Cave Resources Management

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 261 and 290

RIN 0596-AA02

Cave Resources Management

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule establishes procedures for nominating,

evaluating, and designating significant caves on lands administered as

part of the National Forest System. The rule also establishes

procedures for releasing information about the location of caves and

establishes general prohibitions to protect cave resources from abuse

and degradation. The intended effect is to fully implement the Federal

Cave Resources Protection Act of 1988 on National Forest System lands

and to ensure that National Forest System lands are managed in a manner

to protect and maintain, to the extent practicable, significant caves.

These regulations have been developed in close consultation with the

Department of the Interior to ensure uniformity and consistency in

approach to the extent that statutory authority permits.

EFFECTIVE DATE: This rule is effective June 17, 1994.

FOR FURTHER INFORMATION CONTACT:

Brent Botts, Recreation, Cultural Resources and Wilderness Management

Staff, Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-6090,

(202) 205-1313.

SUPPLEMENTARY INFORMATION:

Background

The Federal Cave Resources Protection Act of 1988 (16 U.S.C. 4301-

4309; 102 Stat. 4546), hereafter referred to as the ``Act'', seeks to

secure, protect, and preserve significant caves on Federal lands for

the perpetual use, enjoyment, and benefit of all people. The Act also

seeks to foster increased cooperation and exchange of information

between governmental authorities and those who utilize caves located on

Federal lands for scientific, educational, or recreational purposes.

The Act requires the Secretary of Agriculture to issue such regulations

as he deems necessary to achieve the purposes of the Act on National

Forest System lands. The regulations are required to include, but need

not be limited to, criteria for the identification of significant

caves.

On March 3, 1989, the Forest Service published an advance notice of

proposed rulemaking in the Federal Register inviting comments on what

should be included in a proposed rule, and particularly requesting

suggestions as to criteria for identifying a significant cave. A total

of nine comments were received in response to that notice: 4 from

agencies of State government, 2 from business entities, 2 from

individuals, and 1 from a Federal agency.

Subsequently, a proposed rule was published on December 23, 1991

(56 FR 66388). The proposed rule described the process the Forest

Service would use in designating significant caves, provided for public

nomination of caves, specified six criteria by which a cave would be

evaluated to determine whether it is significant, and identified the

authorized officer as the authority for designating and documenting a

significant cave. The proposed rule also specified how cave information

and locations would be released. Lastly, the proposed rule revised

certain prohibitions specific to caves and cave resources. Seventy-six

letters were received during the 90-day comment period in response to

the proposed rule: 30 from individuals, 18 from cave-related

organizations, 16 from Federal agencies, 5 from natural resource

organizations, 4 from business entities, and 3 from State agencies.

All comments received are available for review in the Office of the

Director, Recreation, Cultural Resources, and Wilderness Management

Staff, Auditors Building, 4th Floor, 201 14th Street, S.W. at

Independence Ave., SW., Washington, DC, during regular business hours

(8 a.m. to 5 p.m.) Monday through Friday.

Analysis of Public Comment

Overall, almost all respondents were pleased that the Forest

Service was promulgating regulations. Many offered valuable suggestions

for improving or clarifying specific sections. Some of these

suggestions were group efforts, using similar or identical language to

identify and describe their interests, concerns, and recommended

modifications to the proposed rule. A few letters endorsed other

respondents' statements.

The majority of comments centered on four major issues in the

proposed 261 and 290 rules: scope of the rule, including the definition

and manner of determining the significance of a cave; confidentiality

of cave information; public participation; and differences with the

proposed rule (57 FR 1344) published by Department of the Interior on

January 13, 1992.

Several comments also referred to information contained in a

document entitled ``Proposed Procedure for Listing Significant Caves,''

which was circulated at the same time as the proposed rule but was not

intended for codification in the regulations. This document described a

proposed implementation process in greater detail. These comments also

were considered as part of the rulemaking record to the extent that

they were relevant to the provisions of the rulemaking.

General Comments on 36 CFR Part 290

Under the proposed rule, cave protection regulations would be set

out in title 36, part 290, of the Code of Federal Regulations. The

following summarizes general comments received on the proposed rule and

the Department's response to them.

1. Cooperation and Consultation With the Department of Interior

Many respondents noted disparities between the Forest Service

proposed rule and the proposed rule issued at the same time by the U.S.

Department of the Interior (USDI). Most respondents recommended that

the final rule of both agencies be as similar as possible.

Response. Throughout the rulemaking process, the Forest Service and

USDI land managing agencies have been participating in an interagency

committee to agree on cave resource standards and procedures. The goal

has been to adopt rules as similar as possible. However, each agency

has a different statutory background and mission which result in some

procedural differences such as in integrating cave resource protection

into planning processes, delegations of authority, and information

requirements. In these instances, the language may differ to reflect

the specific authorities of the agencies involved.

2. Public Participation

The majority of respondents felt the proposed rule completely

ignored Section 2(b)(2) of the Act which states that one purpose of the

Act is ``to foster increased cooperation and exchange of information

between governmental authorities and those who utilize caves for

scientific, education, or recreational purposes.'' Respondents believed

the proposed rule denied the caving community access to cave

information thus discouraging the exchange of information. Many

respondents recommended that public interaction occur through

establishment of an advisory committee and the development of volunteer

agreements. Some respondents felt that these two actions were required

by the Act in Sections 4(b)(3) and 4(b)(4).

Response. Under Sec. 290.3 of the proposed rule, the agency

intended that the public be given the opportunity to nominate

significant caves. Additionally, proposed Sec. 290.4 provided a process

by which information on caves and their location could be disclosed to

bona fide educational or research organizations although not to the

general cave recreationing community. Additionally, under the proposed

rule, the agency envisioned addressing cave resource protection

standards in forest plans pursuant to National Forest Management Act

and implementing regulations. Forest plans are developed with full

public participation; however, in response to comments on the proposed

rule, the final rule does strengthen and encourage greater cooperation

and exchange of information in the nomination and evaluation process as

well as in a new provision permitting the disclosure of cave

information to groups who assist the Federal land managing agencies

with cave management. These changes are discussed in the section-by-

section discussion of comments which follows.

The suggestion to form an advisory committee has not been adopted.

It is not at all clear that such advisory groups are needed either

nationally or locally. Whether local advisory groups are needed is a

decision best left to the local land manager. Should the Forest

Supervisor determine that an advisory committee would be helpful in

achieving the purposes of the Cave Resources Protection Act, the

Department has ample authority and procedures in place to establish

such advisory committees.

3. Scope and Detail of the Regulations

Many respondents felt that the proposed rule should have provided

more details on how to manage and protect significant caves. Most of

these respondents understood that significant caves would be managed

``to the extent practical'' using current management plans, but wanted

the final rule to incorporate or further clarify portions of the

proposed rule. Respondents asked questions such as: how will

significant cave listings and significant cave management concerns be

integrated into forest plans; how will specific management concerns

about significant caves be identified; how will ecosystem

considerations, including protection of karst features and hydrological

recharge areas, be made; and how will the Forest Service address

proposed projects that potentially impact caves.

Another respondent requested that goals and standards for cave

resource protection and management be described in the rule and that

language be added emphasizing that land management decisions should

balance consideration of cave resource protection with consideration of

human activity.

Response. Through section 4(c)(1) of the Act, Congress made clear

that caves should be managed through the agency's land and resource

management planning process, and not through the significant cave

designation process. Section 4(c)(1) states that significant caves are

to be ``. . . considered in the preparation of any land management plan

if the preparation or revision of the plan began after the enactment of

this Act.'' Forest land and resource management planning is a

continuous, dynamic process which is dependent on monitoring and

evaluation of actions taken under the plan. The agency keeps plans

current and updated through amendment or revision and maintains ongoing

and meaningful communication with the public and other government

entities. New data such as an inventory of significant caves is new

information that Forest Supervisors consider as forest plans are

implemented to determine if forest plan direction needs to be changed.

Designating caves as significant will not automatically trigger the

need to amend or revise forest plans. Upon development of the initial

listing of significant caves on National Forest System lands, the

Forest Supervisor will review the forest plan and determine if it is

adequate to ensure protection of significant cave resources. If not,

the Supervisor would initiate amendment or revision of the plan to

address the protection of significant cave resources on the forest. The

public must be involved in amendment or revision. Thus, any special

management concerns for significant caves, including connected

ecosystem considerations, can and should be identified by the public so

that the comments can be analyzed and considered through the forest

planning process. The forest planning process is already adequately

regulated by the provisions of 36 CFR part 219; therefore, no

additional change to this rule was made.

Where a proposed project might impact a significant cave or cave

yet to be evaluated for significance, the effects of the project would

be analyzed in compliance with the National Environmental Policy Act

(NEPA) implementing regulations. Public input is solicited to identify

environmental issues relevant to a proposed action (project).

Agency policy and procedures under the NEPA in Forest Service

Handbook 1909.15 require that decision documents (Decision Memo,

Decision Notice, Record of Decision) contain ``Findings required by

other laws.'' If a decision affects a significant cave, a finding will

be disclosed describing how the decision considered this cave.

Section-by-Section Comments on 36 CFR Part 290

Section 290.1 Purpose and Scope

In considering the general comments on the scope and detail of the

regulations addressed in the preceding section of this preamble, the

Department concludes that the proposed rule was confusing in specifying

that the initial determination of significant caves would be made by a

special process and that subsequent significant cave determinations

would be made through the forest plan amendment or revision process.

The final rule clarifies this concern by: (1) stating that significant

cave resources will be managed pursuant to direction contained in

individual forest plans and in accordance with the policies contained

in the Forest Service Directive System and (2) by eliminating any

reference to forest planning in the initial and subsequent listings.

This change acknowledges that forest plans provide direction to manage

significant caves but do not contain a list of these caves.

Section 290.2 Definitions

Authorized Officer

Several respondents expressed concern over the range of potentially

designated authorized officers listed in the proposed rule. One

respondent felt that the authorizing officer should be the Regional

Forester while another felt this authority should not be delegated

below the Forest Supervisor level. Another felt the final decision for

determining significant caves should be at a senior management level.

Further, some respondents indicated that the authorized officer should

have qualifications and duties related to caves and/or cave resources.

The comments received on this definition reflect a lack of

understanding of how authority is delegated through the Forest Service.

Authority flows from the Chief through Regional Foresters to Forest

Supervisors and District Rangers. These line officers have

responsibility for managing all resources, including caves, and will be

legally responsible for complying with this rule and the Act. The

agency will delegate that responsibility through the issuance of

internal agency directives and the delegation of authority will vary

depending on the significance of the action being assigned. In general,

the authorized officer will refer to the Forest Supervisor who must

carry out the evaluations and documentations required by the rule in

the context of forest planning. To avoid confusion, the definition in

the final rule does not include the list of all potential authorized

officers.

Cave

The agency received a range of opinions on this definition. Some

respondents felt the definition was too narrow; others believed it was

too broad. Some respondents, stating that a vug is one resource the Act

is intended to protect, were concerned with the exclusion of vugs from

the definition. Individual respondents suggested modifying the

definition to include qualifiers such as: a dark zone; a minimum

horizontal or vertical length; absence or presence of an entrance at

any specific time period, and a naturally formed subterranean open

area. A couple of respondents were concerned about the requirement that

an individual be able to enter. One felt this precluded passages

accessible for small cave biota. Another felt this requirement may

allow for enlarging small openings to make them accessible as caves.

One respondent was concerned that the definition would not protect the

``unnatural'' portion of caves from destruction or restrict the

location of such from the general public.

The Department has concluded that the definition in the proposed

rule was confusing because it described both the components of a cave

and the features that do not comprise a cave. Accordingly, in the final

rule, this definition has been revised to focus on what a cave is,

rather than what it is not. ``Feature'' was replaced with ``opening''

since it was felt the intent is to include small air passages that

extend from the cave itself and that are integral parts of the cave.

This definition encompasses any entranceways, including excavated

passage; therefore, the location and passage associated with the

excavated portion is considered under purposes of this Act. While the

suggested qualifiers further define features associated with caves,

they were not added because they extend beyond the scope of the cave

definition listed in the Act.

Cave Resources

Some respondents suggested that historical resources be separated

from the rest of the resources listed as naturally occurring. A few

respondents noted that speleogens and speleothems should be defined

since these terms are not commonly found in dictionaries.

The term ``naturally'' was removed as suggested since cultural

materials do not occur naturally in caves. Speleogens and speleothems

are not included in the definition in the final rule since they are but

a couple of the features that comprise geologic and mineralogic

materials or substances.

National Forest System Lands

Several respondents were confused over which lands the Act applied

to: non-federal lands on which the agency has planned projects, private

lands with caves affected by agency projects on Federal lands, lands

owned in fee title, and/or National Forest System lands.

A definition for ``National Forest System lands'' has been added.

This rule applies only to lands managed by and under the legal

jurisdiction of the Forest Service. The Act contains no language

extending agency authority to private property.

Significant Cave

Several respondents noted that this definition should correspond to

the criteria listed in proposed section 290.3(b).

This definition was revised to include the criteria now in

Sec. 290.3 (c) and (d).

Vug

Respondents overlapped their comments on ``vug'' with the ``cave''

definition. A couple of respondents suggested clarifications to the

definition including: Add a size definition other than ``small'' and

make clear that a vug is only a stand-alone cavity presumable

intersected by a man-made passage.

Since the only reference to a vug was in the definition of a cave

and this reference has now been removed, the separate definition of a

vug is no longer necessary.

Section 290.3 Determining Significant Caves

Comments are presented by major paragraph of this section of the

proposed rule.

Paragraph (a) Nominations for Initial and Subsequent Listings

Proposed paragraph (a) provided that the Secretary of Agriculture

shall cooperate and consult with the Secretary of Interior to devise a

similar nomination process for initial listing of significant caves and

give public notice of the nomination process. In addition, subsequent

determinations of significant caves would be made through the forest

planning process. Many respondents felt that the review of nominations

and the determination by the authorized officer should be conducted in

consultation and cooperation with an advisory committee, team,

acknowledged experts in the field of speleology, or appropriate private

sector interests, including cavers. A few respondents felt an appeal

process was needed for those caves determined not to be significant.

This paragraph was revised to focus more narrowly on the nomination

process, and a new paragraph (b) was added to describe the evaluation

process. The reference in the proposed rule to subsequent determination

of significant caves through the forest planning process has been

removed. Determination of significant caves can be made at any time by

the authorized officer. Reference to consultation between the

Secretaries of Agriculture and Interior was removed since this

coordination has occurred in the writing of the entire rule and through

a separate effort to develop a Proposed Procedure for Listing

Significant Caves. Both paragraphs emphasize public and agency input

and consultation. Notice of the nomination procedures for the initial

listing must be published in the Federal Register. Notice of future

listings is not required as the rule provides that the public and

government agencies are to submit such nominations to the Forest

Supervisor where the cave is located.

Paragraph (c) Criteria for Significant Caves

Many respondents stated that the criteria were too broad; others

felt the criteria were too restrictive. Those respondents who felt the

criteria are too broad suggested that criteria be developed at the

State-level, be eliminated, or be modified with a strong emphasis on

the cave having an important value. The majority of respondents felt

that these criteria would eliminate the majority of caves from listing

as significant. Most requested that criteria be based only on a cave

processing ``one or more of the following features, characteristics, or

values.'' Some recommended that the criteria focus on identifying

insignificant caves; thus, managing all others as significant.

Individual respondents identified the need to add new criteria

categories for caves of undetermined status, caves with abnormal

dangers, caves with other values, and caves within a special management

area which was designated wholly or in part due to the cave resources

found there.

Additionally, two business entities felt that the criteria for

selection of significant caves are too broad and that the proposed rule

neglected to consider the impacts that such a designation would have on

oil and gas production. They felt that the designation of significant

caves needed to be based on caves having an ``important value'',

especially when considering other uses of the land. They recommended

that significant cave values be weighed against the economic values of

mineral development.

The Act in section 4(a) requires that the Secretary issue criteria

for the identification of significant caves in regulations. Thus,

criteria focusing on insignificant caves or criteria developed at the

State level do not address the Act's mandate. To focus the criteria on

an inventory procedure that can be interpreted and more consistently

applied across the agency, the qualifier ``* * * which are deemed by

the authorized officer to be unusual, significant, or otherwise

meriting special management'' has not been adopted on the final rule.

This phrase confused respondents since it added another level of

evaluation and review to the six stated criteria. There is nothing in

the Act or its legislative history that indicates that a cave has to

have a value more important than, or be weighed against, other uses of

public lands before being designated significant. The criteria for

designating significant caves are identical to those adopted in the

Department of the Interior's final rule.

(1) Biota. All respondents commenting on this paragraph requested

modifications to make the criteria less restrictive. They recommended

the removal of qualifiers such as ``cave dependent,'' ``that occur in

large numbers or variety,'' and ``disturbance.''

``Cave dependent'' was replaced with ``seasonal or yearlong'' to

better describe the conditions under which biota use a cave. The

qualifier ``* * * occur in large numbers or variety * * *'' was removed

because caves typically contain small populations and variety of flora

and fauna by the very nature of the cave environment.

(2) Cultural. All respondents commenting on this paragraph felt the

criterion was too restrictive to include potentially eligible sites,

religious sites for native Americans, caves mined for saltpeter, and

sites with ethnographic or historic associations with events or persons

considered important to local communities or social groups. A few

suggested eliminating the requirement that the site be eligible for or

listed on the National Register or Historic Places.

This paragraph was clarified to address and refer to the terms

``historic or prehistoric'' that are already defined through other laws

and regulations. These terms encompass ``cultural'' resources better

than historical properties and archaeological resources. The paragraph

also was expanded to better describe the types of resources that could

be included or eligible for inclusion on the National Register of

Historic Places based on the cave itself or the contents contained

within. The paragraph as revised encompasses religious sites for native

Americans, caves mined for saltpeter, and other sites with ethnographic

or historic associations. Allowing for a site to be eligible for or

listed on the National Register of Historic Places consistently ties to

the agency management of cultural resources.

(3) Geologic/Mineralogic/Paleontologic. Respondents felt that the

terms ``outstanding'' and ``important'' were too restrictive. Most

recommended that ``outstanding'' be replaced with ``other interesting''

or that it and ``important'' be deleted completely. Several respondents

felt these criteria would allow every cave to be determined

significant. One recommended that this paragraph be completely

eliminated; another recommended tying the criteria to only ``fragile or

outstanding'' examples.

In the final rule the qualifiers ``outstanding'', ``useful'' and

``important'' have been eliminated and replaced with more tangible

terms. However, while some restrictive qualifiers have been expanded,

there are still qualifiers that could appropriately eliminate caves

from listing under this criteria.

(4) Hydrologic. One respondent felt this criterion should be

limited to waters that are necessary to maintain municipal water

supplies and maintain scientifically important biota or cave features.

The Department disagrees. This criterion is adopted without change

from the proposed rule since it addresses hydrological resources

associated with caves and cave resources.

(5) Recreational. Most respondents requested that ``challenge'' be

replaced and values such as wilderness, sporting, natural, aesthetic,

exploration, educational, and scientific be substituted. One respondent

felt that this section should be completely removed. Another noted that

scenic values and challenge must have an important value.

This criterion responds to the Act which recognizes caves for their

perpetual use, enjoyment, and benefit for all people and further notes

that people utilize caves for recreational purposes. The qualifier ``by

virtue of challenge'' has been eliminated since it does not describe a

type of recreational opportunity that can be measured. In the final

rule, this paragraph is written broadly enough to incorporate the

suggested values of wilderness, sporting, aesthetic, and exploration if

they tie to recreational and scenic opportunities.

(6) Educational or scientific. One respondent noted that any new

cave discoveries would automatically qualify as significant under this

proposed criterion. Several other respondents felt that qualifiers

should be deleted to make the criteria less restrictive. One suggested

adding wilderness and uniqueness to this category. Other felt that

these criteria must either note an important value or it should be

removed.

Changes to this paragraph in the final rule are minor.

``Contemporary'' is inserted before ``human disturbance'' to ensure

that cultural resources are considered rather than recent acts of

vandalism. New cave discoveries could be designated significant if they

lack evidence of contemporary human disturbance or impact. This

acknowledges that a pristine cave offers potential values from a

scientific, educational, and recreational standpoint.

A new paragraph (d), Specially designated areas, has been added to

recognize that some management decisions have already been made wholly

or in part due to caves. Where special management designations are

already associated with protecting caves, it is efficient to designate

them as significant without re-evaluating them under the requirements

of paragraph (c).

Paragraph (e) Designation and Documentation

Several respondents felt clarification was needed for the

authorized officer's designation of significant caves. They felt that

designation should be tied to the authorized officer confirming that a

cave met one of the criteria rather than evaluating the criteria

itself. Another respondent requested that the rule be specific as to

what information must be provided.

The wording of this paragraph in the final rule clarifies that the

authorized officer will confirm whether or not a cave meets one of the

criteria listed in Sec. 290.3(c). This clearly defines the role of

authorized officer as a decisionmaker not a reviewer of the criteria.

The paragraph also specifies the minimum documentation to be retained

for each cave designated as significant.

A new paragraph (f), Undiscovered passages, has been added to

clearly recognize that once a cave has been listed, the designation

applies to the entire cave on federal land, regardless of agency

jurisdiction or extent of exploration.

A decision to place a cave on the significant cave list is an

inventory type decision, and as such, is not appropriately subject to

administrative appeal. Accordingly, new paragraph (g), Decision final,

has been added to clearly state that this determination is not subject

to appeal. However, paragraph (a) of this section of the final rule

contains a new sentence that makes explicit that a nomination may be

resubmitted for listing, thus acknowledging that a decision not to list

a cave may be changed when better or new information accompanies the

nomination.

Section 290.4 Confidentiality of Cave Information

The majority of respondents focused on three concerns:

(1) That the confidentiality language of the proposed rule went

beyond the intent of the Act. They specifically noted that the

provisions were to apply only to cave locations, not other cave

information. Further, they felt that these provisions would inhibit

exchange of information between the caving community and the Federal

agencies.

(2) That caves not designated significant have their locations

protected under confidentiality provisions. Otherwise, all information

about that cave would become public.

(3) That denial of cave location information be subject to appeal.

A couple of respondents noted that the requirements for requesting

information differed between the FS proposed rule and the USDI proposed

rule. Two others expressed the concern that without knowing the exact

location of a cave, it is impossible for a mineral lessee to know

whether the cave will affect his lease.

Paragraph (a) has been revised to indicate that only location

information will be held confidential, but other specific information

could be withheld if, in the judgment of the authorized officer, it

would reveal the location of a cave. Locational information for all

caves will be protected until the designation decision is made. This

protection will continue for caves listed as significant. The

information submitted for caves that are not listed will be returned to

the person or organization submitting the nomination. Consequently, the

responsibility for maintaining the confidentiality of unlisted caves

will rest with the originator of the information and not with the

agency.

Paragraph (b) of this section has procedures to request

confidential information, and has been rewritten to be identical to the

language adopted by the USDI in its final rule for uniformity.

Paragraph (c), which states the decision regarding access to

information is not appealable, has been retained. The Act provides

specific exemption from the requirements of the Freedom of Information

Act. It is the Department's determination that the appeal process would

not further public interest in protecting cave information. A procedure

exists to permit the release of cave locations. The authorized officer

will release cave location information based on a written request and a

determination that the request would further the purposes of the Act

and would not create a substantial risk of harm, theft, or destruction

of such cave.

General Comments on 36 CFR Part 261

Implementation of Proposed Prohibitions

One respondent was confused by the prohibitions. Concern was

expressed that some additional action must occur for the prohibition to

take effect.

Prohibitions applying to National Forest System lands are separated

into three Subparts: General Prohibitions; Prohibitions in Areas

Designated by Order; and Prohibitions in Regions. General Prohibitions

are enforced on all National Forest System lands and do not require any

formal posting. Prohibitions in Areas Designated by Order require an

additional action to inform a forest visitor. The order must be posted

in accordance with 261.51 of this chapter.

Criminal and Civil Penalties

Several respondents noted that existing penalties do not correspond

to the penalties described in Sections 7 and 8 of the Act.

The primary purpose of the current rulemaking was to establish the

criteria for significant caves. Where it was expedient to make minor

adjustments to existing prohibitions in order to help protect

significant cave resources, this was also done. If experience with

administering significant cave resources shows additional regulations

and penalties are needed, subsequent rulemaking specific to those

management concerns will be undertaken.

Collection and Removal From Federal Caves

Several respondents noted that the rule is unclear on how

collecting permits will be issued or regulated.

The Forest Service has an established procedure for issuing special

use permits, which is regulated through rules of subpart B of part 251,

title 36. All permits for significant caves must be in accordance with

this regulation.

Section-by-Section Comments on 36 CFR Part 261

Section 261.2 Definitions

All respondents commenting on definitions of caves and cave

resources under 290.2, repeated their comments here. Several

respondents noted that these definitions should be identical to those

defined in section 290.2.

This suggestion was adopted and identical definitions are provided

in Secs. 290.2 and 261.2.

Section 261.8 Fish and Wildlife

Respondents were concerned that this prohibition would not allow a

gate to be installed if it was needed to protect a species, including

those listed as threatened or endangered.

The paragraph was modified to address this concern by adding ``. .

. except as authorized to protect a cave resource.'' A gate was not

specifically cited since there may be other types of installations that

could curtail the movement of cave life to protect a cave resource.

Section 261.9(j) Property

Two respondents were confused by the intent of this paragraph. One

asked whether enlarging a naturally occurring cave passage or entrance

would require a special use authorization. Another requested

clarification stating that a special use authorization cannot permit

damage to, or excavation of, a significant cave. One respondent

suggested adding a new prohibition to address section 7(a)(2) of the

Act dealing with possessing, consuming, selling, bartering, or

exchanging any cave resource without authorization.

Section 7(a)(1) of the Act states that activities that may lead to

destroying altering, or removing of cave resources or interfering with

free movement of plant or animal life may only be permitted with prior

authorization. Thus, any excavation of a cave passage or entrance would

have to be approved by a special use authorization. A special use

authorization permitting excavation in a cave is site-specific, thus,

this provision does not encourage nor allow blanket approval for this

type of activity for all caves on a given forest. A clause has been

added prohibiting the removal of any cave resource for commercial

purposes.

Section 261.10(d) Occupancy and Use

One respondent requested the wording in this section include the

cave entrance area. Another requested that the discharge of fireworks

be prohibited.

The proposed wording has been retained. The cave entrance area is

protected by the existing wording in paragraphs (d)(1) and (d)(2).

A new paragraph (n) was added to specifically address the discharge

of fireworks. No existing prohibition addressed this human safety

concern.

Section 261.58(ee) Occupancy and Use

Most respondents requested that ``litter'' be incorporated into

this clause. A couple of respondents felt that additional wording was

needed to allow cavers to bring and remove their own receptacles.

Another respondent recommended that fluid wastes be considered on a

cave by cave basis.

Paragraph 11(b) of this section already prohibits ``Possessing or

leaving . . . litter in an exposed or unsanitary condition.'' Current

wording does not specify who must provide the receptacles; therefore,

it can be interpreted that cavers may bring in and remove their own

receptacles. Since this prohibition is applicable to a specific area

designated through an order by the Forest Supervisor, there is the

flexibility to add an exception for a particular cave to only prohibit

solid wastes.

Regulatory Impact

This final rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This rule will not have

an annual effect of $100 million or more on the economy nor adversely

affect productivity, competition, jobs, the environment, public health

or safety, nor State or local governments. This rule will not interfere

with an action taken or planned by another agency nor raise new legal

or policy issues. Finally, this action will not alter the budgetary

impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients of such programs.

Moreover, this final rule has been considered in light of the

Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), and it has been

determined that this action will not have a significant economic impact

on a substantial number of small entities as defined by that Act. To

the extent that small entities engaged in resource extraction

activities may have to site operations to protect significant caves,

these requirements are the minimum necessary to protect the public

interest, and are well within the capability of small entities to

perform.

Environmental Impact

Based on both experience and environmental analysis, this final

rule (or final policy) will have no significant effect on the human

environment, individually or cumulatively. Therefore, it is

categorically excluded from documentation in an environmental

assessment or an environmental impact statement (40 CFR 1508.4).

Controlling Paperwork Burdens on the Public

The information required by this rule constitutes new information

collection requirements as defined in 5 CFR part 1320, Controlling

Paperwork Burdens on the Public. In accordance with those rules and the

Paperwork Reduction Act of 1980 (44 U.S.C. 3507), the Forest Service

received approval from the Office of Management and Budget to collect

cave nomination information and confidential cave information. The

agency estimates that each person will spend an average of three hours

per response for a cave nomination and one-half hour per response for

the confidential cave information request.

No Taking Implications

This rule has been analyzed in accordance with the principles and

criteria contained in Executive Order 12630, and it has been determined

that the rule does not pose the risk of a taking of Constitutionally-

protected private property.

List of Subjects

36 CFR Part 261

Prohibitions, National forests.

36 CFR Part 290

Cave resources management, National forests.

Therefore, for the reasons set out in the preamble, title 36 of the

Code of Federal Regulations is amended by amending part 261 and adding

a new part 290 as set forth below.

PART 261--PROHIBITIONS

1. Revise the authority citation for part 261 to read as follows:

Authority: 16 U.S.C. 551; 16 U.S.C. 472; 7 U.S.C. 1011(f); 16

U.S.C. 1246(i); 16 U.S.C. 1133(c)-(d)(1); 16 U.S.C. 4306, 4307.

Subpart A--General Prohibitions

2. Amend Sec. 261.2 by adding definitions for the terms ``cave''

and ``cave resources'' in alphabetical order to read as follows:

Sec. 261.2 Definitions.

* * * * *

Cave means any naturally occurring void, cavity, recess, or system

of interconnected passages beneath the surface of the earth or within a

cliff or ledge and which is large enough to permit a person to enter,

whether the entrance is excavated or naturally formed. Such term shall

include any natural pit, sinkhole, or other opening which is an

extensive of a cave entrance or which is an integral part of the cave.

Cave resources mean any materials or substances occurring in caves

including, but not limited to, biotic, cultural, mineralogic,

paleontologic, geologic, and hydrologic resources.

* * * * *

3. Amend Sec. 261.8 by adding a new paragraph (e) to read as

follows:

Sec. 261.8 Fish and wildlife.

* * * * *

(e) Curtail the free movement of any animal or plant life into or

out of a cave, except as authorized to protect a cave resource.

4. Amend Sec. 261.9 by adding a new paragraph (j) to read as

follows:

Sec. 261.9 Property.

* * * * *

(j) Excavating, damaging, or removing any cave resource from a cave

without a special use authorization, or removing any cave resource for

commercial purposes.

5. Amend Sec. 261.10 by revising paragraph (d) introductory text

and adding new paragraphs (d)(3) and (n) to read as follows:

Sec. 261.10 Occupancy and use.

* * * * *

(d) Discharging a firearm or any other implement capable of taking

human life, causing injury, or damaging property as follows:

(1) * * *

(2) * * *

(3) into or within any cave.

* * * * *

(n) Discharging or igniting a firecracker, rocket or other

firework, or explosive into or within any cave.

Subpart B--Prohibitions in Areas Designated by Order

6. Amend Sec. 261.58 by adding a new paragraph (ee) to read as

follows:

Sec. 261.58 Occupancy and use.

* * * * *

(ee) Depositing any body waste in caves except into receptacles

provided for that purpose.

7. Add a new part 290 to read as follows:

PART 290--CAVE RESOURCES MANAGEMENT

Sec.

290.1 Purpose and scope.

290.2 Definitions.

290.3 Nomination, evaluation, and designation of significant caves.

290.4 Confidentiality of cave location information.

290.5 Collection of information.

Authority: 16 U.S.C. 4301-4309; 102 Stat. 4546.

Sec. 290.1 Purpose and scope.

The rules of this part implement the requirements of the Federal

Cave Resources Protection Act (16 U.S.C. 4301-4309), hereafter referred

to as the ``Act''. The rules apply to cave management on National

Forest System lands. These rules, in conjunction with rules in part 261

of this chapter, provide the basis for identifying and managing

significant caves on National Forest System lands in accordance with

the Act. National Forest System lands will be managed in a manner

which, to the extent practical, protects and maintains significant cave

resources in accordance with the policies outlined in the Forest

Service Directive System and the management direction contained in the

individual forest plans.

Sec. 290.2 Definitions.

For the purposes of this part, the terms listed in this section

have the following meaning:

Authorized officer means the Forest Service employee delegated the

authority to perform the duties described in this part.

Cave means any naturally occurring void, cavity, recess, or system

of interconnected passages beneath the surface of the earth or within a

cliff or ledge and which is large enough to permit a person to enter,

whether the entrance is excavated or naturally formed. Such term shall

include any natural pit, sinkhole, or other opening which is an

extension of a cave entrance or which is an integral part of the cave.

Cave resources mean any materials or substances occurring in caves

including, but not limited to, biotic, cultural, mineralogic,

paleontologic, geologic, and hydrologic resources.

National Forest System lands means all national forest lands

reserved or withdrawn from the public domain, acquired through

purchase, exchange, or donation, national grasslands and land

utilization projects, and other lands, waters, or interests

administered by the Forest Service.

Secretary means the Secretary of Agriculture.

Significant cave means a cave located on National Forest System

lands that has been determined to meet the criteria in Sec. 290.3 (c)

or (d) and has been designated in accordance with Sec. 290.3(e).

Sec. 290.3 Nomination, evaluation, and designation of significant

caves.

(a) Nominations for initial and subsequent listings. The authorized

officer will give governmental agencies and the public, including those

who utilize caves for scientific, educational, or recreational

purposes, the opportunity to nominate caves. The authorized officer

shall give public notice, including a notice published in the Federal

Register, calling for nominations for the initial listing and setting

forth the procedures for preparing and submitting the nominations.

Nominations for subsequent listings will be accepted from governmental

agencies and the public by the Forest Supervisor where the cave is

located as new cave discoveries are made. Caves nominated but not

approved for designation may be renominated as additional documentation

or new information becomes available.

(b) Evaluation for initial and subsequent listings. The evaluation

of the nominations for significant caves will be carried out in

consultation with individuals and organizations interested in the

management and use of caves and cave resources, within the limits

imposed by the confidentiality provisions of Sec. 290.4. Nominations

shall be evaluated using the criteria in Sec. 290.3 (c) and (d).

(c) Criteria for significant caves. A significant cave on National

Forest System lands shall possess one or more of the following

features, characteristics, or values.

(1) Biota. The cave provides seasonal or yearlong habitat for

organisms or animals, or contains species or subspecies of flora or

fauna native to caves, or are sensitive to disturbance, or are found on

State or Federal sensitive, threatened, or endangered species lists.

(2) Cultural. The cave contains historic properties or

archeological resources (as defined in Parts 800.2 and 296.3 of this

chapter respectively, or in 16 U.S.C. 470, et seq.), or other features

included in or eligible for inclusion on the National Register of

Historic Places because of their research importance for history or

prehistory, historical associations, or other historical or traditional

significance.

(3) Geologic/Mineralogic/Paleontologic. The cave possesses one or

more of the following features:

(i) Geologic or mineralogic features that are fragile, represent

formation processes that are of scientific interest, or that are

otherwise useful for study.

(ii) Deposits of sediments or features useful for evaluating past

events.

(iii) Paleontologic resources with potential to contribute useful

educational or scientific information.

(4) Hydrologic. The cave is a part of a hydrologic system or

contains water which is important to humans, biota, or development of

cave resources.

(5) Recreational. The cave provides or could provide recreational

opportunities or scenic values.

(6) Educational or scientific. The cave offers opportunities for

educational or scientific use; or, the cave is virtually in a pristine

state, lacking evidence of contemporary human disturbance or impact;

or, the length, volume, total depth, pit depth, height, or similar

measurements are notable.

(d) Specially designated areas. All caves located within special

management areas, such as Special Geologic Areas, Research Natural

Areas, or National Monuments, that are designated wholly or in part due

to the cave resources found therein are determined to be significant.

(e) Designation and documentation. If the authorized officer

determines that a cave nominated and evaluated under paragraphs (a) and

(b) of this section meets one or more of the criteria in paragraph (c)

of this section, the authorized officer shall designate the cave as

significant. The authorized officer will notify the nominating party of

the results of the evaluation and designation. Each forest will retain

appropriate documentation for all significant caves located within its

administrative boundaries. At a minimum, this documentation shall

include a statement of finding signed and dated by the authorized

officer and the information used to make the determination. This

documentation will be retained as a permanent record in accordance with

the confidentiality provision in Sec. 290.4.

(f) Undiscovered passages. If a cave is determined to be

significant, its entire extent on federal land, including passages not

mapped or discovered at the time of the determination, is deemed

significant. This includes caves that extend from lands managed by any

other Federal agency into National Forest System lands, as well as

caves initially believed to be separate for which interconnecting

passages are discovered after significance is determined.

(g) Decision final. The decision to designate or not designate a

cave as significant is made at the sole discretion of the authorized

officer based upon the criteria in paragraphs (c) and (d) of this

section and is not subject to further administrative review of appeal

under Parts 217 or 251.82 of this chapter.

Sec. 290.4 Confidentiality of cave location information.

(a) Information disclosure. No Forest Service employee shall

disclose any information that could be used to determine the location

of a significant cave or a cave nominated for designation, unless the

authorized officer determines that disclosure will further the purposes

of the Act and will not create a substantial risk of harm, theft, or

destruction to cave resources.

(b) Requesting confidential information. Notwithstanding paragraph

(a) of this section, the authorized officer may make confidential cave

information available to Federal or State governmental agencies, bona

fide educational or research institutes, or individuals or

organizations assisting the land management agencies with cave

management activities. To request confidential cave information, such

entities shall make a written request to the authorized officer which

includes the following:

(1) Name, address, and telephone number of the individual

responsible for the security of the information received;

(2) A legal description of the area for which the information is

sought;

(3) A statement of the purpose for which the information is sought;

and,

(4) Written assurances that the requesting party will maintain the

confidentiality of the information and protect the cave and its

resources.

(c) Decision final. The decision to permit or deny access to

confidential cave information is made at the sole discretion of the

authorized officer and is not subject to further administrative review

or appeal under 5 U.S.C. 552 or parts 217 or 251.82 of this chapter.

Sec. 290.5 Collection of information.

The collection of information contained in this rule represents new

information requirements as defined in 5 CFR part 1320, Controlling

Paperwork Burdens on the Public. In accordance with those rules and the

Paperwork Reduction Act of 1980 as amended (44 U.S.C. 3507), the Forest

Service has received approval by the Office of Management and Budget to

collect cave nomination information under clearance number 0596-0123

and confidential information under 0596-0122. The information provided

for the cave nominations will be used to determine which caves will be

listed as ``significant'' and the information in the requests to obtain

confidential cave information will be used to decide whether to grant

access to this information. Response to the call for cave nominations

is voluntary. No action may be taken against a person for refusing to

supply the information requested. Response to the information

requirements for obtaining confidential cave information is required to

obtain a benefit in accordance with section 5 of the Federal Cave

Resources Protection Act of 1988 (16 U.S.C. 4304).

Dated: May 17, 1994.

James R. Lyons,

Assistant Secretary, Natural Resources and Environment.

[FR Doc. 94-14714 Filed 6-16-94; 8:45 am]

BILLING CODE 3410-11-M