Locatable Minerals

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.

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:

•

Federal eRulemaking Portal:

https://www.regulations.gov.

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.

•

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

https://www.regulations.gov.

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

tracy.parker@usda.gov.

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

clarifying when a plan of operations is required (§ 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;

https://www.gao.gov/assets/680/674752.pdf

), 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

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

https://www.regulations.gov.

Information can also be found at

https://www.fs.usda.gov/science-technology/geology/minerals/locatable-minerals/current-revisions.

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

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

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

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.

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

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 § 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

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 § 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

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 § 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

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

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.

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

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

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

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

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

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

http://www.regulations.gov

(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

http://www.regulations.gov

(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

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.

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 §§ 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 × 136 plans of operations = 30,464; 46 hours × 372 operating notices = 17,112; 1 hour × 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

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.

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.

Subpart A—Locatable Minerals

§ 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 § 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.

§ 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 § 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.

§ 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 §§ 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 § 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 § 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.

(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 § 228.10(b)(7), where mineral materials may be part of surface resources described in that section.

§ 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 § 228.4(d) or a proposed plan of operations under § 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

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