.
The proposed rule would increase efficiencies in managing locatable
minerals operations and help the Forest Service deliver benefits to the
public more efficiently while continuing to minimize impacts on surface
resources. The Forest Service is proposing to revise
[[Page 8318]]
its regulations to reflect current practices and legal requirements;
increase consistency in implementing the rule across national forests
and grasslands; clarify an operator's responsibility to protect natural
resources and the environment; and clarify the Forest Service's
procedures regarding administration, inspections, and compliance. The
proposed changes are also intended to better align Forest Service and
BLM regulations to improve efficiency and minimize confusion for
operators. The Forest Service is seeking comments on all aspects of the
proposed regulations. Specifically, the Agency requests comment on the
proposed criteria and circumstances to clarify thresholds that will
best facilitate orderly development of the nation's minerals while
minimizing impacts on surface resources, including Tribal resources. To
submit comments, see instructions in the ADDRESSES section above.
Advance Notice of Proposed Rulemaking
The Forest Service published an advance notice of proposed
rulemaking (ANPR) in the Federal Register on September 13, 2018 (83 FR
46451), inviting public input regarding the need to clarify or
otherwise enhance the present regulation at 36 CFR part 228, subpart A.
In addition to general comments, the Forest Service asked for input on
a series of questions regarding topics of concern. The public comment
period was open for 30 days and served as the scoping period for the
environmental analysis.
The Forest Service received 172 total responses. Ninety-eight
comments included statements of general opposition, and forty-seven
comments included statements of general support for the proposed rule.
The remainder did not express either opposition or support.
Stated reasons for general opposition included aversion to the
mining industry, destruction of national forests and natural resources
for financial or political interests, inadequate protection of human
and environmental health, adverse impacts on recreation opportunities
and tourism, and an assertion that the Forest Service does not have the
authority to regulate mining operations. In particular, the Forest
Service received many comments regarding mining near the Boundary
Waters Canoe Wilderness Area of northern Minnesota. The Forest Service
clarifies in the preamble that Minnesota is excluded from operation
under the mining laws (30 U.S.C. 48), and therefore not subject to the
regulations at 36 CFR part 228, subpart A.
Stated reasons for general support include the importance of the
mineral industry to the national economy, the need to expedite the
Forest Service review and approval process, and the need to improve
consistency within the Agency and with the BLM surface management
regulations.
Many commenters, both in support of and in opposition to the
proposed revisions, expressed their concerns regarding Forest Service
staffing levels and the capacity of the Agency to carry out the
workload to manage locatable minerals operations. Commenters also
expressed concerns that Forest Service staff does not have the
knowledge or expertise to effectively implement current or proposed
regulations, and authorized officers and other staff look for ways to
use regulation as a way to impede or prevent mining operations from
occurring on NFS lands.
Some commenters expressed support for revising the Part 228,
Subpart A regulations to be more consistent with the relevant BLM
regulations. Some commenters insisted that the Forest Service should
turn over all management of mineral-related activity to the BLM, and
still others responded that the Forest Service should not try to be
more consistent with the BLM because that will eventually lead to a
loss of autonomy in managing NFS lands.
Respondents asked the Forest Service to continue to engage and
solicit input from affected stakeholders and local forest users.
Respondents stressed the importance of making documents readily
accessible and providing continual public involvement in the form of
public review, comment, and collaboration to achieve environmental
protection on public lands. Commenters also recommended government
coordination to increase process efficiency. However, one commenter
believed that the Forest Service is soliciting input out of obligation
and will not incorporate public comments into the process.
Following the completion of the comment period for the ANPR, the
Forest Service analyzed the comments received and used the information
to draft the proposed regulation. Public comments and an executive
summary of the comments received in response to the ANPR are available
in the rulemaking docket ID FS-2018-0052 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Information can also be found at <a href="https://www.fs.usda.gov/science-technology/geology/minerals/locatable-minerals/current-revisions">https://www.fs.usda.gov/science-technology/geology/minerals/locatable-minerals/current-revisions</a>.
Petition for Rulemaking To Address State Laws Prohibiting Certain
Mining Operations, Including on Federal Lands
The Departments of Agriculture and the Interior received a petition
for rulemaking (``the petition'') requesting specific amendments to two
sections of the Part 228, Subpart A regulations. The petition was dated
June 18, 2019, and transmitted on behalf of a number of mining
organizations.
At the time the petition was filed, the Forest Service was actively
engaged in a comprehensive revision of the Part 228, Subpart A
regulations, as evidenced by the ANPR published on September 13, 2018.
Because the Agency had already initiated the rulemaking process and
issues raised by the petition were being considered within the context
of the broader rulemaking in progress, it was not considered an
efficient or effective use of Agency resources to engage in two
separate rulemakings at the same time, covering overlapping subject
matter. Consequently, the petition was considered in conjunction with
this rulemaking effort. The Forest Service considered the petition's
proposed changes to the existing regulations but did not adopt those
changes in these proposed regulations because they were inconsistent
with the Agency's authority under the mining laws. The petition is
included in the record for this rulemaking and is available within the
docket supporting this revision.
Section-by-Section Explanation of the Proposed Rule
Section 228.1 Purpose
The revision in section 228.1 of the proposed regulation details
and clarifies the authority for the Forest Service to develop rules
related to occupancy and use of NFS lands authorized by the mining laws
and more clearly identifies the statutes authorizing locatable minerals
operations on NFS lands.
Section 228.2 Scope
The current regulation specifies that section 228.2 applies to
lawful operations conducted on NFS lands authorized under the mining
laws. It also specifies that in cases where areas of NFS lands covered
by a special act of Congress are subject to the provisions in this
section, the provisions of the special act shall apply in the event of
conflict between the provisions of the act and this regulation. In
addition to the current language, the proposed regulation clarifies
that any person conducting operations under this section must comply
with regulations having general applicability to NFS
[[Page 8319]]
lands. The proposed regulation would also allow the Forest Service to
regulate mining operations conducted on NFS lands that are reasonably
incident (see definitions and proposed section 228.9) to mining
operations on non-NFS lands (any lands that are not part of the
National Forest System of lands managed by the Forest Service,
including Tribal, privately owned, State-owned, or other Federal
lands), provided that nothing in the proposed rule would expand or
restrict access rights to the non-NFS lands.
Section 228.3 Definitions
The definitions of ``authorized officer,'' ``mining claim,'' and
``operations'' have all been modified from the existing regulations to
better reflect statutory authority and Agency practices. The proposed
regulation adds twelve new definitions: ``day,'' ``exploration,''
``financial assurance,'' ``geotechnical and water resource
investigations,'' ``Indian Tribe,'' ``long-term post-closure
operations,'' ``mining laws,'' ``notice or submission,''
``prospecting,'' ``reasonably incident uses,'' ``reclamation,'' and
``surface resources.'' The definitions in the proposed regulation will
create internal consistency in implementation and provide clarity to
authorized officers, Agency personnel, operators, and the public
regarding the meaning of key terminology. For example, the proposed
regulation defines the term ``day'' (section 228.3(b)) to clarify how
time periods are calculated for actions such as review periods,
response time requirements, and notification requirements set forth in
the proposed regulation.
The proposed regulation defines the terms commonly used in the
mining industry and used throughout this regulation: ``exploration,''
``geotechnical and water resource investigation,'' and ``prospecting.''
The proposed new term ``reasonably incident uses'' clarifies the
statutory standard in the Surface Resources Act of 1955 (30 U.S.C. 612)
requiring that operators be restricted to using reasonable methods of
surface disturbance appropriate to their stage of operations.
Reasonable and necessary uses of NFS lands must employ sound and
accepted mining industry practices and operational methods appropriate
for the stage of mining operations (United States v. Richardson, 599
F.2d 290 (9th Cir. 1979)), which include prospecting, exploration,
production (mining and processing), and reclamation.
The proposed definition of ``notice or submission'' is intended to
provide clarity as to the acceptable methods of delivery for any
written communication from the operator or the authorized officer. Each
method provides a reliable delivery date so that time limits can be
calculated and adhered to easily. The defined term applies to all
notices and submissions except for notices of noncompliance. Section
228.7 identifies the acceptable methods of service for notices of
noncompliance.
The current regulation uses the term ``surface resources'' but does
not define it. The new proposed term ``surface resources'' refers to
any biological, ecological, environmental, scenic, cultural,
archaeological, historic, paleontological, or other resources subject
to the administration of the Forest Service pursuant to the Organic
Administration Act of 1897 (16 U.S.C. 551), the Surface Resources Act
(30 U.S.C. 612), and the Multiple Use Sustained Yield Act (16 U.S.C.
583, et seq.). ``Surface resources'' does not include the mineral
resources that comprise the subsurface estate. In the context of the
language proposed at section 228.10(b)(7)(i), however, ``surface
resources'' may include materials that are disposed of pursuant to
Subpart C of this part (referred to as mineral materials or salable
minerals).
The proposed term ``mining laws'' describes the Mining Law of 1872,
as amended. This definition reflects the fact that the 1872 Act has
been subsequently amended by many other laws, including the Surface
Resources Act of 1955.
The proposed regulation replaces the term ``reclamation bond'' by
defining and using the term ``financial assurance.'' The change in
terminology helps clarify that any of the instruments listed in
proposed section 228.11 are acceptable forms of financial assurance.
The proposed definition also better reflects the purpose of a financial
assurance, which is to ensure performance of all obligations associated
with one or more operating notice or plan of operations. The proposed
regulation also includes a definition of the term ``reclamation,''
including long-term post-closure operations, to clarify that
reclamation encompasses not only minimization of impacts but also
focuses on the final condition of lands post-mining, whether reclaimed
to pre-disturbance conditions or another acceptable final condition.
Section 228.4 Requirements for Initiating Operations
The proposed regulation at section 228.4, Requirements for
Initiating Operations, replaces the current regulation at section
228.4, Plan of operations--notice of intent--requirements. The current
regulation addresses three categories of operations: plans of
operations, notices of intent, and a third, unnamed category. This
third category in the current regulation acknowledges there are some
limited mining operations that do not result in impacts different from
those of other forest users who are not required to obtain a permit for
their activities. The unnamed category in the current regulation does
not require submission of a notice to the Forest Service before
beginning such use.
The proposed regulation revises the current 3-tier system of
operations. The proposed regulation classifies the previously unnamed
category of operations that do not require notice to or approval from
the Forest Service as ``limited operations.'' Operations requiring
prior notice, but no approval--currently known as a notice of intent--
would require an ``operating notice'' under the proposed regulation.
For operations that require Agency approval prior to initiating, an
operator would continue to submit a ``plan of operations.''
The existing regulation specifies under section 228.4(a)(1) when a
notice of intent does not need to be filed. These operations do not
require any notice or approval prior to initiating operations. The
proposed regulation names these types of operations ``limited
operations.'' Consistent with the 2005 change to 36 CFR 228.4 (70 FR
32713), certain activities that will not cause more than minimal
impacts not substantially different than those of other NFS users not
requiring a special use authorization, a contract, or other written
authorization are considered to be limited operations. Limited
operations will not require notice to the Forest Service prior to
initiating operations. The proposed regulation includes examples of
operations consistent with the 2005 regulation (70 FR 32713), including
removing samples for analysis, using small non-motorized hand tools,
non-motorized sluices, metal detectors, or other battery-operated hand-
held devices, and marking and monumenting mining claims, which
generally involve negligible surface disturbance.
Section 228.4(a)(1) specifies that an operator does not have to
give prior notice before beginning limited operations. Section
228.4(a)(2) of the proposed regulation includes additional examples of
the types of operations in this category, such as removing certain
types of non-woody species that will not exceed 10 feet in height at
maturity and removing parts of plants not likely to result in the death
of the plant, as necessary for line-of-sight activities for
[[Page 8320]]
surveys, mapping, or geophysical activities, unless either of those
operations involve species that are protected under the Endangered
Species Act. The Forest Service added these provisions to clarify the
type of vegetation that could be removed during limited operations.
Similarly, proposed provisions at section 228.4(a)(2)(viii) provide
that motor vehicle use consistent with other regulations, road
designations under 36 CFR 212.51, and any relevant land management
plans or forest orders, is considered limited operations and would not
require prior notice to the authorized officer.
Examples of activities not considered limited operations are
identified at section 228.4(a)(3) of the proposed regulation. Because
limited operations have no provisions for requiring mitigation,
reclamation, or financial assurance, the types of operations described
in section 228.4(a)(3) require submitting an operating notice (section
228.4(d)) or plan of operations (section 228.4(c)). Many of these
mining-related activities could have adverse environmental impacts or
potentially affect facilities constructed or maintained with public
funds.
The proposed regulation at section 228.4(a)(3)(vi) lists using
suction dredges as an example of operations that are not considered
limited operations. The Forest Service recognizes suction dredging can
affect fish and their habitat, and that effects can differ from stream
section to stream section. This may include the fish species found in
the stream; the time of year fish are present; and the type of habitat
that may be affected, including physical characteristics such as fine-
grained material in streambeds that could produce large amounts of
turbidity. Because of these effects, the Forest Service may need to
request additional information from the operator. The Forest Service
would not have the opportunity to request additional information if
suction dredging was considered ``limited operations.'' Therefore, the
proposed rule includes suction dredging as an example of operations
that cannot occur without prior notice.
Section 228.4(a)(3)(xvi) informs operators that any operation that
would cause a violation of an Indian Tribe's reserved treaty rights or
other reserved rights under Federal law may not occur under limited
operations. Limited operations, by regulation, will not cause more than
minimal impacts not substantially different than those of other NFS
users not requiring a special use authorization, a contract, or other
written authorization, and therefore the Forest Service finds it
unlikely that these operations would violate a treaty right or other
reserved rights. However, in the event that a limited operation would
violate a treaty right or other reserved rights, the regulation is
intended to inform operators that, if the violation of rights is
expected or is occurring, the regulation prohibits those operations
from continuing. According to proposed section 228.4(c)(8)(vi), a plan
of operations would be required, and the Agency can then follow
processes, including consultation, to mitigate the operations so that
no violation of treaty rights occurs. If operations will occur within
areas with reserved treaty rights or other reserved rights, tribes have
repeatedly requested that they be notified, via consultation on this
proposed rule and in other local consultations, as well as in the
conversations as documented in the final report ``Recommendations to
Improve Mining on Public Lands'' (2023). If the Forest Service becomes
aware that limited operations are occurring within an area where
reserved treaty rights or other reserved rights occur, the Forest
Service expects to inform the tribes potentially affected by these
operations and inform the operator that reserved treaty rights or other
reserved rights may be at risk and therefore the operations cannot
continue under limited operations.
Section 228.4(a)(3)(xv) also states that operations that involve
the simultaneous onsite presence of ten or more individuals on the same
operation or who are affiliated with or employed by the same operator
will require the operator to comply with either section 228.4(c) (plans
of operations) or section 228.4(d) (operating notices) prior to
initiating operations. This clarification is in response to issues the
Forest Service has had in areas where, for example, multiple people
engage in panning or other low-impact activities which as individuals
will not result in impacts substantially different than those of other
NFS users not requiring a special use authorization, a contract, or
other written authorization, but together amount to impacts that
require reclamation, and thereby require an operating notice or a plan
of operations so that a reclamation cost estimate and financial
assurance are accepted or approved.
The proposed regulation at section 228.4(a)(4) provides the
authorized officer with an avenue to address problems that can occur in
areas where the effects of limited operations have resulted in, or are
expected to result in, more than negligible impacts on surface
resources. Where numerous operators congregate to operate, collectively
their actions can result in adverse impacts that exceed the threshold
of limited operations. Individually, their activities, such as access
routes, digging with hand tools, or camping, may be negligible and fall
within the limited operations category. However, their activities in
aggregate may result in adverse environmental impacts on surface
resources that may need to be mitigated or reclaimed, requiring an
operating notice or plan of operations. Under the proposed regulation,
the authorized officer may, through notification to the public,
designate areas where all operations require an operating notice or
plan of operations, allowing the Forest Service to prevent or mitigate
adverse impacts.
A new requirement was added in the proposed section 228.4(b) for
pre-submittal meetings between the operator and authorized officer or
their designee prior to submitting an operating notice or a plan of
operations. The operator and authorized officer or designee must hold a
pre-submittal meeting(s) to facilitate an information exchange and
provide an opportunity for gathering more information if needed. The
pre-submittal meeting between appropriate Forest Service staff and the
operator will occur within 21 days of receipt of a request by the
operator for such meeting, or on a mutually agreed-upon date. This
process implements a recommendation in the 2016 Government
Accountability Office report, Hardrock Mining (GAO-16-165), ``to
provide an opportunity to inform operators about the requirements of
operating notices and plans of operations to help ensure critical
information is collected.'' The GAO determined that these meetings have
been helpful in reducing the length of the review process. Pre-
submittal meetings will provide the operator with the opportunity to
discuss with the Forest Service the requirements of operating notices
and plans of operations and, as experienced by the BLM, improve
workforce planning to increase review efficiency. The pre-submittal
meeting gives operators an opportunity to identify and discuss issues
regarding their proposed operations and gives the authorized officer or
designee an opportunity to help the operator understand the regulations
and how the regulations apply to their operations, so that the operator
can make an informed decision as to whether they might proceed under an
operating notice or whether a plan of operations might be required.
The Forest Service believes the pre-submittal meetings can also
help clarify
[[Page 8321]]
operators' understanding of surface resource protection obligations,
including: the relevant standards and guidelines in the applicable land
management plan; State and Federal laws and regulations that may affect
their project; the requirements of environmental review and the
timeframes involved; the need for baseline surveys (for example, water
quality); the potential for formal consultation with other agencies
under the Endangered Species Act; and coordination with tribes or other
agencies as a result of historic, archaeological, or culturally
significant resources that may be in the project area. For example,
this conversation will give the Forest Service an opportunity to point
out the applicable components in the relevant land management plan and
inform the operator that the Forest Service may need to undertake a
site-specific amendment to the land management plan before the Agency
can approve a plan of operations. With this information, the operator
may decide to alter proposed operations to be consistent with the
existing land management plan, thereby avoiding the additional time
involved for the Forest Service to amend the land management plan in
order to approve a plan of operations. By discussing issues and site
conditions the operator may not have been aware of, the Forest Service
is giving the operator information regarding how site conditions and
the regulations are linked to determine what is necessary in a proposed
operation. The goal is to make sure the operator will provide a more
complete operating notice or plan of operations. This in turn will save
operators time and money by increasing the sufficiency and completeness
of information provided to the Forest Service, reducing permitting
delays and costs for both the Agency and operator.
The pre-submittal meeting provides the authorized officer
information regarding operations being proposed in areas of Tribal
interest, and an opportunity to inform tribes of these proposed
operations in advance of formal proposals. This gives the tribes time
to respond with information that may inform the authorized officer if
reserved treaty rights or other reserved rights under Federal law of an
Indian Tribe are known within the project area, or if sacred sites are
present, so that the authorized officer may inform the operator that a
plan of operations may be required under section 228.4(c). A Tribe can
also choose to engage the Forest Service in consultation after being
informed of potential operations in the area of interest.
The proposed regulation at section 228.4(c) lists specific criteria
and circumstances to clarify thresholds at which an operator must
obtain review and approval of a plan of operations from the Forest
Service prior to commencing operations. Defining this threshold is a
substantial change from current regulation, which requires a plan of
operations when ``the operations will likely cause a significant
disturbance of surface resources.'' The Forest Service believes
eliminating this subjective threshold and replacing it with specific
criteria and circumstances will add clarity for operators and Agency
personnel, resulting in increased efficiency and consistency when
implementing the regulation. The Forest Service is requesting comment
on the proposed criteria and circumstances to clarify thresholds that
will best facilitate orderly development of the nation's minerals while
minimizing impacts on surface resources, especially Tribal resources.
The circumstances and scenarios listed under section 228.4(c)
represent operations that the Forest Service believes result in impacts
on surface resources requiring Forest Service approval. For example,
the Agency believes that the thresholds regarding the type of activity,
size of disturbance, the materials involved, and long-term liabilities
represent an operation progressing from early exploration with limited
surface impacts on more advanced exploration or development that
typically results in greater surface impacts. The proposed regulation
requires an approved plan of operations for these more advanced
operations. The Agency also proposes requiring an approved plan of
operations for any operation ordinarily conducted under an operating
notice where the authorized officer has issued a suspension order (see
proposed section 228.7) and terminated an operating notice in effect as
a result. This allows the authorized officer to review a proposed plan
of operations and enforce mitigation measures to minimize adverse
effects to surface resources, which resulted in the issuance of a
suspension order.
The current regulations' criteria used to determine whether a plan
of operations is required is a subjective judgment of the operator or
authorized officer, sometimes leading to inconsistent interpretation of
the current regulations by operators and authorized officers between
Forest Service units. To reduce the subjectivity in the current
regulations, proposed section 228.4(c) identifies more specific
criteria to determine whether a plan of operations is required. This
change will help eliminate inconsistent interpretation by operators and
authorized officers between Forest Service units and provide additional
certainty for the public.
The current regulations do not specifically address whether or when
a plan of operations is required in areas with special designations.
This has led to administrative delays or operations occurring without
mitigation. Under the proposed regulation, areas listed under section
228.4(c)(8) are areas that have specific designations and management
plans, legal requirements, or mandatory consultation requirements, or
where Federal facilities (such as bridges, roads, and structures)
constructed with public funds may be affected by operations. Based on
these designations, a plan of operations would be required even for
operations that would ordinarily qualify for an operating notice.
Requiring a plan of operations in these instances acknowledges the
special character of these areas and ensures that the Forest Service
can analyze and disclose the environmental impacts in such special
areas and impose mitigation measures where necessary. As is current
practice, with any proposed plan of operations, the Forest Service will
continue to notify tribes of proposed plans of operations in the areas
of interest to the relevant tribes and invite the tribes to engage in
consultation regarding those plans of operations.
Proposed section 228.4(d) is a brief description of operations
requiring an operating notice. It explains that operations that do not
qualify as limited operations, but do not require a plan of operations,
require an operating notice per requirements specified in proposed
section 228.5. The Forest Service believes that the combination of
strong surface resource protection standards and financial assurance
requirements will work together to ensure impacts on surface resources
are minimized to the extent practicable. This new category is similar
to the BLM's ``notice-level operations'' classification.
Proposed section 228.4(d)(3) prohibits an operator from filing a
series of operating notices for related operations in a particular area
for the purpose of avoiding submitting a plan of operations. This is
consistent with BLM regulations, and also a common-sense approach to
ensure the intent of the criteria listed at 228.4(c) can function as
intended, which is to facilitate the orderly development of the
nation's minerals while minimizing impacts on surface resources.
[[Page 8322]]
Section 228.5 Operating Notices
The proposed regulation categorizes operations that are not limited
operations but do not meet the criteria for operations requiring a plan
of operations as ``operating notices.'' Similar to the current
regulations' direction related to the submittal of a notice of intent,
an operator must provide specific information to the Forest Service,
and the authorized officer must review the operating notice to ensure
it contains all required information and determine if a plan of
operations is required. No decision or approval by the authorized
officer is required for an operating notice. This section of the
proposed regulation details the information the operator must submit
prior to beginning operations under an operating notice, as well as the
process the operator and authorized officer will follow as the
authorized officer reviews a submitted operating notice.
Proposed section 228.5(a) lists the information to be included in
an operating notice so the authorized officer can review the notice to
determine whether it is complete. The proposed regulations require that
the information within the operating notice shall contain the
appropriate level of detail to clearly describe the intended
operations. The proposed regulations also require that the operator
must include a reclamation plan, a reclamation cost estimate, and the
date the operations will begin. To avoid confusion and ensure that
operators understand what information they are required to include in
their operating notice, the proposed regulations require the operator
to schedule a pre-submittal meeting (36 CFR 228.4(b)).
Current regulations require a notice of intent to contain
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. The proposed regulations require operators to
include similar information in their operating notice but provide more
detail as to what information is necessary. For example, the proposed
regulations require a list of the types and sizes of equipment the
operator plans to use, the planned access route or routes and the
methods of access, the types of facilities or improvements the operator
will use or construct, an explanation of why the operations are
reasonably incident to mining, and a schedule of activities.
The proposed regulations require the operator to: (1) describe
compliance with surface resource protection measures and operating
standards (see proposed section 228.10) and with Federal or State laws
related to protection of surface resources; (2) describe how operations
will minimize, to the fullest extent practicable, adverse impacts on
surface resources; and (3) develop a reclamation plan with a
reclamation cost estimate. This increased level of detail compared to
the current regulations will assist the authorized officer in reviewing
the submitted operating notice to determine whether the operating
notice is complete. The information regarding known land status or
conditions will assist the authorized officer in reviewing the
submitted operating notice to determine whether a plan of operations is
required. The proposed regulation includes a detailed description of
the required elements of an operating notice, which will assist the
operator in understanding the Agency's needs and will allow the
operator and authorized officer to work together to ensure compliance
with the regulations. The level of detail will also help the operator
develop a reclamation cost estimate and will allow the authorized
officer to determine whether the reclamation cost estimate is adequate.
The proposed regulations at section 228.5(b) provide a list of
specific responses an authorized officer may send to an operator who
submitted an operating notice. The listed responses recognize that the
authorized officer may need additional information or time to determine
whether an operating notice is complete. The authorized officer may
also find that a plan of operations is required, or that these
regulations do not apply. The authorized officer may inform the
operator that an operating notice cannot take effect because the
operator is under a suspension order. The Forest Service includes this
provision to prevent situations where an operator is in noncompliance
on one operation, suspended from operating, and elects to pursue a
different operation on a different site. This will help gain the
compliance of the operator and prevent potential noncompliance
elsewhere. If the authorized officer determines the operating notice
includes proposed uses not reasonably incident to mining, the
authorized officer can notify the operator that those activities may
not be authorized under the regulations at 36 CFR part 228, subpart A.
The proposed regulations at section 228.5(c)(1) describe how an
operating notice takes effect. An operating notice is in effect if the
authorized officer does not respond within 60 days, or when the
authorized officer confirms that the operations described in an
operating notice do not require a plan of operations. Under current
regulations, the authorized officer has 15 days to review a notice of
intent; in some instances, the Forest Service has had difficulty
completing a review within that timeframe. The proposed rule increases
the timeframe for the review of a proposed operating notice-level
operation to 60 days. The Forest Service believes this will still
encourage efficiency and timeliness but allow the authorized officer
sufficient opportunity to review the operating notice without undue
difficulty.
Under the proposed regulations, if the authorized officer completes
the review sooner than 60 days, the authorized officer has the
opportunity to provide written notification to the operator that the
operating notice is complete. In such cases, the operating notice is
effective on the date of the notification. When the operator receives
the written notification, the operator needs no further authorization
from the Forest Service and may begin operations as described in
section 228.5(d). Alternatively, if the authorized officer does not
respond, the operating notice will take effect 60 days after the Forest
Service receives the notification. If the authorized officer responds
that the operating notice is incomplete or otherwise does not include
adequate information as required in the proposed section 228.5(a), the
authorized officer must include a detailed description of the required
information. This process may repeat until the operating notice is
complete.
The Agency expects the combination of the authorized officer
working closely with the operator, including in the pre-submittal
meeting as described in section 228.4(b), and the detailed description
of the information required in an operating notice to result in the
submission of complete operating notices. A complete operating notice
will minimize the need for multiple iterations of information requests
before an operating notice is complete and therefore decrease the
amount of time it takes for operators to begin operations.
The proposed regulation at section 228.5(d) provides that
operations can begin after (1) the operating notice is in effect and
(2) any required financial assurance has been accepted by the
authorized officer, presuming the reclamation cost estimate as required
in 228.5(a)(8) results in estimated reclamation costs. The Agency
recognizes there may be narrow circumstances in which an operating
notice is required but reclamation will not be necessary, and therefore
the
[[Page 8323]]
reclamation cost estimate for those operations might be $0, resulting
in no financial assurance. A delay between when an operating notice
goes into effect and the date at which an operator provides financial
assurance or elects to begin operating, if required, does not change
the 2-year end date described in section 228.5(h). The proposed
regulation describes the provisions for modifications or extensions of
an operating notice in effect.
The proposed regulations at section 228.5(e) include a requirement
that the operator notify the authorized officer in writing when
operations begin. The term of the operating notice is calculated from
the date when the operating notice takes effect, not from the date that
operations begin.
The proposed regulations at section 228.5(g) describe the process
for modifying an operating notice, explaining that a modified operating
notice will be processed in the same way as a new operating notice,
including up to 60 days for line officer review unless any of the
conditions described in 228.5(b) or 228.4(c) apply. The operator must
submit a modified operating notice if a change in operations is
necessary to prevent any noncompliance or if the operator intends to
make material changes to operations described in the operating notice
in effect. Material changes include disturbance of new areas, changes
to the reclamation plan, a change in operator, or any changes that
would result in impacts of a different kind, degree, or extent than
those described in the operating notice in effect.
The proposed regulation at section 228.5(h) explains the expiration
and extension of a 2-year operating notice and notes that nothing shall
change the expiration date of an operating notice in effect except if
the operator submits a modified operating notice and the modified
operating notice takes effect. The operator can submit an extension of
an operating notice at any time between 6 months and 60 days before the
expiration date of the existing operating notice. The Agency feels that
6 months prior to expiration is reasonable timeframe for accepting
extensions so that operators have had enough time under their operating
notice already in effect to determine whether an extension is warranted
and if so, whether they also want to modify that operating notice or
simply extend it without modification. An extension, with or without
modification, will be processed in the same manner as a new operating
notice in section 228.5(b). If an extension is submitted fewer than 60
days prior to the expiration and the authorizing officer's review goes
beyond the expiration date, operations must cease until the review is
complete, consistent with the requirement in section 228.5(h)(1) that
operations must cease at the expiration of an operating notice. The
Forest Service recognizes that this could result in a gap between the
expiration date and the completion of the review, and when operations
may take place. Depending on the time period during which operations
cease and the Forest Service completes review of the proposed
extension, the operator could be found in noncompliance. If an operator
wishes to continue operating after extending an operating notice for
the second time, the operator must submit a plan of operations, even if
the operations would otherwise qualify as an operating notice under
228.4(d).
The Forest Service's proposed regulations specify an operator can
only receive up to two 2-year extensions of an operating notice,
providing a maximum time period of 6 years per operating notice before
operations must cease and reclamation must be completed, or the
operator submits a plan of operations. The extension provision
recognizes that multiple factors can delay the completion of an
exploration project and that the operator may require more time for
exploration to progress in a logical and sequential fashion. Based on
Agency experience, 6 years is an adequate time to complete a project
that is exploratory in nature, would disturb no more than 5 acres, and
would cumulatively disturb up to 1,000 tons of material. Because the
proposed regulations do not allow for a series of operating notices to
be ongoing over a long period of time, if the operator needs more time
to continue a similar level of operations, the operator can submit a
plan of operations. The proposed regulations in section 228.5(h)(4) put
a reasonable limitation on the extension of operating notices so that,
consistent with section 228.4(d)(3), an operator cannot rely on a
continuous series of operating notices to avoid filing a plan of
operations.
Section 228.6 Plans of Operations
The proposed regulations at section 228.6 clarify the content,
submittal, and processing of a plan of operations, so the public, the
operator, and the Forest Service have a clear understanding of the
process and the roles and responsibilities.
The proposed regulations at section 228.6(a) require an operator to
submit a proposed plan of operations in writing using optional form FS-
2800-5 or a format of the operator's choice. The details of what is
required in a proposed plan of operations are similar to section
228.4(c) of the current regulations. The plan of operations must
contain a full description of the proposed operation, such as maps, a
description of the project area, the types of structures or equipment
proposed to be constructed or utilized, access routes, and other
details of the proposed operations, as well as a projected schedule and
a reclamation plan and cost estimate. The plan of operations must also
include a description of how the proposed operations will comply with
applicable resource protection standards, laws, and regulations, as
well as how the proposed operations will minimize, to the fullest
extent practicable, adverse impacts on surface resources.
The proposed regulations at section 228.6(a)(11) add a provision
requiring a monitoring plan to demonstrate compliance with the approved
plan of operations or other requirements, to provide early detection of
potential problems, and to supply information that will assist in
directing corrective actions if necessary. The proposed regulations
also add a requirement at Sec. 228.6(a)(12) for the proposed plan of
operations to contain an interim management plan, detailing measures
the operator will take during periods of temporary cessation of
operations under proposed section 228.8(b), in order to protect NFS
lands. For example, a discussion of such measures, as appropriate, may
include whether equipment will be removed during seasonal cessations of
operations and whether water treatment plants will continue to operate
in the event of a temporary cessation of operations. The Forest Service
proposes this requirement, recognizing that because of seasonal
conditions, availability of equipment, changes in commodity prices, or
other factors, operators occasionally choose to pause operations
temporarily without ending operations and commencing final reclamation.
The discussion of section 228.8 describes how the Agency will work with
the operator to determine that cessation is no longer temporary and
reclamation should begin.
The proposed regulations describe the phased review by the
authorized officer. The initial review under section 228.6(b) will
determine whether the plan of operations contains all required elements
in 228.6(a) and is therefore complete. After a plan of operations has
been determined to be complete pursuant to section 228.6(b), the
authorized officer will initiate the appropriate level of environmental
[[Page 8324]]
review of the plan of operations as set forth in section 228.6(c).
Under the proposed regulations, the authorized officer will respond
to a plan of operations in a manner similar to the current regulations.
However, the Forest Service's experience since the current regulations
were promulgated in 1974 has shown that the current regulations do not
provide clear guidance for operators and the public about what actions
the authorized officer will take in response to a proposed plan. The
Forest Service's proposed regulations in section 228.6(b) revise the
ways an authorized officer may respond to a submitted plan of
operations in order to add clarity for both the operator and the
public.
The authorized officer has 60 days to conduct the initial
completeness review of a submitted plan of operations under 228.6(b).
Under the current regulations, the authorized officer can request
another 60 days to review the plan of operations (days the site is not
accessible do not count against the number of days); however, under the
proposed regulations, the authorized officer may respond that
additional time is needed but cannot exceed an additional 30 days to
complete the initial review. The current rule allows for 30 days to
review with an additional 60 days for review at the authorized
officer's discretion; the proposed rule allows for 60 days for
completeness review with an additional 30 days for completeness review
at the authorized officer's discretion, to be consistent with
timeframes for an operating notice. Under the proposed rule, if the
Forest Service needs to visit the site or discuss access routes, the
time for initial review will be suspended until the site visit or
discussion is complete. The authorized officer may also respond that
the submitted plan of operations is complete and contains sufficient
information to initiate further review and, as appropriate, Tribal
consultation.
After a plan of operations has been accepted as complete, the
environmental review under the National Environmental Policy Act (NEPA)
will begin. The proposed regulations at section 228.6(c) clarify that a
review of the proposed plan of operations under NEPA will ensure that
the implementation of the proposed plan will minimize, to the fullest
extent practicable, adverse impacts on surface resources. This section
clarifies the requirement that the operator incorporate into the plan
of operations any mitigations or terms and conditions required to
minimize adverse surface resource impacts that were identified during
the environmental review process. Under proposed section 228.6(c)(4),
the authorized officer will communicate to the operator the Forest
Service's progress on a regular basis, but no less than once every
month, in order to ensure clear and regular communication on the
progress of the environmental review.
The proposed regulation at section 228.6(d) states that the
authorized officer shall notify the operator in writing that the plan
of operations is approved. If there is an outstanding suspension order
under section 228.7(c)(3), the Forest Service will notify the operator
that the authorized officer cannot approve a plan of operations until
the operator has addressed the issues identified in the suspension
order and the authorized officer has canceled the suspension order.
Consistent with current practice, under proposed 228.6(d)(3), the
authorized officer cannot approve the plan of operations until the
operator has obtained the proper Clean Water Act section 401
certification or waiver of certification.
The proposed regulations at section 228.6(e) state that the
operator shall not conduct operations until the authorized officer has
accepted the financial assurance, including ratifying all instruments
required to establish a trust fund under Sec. 228.13, if any, and the
operator has obtained all required Federal or State permits and
approvals.
The current regulations do not describe when and how an operator
may propose a modification to an approved plan of operations. The
current regulations at section 228.4(e) do allow the authorized officer
to require an operator to modify an approved plan of operations in one
instance: when an unforeseen significant disturbance of surface
resources occurs. This limits the Agency's ability to address new
issues of significant disturbance of surface resources, such as
unexpected acid drainage, problems with water balance, the adequacy of
approved containment structures, or the discovery of impacts on wells
and springs.
Under the proposed regulations as set forth in section 228.6(f),
the Forest Service would review modifications using the same process
described for the review of new plans of operations. The proposed
regulations allow an operator to submit proposed modifications to an
approved plan of operations at any time. For example, an operator may
want to expand operations, resulting in a larger area of disturbance.
An operator may want to add exploration operations within or adjacent
to the existing operating area. In both examples, the operator may need
to propose a modification to the approved plan of operations to
accomplish additional activities or to encompass new areas or
operations within the existing operations.
The proposed regulations also provide for situations when
modification to an approved plan of operations could be initiated by
the Forest Service to prevent ongoing or reasonably foreseeable
violations of 36 CFR part 261, the surface resource protection
requirements and operating standards in the proposed regulations at
section 228.10, or other State or Federal laws relating to the
protection of surface resources.
When the authorized officer requires a modification to an approved
plan of operations, the authorized officer will first provide written
notice to the operator. This notice must explain why the plan of
operations needs modification, and give the operator 30 days to
respond. The authorized officer will consider the operator's responses
and review the project file for the operations. If the authorized
officer decides a modification is still required after receiving the
operator's response, the authorized officer will specify the changes
required, including a date when the operator shall submit the
modification. If the operator does not submit a modified plan of
operations, the authorized officer may take action pursuant to proposed
section 228.7.
Under the proposed rule, the operator may continue to operate under
the existing approved plan of operations unless the authorized officer
issues a suspension order or takes emergency actions to prevent harm,
that is occurring or imminent, to public health or safety, the
environment, or surface resources, pursuant to proposed section 228.7.
The proposed regulation provides for the transfer of a plan of
operations from one operator to another. In the past, the transfer
process has caused confusion, particularly with small-scale operators.
The proposed regulations clarify that the current operator must notify
the authorized officer in writing 30 days in advance of the transfer,
and both operators must follow the provisions of section 228.11(i).
Consistent with the intent of the pre-submittal meeting, to provide the
opportunity for a new operator to discuss the regulations and the
conditions of the approved plan of operations, the proposed regulations
require a new operator to meet with the authorized officer or their
designee before the Forest Service will recognize the transfer.
Consistent with the intent of 228.6(h)(5), a transfer shall not be made
to a new operator who is subject
[[Page 8325]]
to an ongoing suspension order pursuant to section 228.7(c)(3).
The proposed regulations at section 228.6(i) contain clear and
transparent directions to operators, Agency employees, and the public
regarding how a plan of operations is closed after completion of
operations. The proposed section 228.6(i) also requires a plan
modification when transitioning to a long-term post-closure plan if
such operations are necessary.
Section 228.7 Noncompliance
The current regulations at section 228.7 contain limited
administrative tools and directions for identifying and addressing
noncompliance issues. The process to address issues of noncompliance is
difficult to enforce and not well understood by operators or the
public. The lack of consequences to operators for not coming into
compliance and the burden of proof on the Forest Service to demonstrate
that an issue of noncompliance is ``unnecessarily or unreasonably
causing injury, loss, or damage to surface resources'' have created
additional challenges for the Agency to enforce compliance and minimize
impacts on surface resources, leading to concern about the efficacy of
the notice of noncompliance in preventing harm to those resources. The
Forest Service believes that consistent and accessible procedures to
address issues of noncompliance would increase the efficiency of
administering operations under these regulations and enhance the
Agency's ability to protect surface resources.
The proposed regulation seeks to address these challenges by
explicitly stating operations and operators must continuously maintain
compliance with the following: 36 CFR part 228, subpart A; 36 CFR part
261; applicable Federal or State laws related to the protection of
surface resources; and the operating notice in effect or approved plan
of operations. By stating an operation and operators must always comply
with applicable laws, regulations, and the operating notice or an
approved plan of operations, the need to prove ``unnecessarily or
unreasonably causing injury, loss, or damage to surface resources'' is
eliminated, and the Forest Service can address issues of noncompliance
before those issues cause damage to or loss of surface resources.
The proposed regulations include a description of additional
enforcement tools, including the initiation of a civil action, the
issuance of a violation notice under 36 CFR part 261, or the use of the
reclamation financial assurance to take all necessary measures to
protect the environment specified by the notice of noncompliance.
The proposed regulations provide for escalating levels of
enforcement, whereby the authorized officer can issue a suspension
order to an operator who has not met the required terms in a notice of
noncompliance by the date specified or has conducted operations or
activities that are a substantial deviation from an operating notice in
effect or an approved plan of operations. The threshold of
``substantial deviation'' is an action or result not analyzed when a
plan of operations was processed, or not included in an operating
notice. The proposed regulations also allow an authorized officer to
issue a suspension order that goes into effect immediately to an
operator who has conducted operations that may result in harm to public
health or safety, to the environment, or to surface resources without
first issuing a notice of noncompliance. The ability to immediately
suspend an operation that may cause harm allows the Agency to respond
in a proactive manner to avoid imminent or prevent further harm.
Additionally, the proposed regulations allow the authorized officer to
take action necessary to abate the harm, and bill the costs to the
operator pursuant to Sec. 228.7(d)(5).
The final subsection in the proposed noncompliance regulation
codifies the relationship between the enforcement provisions of Part
228, Subpart A, and the procedures under Part 261. On November 6, 2008,
the Forest Service published a final rule amending 36 CFR part 261,
``Clarification for the Appropriate Use of a Criminal or a Civil
Citation to Enforce Mineral Regulations'' (73 FR 65984). In the
preamble to the final rule, the Forest Service responded to concerns
that the amendment would allow abuses of the notice of violation under
Part 261, in conflict with the right to access and develop minerals
under the mining laws. The preamble stated that, except in emergencies,
the Forest Service would only issue citations under Part 261 after
making every attempt to work with an operator to achieve compliance.
Proposed section 228.7 reflects this interplay between Part 261 and
Part 228, Subpart A by providing that one reason for issuing a
suspension order might be that an operator has failed to perform
actions needed to address issues identified in a notice of
noncompliance. The procedures proposed in section 228.7 still require
the authorized officer to attempt to resolve the issues with the
operator prior to taking the official actions spelled out in the
section. The procedures also respond to a need for the Forest Service
to be able to act immediately on noncompliance issues in cases of
imminent or current harm to public health or safety, to the
environment, or to surface resources.
Notwithstanding any other provision in these regulations, operators
are subject to Federal laws and regulations governing activities on NFS
lands, including Part 261. Thus, proposed section 228.7(i) puts
operators on notice that the Forest Service may pursue any legal
remedies available under the statutes and regulations governing conduct
on NFS lands. The Forest Service may pursue those legal remedies
irrespective of whether the Forest Service has provided a prior notice
of noncompliance under section 228.7, including: (1) informal
resolution under 228.7(c)(1); a notice of noncompliance under
228.7(c)(2); a suspension order under 228.7(c)(3) or take emergency
action, including issuing an immediate suspension order, under
228.7(c)(4). Nothing in this part limits or conditions the Forest
Service's authority to monitor, investigate, and enforce compliance
with Federal laws and applicable regulations, including those under 36
CFR part 261 or any other provision of statute or applicable
regulation.
Section 228.8 Temporary Cessation or Abandonment of Operations
The current regulations at section 228.10 provide notification
requirements but do not contain detail concerning any procedure the
operator or authorized officer shall follow to determine when a
cessation has transitioned from temporary to permanent. The current
regulation also lacks information pertaining to the steps to follow if
the operator does not notify the Forest Service of any cessation of
operations, whether the cessation is temporary or permanent, or whether
cessation of operations might amount to abandonment of operations by
the operator. Without clear enforcement provisions differentiating
between cessation and abandonment of operations, some operators have
been able to delay or avoid taking appropriate interim or final closure
or reclamation actions by continually claiming their operations are in
temporary cessation, which can lead to ongoing and worsening
environmental and safety conditions at sites where operators do not
intend to resume operations or have abandoned operations entirely.
One way the proposed regulations address the challenges described
above is through the requirement proposed in section 228.6(a)(12) for
an operator to
[[Page 8326]]
include an interim management plan as part of a plan of operations. The
required components of an interim management plan will help an operator
think through and identify all the tasks required during a temporary
cessation of operations and help the authorized officer understand what
to expect if an operation temporarily ceases, whether for seasonal or
other less predictable reasons.
These provisions and procedures will allow the operator and the
authorized officer to know what to expect, how to react, and actions to
take in the event of cessations that are planned, unplanned, or longer
than originally planned. These procedures will help the Forest Service
achieve consistency across the Agency in how cessations of operations
are addressed and will also help the Forest Service be more proactive
in working with operators to manage sites to quickly address ongoing or
potential harm to surface resources and human health and safety
concerns.
The Forest Service proposed regulations describe the process for
reviewing and determining whether an operation has become abandoned,
including specific criteria for when an authorized officer may consider
operations abandoned. These criteria require the operator to engage
with the authorized officer in periods of temporary cessation of
operations and allow the authorized officer to take action when an
operator has not followed the process. If an authorized officer is
uncertain whether an operation is abandoned, they may request a surface
use determination (section 228.8(g)). These provisions collectively
provide greater clarity regarding the process of considering an
operation abandoned while also increasing the transparency of the
Agency requirements and consequences.
The proposed changes to the regulations are not expected to impede
development of mineral resources. Proposed section 228.8 increases
operators' accountability for their operations conducted on NFS lands,
including the financial responsibilities associated with site
reclamation.
Section 228.9 Reasonably Incident Uses
The proposed regulations add a section that describes the scope of
reasonably incident uses of the surface of NFS lands as provided in the
Surface Resources Act when conducting operations under the mining laws.
The Surface Resources Act, which applies to NFS lands, authorizes the
use of surface and vegetative resources on Federal lands under the
mining laws for ``prospecting, mining, or processing operations and
uses reasonably incident thereto.'' Current regulations at 36 CFR part
228, subpart A acknowledge these provisions but do not explain what
does or does not constitute a reasonably incident use.
Forest Service Manual Chapter 2810--Mining Claims details the
existing Agency policy for resolving questions about whether operations
are logically sequenced and whether an activity or proposed use,
including the need for structures and residential occupancy, is
reasonably incident to the stage of mining operations and extent of
available information on the mineral resource. Forest Service Manual
2810 encourages the authorized officer to seek the input of a certified
mineral administrator, mineral specialist, and/or certified mineral
examiner, as appropriate, based on case- or project-specific
circumstances to make an informed decision. Reasonable and necessary
uses of NFS lands must employ sound and accepted practices to avoid or
minimize adverse environmental impacts. These uses also must practice
sound, accepted operational methods appropriate for the applicable
stage of mining operations, including prospecting, exploration,
production (mining and processing), or reclamation. The Forest Service
publication titled Anatomy of a Mine from Prospect to Production (INT-
GTR-35), as well as Forest Service Handbook 2809.15, chapter 10, each
describe and give examples of the reasonable stages of a mining
operation to guide the authorized officer's determination.
Despite this guidance, the Agency has experienced numerous
challenges, both administrative and judicial, resulting from operators
conducting activities that are not reasonably incident to mining.
Forest Service personnel have a difficult time resolving these types of
cases, and the public, including operators, is generally unaware of
such guidance and do not know what to expect. An explicit regulation
that identifies the scope of permissible reasonably incident uses will
provide the public, including operators, with additional clarity on
appropriate uses of NFS lands in connection with operations. The Forest
Service seeks to improve the management of surface resources by
explicitly describing in the proposed regulation the types of
activities that are not generally considered ``reasonably incident'' to
mining operations. The Forest Service also seeks to establish a process
for evaluating the reasonableness of operations or incident uses when
the authorized officer is uncertain whether an ongoing, completed, or
proposed use is reasonably incident. The authorized officer can
evaluate uses such as occupancy and, in particular, residence under
this section to determine whether those uses are necessary based on the
nature or stage of ongoing or proposed operations.
The proposed regulations include examples of activities that are
not reasonably incident to mining operations, reflecting new statutes,
case law, and current Agency policy. Examples of activities that are
not considered reasonably incident to mining include the search for
paleontological specimens and activities that are providing educational
or recreational services or activities for hire. The latter addresses
activities in which the organizer hosts a group of paying or non-paying
individuals for large gatherings to participate in or learn how to gold
pan, suction dredge, or other sampling, exploration, or mining methods.
Though the activities might be similar to those activities a prospector
or operator might use to ``access and develop'' minerals, the organizer
is actually using NFS lands to facilitate hosting and guiding groups
for educational or recreational purposes. If the operator is charging
individuals for such recreational or educational activities on NFS
lands, including membership fees and donations, that will be considered
support for the authorized officer to find that the activities are not
reasonably incident to mining. In addition, even if the operator is not
receiving money or things of value in exchange for hosting or guiding
other individuals, if the focus of the activity is on providing
educational or recreational opportunities to others as opposed to bona
fide prospecting, exploration, development, mining, and processing of
locatable minerals, then the activities will not likely qualify as
reasonably incident to mining.
The proposed regulation includes a description of the process for
the operator and authorized officer to follow if the authorized officer
questions whether one or more proposed or current uses would be or are
reasonably incident to mining.
Section 228.10 Surface Resource Protection Requirements and Operating
Standards
The current regulation at section 228.8 discusses the requirements
for environmental protection. The requirements listed for the various
resources consist of qualitative standards rather than quantitative
ones. This allows the Forest Service and operators to develop a plan of
[[Page 8327]]
operations for the specific conditions at each unique site on NFS
lands. However, the current regulations contain much less detail for
surface resources on NFS lands and do not detail operating standards.
The proposed regulations add clarity for both the Forest Service and
operator as to what is expected in an operating notice or plan of
operations.
The proposed regulation at section 228.10 expands upon the current
requirements for environmental protection and continues to be
qualitative in nature to maintain flexibility to react to site-specific
conditions of each operation. The proposed changes respond to changes
in mining technology, best practices, and scientific understanding
since the original 228.8 regulation was promulgated in 1974. Proposed
section 228.10 provides a more detailed description of the required
resource protection measures and operating standards so operators can
more easily fulfill the requirement under proposed sections 228.5
(a)(7)(i) and 228.6 (a)(8)(i) to describe how they will comply with
228.10. The proposed section 228.10 is organized with clarity in mind,
so that 228.10(a) describes the generally applicable requirements that
are not specific to any one resource or subset of an operation. For
example, section 228.10(a)(4) makes clear that it is the operator's
responsibility to conduct operations in a manner that is consistent
with the applicable Forest Service land management plans.
Second, section 228.10(b) is focused on considerations and
requirements that are specific to surface resources, such as cultural
or paleontological resources. For example, operators are prohibited
from knowingly disturbing, altering, injuring, or destroying any
paleontological remains or any historic or archaeological sites,
structures, buildings, or objects on Federal lands. Operators are
required to immediately notify the authorized officer regarding any
cultural, historic, archaeological, or paleontological resources that
might be altered, injured, or destroyed by proposed operations.
Operators shall leave any such discoveries intact, until permitted to
proceed by the authorized officer.
Finally, section 228.10(c) contains operating standards that are
not resource-specific but instead focus on the various components of an
operation. For example, such standards include those regarding the
construction and maintenance of impoundment facilities, roads and
access routes, or water management operations.
The proposed regulations continue to require the operator to
conduct operations to minimize, to the fullest extent practicable,
adverse impacts on surface resources (proposed section 228.10(a)(2)).
The proposed regulations also continue to require the authorized
officer to consider the economics of the operations when determining
the reasonableness of requirements for surface resource protection
(proposed section 228.10(a)(2)), as is currently required under
228.5(a). The Forest Service may not unduly burden an operation with
environmental protective measures that amount to a prohibition of
mining. This does not imply, however, that regulatory standards can be
relaxed or removed in order to ensure that an operation is economically
feasible. Measures should be reasonable and in keeping with the
measures the Forest Service uses for other similar activities.
The proposed regulation at section 228.10(a)(3) would clarify that
the operator is responsible for ensuring everyone involved in the
operations, including employees, contractors, subcontractors, and
others who may be present at the site of operations, are aware of the
Federal and State laws applicable to the operations. The proposed
regulations also state that this awareness extends to possible
consequences, including civil or criminal penalties, for not complying
with laws and regulations. Additionally, the proposed 228.10(a)(4)
requires operations to be consistent with applicable Forest Service
land management plans. If such consistency cannot be reached, the
Forest Service may consider a site-specific amendment to the land
management plan to allow the mining operation. This procedure exists
under the National Forest Management Act and 36 CFR part 219, and will
be discussed during the pre-submittal meeting to clarify the Agency's
responsibilities and the potential processes that result from a
proposal that is not consistent with land management plans.
The proposed regulations in section 228.10(b)(7) address the
removal or use of vegetation, including timber. The proposed
regulations would clarify when the operator may use or dispose of
surface resources in connection with mining operations.
The proposed regulations rearrange certain sections of the current
regulations and incorporate them into the proposed section 228.10. The
Agency partially incorporates the current section 228.12 regarding
access into the proposed section 228.10(c)(6), Roads and Access Routes,
with respect to the aspects of access related to prevention of resource
damage, such as protection against erosion and reclamation of access
routes once operations have ended. Additionally, the proposed sections
228.10(c)(7-8) incorporate the language addressing maintenance during
operations and public safety in the current regulation at 228.9, and
prevention and control of fire at 228.11, respectively. Pulling these
pieces of the current regulation into one section having to do with
resource protection will simplify the implementation of the regulation
as well as clarify the intent of the regulation.
The proposed language at section 228.10(c)(9) adds more detail
concerning reclamation and reclamation plans. The proposed regulation
also states that any operator other than those engaged in the proposed
category of ``limited operations,'' which do not require notice to the
Forest Service, shall provide a reclamation plan as part of an
operating notice or a proposed plan of operations. The Agency
recognizes that in some cases, especially under an operating notice, a
reclamation plan may be very simple and short, but in most cases, it
will need to address control of surface runoff. The reclamation plan
should be appropriate to the nature of the operations. The collective
paragraphs in proposed section 228.10 provide a much greater level of
detail and clarity than the current regulation at section 228.8. The
Forest Service believes that this increased detail and clarity will
assist the authorized officer, operator, and the public in
understanding the Agency and operator roles and responsibilities, as
well as expectations, and thus will increase consistency in the
implementation of the regulation across the national forests and
grasslands.
Section 228.11 Establishing, Maintaining, and Releasing Financial
Assurances
In proposed section 228.11, the Forest Service seeks to clarify the
roles and responsibilities of the operator and the Agency, as well as
increase consistency in the implementation of the processes for
collection, administration, and release of financial assurances. In the
Forest Service's experience, the current regulation, section 228.13,
could be improved with clearer direction and expectations about the
Agency's processes for the collection, return, or forfeiture of a
financial assurance. As a result, under the current regulation,
operators have experienced a lack of consistency in interpreting and
implementing this section.
[[Page 8328]]
The proposed language in section 228.11 reflects current Agency
practice, developed from lessons learned over time, and is described in
part in the Forest Service Manual chapter 2840 (1994) and the Agency's
2004 Training Guide for Reclamation, Bond Estimation, and
Administration. Therefore, while appearing different from current
regulation, the proposed language represents only a few changes from
Agency policy and current Agency practices.
Proposed section 228.11 describes the process of estimating the
costs of reclamation and determining and accepting a financial
assurance, as well as defines the Agency and operator roles and
responsibilities in this process. Proposed section 228.11 also
reiterates that, presuming the reclamation cost estimate results in
estimated reclamation costs greater than $0, an operator must provide
financial assurance prior to commencing operations. The Agency
recognizes there may be narrow circumstances in which an operating
notice or a plan of operations is required, but reclamation will not be
necessary, and therefore the reclamation cost estimate for those
operations might be $0, resulting in no financial assurance. Proposed
sections 228.11(a) and (b) describe the roles and responsibilities of
the operator and the authorized officer when proposing and reviewing a
reclamation cost estimate. Section 228.11(b) describes that an operator
must calculate a cost estimate as if the Forest Service were hiring a
third-party contractor to complete the reclamation work, including any
long-term post-closure operations.
If an operator is unwilling or unable to perform the reclamation
obligations that it has committed to as part of the operating notice in
effect or approved plan of operations, the Agency would hire a
contractor to complete that work, and the financial assurance provided
by the operator would cover the entire cost to the Federal government.
Proposed section 228.11(c) describes the process the authorized
officer will use to determine the financial assurance amount. Proposed
section 228.11(d) lists the types of instruments that are acceptable to
the Forest Service as forms of financial assurance. The instruments are
consistent with currently accepted instruments, which are: cash; a
surety bond meeting certain standards; an irrevocable letter of credit;
an assignment of certificates of deposit or savings accounts meeting
certain standards; and negotiable securities of the United States
having a market value at the time of deposit of not less than the
required dollar amount of the reclamation cost estimate. Trust funds
are intended only for long-term post-closure obligations as described
in 228.13. Trust funds are not intended to provide financial assurance
for shorter-term, traditional reclamation tasks such as earthwork and
demolition. General changes from prior language of ``bond'' to
``financial assurance'' helps clarify that any of the listed
instruments are acceptable forms of financial assurance, and that the
Agency has no preferred instrument.
Proposed section 228.11(f) provides for, and describes the process
of, phased financial assurances. This allows operators to account for
discrete phases of larger projects while preventing a financial
liability on the public, because an operator cannot proceed to
construct or operate the subsequent phase until it has provided the
financial assurance for that phase to the Agency. If an operator wishes
to employ phased financial assurance, the operator must clearly
identify the point in time during each phase at which the costs to
reclaim all unreclaimed disturbances during that phase are at a
maximum. In this way, the Agency can ensure that the financial
assurance for each phase is adequate to provide for the reclamation of
all operations that are part of that phase. That maximum estimate for
each phase will be the basis for the calculation of the cost estimate
of the total reclamation costs of the operation; the total cost
estimate is the sum of the reclamation costs that will arise throughout
the project based on the maximum level of approved disturbance of
unreclaimed land.
Proposed section 228.11(g) provides explicit language regarding the
necessary periodic review of financial assurances and the associated
reclamation cost estimates. This is important because, as circumstances
change, the Forest Service must be able to ensure that the financial
assurance changes accordingly. Changes in circumstances that can affect
the reclamation cost estimate or financial assurance include changes to
rental rates, fuel costs, expected contractor profits and overheads, or
inflation rates. Changes might also include the viability of the
financial assurance instrument, or changes in the operations or site
conditions. The Forest Service needs to ensure that the financial
assurance in place is a viable instrument that will cover the full
reclamation costs. Section 228.11(g) also describes the processes the
authorized officer and the operator shall follow to adjust the
financial assurance if the authorized officer finds it to be either
inadequate or in excess of the required amount, including requiring
that the authorized officer notify the operator of the finding and
consider the operator's response.
Proposed sections 228.11(h) and (i) refer to the process of
replacing a financial assurance instrument, whether due to an operator-
initiated change in the preferred instrument or the transfer of an
operation from one operator to another. These changes will ensure that
the Agency is never without financial assurance for a specific
operation. Proposed section 228.11(j) discusses the circumstances under
which an authorized officer may authorize a partial or full release of
a financial assurance, as well as the processes the authorized officer
and operator shall follow to coordinate such a release. This section
makes clear that no part of a financial assurance will be returned to
an operator unless the authorized officer determines, based upon
verification after inspections, that the operator has met the
reclamation obligations identified in the operating notice or plan of
operations. This section clarifies that release of a financial
assurance in part or in full does not release or waive any claim the
Forest Service or other persons may have against any person or entity
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9601, et seq.), or under
any other applicable statutes or regulations. The Forest Service
proposes these changes as enhancements to clarify the processes of
financial assurance review, administration, and release. These proposed
changes will also allow the operator, the authorized officer, and the
public to understand the various roles and responsibilities associated
with ensuring that the Agency and the public do not bear the costs to
complete reclamation of an operation if the operator cannot or will not
perform that duty.
Section 228.12 Forfeiture of Financial Assurances
The current regulation at section 228.13 is silent on the
circumstances and process under which the Forest Service might initiate
forfeiture of the financial assurance supplied by the operator. The new
language in the proposed section 228.12 clarifies the circumstances
under which the authorized officer may initiate forfeiture of the
financial assurance, in part or in whole, to complete reclamation work.
Proposed section 228.12 also describes the process the authorized
officer will follow to initiate forfeiture of the financial assurance,
including consideration of the operator's response
[[Page 8329]]
to initial notification that such a determination has been made. This
proposed new section will facilitate a consistent interpretation of
when to initiate forfeiture of an operator's financial assurance and
clarify for operators, sureties, and the public the specific processes
that the Agency and authorized officer shall follow to do so.
The proposed language still requires the authorized officer to
notify the operator prior to initiating forfeiture of the financial
assurance and consider the operator's response before taking any
action. This proposal also provides for the Forest Service to be able
to send an operator a bill for collection for the balance of
reclamation costs if the financial assurance is insufficient to
complete the reclamation tasks necessary, thus protecting the Agency
and taxpayers from being responsible for impacts caused by operators
who are unwilling or unable to perform their reclamation obligations.
Section 228.13 Trust Funds
The current regulation at section 228.13(e) describes trust funds
as a way to ensure that funds are available to complete post-closure
operational tasks such as water treatment or ongoing necessary
infrastructure maintenance once operations have ceased, but it does not
describe the process. Proposed section 228.13 describes the processes
and sideboards that will be in place regarding the collection,
administration, review, and closure of such an instrument.
The proposed regulation includes the requirement that the financial
assurance provides adequate annual earnings without depleting the
principal to complete all required tasks once an operation has ceased
production and requires annual reviews to ensure the performance of the
trust. Proposed section 228.13 also lays out the process to collect
additional funds for investment into the trust if it is not meeting
performance measures, as well as the process to offer the operator a
release of that part of the fund, if applicable, that exceeds
performance goals by a given percent. The Forest Service believes these
reviews and processes are crucial to the success of a trust fund
mechanism as a financial assurance.
As a whole, these three proposed sections regarding financial
assurances will provide clear roles and responsibilities, defined
processes, and consistent implementation to strengthen the Agency's
ability to implement and enforce a robust financial assurance program.
The public, operators, and Forest Service staff will have the ability
to clearly understand the Agency's expectations and processes by
referencing the proposed regulation, which will ultimately lead to
higher-quality proposed cost estimates, thus saving review time and
therefore Agency funds.
Section 228.14 Operations on National Forest System Lands, Including
National Forest Wilderness Areas, That Have Been Segregated or
Withdrawn From the Operation of the Mining Laws Subject to Valid
Existing Rights
Federal lands can be segregated or withdrawn from entry and
appropriation under the mining laws by Congressional, Presidential, or
certain executive branch administrative authorities. Where the
segregation or withdrawal is made subject to valid existing rights,
proposed section 228.14 describes the steps operators must take to
conduct operations. Proposed section 228.14 grew out of the current
regulation at section 228.15, covering operations within national
forest wilderness, which recognizes that these lands are withdrawn and
operations are subject to valid existing rights. Furthermore, the
Forest Service has historically limited the preparation of mineral
examination reports to situations where valid existing rights must be
verified because the lands in question have been segregated or
withdrawn from mineral entry, as described in existing Forest Service
Manual policy at FSM 2803(5) which states, ``ensure valid existing
rights have been established before allowing mineral or energy
activities in a congressionally designated or other withdrawn area.''
Hence, long-standing Forest Service regulation and policy have been to
confirm the existence of valid existing rights prior to approving a
plan of operations on withdrawn lands. Proposed section 228.14 provides
greater clarity for operators by expressly addressing requirements or
procedures for approval of a plan of operations on segregated lands,
which neither existing Forest Service regulation nor existing Forest
Service policy addresses. The proposed rule's provisions regarding
segregated lands would create greater certainty among operators and
consistency in Agency evaluations of proposed operations on segregated
lands.
This proposed regulation at section 228.14 would establish
additional requirements for operators who wish to, or who are,
conducting locatable minerals operations on NFS lands that have been
segregated or withdrawn from the operation of the U.S. mining laws,
subject to valid existing rights. Under proposed section 228.14(a)(2),
a plan of operations is required for almost all operations on
segregated or withdrawn lands, even for operations that might otherwise
be conducted under an operating notice. Requiring a plan of operations
is consistent with proposed section 228.4(c)(8), which requires a plan
of operations on lands that have specific designations and management
plans or legal requirements.
In the case of operations on lands that were segregated or
withdrawn lands, subject to valid existing rights, the proposed
regulation allows new operations only on lands subject to mining claims
with verified valid existing rights. As a result, when the Forest
Service receives a proposed plan of operations on lands that are
segregated or withdrawn, subject to valid existing rights, the Agency
will notify the operator that it is suspending its completeness review
until the Forest Service completes a mineral examination report to
verify valid existing rights for the mining claims before a plan of
operations can be approved. The authority under proposed section 228.14
is in addition to the government's authority, so long as the lands
remain in Federal ownership, to assess the validity of any mining claim
at any time, regardless of whether the subject lands are segregated or
withdrawn from mineral entry.
Proposed section 228.14(b) would require a mineral examination
report prior to approval of a plan of operations on segregated lands.
The Forest Service believes that having mandatory mineral examination
requirements for both segregated and withdrawn NFS lands is appropriate
for several reasons. First, the proposed regulation would clarify the
scope of the policy and provide additional consistency and certainty to
operators about what is required before conducting operations on
segregated NFS lands. Second, the Forest Service recognizes the
importance and significance of proposing or planning for various
proposed actions whereby lands are segregated from entry and
appropriation under the mining laws pending a formal decision. For
example, Federal lands may be segregated, subject to valid existing
rights, pending the execution of a land exchange or disposal of Federal
land. As another example, publication of a notice of proposed
withdrawal by the Secretary of the Interior under section 204 of the
Federal Land Policy and Management Act in the Federal Register
segregates the subject lands from entry and appropriation under the
public land laws, including the mining laws, to the extent specified in
the notice, for up to 2 years, subject
[[Page 8330]]
to valid existing rights. In both examples, the period of segregation
serves to maintain the status quo while the required analysis and
documentation are completed to support a formal decision on the
proposed action.
The proposed regulation allows the Forest Service to suspend the
Agency's time limits in proposed section 228.6(b) for the initial
completeness review of a proposed plan of operations until the
existence of valid existing rights is determined, including any
subsequent administrative contest action or Federal court proceedings.
Under 228.6(a)(6)(xiii), operators are expected to provide any and all
available and relevant information and data to the Forest Service to
support their assertion that they have a valid existing right that
allows them to operate on the segregated or withdrawn lands. This
information may include a compilation of available geologic or mineral
resource information, data, and reports pertinent to the deposit. This
information also includes the results of all allowable work conducted
under the limited operations provisions of section 228.4(a), such as
geologic mapping, sampling and analysis of existing exposures with hand
tools, and similar activities, prior to the segregation or withdrawal.
Because operators must be able to provide such information, the
proposed regulation also specifies that the Forest Service may approve
an interim plan of operations to allow certain limited activities
before the final determination of valid existing rights. Specifically,
the Forest Service may approve an interim plan of operations that is
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, usually whichever is earlier. The
Forest Service may also approve an interim plan of operations to
perform any minimum necessary annual assessment work, if required under
applicable law and regulations, prior to completion of a mineral
examination report.
The proposed regulation sets forth the processes to follow when a
mineral examination report recommends contesting the mining claim for
lack of validity. In such cases, the operator can alter the proposed
operations to avoid any segregated or withdrawn NFS lands or the lands
covered by mining claims recommended for contest. If the operator
declines to alter its proposed plan of operations, the Forest Service
may request that the BLM initiate contest proceedings to determine the
validity of all such mining claims.
Additionally, proposed section 228.14(g) states that an operator is
required to cease all operations on segregated or withdrawn lands,
except required reclamation, on any mining claims determined to be
void, whether as a result of an administrative contest proceeding
following a mineral examination as described in paragraph (h),
automatic forfeiture for failure to make the required payments and
filings with BLM, or otherwise.
The Forest Service has been involved in recent litigation regarding
approved plans of operations on lands that were segregated and
withdrawn after the Forest Service's approval. Proposed section
228.14(c) makes clear that a plan of operations approved before a
segregation or withdrawal will remain in effect during the period of
segregation or withdrawal, provided the operator has commenced
operations before the date of segregation or withdrawal. Additionally,
proposed section 228.14(c) makes clear that, absent statutory language
requiring a mineral examination in order for operations to continue
after the segregation or withdrawal takes effect, no mineral
examination is required in order for operations to continue under the
approved plan, or for modified operations that remain within the
footprint of the plan approved before the segregation or withdrawal.
Similarly, an operating notice in effect as of the date of segregation
or withdrawal of the subject lands would generally remain in effect for
the remainder of its term but would not be subject to the operating
notice extension provisions under proposed section 228.5(h). This
provision follows from the proposed regulation's general requirement of
a plan of operations for operations on segregated or withdrawn lands.
As part of developing this proposed regulation, the Agency reviewed
the Wilderness Act of 1964 (16 U.S.C. 1131-1136) and associated
wilderness-area-specific regulations in the current 36 CFR part 228,
subpart A regulations. Any wilderness-area-specific provisions in the
current regulations that are clearly stated in and redundant with the
Wilderness Act were removed from the proposed regulation. Similarly,
any other wilderness-area-specific provisions in the current
regulations that were determined to be adequately addressed by the
general provisions of other sections of this proposed regulation were
also removed. The proposed regulation recognizes the provisions of both
the Wilderness Act as well as any subsequent legislation establishing a
wilderness area on NFS lands, the latter of which often contains
requirements and provisions specific to a particular wilderness area.
The Forest Service made several clarifications in the proposed
regulation concerning information gathering about any type of mineral
as authorized by the Wilderness Act (16 U.S.C. 1133(d)(2)) on lands the
Act has withdrawn from appropriation under the mining laws. The mining
laws do not govern such information gathering, and therefore the
proposed regulation does not repeat the language in the current
regulations at 36 CFR 228.15(f).
Section 228.15 Procedures for Operations Involving Possible Mineral
Materials
The Materials Act of 1947, as amended (61 Stat. 681; 30 U.S.C. 601,
et seq.) provides the Secretary the authority to dispose of mineral
materials (including but not limited to common varieties of the
following: sand, stone, gravel, pumice, pumicite, cinders, and clay),
under such rules and regulations as they prescribe. The Forest Service
implemented its mineral material disposal regulations at 36 CFR part
228, subpart C in 1984 and revised them in 1990. The 1990 revision
provided additional criteria on the classification and sale of mineral
materials in view of the Surface Resources Act in an attempt to
concisely distinguish between common varieties of sand, stone, gravel,
pumice, pumicite, cinders, and petrified wood, which are not locatable,
and the uncommon varieties of these materials which are locatable (the
term uncommon varieties of minerals is used consistent with its use in
other regulatory provisions (see, for example, 36 CFR part 228, subpart
C) to refer to those minerals that are subject to disposition under the
mining laws and these regulations) . The 1990 revision at 36 CFR
228.41(c) created five categories of mineral materials based on
characteristics and uses of the materials: (1) agricultural supply and
animal husbandry materials; (2) building materials; (3) abrasive
materials; (4) construction materials; and (5) landscaping materials.
In addition, the 1990 revision to 36 CFR 228.41(d) established that
mineral materials do not include any mineral used in manufacturing,
industrial processing, or chemical operations for which no other
mineral can be substituted due to unique properties giving the
particular mineral a distinct and special value, nor do mineral
materials include block pumice, which in nature occurs in pieces having
one dimension of two
[[Page 8331]]
inches or more that is valuable and used for some application that
requires such dimensions.
Proposed section 228.15 specifies how the authorized officer should
proceed if there is a question whether a possible mineral material is
considered locatable, subject to 36 CFR part 228, subpart A or a
mineral material, subject to Subpart C. The Forest Service frequently
responds to operators asserting that their operations are for locatable
minerals under 36 CFR part 228, subpart A, when the commodity of
interest is possibly a mineral material disposed of under Subpart C.
The Forest Service does not have any clear regulations or existing
policy guidance to dictate the requirements and process for addressing
such issues. A December 22, 1986, direction letter signed by Deputy
Chief George Leonard and entitled ``Plan of Operations under 36 CFR
228(A)/Classification of Common Variety Mineral Materials'' has formed
the basis of the Agency's policy and procedures concerning this issue
to date. This proposed regulation adds clarity and incorporates most
provisions from the 1986 direction letter. The Forest Service has also
reviewed and considered the relevant BLM regulations. This proposed
regulation is generally consistent with the BLM regulations, but there
are slight differences because the agencies operate under different
statutory authorities and regulations. This section of the proposed
regulation applies to all operations for removal of possible mineral
materials under 36 CFR part 228, subpart A, unless such operations take
place on mining claims located before July 23, 1955, the date that
common varieties of those minerals were removed from the operation of
the mining laws.
The Forest Service will continue to classify mineral materials
according to the provisions of 30 U.S.C. 601 and 36 CFR 228.41, as
appropriate. However, the Forest Service recognizes that neither the
Agency's certified mineral examiners nor the extensive administrative
and judicial case law on this subject have evaluated all mineral
materials, their physical or chemical properties, and economic factors
relevant to their use to determine whether or not a material is a
common variety. One standard for determining whether an ``uncommon
variety'' mineral subject to appropriation under the mining laws that
has provided a broad framework for numerous administrative decisions
was set forth in McClarty v. Secretary of the Interior, 408 F.2d 907,
908 (9th Cir. 1969). That case provided a five-factor approach for
determining whether a deposit meets those requirements: (1) There must
be a comparison of the mineral deposit in question with other deposits
of such minerals generally; (2) the mineral deposit in question must
have a unique property; (3) the unique property must give the deposit a
distinct and special value; (4) if the special value is for uses to
which ordinary varieties of the mineral are put, the deposit must have
some distinct and special value for such use; and (5) the distinct and
special value must be reflected by the higher price which the material
commands in the market place. The McClarty decision also provided that
a finding of the special economic value of a deposit due to a unique
property might be based on reduced costs or overhead, resulting in a
greater margin of profit. In addition to the provisions of 30 U.S.C.
601 and 36 CFR 228.41, some cases will require application of the so-
called ``McClarty criteria'' to classify materials and determine
whether disposal under Subpart C or appropriation under the mining laws
and application of subpart A are appropriate.
The Forest Service uses a mineral classification report to
determine whether possible mineral materials are subject to disposal
under Subpart C or to appropriation under the mining laws and
regulation of mining operations under Subpart A.
Under this proposed regulation, an operator shall not remove
possible mineral materials under this subpart before a mineral
classification report has been prepared which determines that all or
parts of the deposit are subject to appropriation under the mining
laws. The proposed regulation suspends the time limits imposed on the
Forest Service for processing an operating notice or a plan of
operations, pending completion of the mineral classification report.
Operators are expected to provide any and all available and relevant
information and data to the Forest Service to support their assertion
that the materials subject to their operations are an ``uncommon
variety'' mineral that is subject to disposal under the mining laws.
This information may include a compilation of available geologic or
mineral resource information, data, and reports pertinent to the
deposit. This information also includes the results of all allowable
work conducted under the limited operations provisions of section
228.4(a), such as geologic mapping, sampling and analysis of existing
exposures with hand tools, and similar activities. Because operators
must be able to provide such information, the proposed regulation
provides that the authorized officer may allow certain interim
operations to allow operators to do so. The proposed regulation at
section 228.15(e)(2) specifies that, for bona fide cases the Forest
Service can allow the operator, under an interim operating notice or
plan of operations, to conduct the minimum necessary sampling and
analysis to determine the properties of the materials present, their
distribution, suitable end uses, and associated markets. For removal of
materials under an interim plan of operations that consists of more
than the minimum necessary assessment work or the minimum necessary
sampling, section 228.15(e)(3) specifies the operator must establish an
escrow account and place the dollar amount equivalent to the fair
market value for materials removed into the escrow account pending
completion of the mineral classification report. The authorized officer
will consider all information and data provided by the operator, as
well as the would-be operator's likelihood of success in making the
case that any materials on the lands subject to their operations are
subject to appropriation under the mining laws, before approving an
interim plan of operations for the removal of possible mineral
materials. The Forest Service intends that the operator can conduct
interim operations concurrently with an ongoing mineral classification
report because the purpose of those operations is to further inform the
operator and provide the data required to support the completion of the
report.
The proposed regulation at section 228.15(c) informs the public,
operators, and employees of the process to follow when an operator
proposes to prospect, explore, develop, or remove materials that are,
based on statute or regulation, clearly mineral materials and therefore
are not locatable minerals subject to the regulations in Subpart A. In
such cases, upon receipt of operating notices or plans of operations
submitted under Subpart A, the authorized officer may respond that the
operating notice or plan of operations includes uses that are not
reasonably incident to locatable minerals operations under the
provisions of proposed sections 228.5, 228.6, and/or 228.9. The same
responses would be applicable to the submission of an operating notice
or plan of operations involving possible mineral materials lacking
sufficient information and data supporting any assertion that the
materials on the lands subject to operations are in fact an ``uncommon
variety'' mineral or locatable mineral subject to the mining laws and
the
[[Page 8332]]
provisions of Subpart A. Essentially, if there are no locatable
minerals present, then any proposed uses are not reasonably incident to
locatable minerals operations under this Subpart A.
The proposed regulation in section 228.15(f) contains requirements
for a final determination on whether all or any portion of the
materials to be removed are mineral materials, or locatable minerals
governed by Subpart A. Based on that final determination, the
authorized officer is required to take action regarding the
distribution of any funds held in an escrow account associated with an
approved interim plan of operations. The authorized officer must also
take action regarding the disposition of any interim operating notices
in effect, approved interim plans of operations, or proposed operating
notices and plans of operations whose processing was suspended pending
completion of the mineral classification report and final
determination. For example, upon completion of a mineral classification
report that finds the material to be subject to appropriation under the
mining laws and an associated final decision, the authorized officer
may remove the interim status of an interim operating notice or plan of
operations under this section if/as appropriate. The authorized officer
may also process any associated pending operating notice or plans of
operations for which processing was suspended under this section
pending completion of a classification report.
Finally, nothing in section 228.15 of the proposed regulation would
preclude an operator from engaging in any reasonably incident uses,
including overburden stripping, coincidental mining, storage, or onsite
use of mineral materials for reclamation or other purposes associated
with locatable minerals operations under an operating notice in effect
or approved plan of operations.
Section 228.16 Administrative Appeals
No change made from current regulations at section 228.14.
Section 228.17 Transitional Administration of Operations Between These
Regulations and the Prior Version (1974 as Amended)
Proposed section 228.17 explains that operations will have 1 year
from the effective date to comply with the proposed regulations, if
finalized.
Section 228.18 Availability of Information to the Public
This section clarifies and further explains the information in the
current regulations at section 228.6. The Forest Service added an
explanation of the process the authorized officer shall pursue to
resolve questions regarding whether information is protected under this
section.
Section 228.19 Information Collection
Proposed section 228.19 discloses that certain information is
required under this proposed regulation.
Regulatory Certifications
Regulatory Planning and Review (E.O. 12866 and E.O. 13563)
Executive Order (E.O.) 12866 requires that Federal agencies account
for the regulatory impact of significant regulations, account for the
possible costs and benefits, and provide such rules to the Office of
Management and Budget (OMB) for designation and review. The proposed
rule has been designated as significant by the OMB, per E.O. 12866
section 3(f). Therefore, the potential benefits and costs, as well as
Agency costs, associated with the proposed rule were analyzed to
fulfill the cost benefit analysis requirements, consistent with E.O.
12866 and OMB Circular A-4. E.O. 13563 reaffirms the principles of E.O.
12866 while calling for improvements in the nation's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The proposed rule is developed consistent with E.O. 13563.
The cost benefit analysis considers the costs and benefits
associated with updates, modifications, or clarifications to different
sections of 36 CFR part 228, subpart A, as they relate to key
procedural steps for locatable minerals extraction on NFS lands.
Changes in costs and benefits are primarily discussed in a qualitative
manner due to challenges associated with quantifying costs and benefits
at a programmatic level. Quantitative proxies are used when feasible to
help describe the potential frequency or magnitude of activities and
the corresponding costs affected by the proposed rule.
Costs to operators could be incurred if: (1) operators currently
operating under the ``no notice'' category, but whose operations
consist of operations that are excluded from ``limited operations''
under the proposed regulations (for example, underground with any
surface component), will have to spend additional time developing an
operating notice or a plan of operations; (2) operators' current
notices of intent will need to be updated to include additional levels
of detail, so that the Forest Service can review whether or not the
activities are below the threshold of a plan of operations (a
reclamation plan, cost estimate, and financial assurance are required
from the operator prior to initiating operations under an operating
notice, which are not currently required for a notice of intent); (3)
operators performing the types of operations that do not require a plan
of operations under the current regulation, but for which circumstances
require an approved plan of operations prior to operating (for example,
operating a high banker within a ``scenic'' section of a Wild and
Scenic River), will no longer be able to operate under a notice-level
and will be required to submit a plan of operations (and, therefore,
undergo a NEPA analysis); (4) operators have to update an approved plan
of operations to provide specific interim management plans; or (5)
operators have to update an approved plan of operations to explain why
certain activities are reasonably incident. However, the Forest Service
believes that the proposed rule will result in positive net benefits
due to small increases in monetized cost to industry ($211,000 per
year, 2022 dollars), offset by substantial cost savings to the Agency
($2.6 million per year, 2022 dollars), and unquantified benefits
resulting from increased clarity of process, the potential for a higher
efficiency in the review process of submitted plans of operations based
on increased consistency of completeness and quality of data in an
initial plan of operations, and the revision of the operating notice
category of operations, which will redefine the category for which
prior notification of operations, but no Federal decision, is needed.
The redefined operating notice category is predicted to increase the
number of operations that can occur without any Agency action, which
could also result in an increase in the number of operations that can
occur without NEPA analysis and documentation. Agency costs include
hiring financial consultants to help review trust agreements and Agency
time to review trust agreements.
Cost savings to industry and the Forest Service could result from
fewer plans of operations, including the time needed to prepare and
review those plans as well as the NEPA documentation needed to support
those plans. The cost to industry to prepare operating notices
(requiring greater
[[Page 8333]]
levels of effort compared to current regulatory conditions) is
estimated to increase under the proposed rule. Total costs to industry
are estimated to increase by $200,000 per year after accounting for
cost savings from reduced numbers of plans of operations and increased
costs of operating notices.
The proposed rule more efficiently satisfies the legal requirement
for the Forest Service to provide access to locatable mineral
resources, while improving the Agency's ability to protect national
forests and grasslands for mandated multiple uses.
Benefits of the proposed rule could result from a more modern and
efficient Agency review and approval of plans of operations. The
benefits to industry derive from timelier development of, access to,
and use of locatable minerals on NFS lands. Expedited access and
development of locatable mineral resources is expected to result in an
increase in the time value of revenues generated by locatable
operations. A potential benefit to the public of facilitating access to
NFS lands is the increased opportunity to develop domestic sources of
strategic and critical minerals, which would decrease vulnerability to
American supply chains. Most importantly, benefits to the public from
the proposed rule are the continued protection and, in some cases,
increased assurance about the protection of ecosystems and
corresponding goods and services from the potential damages of
locatable mining activities. These assurances are made possible by
gains in the Agency's ability to monitor, identify, and mitigate
potential environmental impacts, made possible by the following
proposed rule provisions: 228.7 Noncompliance; 228.8 Temporary
cessation or abandonment of operations; 228.10 Surface resource
protection requirements and operating standards; 228.11 Establishing,
maintaining, and releasing financial assurances; and 228.13 Trust
Funds.
The proposed rule is not expected to have a significant or
measurable impact on rates of locatable minerals extraction on NFS
lands; market factors are likely to drive future changes in the growth
of development and production.
The total or aggregate net benefits associated with the proposed
rule cannot be quantified but are likely to be small. The Forest
Service estimates a total cost savings of approximately $2.4 million
per year, accounting for Agency cost savings of $2.6 million per year
and increases in industry costs of approximately $200,000 per year. The
cost benefit analysis is available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> (enter
0596-AD32 in the search box).
Regulatory Flexibility Act--Impact on Small Businesses
The Agency considered the impacts of the proposed rule on small
entities consistent with requirements of the Regulatory Flexibility
Act, as amended by the Small Business Regulatory Flexibility
Enforcement Fairness Act of 1996 and E.O. 13272. An agency must prepare
and make available for public comment a full regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions) unless the head of the agency certifies the proposed
rule will not have a significant economic impact on a substantial
number of small entities. A threshold regulatory flexibility analysis
was prepared for this proposed rule.
Small entities potentially impacted by the proposed rule include
small businesses (firms) involved in precious and heavy metal mining
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 or broken
limestone, kaolin and ball clay, ceramic and refractory minerals, other
chemical or fertilizer minerals, and other nonmetallic minerals); and
geophysical surveying and mapping (NAICS 541360). A majority (75 to 80
percent) of existing locatable operations on NFS lands fall within the
precious and heavy metal sectors, within the gold ore sector
specifically. The proposed rule would only apply to the fraction of
businesses that decide to engage in locatable minerals development and
operations on NFS lands.
The threshold regulatory flexibility analysis indicates that the
proposed rule has the potential to affect a substantial number of small
businesses within relevant mining sectors. It is estimated that
approximately 500 small businesses, or 25 percent of approximately
2,000 small businesses in the United States mining sector, would be
affected by the proposed rule (primarily in the precious and heavy
metal ore mining sectors) while seeking to operate on NFS lands. The
analysis suggests that economic impacts on those small businesses are
not expected to be significant; incremental annualized costs under the
proposed rule are estimated to be less than 0.1 to 0.6 percent of
annual business receipts for over 71 percent of businesses; and 3.5
percent of annual receipts for the remaining 29 percent of businesses
in the smallest category (less than $100,000 per year), each of which
are assumed to have annual receipts of $50,000 and incur an annualized
cost of $1,734. However, for many of the operations in this smallest
category incremental costs and economic impacts are likely to be
substantially lower than 3.5 percent (or $1,734), as the nature of
operations are at such a small scale that the operator will not spend
as much time as estimated in preparing an operating notice. Additional
hours needed by the smallest operators to submit an operating notice
under the proposed rule are likely to be less than the assumed average
of 44 hours; information collected by the Forest Service suggests
small-scale operators in this group of annual receipts less than
$100,000 may take only 6 to 8 additional hours.
Small businesses seeking to operate on NFS lands are expected to
benefit from proposed rule provisions that clarify the definition of
criteria for plans of operations and operating notices, codify and
explain existing practices and procedures, and require engagement in
pre-submission meetings, all of which are expected to help ease small
business operator confusion and increase awareness of what to expect
when seeking to conduct locatable minerals operations on NFS lands.
Annually, an estimated 62 operations will be able to operate under the
new operating notice category, which would have been plans of
operations under the existing rule.
The evidence compiled in the threshold regulatory flexibility
analysis indicates that there is potential for a substantial number of
small entities to be affected by the proposed rule, but economic
impacts on those small entities are not expected to be significant.
This evidence supports the determination that the proposed rule is not
expected to result in significant impacts on a substantial number of
small entities, and a full regulatory flexibility analysis is therefore
not required for the proposed rule. The Forest Service requests comment
on the analysis and findings found in the threshold regulatory
flexibility analysis. More information on the Regulatory Flexibility
Act and Small Business Regulatory Flexibility Enforcement Fairness Act
determination is available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> (enter 0596-
AD32 in the search box).
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
[[Page 8334]]
Regulatory Affairs (OIRA) has designated this proposed rule as not a
major rule as defined by 5 U.S.C. 804(2).
Energy Effects (E.O. 13211)
The Agency has reviewed this proposed rule under E.O. 13211 issued
May 18, 2001, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use.'' The Agency has determined
that this proposed rule does not constitute a significant energy action
as defined in E.O. 13211. The Forest Service regulation does not
authorize or approve any particular plan of operations or operating
notice for locatable minerals development, but instead manages the
process and impacts on surface resources on NFS lands stemming from
activity under the mining laws. The proposed rule should increase the
efficiency of processing locatable minerals plans of operations and
clarify processing procedures for plans of operations on NFS lands. The
increased efficiency should generally reduce the time and costs of
making decisions concerning whether to approve a plan of operations; at
the same time, the specific time and costs required for particular
plans of operations are influenced by conditions specific to locations
on NFS lands.
The proposed rule is not expected to have a significant adverse
effect on the supply, distribution, or use of energy; competition or
prices; other Agency actions related to energy; or raise novel issues
regarding adverse effects on energy. The rule has not otherwise been
designated by the Administrator of OIRA as a significant energy action.
The proposed rule is therefore not expected to require a statement of
energy effects, consistent with OMB guidance for implementing E.O.
13211.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
The Agency has reviewed this proposed rule in accordance with the
requirements of E.O. 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' E.O. 13175 requires Federal agencies to consult
and coordinate with tribes on a government-to-government basis on
policies that have Tribal implications, including 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.
To ensure Tribal perspectives are heard and fully considered during
rulemaking, the Agency contacted federally recognized Indian Tribes and
Alaska Native Corporations in accordance with E.O. 13175, USDA
Departmental Regulation 1350-002 (Tribal Consultation, Coordination,
and Collaboration), and Forest Service Handbook 1509.13, chapter 10
(Consultation with Indian Tribes and Alaska Native Corporations). The
Agency initiated government-to-government consultation with Indian
Tribes and government-to-corporation consultation with Alaska Native
Corporations with email notifications of the opportunity to consult on
the rulemaking.
The Forest Service initiated consultation in September 2018 and re-
initiated consultation in notifications sent to Tribal leaders and
Alaska Native Corporation leaders on July 14, 2023. Prior to the
initiation of consultation and to re-introduce the proposed rule
revision, the Agency sent invitations to tribes and Alaska Native
Corporations on April 17, 2023, to participate in a virtual Tribal
forum the Office of Tribal Relations facilitated on May 17, 2023.
Fifteen participants represented a total of ten Tribes and Tribal
organizations. The notification letter sent by email on July 14, 2023,
included hyperlinks to a consultation package that included a summary,
a comparison table showing the current rule and the proposed rule, and
the draft proposed regulatory text. The Forest Service is requesting
comment on the proposed criteria and circumstances to clarify
thresholds that will best facilitate orderly development of the
nation's minerals while minimizing impacts on surface resources,
especially Tribal resources.
At the time of this proposed rule's publication, one Tribe had
engaged in consultation. The Agency has had several meetings and is
incorporating the feedback we received.
Federalism (E.O. 13132)
The Agency has considered this proposed rule under the requirements
of E.O. 13132, issued August 4, 1999, ``Federalism.'' The Forest
Service has made an assessment that the proposed rule conforms with the
federalism principles set out in E.O. 13132; 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, nor on the distribution of power and
responsibilities among the various levels of government. Therefore, the
Agency concludes that this proposed rule does not have federalism
implications.
Taking of Private Property (E.O. 12630)
The Agency has analyzed this proposed rule in accordance with the
principles and criteria contained in E.O. 12630, ``Governmental Actions
and Interference with Constitutionally Protected Property Rights,'' and
has determined that the rule does not pose the risk of a taking of
private property.
Civil Justice Reform (E.O. 12988)
The Agency has analyzed this proposed rule in accordance with the
principles and criteria of E.O. 12988, ``Civil Justice Reform.'' The
Forest Service has not identified any State or local laws or
regulations that conflict with this regulation or that would impede the
full implementation of this rule. Nevertheless, in the event that such
conflicts 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 USDA would not require the use
of administrative proceedings before parties could file suit in court
challenging its provisions.
Unfunded Mandates Reform Act
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 the proposed
rule on State, local, and Tribal governments, as well as the private
sector. This proposed rule would not compel the expenditure of $100
million or more--adjusted for inflation--by any State, local, or Tribal
government, or anyone in the private sector. Therefore, a statement as
required under section 202 of the Act is not required.
Paperwork Reduction Act
This proposed rule is related to a change in reporting or
recordkeeping burdens under the reinstatement of OMB control number
0596-0022 that requires approval under the Paperwork Reduction Act of
1995 (44 U.S.C. chapter 35).
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995, the information collection or recordkeeping requirements
included in this proposed rule have been submitted for approval to OMB.
Title: Locatable Minerals.
OMB Number: 0596-0022.
Expiration Date of Approval: 06/30/2018.
Type of Request: Reinstatement with changes.
[[Page 8335]]
Abstract: Information required to be collected under this proposed
rule pertains to operating notices, plans of operations, modifications
to operating notices and plans of operations, and cessation of
operations as specified in Sec. Sec. 228.5, 228.6, and 228.8 of these
proposed regulations. The requested information is required by the
Forest Service in order to adequately assess the scope of operations
and associated surface disturbance as operations progress.
This information regarding operations is crucial for the Forest
Service to assess potentially adverse impacts on surface resources,
including biological communities and habitat, as well as public safety
on NFS lands. The collected information will be assessed to ensure that
the exploration, development, and production of mineral resources are
conducted in such a manner as to minimize or mitigate potentially
adverse impacts on surface resources to the fullest extent practicable.
This information is also required to ensure compliance with these
regulations and all other Federal, State, and local regulations as may
apply to such operations. This information will also be used to
identify and inventory operations proposed to occur on NFS lands.
Estimate of Annual Burden: 271 hours (224 hours--plans of
operations; 46 hours--operating notice; 1 hour--cessation of
operations).
Type of Respondents: Mining operators.
Estimated Annual Number of Respondents: 510 (136--plans of
operations; 372--operating notices; 2--cessation of operations).
Estimated Annual Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 47,578 hours (224
hours x 136 plans of operations = 30,464; 46 hours x 372 operating
notices = 17,112; 1 hour x 2 cessation of operations = 2; 30,464 +
17,112 + 2 = 47,578).
Comment is invited on: (1) whether this collection of information
is necessary for the stated purposes and the proper performance of the
functions of the Agency, including whether the information will have
practical or scientific utility; (2) the accuracy of the Agency's
estimate of the burden of the 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
respondents, including the use of automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology.
All comments received in response to this notice, including names
and addresses when provided, will be a matter of public record.
Comments will be summarized and included in the request for OMB
approval.
National Environmental Policy Act
The Agency has reviewed the proposed rule per U.S. Department of
Agriculture and Forest Service regulations and procedures, Council on
Environmental Quality regulations, and NEPA. The U.S. Department of
Agriculture issued an interim final rule on July 3, 2025 (90 FR 29632)
modifying the department's regulations implementing NEPA and removing
Forest Service NEPA regulations. In accordance with direction provided
in the interim final rule, the Agency is relying on the previous
version of the U.S. Department of Agriculture regulations and the prior
Forest Service NEPA regulations at 36 CFR 220. The Agency is preparing
a programmatic environmental impact statement (EIS) to analyze the
possible environmental effects of the rule. An ANPR was published in
the Federal Register on September 13, 2018 (83 FR 46451), which served
as the Forest Service's notice of intent to complete either an
environmental assessment or an EIS under NEPA in conjunction with
revising the regulations and also initiated a 45-day public comment
period. Another notice of intent was published in the Federal Register
on April 1, 2020 (85 FR 18186) and confirmed the Agency's intent to
publish an EIS.
The programmatic EIS discloses the effects of the proposed rule
(proposed action) and those of continuing with the existing regulation
(no action). The programmatic EIS will be published concurrently with
the proposed regulation. The comment period for the programmatic EIS
will coincide with the 60-day comment period on the proposed
regulations. The regulation revisions are generally procedural in
nature and will continue to require that approvals of plans of
operations be subject to the Agency's environmental analysis
procedures. During the public comment period for the proposed
regulation, the Agency will consider any new information received
during the comment period that may inform the analysis of potential
environmental effects of the rulemaking. A final EIS will be published
with a final rule.
Family Policymaking Assessment
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for a rule that may affect family well-
being. The proposed rule will have no impact on the autonomy or
integrity of the family as an institution. Accordingly, the Agency has
concluded that it is not necessary to prepare a Family Policymaking
Assessment for the proposed rule.
List of Subjects in 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.
PART 228--MINERALS
0
1. The authority citation for Part 228 is revised to read as follows:
Authority: 16 U.S.C. 478, 551, 1133; 30 U.S.C. 22, 226, 352,
601, 611, 612; 94 Stat. 2400.
0
2. Revise Subpart A to read as follows:
Subpart A--Locatable Minerals
Sec.
228.1 Purpose.
228.2 Scope.
228.3 Definitions.
228.4 Requirements for initiating operations.
228.5 Operating notices.
228.6 Plans of operations.
228.7 Noncompliance.
228.8 Temporary cessation or abandonment of operations.
228.9 Reasonably incident uses.
228.10 Surface resource protection requirements and operating
standards.
228.11 Establishing, maintaining, and releasing financial
assurances.
228.12 Forfeiture of financial assurances.
228.13 Trust funds.
228.14 Operations on National Forest System lands, including
national forest wilderness areas, that have been segregated or
withdrawn from the operation of the mining laws, subject to valid
existing rights.
228.15 Procedures for Operations involving possible mineral
materials.
228.16 Administrative appeals.
228.17 Transitional administration of operations between these
regulations and the prior version [1974 as amended].
228.18 Availability of information to the public.
228.19 Information collection.
[[Page 8336]]
Subpart A--Locatable Minerals
Sec. 228.1 Purpose.
The Forest Service, through the Organic Administration Act of 1897
(16 U.S.C. 473-482 and 551), is authorized to create rules to regulate
the occupancy and use of National Forest System (NFS) lands, including
occupancy and use in connection with operations authorized by the
mining laws, and to preserve the forests thereon from destruction. The
purpose of this subpart is to set forth the rules and procedures that
govern mining operations (throughout this subpart, the term
``operations'' is used as defined in Sec. 228.3(k)) on NFS lands in
order to minimize adverse impacts of operations to surface resources,
to the fullest extent practicable. In the event any specific provision
of this part is deemed by a court to be invalid, the remaining
provisions shall remain in effect.
Sec. 228.2 Scope.
This subpart applies to occupancy and use of NFS lands in
connection with operations conducted under the United States mining
laws, provided that:
(a) Any area of NFS lands covered by a special act of Congress
affecting the application of the mining laws is subject to the
provisions of this subpart and the provisions of the special act,
including, but not limited to, National Recreation Areas (such as Pub.
L. 92-400 (86 Stat. 612)), and quartz crystals in Arkansas (Pub. L.
100-446 Sec. 323 (102 Stat. 1774)). In the case of conflict, the
provisions of the special act will apply;
(b) Persons conducting operations under this subpart also are
subject to regulations having general applicability to NFS lands,
including, but not limited to, 36 CFR parts 212 (Travel Management),
223 (Sale and Disposal of National Forest System Timber, Special Forest
Products, and Forest Botanical Products), 251 (Special Uses), and 261
(Prohibitions), and to any regulation specifically applicable to the
area of operations, including, but not limited to, 36 CFR parts 292
(National Recreation Areas), 293 (Wilderness--Primitive Areas), 294
(Special Areas), and 297 (Wild and Scenic Rivers); and
(c) When operations occur on non-NFS lands, and the operator
proposes occupancy of NFS lands for uses reasonably incident to those
operations, the Forest Service may elect to apply the provisions of 36
CFR part 228, subpart A to those reasonably incident uses on NFS lands.
Nothing in this subpart shall expand or restrict any rights of access
to non-NFS lands.
(d) Savings Clause. Nothing in these regulations shall be construed
to affect the United States' trust relationship with Indian Tribes or
affect rights reserved by an Indian Tribe under a treaty or other
Federal law.
Sec. 228.3 Definitions.
For the purposes of this subpart the following terms mean:
(a) Authorized officer. The Forest Service official to whom
authority has been delegated to approve a plan of operations and to
take other actions set forth in this subpart. The authorized officer is
the Forest Supervisor, unless otherwise provided by Forest Service
delegations of authority.
(b) Day. A calendar day. All time periods are computed using
calendar days. A computation period begins on the calendar day after
the triggering event. If the computation period ends on a day on which
offices are officially closed, the computation period is extended to
the end of the next day that offices are officially open.
(c) Exploration. Operations undertaken to evaluate the type,
extent, quantity, quality, or otherwise measure the value of a
locatable mineral. Locatable minerals that are collected in the process
of valid exploration activities may be used or sold; however,
exploration does not include extraction, beneficiation, or processing
of locatable minerals for commercial use or sale. Exploration methods
may include but are not limited to geophysical investigations (such as
gravity, magnetic, seismic, or induced polarization surveys);
geochemical sampling of soil, sediment, and rock; trenching; digging or
drilling of test holes or pits; development of exploration drifts;
limited bulk sampling; or limited excavation and onsite processing of
placer materials.
(d) Financial assurance. An agreement by which an operator promises
to perform all reclamation obligations associated with one or more
operating notices or plans of operations, consistent with the
requirements of Sec. Sec. 228.11-228.13, on the condition that the
operator's failure to perform the obligations will obligate the
operator to pay or forfeit a specified amount of money pursuant to the
terms of the agreement. The financial assurance performance obligations
may be secured by any of the financial instruments listed in Sec.
228.11(d).
(e) Geotechnical and water resource investigations. Operations
intended to gather data for purposes of mine facility design, such as
in situ material testing, collection of samples for subsequent
materials testing and analysis, installation of piezometers or other
instruments for collection of surface and subsurface water resources
data and subsequent monitoring, and assessment of water infiltration
and/or flow rates, including any boring, digging, or trenching required
for these activities.
(f) Indian Tribe. Any Indian Tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C.
1601 et seq.], which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
(g) Long-term post-closure operations. All functions, work,
activities, and facilities in operation following the cessation of
mining that are necessary to mitigate the long-term effects of the
mining operations on surface resources or public safety. Examples of
long-term post-closure operations include, but are not limited to, the
construction, operation, maintenance, replacement, removal,
reclamation, and monitoring of impoundment and water treatment
facilities.
(h) Mining claim. Any unpatented mining claim, mill site, or tunnel
site located under the mining laws.
(i) Mining laws. The Mining Law of 1872 (30 U.S.C. 21-54), as
amended and applied to NFS lands through the Organic Administration Act
of 1897 (16 U.S.C. 478, 482, and 551), and the Surface Resources Act of
1955 (30 U.S.C. 611-614).
(j) Notice or Submission. As used in this rule, except in Sec.
228.7(h) regarding service of notices of noncompliance, whenever
written notice, notification, or submission of documents is required,
the notice or documents must be delivered by one of the following
means: by certified mail, return receipt (or the equivalent private
delivery service), by hand delivery during a day offices are officially
open, by facsimile, or by email. Hand delivery to an authorized officer
means to the office where the authorized officer or the designated
staff are assigned during normal business hours. These delivery methods
are used to establish the date by which time limits are calculated in
the rules. Service on an operator by mail or equivalent private
delivery or by facsimile is considered to be received by the operator 5
days after being sent to the addressee's last known mailing address or
facsimile number. Service on an operator by hand delivery or email is
considered to be received by the operator on the date of delivery or
email transmission.
[[Page 8337]]
(k) Operations. All functions, work, facilities, and activities in
connection with prospecting, exploration, discovery, mining claim
assessment work, development, extraction, and processing of locatable
mineral resources, reclamation and closure of disturbed areas,
including long-term post-closure operations, whether conducted on lands
subject to a mining claim or not. Operations also include all uses
reasonably incident to the operations, whether conducted on lands
subject to a mining claim or not, including the construction and use of
roads or other means of access, and facilities related to water
management and treatment, tailings and waste rock management and
disposal, as well as transmission lines and pipelines as required to
support such facilities.
(l) Operator. Any person conducting or proposing to conduct
operations.
(m) Person. Any individual, partnership, corporation, association,
or other legal entity.
(n) Prospecting. Sampling and data collection activities conducted
to confirm the potential presence of locatable minerals.
(o) Reasonably incident uses. Uses in connection with operations
conducted in a logical sequential phased development process through
the industry standard operational stages of prospecting, exploration,
development, mining and mineral processing, and reclamation; uses that
employ reasonable equipment, structures, and methods of surface
disturbance that are appropriate and reasonably necessary for a
particular stage of operations; and uses associated with a particular
stage of operations whereby the stage of operations is justified based
on the extent of available data and information concerning a mineral
resource or deposit.
(p) Reclamation. Measures taken to minimize the impacts of
operations to surface resources, to protect the public from hazardous
conditions created by the operations, and to restore the project area
to its pre-disturbance condition or to its intended final condition, to
the fullest extent practicable. Reclamation includes isolation,
control, or removal of acid-forming, toxic, or deleterious substances,
as well as long-term post-closure operations.
(q) Surface resources. Any biological, ecological, environmental,
scenic, cultural, archaeological, historic, paleontological, or other
resources subject to the administration by the Forest Service, pursuant
to the Organic Administration Act of 1897 (16 U.S.C. 551). Surface
resources may also include resources that are the subject of treaty
obligations of the United States. For purposes of this regulation,
``surface resources'' do not include mineral resources, except as
identified in Sec. 228.10(b)(7), where mineral materials may be part
of surface resources described in that section.
Sec. 228.4 Requirements for initiating operations.
This section defines three categories of mining operations
recognized by the Forest Service and describes the specific procedures
that an operator must follow before starting operations in any of these
categories.
(a) Limited operations. Limited operations consist of operations
that, in their totality, will not cause more than negligible impacts on
surface resources. For the purposes of this subpart, negligible impacts
are impacts on surface resources that are not substantially different
than those caused by other NFS users who are not required to obtain a
special use authorization, contract, or other written authorization
from the Forest Service before beginning such use.
(1) An operator is not required to give prior notice for limited
operations. If operations do not qualify as limited operations, an
operator must submit an operating notice under Sec. 228.4(d) or a
proposed plan of operations under Sec. 228.4(c), as appropriate.
(2) Limited operations may include, for example:
(i) Use of small non-motorized hand tools;
(ii) Hand panning;
(iii) Non-motorized sluicing;
(iv) Marking and monumenting a mining claim;
(v) Use of metal detectors, gold spears, and other battery-operated
devices for sensing the presence of minerals, and hand and battery-
operated drywashers;
(vi) Removal of plants identified as non-woody species or
identified as species that, at maturity, do not exceed ten feet in
height, unless they are protected under the Endangered Species Act;
(vii) Removal, for line-of-sight activities, of parts of a plant
that are not likely to result in the death of the plant, unless the
plant is protected under the Endangered Species Act; or
(viii) Use of motorized vehicles consistent with:
(A) The regulations governing such use;
(B) Any road designations pursuant to 36 CFR 212.51; and
(C) Conditions of any relevant land management plan or forest
orders.
(3) Limited operations do not include the following:
(i) Living, sleeping, or maintaining camp in excess of any stay
limits applicable to other users of the NFS lands, and who have not
obtained a special use authorization or other written authorization
from the Forest Service;
(ii) Overnight use of any area, whether or not enclosed or covered,
for purposes of storage of equipment, machinery, parts, process
materials, spent materials, supplies, tools, vehicles, or other
personal property;
(iii) Construction, maintenance, placement, repair, or use of any
barrier to obstruct public access, including enclosures, walls, fences,
gates, or signs;
(iv) Use of a caretaker, guard, or watchperson to monitor, protect,
or safeguard property, objects, workings, facilities, or the public;
(v) Use of mechanized earth-moving equipment, including but not
limited to track- or wheel-mounted drilling equipment;
(vi) Use of suction dredges;
(vii) Construction, reconstruction, maintenance, repair, or
upgrading of a facility, road, or other means of access;
(viii) Construction, reconstruction, placement, maintenance,
repair, or upgrading of any form of water diversion, deflection,
withdrawal, or drain;
(ix) Use of motorized vehicles other than as provided in Sec.
228.4(a)(2)(viii);
(x) Use of toxic or hazardous chemicals, or explosives;
(xi) Removal of plants or parts of plants other than as provided in
Sec. Sec. 228.4(a)(2)(vi) and (vii);
(xii) Underground operations that cause more than negligible
impacts on surface resources;
(xiii) Operations requiring access to underground workings that
have been closed with gates, grates, backfill, or other physical
closures;
(xiv) Operations that interfere with, or otherwise may impact,
ongoing or completed reclamation activities at formerly mined sites;
(xv) Operations involving the simultaneous onsite presence of ten
or more individuals on the same operation, or who are employed by or
affiliated with the same operator;
(xvi) Operations which would cause a violation of an Indian Tribe's
reserved treaty rights or other reserved rights under Federal law;
(xvii) Operations in an area designated pursuant to Sec.
228.4(a)(4); or
(xviii) Operations that require an operating notice under Sec.
228.4(d) or a plan of operations under Sec. 228.4(c).
(4) In any area where the effects of limited operations have
resulted in, or are reasonably expected to result in,
[[Page 8338]]
more than negligible impacts on surface resources, the authorized
officer may designate the area as one where either an operating notice
or plan of operations is required. In order to designate such an area,
the authorized officer shall inform the public of the designation.
(b) Pre-submittal meeting. The requirement for a pre-submittal
meeting to initiate operations applies to any operations other than the
limited operations under Sec. 228.4(a). Prior to submitting either an
operating notice or a plan of operations, an operator shall contact the
applicable authorized officer to schedule a pre-submittal meeting. Upon
receipt of such a request, the authorized officer shall hold the
meeting between appropriate Forest Service staff and the operator
within 21 days, or on such date as agreed between the operator and
authorized officer. More than one meeting may be scheduled with
agreement from the Forest Service and operator.
(1) The operator shall be prepared to discuss the following
information during the pre-submittal meeting:
(i) Operator name, mailing address, telephone number, and email
address of the operator, and of the operator's designated agent, if
any;
(ii) Description of the proposed operations, including the type of
equipment and mining methods proposed;
(iii) Maps of the proposed project area at an appropriate scale to
show the location of all proposed operations; and
(iv) Information related to the nature of the mineralization
targeted for operations, and the known or likely presence of critical
and strategic minerals.
(2) During the pre-submittal meeting, the authorized officer or the
designated staff will:
(i) Identify land status;
(ii) Review the proposal and identify any activities that may not
be reasonably incident to the stage of proposed operations;
(iii) Identify issues or conditions with the proposal that might
clarify its categorization as requiring either an operating notice or a
plan of operations;
(iv) Identify information regarding the existing conditions of the
project area, including the presence of:
(A) Reserved treaty rights or other reserved rights of an Indian
Tribe under Federal law;
(B) Cultural, historic, archaeological, or paleontological
resources, or any other information necessary for the Forest Service to
comply with applicable Federal laws such as the National Historic
Preservation Act, the American Indian Religious Freedom Act, the
Archaeological Resources Protection Act, and the Native American Graves
Protection and Repatriation Act;
(C) Federally proposed or listed threatened or endangered species
or their proposed or designated critical habitat;
(D) Essential fish habitat under the Magnuson-Stevens Fishery
Conservation and Management Act;
(E) Waterbodies listed as impaired pursuant to Sec. 303(d) of the
Clean Water Act (33 U.S.C. 1215 et seq.); and
(F) Past mining activities including previously disturbed areas and
areas reclaimed or remediated under the Comprehensive Environmental
Response, Compensation, and Liability Act or State cleanup laws.
(v) Identify the relevant Federal, State, Tribal and local
regulatory requirements or contacts, as appropriate;
(vi) Identify the relevant standards and guidelines within the
applicable Forest Service land management plan;
(vii) Ensure the operator understands that there may be financial
obligations associated with operating on lands managed by the Forest
Service, such as financial assurances, and potential liability under
the Resource Conservation and Recovery Act and Comprehensive
Environmental Response Compensation and Liability Act as well as other
Federal statutes;
(viii) Provide the operator with preliminary information about the
environmental review process under the National Environmental Policy
Act for a plan of operations. Inform the operator of information they
may need to provide, such as environmental and operational baseline
surveys and analyses, information to support environmental analysis of
the plan of operations and potential reasonable alternatives under
NEPA, and the procedures to identify and protect Tribal reserved treaty
resources, other Tribal reserved rights under Federal law, and historic
properties;
(ix) Inform the operator that the Forest Service may be notifying
affected tribes of the proposed operations; and
(x) Consistent with Federal laws governing data collection and
storage and Sec. 228.18, the Forest Service may share any information
provided by the operator at this pre-submittal meeting with Federal,
State, Tribal, and local government agencies to ensure these agencies
are aware of any authorizations the operation may require from them and
to initiate effective coordinated planning and, when appropriate,
Tribal consultation as soon as possible.
(c) Operations requiring an approved plan of operations. Operations
that meet any of the following criteria require an approved plan of
operations as described in Sec. 228.6 before commencing operations:
(1) Operations other than prospecting, exploration, geotechnical
investigations, and water resource investigations;
(2) Operations on formerly mined sites, whether previously
reclaimed or not;
(3) Operations that will disturb more than 5 acres of NFS lands;
(4) Operations for bulk sample removal that will cumulatively
disturb 1,000 tons or more of material over the life of the operation;
(5) Operations that use chemicals in the recovery or processing of
minerals such as cyanide or sulfuric acid, regardless of test sample
size;
(6) Operations that require long-term post-closure reclamation;
(7) Operations subject to an operating notice previously in effect
that was terminated under Sec. 228.7(c)(3) as a result of a suspension
order; or
(8) Operations situated on NFS lands that are or become:
(i) Segregated or withdrawn from location and entry under the
United States mining laws;
(ii) Areas in the National Wild and Scenic Rivers System,
legislatively mandated study rivers (16 U.S.C. 1276(a); 36 CFR 297.3),
or river areas found eligible or determined suitable for inclusion in
the National Wild and Scenic Rivers System through Agency planning
processes (16 U.S.C. 1276(d)(1));
(iii) Within the water body, the riparian area, or 100-year
floodplain of a stream designated as impaired under Sec. 303(d) of the
Clean Water Act (33 U.S.C. 1215 et seq.), whichever is larger;
(iv) Research natural areas, experimental ranges, or experimental
forests identified in a land management plan;
(v) Areas of Tribal importance identified in a land management
plan;
(vi) Areas subject to an Indian Tribe's reserved rights under a
treaty or other Federal law or areas that contain sacred sites;
(vii) Known to contain federally proposed or listed threatened or
endangered species or their proposed or designated critical habitat;
(viii) Known to contain essential fish habitat under the Magnuson-
Stevens Fishery Conservation and Management Act;
(ix) Known to contain historic properties, or cultural or historic
resources included in, or eligible for inclusion in, the National
Register of Historic Places (54 U.S.C. 300308); or
(x) Federal facilities where the Forest Service has expended or
authorized
[[Page 8339]]
appropriated dollars. Examples include, but are not limited to,
administrative sites and developed recreation sites.
(d) Operations requiring the submittal of an operating notice.
(1) An operator shall provide an operating notice as described in
Sec. 228.5 before commencing any operations other than limited
operations under Sec. 228.4(a) or operations that require an approved
plan of operations under Sec. 228.4(c).
(2) The term of an operating notice is 2 years following its
effective date, which is determined as described in Sec. 228.5(c)(1).
(3) An operator shall not file a series of operating notices for
related operations within an area to avoid submitting a proposed plan
of operations.
Sec. 228.5 Operating notices.
(a) Contents of an operating notice. The operator shall submit in
writing an operating notice, which shall include the following
information:
(1) The name, mailing address, telephone number, and email address
of the operator, and of the operator's designated agent, lessees,
assigns, or designees, if any;
(2) The name and BLM serial number of any mining claim(s) or
site(s) covering the land on which operations would occur, if
applicable, and the name, mailing address, telephone number, and email
address of the owners, lessees, assigns, or designees;
(3) A description of the target mineralization, including whether
the presence of critical or strategic minerals is reasonably expected
based on known mineral companionality, geologic formation, mineralogy,
or other factors;
(4) A topographic map or maps and description of the project area,
including GPS coordinates when available, at an appropriate scale and
with sufficient detail to locate it on the ground and to determine land
status;
(5) A description of the operations, including:
(i) Type and size of all equipment that will be used on site;
(ii) Amount, location, and type of fuel and other petroleum
products, explosives, and hazardous materials stored on site and spill
prevention measures and response plan;
(iii) Facilities, structures, or improvements that will be
constructed, renovated, or maintained;
(iv) Planned route or routes of access and the methods and vehicles
used to transport people, equipment, utilities, and supplies, including
any planned use of routes that are designated as closed to general
public use;
(v) Planned uses of water, including quantity, construction,
reconstruction, placement, maintenance, repair, or upgrading of any new
or existing form of water conveyance, diversion, deflection,
withdrawal, or drain, and planned management of water impacted by
operations;
(vi) Planned method of access to underground workings currently
closed with gates, grates, backfill, or other physical closures;
(vii) Any overnight occupancy that will occur on NFS lands; and
(viii) An explanation of why each of the activities that will occur
on NFS lands is a reasonably incident use.
(6) Projected schedule of activities, including the date the
operator expects to begin operations and the date the operator expects
to complete reclamation;
(7) A description of:
(i) How the operations will comply with the requirements described
in Sec. 228.10 and with any other requirements set forth in this
subpart;
(ii) How the operations will comply with the requirements of any
other Federal or State laws related to the protection of surface
resources;
(iii) How the operations will minimize, to the fullest extent
practicable, adverse impacts on surface resources; and
(iv) All other required State or Federal permits or certifications.
(8) A reclamation plan, as described in Sec. 228.10(c)(9),
including a reclamation cost estimate as described in Sec. 228.11.
(b) Review of an operating notice. Upon receipt of an operating
notice, the authorized officer shall review the notice for
completeness. Within 60 days of receipt of the operating notice, the
authorized officer may notify the operator of one or more of the
following:
(1) The operations described can be conducted as limited operations
under Sec. 228.4(a), and therefore, no operating notice is required;
(2) The authorized officer cannot initiate the completeness review
because the operator has not conducted a pre-submittal meeting as
required by Sec. 228.4(b);
(3) The operating notice is incomplete because it does not provide
certain information required by Sec. 228.5(a), as specified by the
authorized officer;
(4) Based on the information contained in the operating notice and
on any relevant land status records or Tribal consultations, if
conducted, a plan of operations is required as described under Sec.
228.4(c);
(5) Based on the information contained in the operating notice,
uses are proposed that are not reasonably incident to mining, as
described in Sec. 228.9;
(6) The operating notice cannot take effect because the operator is
subject to an ongoing suspension order under Sec. 228.7(c)(3);
(7) Further discussion is necessary regarding access routes prior
to completing the review;
(8) A site visit is necessary prior to completing the review. Such
site visits will be conducted as early as possible;
(9) The time for reviewing the operating notice shall be suspended
and shall resume upon the completion of any discussion regarding access
routes or a site visit;
(10) The operations involve mineral materials subject to disposal
under 36 CFR part 228, subpart C;
(11) The operations appear to involve removal of possible mineral
materials, and the Forest Service will follow the procedure in Sec.
228.15;
(12) The proposed operations are within segregated or withdrawn
lands, and cannot be reviewed because a plan of operations is required;
or
(13) The authorized officer needs additional time, not to exceed 30
days, to complete the review for the reasons stated.
(c) Steps following the authorized officer's review.
(1) If the authorized officer does not respond in one of the
manners set forth in subsection (b), the operating notice shall take
effect at the end of 60 days following the date of receipt by the
Forest Service, as reflected in the return receipt or other proof of
delivery. If the authorized officer completes the review sooner than 60
days, the authorized officer may notify the operator in writing that
the review is complete, in which case the operating notice shall take
effect on that date. The authorized officer is not required to approve
an operating notice or to inform the operator that the authorized
officer's review is complete.
(2) If the operating notice is incomplete pursuant to Sec.
228.5(a), the authorized officer shall notify the operator in writing
of the additional information the operator must submit. Upon receiving
any additional information from the operator, the authorized officer
shall review the operating notice, along with the additional
information, in accordance with Sec. 228.5(b). This process may repeat
as required.
(d) The operator may begin operations after:
(1) The operating notice takes effect under Sec. 228.5(c)(1); and
[[Page 8340]]
(2) The authorized officer accepts from the operator the financial
assurance, if determined necessary, subject to Sec. 228.11(e).
(e) Notice of commencement of operations. The operator shall notify
the authorized officer in writing when operations begin. The date that
the operator elects to begin operations shall not affect the end date
of the term of the operating notice, which is determined by the date
the operating notice takes effect under Sec. 228.5(c)(1).
(f) Change in contact information. The operator shall notify the
authorized officer in writing within 30 calendar days if there is any
change in the contact for the operations or of the mailing address of
the operator or contact for the operations.
(g) Modifying an operating notice.
(1) An operator may submit a modified operating notice at any time
before the expiration date of the existing operating notice in effect.
The Forest Service will process the modified operating notice in the
same manner as a new operating notice.
(2) An operator must submit a modified operating notice in writing
when a change is necessary to prevent a violation of the regulations in
this part, including the resource protection requirements in Sec.
228.10, or in 36 CFR part 261, or of any other applicable Federal or
State laws, or when the operator intends to make material changes to
the operations described in the existing operating notice in effect.
Material changes include, but are not limited to, disturbance of areas
not described in the existing operating notice, changes to the
reclamation plan, a change in operator, or activities that will result
in impacts of a different kind, degree, or extent than those described
in the existing operating notice in effect.
(3) In the event a current operator under an operating notice in
effect plans to transfer ownership of an operation covered by the
operating notice in effect, the transferee operator must submit a
modified operating notice in writing at least 30 days in advance of any
planned transfer of ownership of an operation subject to an operating
notice in effect. The modified operating notice must include the
assumption of all of the obligations of the current operator under the
operating notice in effect, including any previously accrued
obligations and liabilities. Until the authorized officer has received
the complete modified operating notice, the current operator shall
remain responsible under this subpart for all obligations and
liabilities that accrue as a result of operations conducted under the
operating notice in effect. No transfer shall be made to a transferee
operator who is subject to an ongoing suspension order pursuant to
Sec. 228.7(c)(3). The transfer shall be subject to the requirements of
Sec. 228.11(i).
(4) Nothing shall change the expiration date of an operating notice
except if the operator submits a modified operating notice in
conformance with Sec. 228.5(g), and the modified operating notice
takes effect.
(h) Expiration and extension of an operating notice.
(1) An operating notice shall expire 2 years after it takes effect
under Sec. 228.5(c)(1), unless extended under Sec. 228.5(h)(3), in
which case the expiration date of the extended operating notice
controls. The operator shall cease all operations at the expiration of
an operating notice.
(2) Failure to complete all reclamation activities by the
expiration date shall be considered a substantial deviation from the
operating notice, subject to noncompliance procedures under Sec.
228.7(c)(3)(ii), and it may result in the authorized officer forfeiting
the financial assurance. All reclamation obligations shall continue
beyond the expiration date of the operating notice until the
reclamation obligations are complete.
(3) An operator may extend an operating notice, with or without
modification, by submitting a new operating notice at any time within 6
months, but it should not be less than 60 days before the expiration
date of the existing operating notice. An operating notice extended
under Sec. 228.5(h) must state that it serves as an extension of the
prior operating notice. An operating notice submitted as an extension
of an existing operating notice shall be processed in the same manner
as a new operating notice.
(4) An operating notice shall not be extended more than twice, for
a total term not to exceed 6 years. The operator must complete all
reclamation by the end of the second or final extension period, unless
approved in a plan of operations.
(5) An operating notice shall not be extended if the operations are
within lands that have been segregated or withdrawn during the time
that the operating notice has been in effect. In that case, the
authorized officer will notify the operator that a plan of operations
is required under Sec. 228.4(c)(8).
(6) Extension of an operating notice shall not affect the limits on
the amount of materials allowed under Sec. 228.4(c)(4).
Sec. 228.6 Plans of operations.
(a) Contents of a proposed plan of operations. An operator shall
submit a proposed plan of operations in writing using the optional form
FS-2800-5 or in a format of the operator's choice. The proposed plan of
operations shall include:
(1) The name, mailing address, telephone number, and email address
of the operator and of the operator's designated agent, lessees,
assigns, or designees, if any;
(2) The name and BLM serial number of any mining claim(s) or
site(s) covering the land on which operations would occur, if
applicable, and the name, mailing address, telephone number, and email
address of the mining claim owners, lessees, assigns, or designees.
(3) A description of the target mineralization, including:
(i) for exploration operations, whether the presence of critical or
strategic minerals is reasonably expected, based on known mineral
companionality, geologic formation, mineralogy, or other factors; and
(ii) for mining and production operations, whether primary or
byproduct critical minerals will be recovered and produced.
(4) A topographic map or maps and description of the project area,
including GPS coordinates when available, at an appropriate scale and
with sufficient detail to locate it on the ground and to determine land
status;
(5) Information, if known, regarding the existing condition of the
project area, including the presence of:
(i) Rights of an Indian Tribe reserved under a treaty or other
Federal law;
(ii) Cultural, historic, archaeological, or paleontological
resources, or any other information necessary for the Forest Service to
comply with applicable Federal laws such as the National Historic
Preservation Act, the American Indian Religious Freedom Act, the
Archaeological Resources Protection Act, 16 U.S.C. 470aa-mm, and the
Native American Graves Protection and Repatriation Act;
(iii) Federally proposed or listed threatened or endangered species
or their proposed or designated critical habitat;
(iv) Essential fish habitat under the Magnuson-Stevens Fishery
Conservation and Management Act;
(v) Waterbodies listed as impaired pursuant to Sec. 303(d) of the
Clean Water Act (33 U.S.C. 1215 et seq.); and
(vi) Past mining activities, including disturbed areas and areas
reclaimed or remediated under the Comprehensive Environmental Response,
[[Page 8341]]
Compensation, and Liability Act or State cleanup laws.
(6) A detailed description of the operations, including:
(i) Location and acreage of all planned disturbances of NFS lands;
(ii) The type and size of equipment that will be used;
(iii) Amount, location, and type of fuel and other petroleum
products; explosives; processing and water treatment chemicals; and
hazardous materials stored on site, including spill prevention and
response plan;
(iv) Facilities, structures, or improvements that will be
constructed, renovated, or maintained;
(v) Preliminary or conceptual designs, cross sections, and
operating plans for mining areas, processing and water treatment
facilities, water ponds, and waste rock and tailings disposal
facilities;
(vi) Rock characterization and handling plans;
(vii) Planned routes of access, methods of transportation, and
types of vehicles that will be used to transport people, equipment,
utilities, supplies, wastes, concentrates, and other products from
operations, including a description and map of all existing and
proposed roads, trails, bridges, landing areas for aircraft, utilities,
and other access facilities to be used in connection with the
operations, including their design standards;
(viii) Overnight occupancy that will occur on NFS lands;
(ix) Planned uses of water, including surface water, groundwater,
or water impacted by operations, and water management plans for
managing water used and impacted by operations;
(x) Any planned construction, reconstruction, placement,
maintenance, repair, or upgrading of any form of water conveyance,
diversion, deflection, withdrawal, or drain;
(xi) Quality assurance plans to describe the steps an operator will
take to ensure that facilities are constructed and operated as
designed, including procedures or protocols for testing or monitoring
of such facilities as pond liners, leach pads, tailings impoundments,
etc.;
(xii) An explanation of why each of the activities that will occur
on NFS lands is a reasonably incident use; and
(xiii) Additional information the authorized officer may deem
necessary to ensure that the proposed operations will comply with this
subpart, such as:
(A) Operational and baseline environmental information and analyses
for the Forest Service to analyze potential environmental impacts as
required by NEPA and to determine whether the plan of operations will
minimize adverse impacts to the fullest extent practicable. This could
include information related to surface resources in and around the
project area, as well as information regarding the potential for
operations to produce acid drainage or other leachate;
(B) Mineral resource information supporting the use of mining
claims or sites on which operations are proposed; and
(C) Information relating to classification of possible mineral
materials under 228.15.
(7) A projected schedule of activities from the commencement of
operations through closure, and the period of time over which long-term
post-closure operations are projected to occur;
(8) A description of how the proposed operations will:
(i) Comply with surface resource protection and operating standards
in Sec. 228.10 and with requirements set forth in this part;
(ii) Comply with Federal and State laws related to the protection
of surface resources; and
(iii) Minimize, to the fullest extent practicable, adverse impacts
on surface resources.
(9) A reclamation plan, containing the information described in
Sec. 228.10(c)(9);
(10) A reclamation cost estimate compliant with Sec. 228.11(b),
including, if applicable, a description of proposed phases of
operations and corresponding phases of cost estimates pursuant to
228.11(f);
(11) A proposed plan for monitoring the environmental effects of
operations. Where applicable, include in monitoring plans details on
the type and location of monitoring devices, sampling parameters and
frequency, analytical methods, reporting procedures, identification of
action levels, and associated actions or procedures to respond to
adverse monitoring results. Monitoring plans may incorporate existing
State or other Federal monitoring requirements to avoid duplication.
Examples of monitoring programs that may be necessary include surface
water and groundwater quality and quantity, air quality, revegetation,
stability, noise levels, and fish and wildlife mortality. The
monitoring plans must be designed to meet the following objectives:
(i) To demonstrate compliance with the approved plan of operations
and other Federal or State environmental laws and regulations;
(ii) To provide early detection of potential problems; and
(iii) To supply information that will assist in directing
corrective actions should they become necessary.
(12) An interim management plan, including a schedule, and
information regarding anticipated periods of temporary cessation during
which the interim management plan will be in effect. The interim
management plan shall describe how the operator proposes to manage the
project area during periods of temporary cessation of operations. The
interim management plan shall include measures to:
(i) Stabilize excavations and workings, ponds, heap leach areas,
and waste rock and tailings disposal areas;
(ii) Isolate or control petroleum-based products and hazardous
materials;
(iii) Store or remove equipment, supplies, and structures;
(iv) Maintain the project area, including structures, in a safe and
clean condition;
(v) Monitor site conditions;
(vi) Prevent a violation of the regulations in this part (including
the resource protection requirements in Sec. 228.10), or in 36 CFR
part 261, or Federal or State laws related to the protection of surface
resources, and to minimize, to the fullest extent practicable, adverse
impacts on surface resources; and
(vii) Maintain adequate financial assurance, even in periods of
cessation of operations.
(b) Completeness review. Upon receipt of the proposed plan of
operations, the authorized officer shall conduct the initial
completeness review and shall notify the operator in writing within 60
days after receiving the plan that:
(1) The proposed operations do not require an approved plan of
operations, because they may be conducted pursuant to Sec. 228.4(a) as
limited operations or pursuant to Sec. 228.4(d) under an operating
notice;
(2) The proposed plan of operations is complete and contains
sufficient information to initiate an environmental review pursuant to
Sec. 228.6(c);
(3) The proposed plan of operations is incomplete for one or more
of the following reasons:
(i) The operator has not conducted a pre-submittal meeting as
required by Sec. 228.4(b);
(ii) The plan does not provide information required by Sec.
228.6(a). The authorized officer shall inform the operator of the
required additional information. Upon receipt of the required
additional information from the operator, the authorized officer shall
review the proposed plan in accordance with Sec. 228.6(b). This
process may repeat
[[Page 8342]]
until the information submitted by the operator is complete;
(iii) Further discussion is necessary regarding access routes; the
time for initial review of the proposed plan of operations shall be
suspended and shall resume upon the completion of such discussion;
(iv) A site visit is necessary; the time for initial review of the
proposed plan of operations shall be suspended and shall resume upon
the completion of such site visit; or
(v) The authorized officer needs additional time, not to exceed 30
days, to complete the initial completeness review for specific stated
reasons.
(4) The proposed plan of operations cannot be considered complete
and will not be further reviewed because:
(i) It includes uses that are not reasonably incident as described
in Sec. 228.9;
(ii) The operator is subject to an ongoing suspension order as per
Sec. 228.7(c)(3); or
(iii) The operations involve mineral materials subject to disposal
under 36 CFR part 228, subpart C.
(5) The completeness review will not occur until other requirements
are met for the following reasons:
(i) The proposed operations are within segregated or withdrawn
lands, and cannot be reviewed until the conditions set forth in Sec.
228.14 are met; or
(ii) The proposed operations appear to involve removal of possible
mineral materials and cannot be reviewed until the conditions set forth
in Sec. 228.15 are met.
(c) National Environmental Policy Act review of proposed plans of
operations.
(1) The authorized officer shall initiate the appropriate level of
analysis under the National Environmental Policy Act for a proposed
plan of operations that has been determined to be complete.
(2) The authorized officer will use the information from the
environmental review to identify the environmental effects of
implementing the proposed plan of operations and to determine whether
the plan will minimize, to the fullest extent practicable, adverse
impacts on surface resources.
(3) The authorized officer may impose mitigation measures, other
terms and conditions, or changes to the plan of operations identified
during the environmental review of the plan of operations as necessary
to minimize, to the fullest extent practicable, adverse impacts on
surface resources. The operator must incorporate those items into the
plan of operations prior to approval of the plan of operations.
(4) The authorized officer or their designee shall advise the
operator of the Forest Service's progress in analyzing the proposed
plan of operations no less than once every month.
(d) Approving plans of operations.
(1) The authorized officer shall notify the operator in writing
that the plan of operations is approved.
(2) If applicable, the authorized officer shall notify the operator
that the proposed plan of oper
[…truncated; see source link]Indexed from Federal Register on February 20, 2026.
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.