[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14714]


[[Page Unknown]]

[Federal Register: June 17, 1994]


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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