[Federal Register Volume 69, Number 131 (Friday, July 9, 2004)]
[Rules and Regulations]
[Pages 41428-41431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15483]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 228

RIN 0596-AC17


Clarification as to When a Notice of Intent and/or Plan of 
Operations Is Needed for Locatable Mineral Operations on National 
Forest System Lands

AGENCY: Forest Service, USDA.

ACTION: Interim rule; request for comments.

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SUMMARY: This interim rule sets forth technical amendments which 
clarify the regulations regarding the requirement for filing a notice 
of intent or a plan of operations for locatable mineral operations on 
National Forest System lands. The Forest Service invites written 
comments on this interim rule.

DATES: This interim rule is effective August 9, 2004. Comments on this 
interim rule must be received in writing by September 7, 2004.

ADDRESSES: Send written comments to Forest Service, USDA, Attn: 
Director, Minerals and Geology Management (MGM) Staff, (2810), Mail 
Stop 1126, Washington, DC 20250-1125; by electronic mail to 
[email protected]; by fax to (703) 605-1575; or by the electronic 
process available at Federal eRulemaking portal at http://www.regulations.gov. If comments are sent by electronic mail or by fax, 
the public is requested not to send duplicate written comments via 
regular mail. Please confine written comments to issues pertinent to 
the interim rule; explain the reasons for any recommended changes; and, 
where possible, reference the specific wording being addressed. All 
comments, including names and addresses when provided, will be placed 
in the record and will be available for public inspection and copying. 
The public may inspect comments received on this interim rule in the 
Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza Central, 
1601 North Kent Street, Arlington, Virginia, on business days between 
the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are 
encouraged to call ahead at (703) 605-4646 to facilitate entry into the 
building.

FOR FURTHER INFORMATION CONTACT: Sam Hotchkiss, Minerals and Geology 
Management Staff, (703) 605-4852.

SUPPLEMENTARY INFORMATION: 

Public Notification and Request for Comments

    The Department will make every effort to ensure locatable mineral 
operators, locatable mineral related organizations and associations, 
and other interested parties are informed of the availability of the 
interim rule. In order to ensure the widest distribution, the interim 
rule shall be distributed by paper copy mailings, e-mail notices, 
posting on the Forest Service Minerals and Geology Management Staff 
internet Web site, as well as published notices in local newspapers. 
Copies of the interim rule will also be provided to the appropriate 
Congressional Committee members.

Background and Need for Interim Rule

    Since 1974, the Forest Service has applied the regulations at 36 
CFR part 228, subpart A, to minimize adverse environmental impacts from 
mineral operations by requiring mineral operators to file proposed 
plans of operations for mineral operations which the District Ranger 
determines will likely cause significant surface disturbance to 
National Forest System (NFS) lands. These regulated operations may 
include the construction of storage facilities, mills, and mill 
buildings; placement of trailers or other personal equipment; 
residential occupancy and use; storage of vehicles and equipment;

[[Page 41429]]

excavation of holes, trenches, and pits by non-mechanized procedures; 
diversion of water; use of sluice boxes and portable devices for 
separating gold from sediments; off highway vehicle use; road and 
bridge construction; handling and disposal of mine and other wastes; 
and signing and fencing to restrict public use of the National Forest 
area affected by mining. The Forest Service and the courts have 
consistently required locatable mineral operators to obtain approval of 
a plan of operations whenever such operations would likely cause a 
significant surface disturbance whether or not those operations would 
always involve mechanized earth moving equipment or the cutting of 
trees. However, last year a District Court departed from this 
consistent interpretation and ruled that 36 CFR 228.4 (a)(2)(iii) 
allows a mining operation to occur on NFS lands without prior 
notification to the Forest Service or Forest Service approval when the 
operation, irrespective of the impact of its surface disturbing 
activities, does not involve mechanized earthmoving equipment or the 
cutting of trees. This unprecedented ruling severely restricts the 
ability of the Forest Service to regulate miners engaged in surface 
disturbing operations which have serious environmental impacts although 
they do not involve mechanized earth moving equipment or the cutting of 
trees. Moreover, this new interpretation of 36 CFR 228.4 (a)(2)(iii), 
if left unclarified, will result in significant and unnecessary impacts 
to NFS lands and resources, including impacts to water quality, visual 
quality, natural features, species listed under the Endangered Species 
Act, and conflicts with other National Forest users.
    The technical changes contained in this interim rule, for which 
prior notice and opportunity for public comment is not legally 
required, are designed to prevent confusion as to the proper 
interpretation of the regulations. Specifically, the technical 
amendments clarify the long-standing requirement that a notice of 
intent and/or plan of operations is mandatory whenever the District 
Ranger determines that there may be significant surface disturbance to 
NFS lands and resources, whether or not the operation involves the 
cutting of trees or use of mechanized earth moving equipment.

Clarification for Submitting a Notice of Intent and a Plan of 
Operations

    The technical amendments to Sec.  228.4(a) clarify the requirement 
that a notice of intent is mandatory in any situation in which a mining 
operation causes a surface disturbance, regardless of whether that 
disturbance is caused by mechanized earth moving equipment or the 
removal of timber. The technical amendments to Sec.  228.4(a) also seek 
to eliminate any possible confusion by more specifically addressing the 
issue of what level of operation requires a notice of intent and what 
level of operation requires a plan of operations by directing a mining 
operator to submit a notice of intent to operate when the proposed 
operation might cause a disturbance to surface resources. After a 
notice of intent is submitted, the District Ranger determines whether 
the proposed operations will likely cause a significant disturbance of 
surface resources. If the determination is that the proposal will 
likely cause a significant disturbance of surface resources, the 
operator is notified that a plan of operations is required.

Exemption From Notice and Comment

    Prior notice and opportunity for public comment is not required to 
promulgate technical amendments to a regulation. Moreover, even if the 
changes to 36 CFR 228.4(a) adopted herein were not technical amendments 
to that provision, the Administrative Procedure Act (the ``APA'') 
allows agencies to promulgate rules without notice and comment when an 
agency, for good cause, finds that notice and public comment are 
``impracticable, unnecessary, or contrary to the public interest.'' (5 
U.S.C. 553(b)(3)(B)). Furthermore, the APA exempts certain rulemakings 
from its notice and comment requirements, including rulemakings 
involving ``public property'' (5 U.S.C. 553(a)(2)).
    In 1971, Secretary of Agriculture Hardin announced a voluntary 
partial waiver from the APA notice and comment rulemaking exemptions. 
(July 24, 1971; 36 FR 13804). Thus, USDA agencies proposing rules 
generally provide notice and an opportunity for public comment on 
proposed rules. However, the Hardin policy permits agencies to publish 
final rules without prior notice and opportunity for public comment 
when an agency finds for good cause that notice and comment procedures 
would be impracticable, unnecessary, or contrary to the public 
interest. The courts have recognized this good cause exception of the 
Hardin policy and have indicated that since the publication requirement 
was adopted voluntarily, the Secretary should be afforded ``more 
latitude'' in making a good cause determination. See Alcaraz v. Block, 
746 F.2d 593, 612 (9th Cir. 1984).
    To the extent that 5 U.S.C. 553 applies to this interim rule, good 
cause exists to exempt this rulemaking from advance notice and comment. 
(5 U.S.C. 553(b)(B) and 553(d)(3)). There has been widespread 
dissemination of the district court decision among groups of small 
miners who have long objected to obtaining prior approval for their 
mining operations, and who frequently believe that mining operations 
invariably justify residential occupancy of NFS lands. This, coupled 
with the fact that the season for locatable mineral operations has 
already begun in many areas of the country due to favorable weather 
conditions, including unusually low snow pack levels in much of the 
west, has resulted in the initiation of many mining operations on NFS 
lands for which a notice of intent to operate or a plan of operations 
has always been required without the submission of a notice of intent 
to operate or the approval of a plan of operations. Consequently, many 
operations are already ongoing and a much larger number are imminent 
which will unnecessarily and unjustifiably adversely impact NFS lands 
and resources, including water quality, visual quality, natural 
features and species listed under the Endangered Species Act. The only 
means by which such significant adverse environmental effects can be 
avoided during this field season for locatable mineral operations is to 
promulgate the amended rule immediately. Under these circumstances, the 
Department has determined that prior notice and opportunity for public 
comment are not practicable and are contrary to the public interest.
    Comments received on this interim rule will be considered in 
adoption of a final rule, notice of which will be published in the 
Federal Register. The final rule will include a response to comments 
received and identify any revisions made to the rule as a result of the 
comments.

Regulatory Impact

    This interim rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this interim rule is not significant. It 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 interim rule would 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

[[Page 41430]]

obligations of recipients of such programs.
    Moreover, this interim 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. 
Therefore, a regulatory flexibility analysis is not required.

Environmental Impacts

    This interim rule more clearly establishes the criteria for 
determining when a notice of intent to operate or a plan of operations 
should be submitted by the operator. Section 31.1b of Forest Service 
Handbook 1909.15 (57 FR 43168; September 18, 1992) excludes from 
documentation in an environmental assessment or impact statement 
``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instruction.'' This 
interim rule clearly falls within this category of actions and no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or an environmental impact statement.

Energy Effects

    This interim rule has been reviewed under Executive Order 13211 of 
May 18, 2001, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use.'' It has been determined 
that this interim rule does not constitute a significant energy action 
as defined in the Executive Order.

Controlling Paperwork Burdens on the Public

    This interim rule does not contain any new record keeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR part 1320 that are not already required by law or not 
already approved for use. Accordingly, the review provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its 
implementing regulations at 5 CFR part 1320 do not apply.

Federalism

    The agency has considered this interim rule under the requirements 
of Executive Order 13132, Federalism, and Executive Order 12875, 
Government Partnerships. The agency has made a preliminary assessment 
that the interim rule conforms with the federalism principles set out 
in these Executive orders; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Based on comments received on this interim rule, the 
agency will consider if any additional consultations will be needed 
with the State and local governments prior to adopting a final rule.

Consultation and Coordination With Indian Tribal Governments

    This interim rule does not have tribal implications as defined by 
Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments, and, therefore, advance consultation with tribes is not 
required.

No Takings Implications

    This interim rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630. It has been 
determined that the interim rule does not pose the risk of a taking of 
private property.

Civil Justice Reform

    This interim rule has been reviewed under Executive Order 12988 on 
civil justice reform. If this interim rule were adopted, (1) all State 
and local laws and regulations that are in conflict with this interim 
proposed rule or that impedes its full implementation would be 
preempted; (2) no retroactive effect would be given to this interim 
proposed rule; and (3) it would not require administrative proceedings 
before parties may file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this interim rule on 
State, local, and tribal governments and the private sector. This 
interim rule would not compel the expenditure of $100 million or more 
by any State, local, or tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the act would not 
be required.

List of Subjects in 36 CFR Part 228

    Environmental protection, Mines, National forests, Oil and gas 
exploration, Public lands--mineral resources, Public lands--rights-of-
way, Reporting and recordkeeping requirements, Surety bonds, Wilderness 
areas.

0
Therefore, for the reasons set forth in the preamble, amend part 228 of 
title 36 of the Code of Federal Regulations as follows:

PART 228--MINERALS

Subpart A--Locatable Minerals

0
1. The authority citation for part 228 continues to read as follows:

    Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 551); 
41 Stat. 437, as amended sec. 5102(d), 101 Stat. 1330-256 (30 U.S.C. 
226); 61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914, as 
amended (30 U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C. 611); 
and 94 Stat. 2400.


0
2. Revise Sec.  228.4(a) to read as follows:


Sec.  228.4  Plan of operations--notice of intent--requirements.

    (a) If the District Ranger determines that any operation is causing 
or will likely cause significant disturbance of surface resources, the 
operator shall submit a proposed plan of operations to the District 
Ranger.
    (1) Unless the District Ranger determines that an operation is 
causing or will likely cause a significant disturbance of surface 
resources, the requirements to submit a plan of operations shall not 
apply:
    (i) To operations which will be limited to the use of vehicles on 
existing public roads or roads used and maintained for National Forest 
purposes;
    (ii) To individuals desiring to search for and occasionally remove 
small mineral samples or specimens;
    (iii) To prospecting and sampling which will not involve removal of 
more than a reasonable amount of mineral deposit for analysis and 
study;
    (iv) To marking and monumenting a mining claim; or
    (v) To subsurface operations.
    (2) Except as provided in this paragraph, a notice of intent to 
operate is required from any person proposing to conduct operations 
which might cause disturbance of surface resources. Such notice of 
intent shall be submitted to the District Ranger having jurisdiction 
over the area in which the operations will be conducted. Each notice of 
intent to operate shall provide information sufficient to identify the 
area involved, the nature of the proposed operations, the route of 
access to the area of operations, and the method of transport. If a 
notice of intent is filed, the District Ranger will, within 15 days of 
receipt thereof, notify the operator whether a plan of operations is 
required. A notice of intent need not be filed:
    (i) Where a plan of operations is submitted for approval in lieu 
thereof;
    (ii) For operations excepted in paragraph (a)(1) of this section 
from the requirement to file a plan of operations; or

[[Page 41431]]

    (iii) For operations which will not involve the use of mechanized 
earthmoving equipment such as bulldozers or backhoes or the cutting of 
trees, unless those operations otherwise might cause a disturbance of 
surface resources.
* * * * *

    Dated: June 30, 2004.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. 04-15483 Filed 7-8-04; 8:45 am]
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