[Federal Register Volume 73, Number 216 (Thursday, November 6, 2008)]
[Rules and Regulations]
[Pages 65984-65999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26448]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 261

RIN 0596-AC38


Clarification for the Appropriate Use of a Criminal or a Civil 
Citation To Enforce Mineral Regulations

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends certain Forest Service regulations to 
allow, if necessary, for a criminal citation to be issued for 
unauthorized mineral operations on National Forest System (NFS) lands.

DATE: The final rule is effective December 8, 2008.

ADDRESSES: The documents used to develop this final rule, along with 
comments, including names and addresses when provided are placed in the 
record and are available for inspection and copying. The public may 
copy or inspect these items at the Office of the Director, Minerals and 
Geology Management (MGM), Forest Service, USDA, 1601 N. Kent Street, 
5th Floor, Arlington, VA 22209 during regular business hours (8:30 a.m. 
to 4 p.m.), Monday through Friday except holidays. Visitors are 
encouraged to call ahead at (703) 605-4545 to facilitate entry into the 
building.

FOR FURTHER INFORMATION CONTACT: Ivette Torres, Minerals and Geology 
Management Staff, (703) 605-4792, or electronic mail to 
[email protected]. Individuals who use telecommunication devices for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday 
through Friday.

SUPPLEMENTARY INFORMATION:

[[Page 65985]]

Background and Need for Proposed Rule

    The Forest Service currently uses two enforcement options, civil 
and criminal, to enforce its mining regulations at 36 CFR part 228, 
subpart A. Criminal enforcement pursuant to 36 CFR part 261, subpart A 
is often preferred in those situations that are factually 
straightforward and where immediate action is needed, and other 
resolutions have failed.
    In 1984, a federal district judge ruled in an unpublished decision, 
United States v. Craig, No. CR-82-8-H, slip op. at 9-10 (D. Mont. Apr. 
16, 1984), that the prohibitions at 36 CFR 261.10 did not apply to 
locatable mineral operations subject to 36 CFR part 228, subpart A. On 
August 4, 1983, during the pendency of the Craig prosecution, the 
Forest Service issued a proposed rule to amend 36 CFR part 261, subpart 
A. Among the proposed amendments to that subpart, were adding the 
phrase ``or approved operating plan'' at end of both 36 CFR 261.10(a) 
and the section presently designated as 36 CFR 261.10(l). On June 21, 
1984, the Forest Service adopted the proposed rule, including these 
amendments. The applicability of these sections to locatable mineral 
operations was further clarified in 1990 when a definition of the term 
``operating plan'' was added to 36 CFR 261.2.
    In United States v. McClure, 364 F. Supp.2d 1183, 1183-84 (E.D. 
Cal. 2005), the Forest Service cited the defendant for operating a gold 
mining suction dredge without obtaining prior Forest Service 
authorization. The citation charged the miner with violating 36 CFR 
261.10(k) which prohibits use or occupancy of NFS lands without a 
special use authorization. Id. 1183. The judge determined that the 
miner's gold dredging operations were subject to 36 CFR part 228, 
subpart A (id. at 1185) and consequently, pursuant to 36 CFR 251.50(a), 
those operations were not special uses for which a special use 
authorization may be issued (Id. 1186). Accordingly, the court 
dismissed the charge that the miner violated 36 CFR 261.10(k) by 
occupying NFS lands without a special use authorization. Id. 1187.
    Given the McClure decision, this Department believes it is again 
advisable to amend 36 CFR part 261, subpart A to clearly provide that 
conducting unauthorized locatable mineral operations subject to 36 CFR 
part 228, subpart A, or other unauthorized mineral operations subject 
to different subparts of 36 CFR part 228, is prohibited by 36 CFR part 
261, subpart A and may lead to the operator's criminal prosecution. The 
Regions dealing with suction dredge operators are particularly 
concerned about the effects of the two adverse rulings on their use of 
prohibitions set forth in 36 CFR part 261.
    The amendments to 36 CFR part 261, subpart A rely on the Forest 
Service's clear statutory authority to adopt regulations providing for 
the issuance of a criminal citation to persons who commit prohibited 
acts on NFS lands. The amendments reflect the clear distinction between 
a special-use authorization and an operating plan as those terms are 
defined at 36 CFR 261.2. They also define the term ``residence'' to 
clarify a prohibition concerning shelters and structures on NFS lands 
used as living or sleeping quarters. The amendments apply to all 
persons conducting mineral operations subject to any subpart of 36 CFR 
part 228, including locatable mineral operations subject to subpart A.
    The Forest Service recognizes that it cannot preclude use and 
occupancy of NFS lands for locatable mineral operations, including 
camping or residential use, if those operations are conducted so as to 
minimize their adverse environmental impacts, the operations are 
limited to locatable mineral prospecting, exploration, development, 
mining, processing, reclamation, closure and those uses reasonably 
incidental thereto, and the operations are appropriate in terms of 
their type, duration, and stage. However, this does not preclude Forest 
Service adoption of rules requiring written authorization for some or 
all of these operations by means such as a notice of intent to conduct 
operations or an approved plan of operations when the Forest Service 
deems it appropriate. Nonetheless, this rulemaking has no effect 
whatsoever on a miner conducting operations specified by 36 CFR 
228.4(a)(1) that do not require prior notice to the Forest Service. Nor 
does this rulemaking have any affect whatsoever on a miner's duty to 
submit a notice of intent to conduct locatable mineral operations, 
including reasonably incidental camping, which might cause significant 
disturbance of surface resources. Nor does this rulemaking have any 
effect whatsoever on a miner's need to obtain approval of a plan of 
operations, and if necessary, a reclamation bond, to conduct locatable 
mineral operations, including reasonably incidental camping, which will 
likely cause significant disturbance of surface resources. Those 
matters continue to be governed by 36 CFR part 228, subpart A.

Analysis of Public Comment

Overview

    The comment period opened on May 10, 2007, and closed on July 9, 
2007. Forty-three responses were received asking for an extension of 
the comment period and for public meetings. Most of these requests were 
identical in wording with just different names. The agency decided not 
to hold public meetings since it was the middle of the field season, 
but did reopen the comment period on the proposed rule for another 30 
day comment period, beginning on October 23, 2007, and closing on 
November 23, 2007. The Forest Service received a total of 86 responses 
to the proposed rule (72 FR 59979).
    Two comments were received in favor of the rule as written. Two 
industry organizations supported the basic idea of the proposed rule, 
but suggested minor revisions. Eighty-two comments were received that 
opposed the proposed rule primarily on the grounds that the Forest 
Service did not have the authority to use criminal citations for 
locatable mineral operations. Most of the 82 comments in opposition to 
the proposed rule were submitted by individuals, many of whom 
identified themselves as prospectors or miners in small scale mining 
operations.
    Commenters who opposed the rule primarily thought the Forest 
Service did not have the authority to issue criminal citations for 
locatable mineral operations. Almost invariably, they said 36 CFR part 
261, subpart A is statutorily inapplicable to persons conducting 
locatable mineral operations pursuant to the United States mining laws. 
Those respondents pointed to provisions of the Forest Service's Organic 
Administration Act of 1897 or the United States mining laws they said 
the rule would violate.
    Many of the respondents also said the rule would be inconsistent 
with existing Forest Service regulations pointing to three different 
parts of Title 36 of the Code of Federal Regulations. A small number of 
respondents opposed the rule on the ground that this rulemaking is 
invalid for other reasons. Most of them asserted that the rulemaking 
violates other Federal law or regulation. A few question the rule's 
consistency with other materials, not all of which are Federal.
    Several respondents' comments were obvious copies from comments 
sent in responding to the Federal Register Notice of July 9, 2004, (69 
FR 41428) ``Clarification as to When a Notice of Intent to operate and/
or Plan of Operations is Needed for Locatable Mineral Operations on 
National Forest System lands.'' These comments will

[[Page 65986]]

not be listed since they do not apply to this rulemaking. Many comments 
to the proposed rule were very similar in content. Consequently, 
similar comments were combined and responded to only once.
    All comments submitted on the proposed rule and the administrative 
record are available for review in the Office of the Director, Minerals 
and Geology Management, 1601 N. Kent St., 5th Floor, Arlington, 
Virginia 22209, during regular business hours (8:30 a.m. to 4 p.m.), 
Monday through Friday, except Federal holidays. Those wishing to view 
the comments and the administrative record should call in advance to 
arrange access to the building (See: For Further Information Contact).

General Comments

Occupancy and Forest ``Stay Limits''

    Several commenters asked for a clarification about how local forest 
``stay limits'' on recreational camping apply to locatable mineral 
activities. Regardless of the local stay limit, reasonably incidental 
residential use of NFS lands by persons conducting locatable mineral 
prospecting, exploration, mining, or processing that might cause 
significant disturbance of NFS surface resources requires prior 
submission of a notice of intent to conduct operations. Reasonably 
incidental residential use of NFS lands by persons conducting locatable 
mineral prospecting, exploration, mining, or processing that is likely 
to cause, or is causing, a significant disturbance of NFS surface 
resources must be authorized by an approved plan of operations. 
Reasonably incidental residential use of NFS lands by persons 
conducting locatable mineral prospecting, exploration, mining, or 
processing that will not cause significant disturbance of NFS surface 
resources does not require prior submission of a notice of intent to 
conduct operations or approval of a plan of operations. When the 
probability of significant NFS surface resource disturbance is being 
evaluated in connection with locatable mineral operations consisting of 
appropriate prospecting, exploration, development, mining, processing, 
reclamation and closure, and accompanying reasonably incident 
residential use of NFS lands, the operations in their totality, 
including the reasonably incidental residential use, must be 
considered. Residential use of NFS lands which is not reasonably 
incidental to appropriate locatable mineral prospecting, exploration, 
development, mining, processing, or reclamation and closure operations 
being conducted by miners on NFS lands pursuant to 36 CFR part 228, 
subpart A is impermissible unless it complies with requirements 
pertaining to special uses of NFS lands, including an applicable stay 
limit.
    An operator, consequently, is not required to notify the Forest 
Service prior to conducting locatable mineral operations which involve 
occupancy of NFS lands providing that those operations meet two 
conditions: (1) The occupancy is reasonably incidental to locatable 
mineral prospecting, exploration, mining, or processing and (2) those 
proposed (or ongoing) operations, including such reasonably incidental 
occupancy, cumulatively will not cause (or are not causing) significant 
disturbance of NFS surface resources. Moreover, when occupancy is 
reasonably incidental to prospecting, exploration, mining, and 
processing operations, then the level of surface disturbance, not the 
duration of the occupancy, will determine whether a Notice of Intent or 
a Plan of Operations is required. For example, no Forest Service 
authorization is needed if a miner wants to camp on his mining claim 
while suction dredging under a state permit and the authorized officer 
determines that the proposed operation meets the two conditions above.

Specific Comments

    Comment: Several commenters questioned the Forest Service's 
authority to criminally enforce any Forest Service regulation.
    Response: The Organic Administration Act of 1897 confers authority 
upon the Department to promulgate regulations protecting the NFS as 
well as making contravention of those protective rules a criminal 
offense for which a fine or imprisonment may be imposed. That authority 
flows from 16 U.S.C. 551, a portion of the Organic Administration Act 
providing in pertinent part:

    The Secretary of Agriculture shall make provisions for the 
protection against destruction by fire and depredations upon the 
public forests and national forests * * *; and he may make such 
rules and regulations * * * as will insure the objects of such 
reservations, namely, to regulate their occupancy and use and to 
preserve the forests thereon from destruction; and any violation of 
* * * such rules and regulations shall be punished by a fine * * * 
or imprisonment * * *, or both.

    Doubts regarding the legality and scope of the Department's 
authority under 16 U.S.C. 551 were dispelled in 1911 by the United 
States Supreme Court's decision in United States v. Grimaud, 220 U.S. 
506 (1911). In Grimaud, the Supreme Court rejected a challenge to 16 
U.S.C. 551 on the ground it ``was unconstitutional, in so far as 
[Congress] delegated to the Secretary of Agriculture power to make 
rules and regulations, and made a violation thereof a penal offense.'' 
The decision squarely holds that 16 U.S.C. 551 both authorizes the 
Department to adopt regulations governing the occupancy and use of NFS 
lands set aside from the public domain and provides that violation of 
such regulations is a criminal offense. Id. at 522-23.
    Comment: Two respondents stated that the Forest Service, in 
adopting this rule, is attempting to circumvent the decisions in United 
States v. Lex, 300 F. Supp. 2d 951 (E.D. Cal. 2003), and U.S. v. 
McClure, 364 F. Supp. 2d 1183 (E.D. Cal., 2005), claiming that the 
Forest Service has no authority to cite a miner under 36 CFR part 261.
    Response: Nothing in Lex or McClure could, or purports to, 
restricts the Forest Service's clear authority to promulgate rules 
regulating the effects of locatable mineral resources on Forest Service 
lands. Indeed, the court specifically recognizes that one of the 
government's remedies for the court's adverse opinion is to amend 36 
CFR part 261, subpart A.

    The Court understands that pursuing a Part 261 violation against 
a noncomplying miner is a preferred remedy since it is expeditious 
and often results in a probationary term which mandates the miner's 
compliance. Here, the Government is not without remedy. It has 
always had the option of pursuing civil abatement. Likewise, the 
Government is free to pursue criminal proceedings under appropriate 
sections of Part 261 for ``waste'' or ``resource destruction''; and 
Title 18 U.S.C. Similarly, it may simply choose to amend 261.10 to 
make criminal a miner's failure to file a notice of intent and/or 
plan of operation. See Lex & Waggener at 962.

United States v. McClure, 364 F. Supp. 2d 1183, 1186 n.7 (E.D. Cal. 
2005).
    In the earlier Lex decision, the court set aside the decision of a 
United States Magistrate convicting miners cited for violating 36 CFR 
Sec.  261.10(b) which prohibits residential use or occupancy of NFS 
lands without authorization by means of a special use authorization or 
other Federal law or regulation. Here too, the court, after noting that 
it was not unsympathetic to the problematic effect of its decision upon 
Forest Service efforts to regulate the defendants, occupancy of NFS 
lands, specifically stated that ``[t]he solution to this problem * * * 
is to amend the regulations.* * *'' United States v. Lex, 300 F. Supp. 
2d 951 (E.D. Cal. 2003).
    Comment: Many respondents claimed that the Forest Service has no 
authority

[[Page 65987]]

to apply the prohibitions at 36 CFR part 261 provisions to mining or to 
restrict or regulate mining operations by means of 36 CFR part 261. 
Several believed the regulations at 36 CFR part 228, subpart A should 
be revised to include enforcement provisions and the regulations at 36 
CFR part 261, subpart A should not be applicable to mining operations. 
Another believes that CFR part 228, subpart A precludes the application 
of the remaining regulations in Title 36, Chapter II to locatable 
mineral operations.
    Response: The conclusion that 36 CFR part 261 is not applicable to 
locatable mineral operations conducted pursuant to the proposed rule or 
the remainder of 36 CFR part 228, subpart A, is directly contrary to 
the holding of United States v. Doremus, 888 F.2d 630, 631-32 (9th Cir. 
1989). In Doremus, the appellants argued that their operations were 
authorized by the United States mining laws. Consequently, they 
contended that they were exempt from the prohibitions set forth at 36 
CFR part 261 by virtue of 36 CFR 261.1(b), which, as the respondents 
note, states that ``[n]othing in this part shall preclude operations as 
authorized by * * * the U.S. Mining Laws Act of 1872 as amended.'' 
However, the court directly rejected their argument, stating that:

    Part 228 does not contain any independent enforcement 
provisions; it only provides that an operator must be given a notice 
of noncompliance and an opportunity to correct the problem. 36 CFR 
228.7(b) (1987). The references to operating plans in Sec.  261.10 
would be meaningless unless Part 261 were construed to apply to 
mining operations, since that is the only conduct for which 
operating plans are required under Part 228. In addition, 16 U.S.C. 
478 (1982), which authorizes entry into national forests for all 
proper and lawful purposes, including that of prospecting, locating, 
and developing the mineral resources thereof, specifically states 
that such persons must comply with the rules and regulations 
covering such national forests. This statutory caveat encompasses 
all rules and regulations, not just those (such as Part 228) which 
apply exclusively to mining claimants. In this context, Sec.  
261.1(b) is merely a recognition that mining operations may not be 
prohibited nor so unreasonably circumscribed as to amount to a 
prohibition. United States v. Weiss, 642 F. 2d 296, 299 (9th Cir. 
1981).

Thus, ``[t]he law is clear that the Forest Service may proceed by 
criminal prosecution for violations of the regulations governing mining 
and protection of the National Forest lands.'' United States v. Good, 
257 F.Supp.2d 1306, 1319 (D. Colo. 2003).
    The additional regulations applicable to locatable mineral 
operations are not restricted to 36 CFR part 261, subpart A. Other 
portions of Title 36 of the Code of Federal Regulations which can 
govern locatable mineral operations include, but are not limited to, 
part 212, subpart A, which governs administration of the Forest 
Transportation System; part 215, which sets forth notice, comment and 
appeal procedures for NFS projects and activities; and part 251, 
subpart C, which sets forth procedures for appeal of decisions relating 
to NFS occupancy and use.
    The Department disagrees with the suggestion to include all 
prohibitions applicable to locatable mineral operations in 36 CFR part 
261, subpart A. While some prohibitions are uniquely applicable to 
miners, such as new Sec. 261.10(p), most are applicable to other NFS 
users, including amended Sec. 261.10(a), (b) and (l). Others such as 36 
CFR 261.4 and 261.11, governing disorderly conduct and sanitation, 
respectively are applicable to all users of the NFS, including miners. 
Repeating all these generic prohibitions in the parts of Title 36, 
Chapter II relevant to different groups of NFS users clearly would be 
unwieldy. However, having the prohibitions targeted to specific users 
of NFS lands set forth in the CFR part applicable to those users while 
having the generic prohibitions in another part of the CFR could lead 
to persons being unfairly surprised about the scope of prohibited 
conduct.
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: One respondent claimed that because 36 CFR 261.10 
regulations are not mentioned in the 36 CFR part 228 subpart A 
regulations, the Forest Service has no authority to cite, using the 36 
CFR 261.10 regulations.
    Response: The Forest Service's authority to apply the 36 CFR 261.10 
prohibitions to operations subject to 36 CFR part 228, subpart A is 
explained in the previous response.
    Comment: Several respondents were concerned that the Forest Service 
District Rangers and Mineral administrators would overstep their 
authority and unduly use criminal citations as a ``fix'' for any mining 
related problem.
    Response: The Forest Service has had the authority to use criminal 
citations for over 30 years and has not had a track record of overuse 
of the criminal citation authority. In fact, many respondents did not 
know the Forest Service had the authority to use criminal citations, 
adding weight to the fact that there is no history of abuse. Criminal 
citations have always been a tool of last resort. If noncompliance is 
not resolved through the process of communication and willing 
compliance, civil citations are usually considered before criminal 
citations. Criminal citations are only used when the facts of the 
noncompliance warrant a criminal citation. Further Forest Service 
Manual direction will be issued to ensure criminal citations are 
properly used.
    Comment: Several respondents claimed that the proposed rule would 
increase the time needed for the Forest Service to process either a 
notice of intent or a plan of operations. The respondents asserted that 
such delay would be prohibitive in the context of small-scale mining 
operations.
    Response: These comments reflect a fundamental misperception of the 
effect of this rule. The amendments to 36 CFR part 261, subpart A do 
not alter the requirements applicable to persons conducting mineral 
operations on NFS lands pursuant to 36 CFR part 228. The purpose of 36 
CFR part 261, subpart A is to give the public notice of those few 
requirements set forth in other parts of the Forest Service's rules 
where violations have been made criminal. However, 36 CFR part 261, 
subpart A does not create the underlying requirements whose violation 
that subpart prohibits.
    Comment: Many respondents complained about the fact that they were 
not personally notified about the proposed rule.
    Response: Outside of publishing the proposed rule in the Federal 
Register, there is no legal requirement to notify every ``miner'' about 
the proposed rule. Some Forest Supervisors published news releases in 
local papers; some did not. Additional notification is not legally 
required. Several national mining organizations were notified of the 
proposed rule and asked to distribute to their members and associated 
organizations. Forty-three respondents asked for an additional 30-day 
comment period. The comment period was reopened on October 23, 2007, 
and closed on November 23, 2007.
    Comment: Two respondents stated that the Small Business 
Administration (SBA) would find that the proposed rule will have a 
major impact on small entities given the SBA's finding that a 
purportedly similar rule, 43 CFR part 3800, subpart 3809, would have a 
major impact on small entities.
    Response: The scope of the proposed rule only addresses a 
clarification for criminal citations for unauthorized occupancy and use 
of the National Forest and the authorization required for conducting 
locatable mineral operations on Forest Service lands. The proposed rule 
is dramatically less

[[Page 65988]]

sweeping than the scope of the proposed changes to 43 CFR part 3800, 
subpart 3809. While 43 CFR part 3800, subpart 3809, addresses a similar 
issue for lands administered by Bureau of Land Management (BLM), it 
additionally sets forth a host of other requirements. Therefore, any 
finding which the SBA made on the effect of 43 CFR part 3800, subpart 
3809, on small entities consequently has exceedingly limited predictive 
value in terms of the SBA's possible assessment of the impact of the 
Forest Service's proposed and final rule.
    Comment: Several respondents were concerned about the possible 
misuse of the criminal citations and quoted at length from the 2810 
section of the Forest Service manual. They cautioned that before a 
person can be charged under 36 CFR part 261, the Forest Service must 
first demonstrate that a miner has violated 36 CFR part 228, subpart A.
    Response: These amendments will require the revision of the Forest 
Service Manual to better explain under what circumstances the Forest 
Service will use criminal rather than civil enforcement measures. The 
revised manual will also include how the agency will monitor, manage, 
and prevent possible abuse of the criminal citations by untrained and 
unqualified Forest Service employees. Locatable minerals administration 
training will include an extra emphasis on the proper use of criminal 
citations. The Forest Service is reinforcing the agency policy of 
requiring only certified and qualified minerals administrators involved 
in determining when an operator is in noncompliance. The final rule 
will also require that Forest Service law enforcement personnel work 
only with Forest Service Certified Mineral Administrators to determine 
and document that an operator is in violation of 36 CFR part 228 
subpart A, prior to issuing a violation notice under 36 CFR part 261, 
subpart A.
    Comment: Several respondents asked how the Forest Service intends 
to reconcile its issuance of citations pursuant to 36 CFR part 261, 
subpart A with the noncompliance procedures already existing at 36 CFR 
228.7.
    Response: The revised Forest Service Manual and locatable minerals 
training discussed in previous responses will emphasize that criminal 
citations are tools of last resort, and 36 CFR 228.7 generally requires 
that a miner be served a notice of noncompliance prior to the Forest 
Service taking any kind of enforcement action. A Forest Service notice 
of noncompliance is a Forest Service decision, and consistent with 36 
CFR 228.14, a miner will be given the opportunity to appeal the notice 
under 36 CFR part 251, subpart C. Furthermore, FSM 2817 requires that 
prior to any citation, except in emergency circumstances, the Forest 
Service has to work with the miner to secure willing compliance. Only 
after a reasonable effort has been made to secure the operator's 
willing compliance, will a notice of noncompliance generally be issued. 
Continued refusal by the miner to comply with the notice of 
noncompliance usually requires enforcement action. Enforcement action 
may be either civil or criminal in nature. The appropriate minerals 
staff, in addition to the Office of the General Counsel and the United 
States Attorney will be consulted prior to the citation of anyone 
operating under the United States mining laws.
    Comment: Several respondents asked under what circumstances a 
criminal citation under 36 CFR part 261, subpart A would be issued.
    Response: A criminal citation may be appropriate in cases where 
unnecessary and unreasonable damage is occurring and all reasonable 
attempts to obtain the operator's willing compliance with 36 CFR part 
228, subpart A, or the terms of an approved plan of operations have 
failed.
    Comment: Several respondents expressed their concern that criminal 
citations will be misused against miners who camp on their mining 
claims longer than a forest recreational camping limit.
    Response: This comment concerns Forest Orders which limit the 
duration of temporary recreational camping on many National Forests 
depending on site conditions. In many places, campers are limited to a 
14-day overnight stay, within a 30-60 day period, in a particular 
location. The purpose of such a Forest Order, also known as a ``stay 
limit,'' is to provide an enforceable standard pursuant to 36 CFR 
261.58(a) which local Forest Service offices use to protect conditions 
at camping sites and prevent unlimited, unregulated recreational 
camping and associated impacts.
    We agree that the potential for misuse of the criminal citations 
against operators camping on their mining claims exists. Additional 
training and direction will be given to the field that requires the 
Forest Service to distinguish between recreational campers and those 
who are legitimately carrying out activities under the United States 
mining laws. If an operator asserts that they are operating under the 
United States mining laws, and documents that need to camp on the site 
longer than the Forest recreational camping limit for the purpose of 
conducting locatable mineral operations that will not cause significant 
disturbance of NFS surface resources, the Forest Service is obligated 
to consider these facts prior to taking enforcement action under 36 CFR 
part 261. Furthermore, the training will emphasize that issuance of a 
citation pursuant to 36 CFR part 261, subpart A is inappropriate unless 
the Forest Service believes that the proposed or ongoing operations, 
including the reasonably incidental camping, require prior submission 
and approval of a plan of operations. This requirement flows from the 
fact that the prohibitions set forth at 36 CFR part 261, subpart A are 
predicated upon an operator's failure to obtain a required plan of 
operations under 36 CFR 228.4(a), not upon the operator's failure to 
submit a notice of intent to conduct operations.
    Thus, regardless of the local stay limit, an operator is not 
required to submit a notice of intent to conduct operations unless the 
locatable mineral prospecting, exploration or mining, and processing, 
and the reasonably incidental camping, might cause significant 
disturbance of NFS surface resources. Moreover, as discussed above, an 
approved plan of operations is not required for the locatable mineral 
prospecting, exploration or mining, and processing, and the reasonably 
incidental camping, unless those operations are likely to cause a 
significant disturbance of surface resources. An operator, 
consequently, is not required to notify the Forest Service prior to 
conducting locatable mineral operations which involve occupancy of NFS 
lands providing that those operations meet two conditions: (1) The 
occupancy is reasonably incidental to locatable mineral prospecting, 
exploration, mining, or processing and (2) those proposed (or ongoing) 
operations, including such reasonably incidental occupancy, 
cumulatively will not cause (or are not causing) significant 
disturbance of NFS surface resources.
    This process is consistent with the United States mining laws, in 
particular 30 U.S.C. 22 and 612, which grant an operator the right to 
occupy Federal lands subject to the United States mining laws for 
locatable mineral prospecting, exploration, mining, and processing 
operations and uses reasonable incidental thereto. Accordingly, where 
the proposed occupancy of NFS is reasonably incidental to prospecting, 
exploration, mining, and processing operations, the level of surface 
disturbance of the operations in totality, including

[[Page 65989]]

reasonably incidental occupancy of NFS lands, not the duration of the 
occupancy, will determine whether submission of a notice of intent to 
conduct operations or submission and approval of a plan of operations 
is required. For example, a miner is not required to give prior notice 
to the Forest Service when the miner plans to camp on the miner's 
mining claim while suction dredging under a state permit if the miner 
believes that the proposed operation meets the two conditions above. 
However, the miner should be aware that if the authorized officer 
determines that those operations, whether proposed or ongoing, will 
likely cause or are causing, significant disturbance of NFS surface 
resources, the authorized office can require the miner to submit and 
obtain approval of a plan of operations and that those operations 
cannot be conducted until the plan is approved pursuant to 36 CFR 
228.4(a)(4).
    Comment: Several respondents thought that including caves and cliff 
ledges in the new definition of the term ``residence'' at 36 CFR 261.2 
is unnecessary. Another commenter objected to the inclusion of tunnels 
in the definition because the Forest Service does not have authority 
over operations occurring underground.
    Response: The Department agrees that the Forest Service generally 
does not have authority to regulate locatable mineral operations 
conducted underground. However, the Forest Service's regulatory 
authority does extend to locatable mineral operations conducted 
underground if those operations may or are likely to cause significant 
disturbance of NFS surface resources. Nonetheless, the Department 
agrees that it is so unlikely that a miner would reside in caves or 
tunnels or on cliff ledges, with or without authorization, that 
inclusion of those terms in the new definition of residence is 
unnecessary.
    For these reasons, the final rule's definition of the term 
``residence'' does not include the caves, cliff ledges, or tunnels.
    Comment: Several respondents recommended that the final rule should 
contain a clarification that states under the United States mining laws 
an operator may ``use and occupy'' NFS lands under a notice as long as 
the use and occupancy is reasonably incidental to prospecting, 
exploration, mining, and processing, and there is no significant 
disturbance of surface resources.
    Response: The Department agrees with the respondents' conclusions 
about the scope of the United States mining laws as reflected by the 
answer to a previous comment. The Department believes that the 
extensive treatment of this issue in that answer and in the upcoming 
revision of the Forest Service Manual together with the emphasis that 
will be placed on it in Forest Service's training concerning the 
amendments adequately responds to the comment.
    Comment: Several respondents suggested that the final rule should 
clarify that the special use regulations, 36 CFR part 251, subpart B, 
do not apply to locatable mineral operations on NFS lands.
    Response: The preamble to the May 10, 2007 proposed rulemaking (72 
FR 26578) expressly makes the point that United States v. McClure, 364 
F. Supp.2d 1183, 1183-84 (E.D. Cal. 2005) directly holds that the 
special uses regulations at 36 CFR part 251, subpart B do not govern 
locatable mineral operations conducted on NFS lands themselves. (The 
same discussion appears in the preamble for this final rule.) This 
holding is based on 36 CFR 251.50(a) which this Department agrees the 
courts properly interpreted.
    However, the Department notes that a mineral operator who also is 
using NFS lands in a manner not within the scope of the statutes 
authorizing the regulations at 36 CFR part 228 might be subject to the 
special uses regulations at 36 CFR part 251, subpart B as well as 36 
CFR part 228, subpart A. Yet even assuming that the operations being 
conducted by an operator are regulated pursuant to 36 CFR part 228 
alone, the prohibitions in proposed 36 CFR 261.10(a) and (b) are 
applicable to the mineral operator if a provision in 36 CFR part 228 
requires the operator to hold an approved operating plan as that term 
is defined by proposed 36 CFR 261.2.
    Some respondents appear to have been confused by the retention of 
the reference to a ``special use authorization'' in Sec. 261.10(a) and 
(b) given that those provisions also refer to an ``operating plan.'' 
The reference to a special use authorization in proposed and final Sec. 
261.10(a) and (b) does not reflect this Department's contention that 
mineral exploration, development and mining constitute special uses 
subject to 36 CFR part 251, subpart B instead of operations subject to 
36 CFR part 228. Rather, the retention of the special use authorization 
reference reflects that fact that the prohibitions in those sections 
apply in two different contexts. One is the use of NFS lands by persons 
conducting operations pursuant to the United States mining laws subject 
to 36 CFR part 228, subpart A. The other independent category is use of 
NFS lands that constitutes a special use governed by 36 CFR par 251, 
subpart B. Indeed, the fact that 36 CFR 261.10(b) is being amended to 
reference an ``approved operating plan'' as well as a ``special use 
authorization'' demonstrates that the two documents are mutually 
exclusive. (The applicability of 36 CFR 261.10(p) is undisputable given 
that it solely pertains to those mineral operations for which an 
operating plan, as that term is defined by section 36 CFR 261.2, is 
required.)
    Comment: Several respondents believe that the amendments to 36 CFR 
part 261, subpart A will deny them due process.
    Response: The amendments to 36 CFR part 261, subpart A adopted by 
this rule do not deny locatable mineral operators due process. Miners 
are being given notice of the amended prohibitions by means of the 
rulemaking and the codification of those prohibitions in 36 CFR part 
261, subpart A. The amended prohibitions clearly are tied to locatable 
mineral operations subject to the requirements of 36 CFR part 228, 
subpart A which mandate an approved plan of operations when the 
operations are likely to cause significant disturbance of NFS surface 
resources.
    A citation issued pursuant to 36 CFR part 261, subpart A will not 
be the operator's first notice that the Forest Service believes that 
operations the operator is conducting require an approved operating 
plan. When unauthorized operations unnecessarily or unreasonably cause 
injury, loss or damage to surface resources, 36 CFR 228.7(b) requires 
the authorized officer to first serve a notice of noncompliance upon 
the operator. Pursuant to the requirements of the Forest Service 
Manual, the authorized officer then must make a reasonable effort 
through negotiation to secure the miner's willing cooperation in 
bringing the operations into compliance with 36 CFR part 228, subpart 
A. The Forest Service also will give the operator a reasonable 
opportunity to complete actions required to bring the operations into 
compliance with 36 CFR part 228, subpart A. If the operator disagrees 
with the authorized officer's decision to issue a notice of 
noncompliance, the operator may administratively appeal that decision 
utilizing the procedures in 36 CFR part 251, subpart C. Finally, an 
operator who is issued a Citation will receive all legally required due 
process procedures for the imposition of a criminal penalty when the 
operator appears for trial before a United States Magistrate Judge or a 
United States District Court Judge in accordance with

[[Page 65990]]

Rule 58 of the Federal Rules of Criminal Procedure.
    Comment: Several respondents observed that the definition of the 
term ``residence'' in proposed 36 CFR 261.2 is contradictory because it 
lists tents and recreational vehicles among the shelters and structures 
that can be a residence, yet the paragraph's final clause excludes 
``structures or objects used for camping'' from the definition.
    Response: The Department agrees that the proposed definition is not 
clear. It is revised in this final rule to provide: ``Residence means 
any structure or shelter, whether temporary or permanent, including, 
but not limited to, buildings, buses, cabins, campers, houses, lean-
tos, mills, mobile homes, motor homes, pole barns, recreational 
vehicles, sheds, shops, tents and trailers, which is being used, 
capable of being used, or designed to be used, in whole or in part, 
full or part-time, as living or sleeping quarters by any person, 
including a guard or watchman.'' As revised, the definition is 
consistent with the Department's intent.
    Comment: Several respondents suggested adding metal detectors to 
the list of motorized equipment not requiring a plan of operation. 
Others suggested adding small hand operated drills and rocks saws.
    Response: The definition of ``motorized equipment'' in 36 CFR 261.2 
does not affect the requirements of 36 CFR part 228, subpart A which 
are applicable to locatable mineral operations conducted pursuant to 
the United States mining laws. The prefatory language in proposed 36 
CFR 261.2 specifically provides that the definitions set forth in that 
section ``apply to this part,'' that is, 36 CFR part 261. Indeed, this 
definition is only relevant to two prohibitions, 36 CFR 261.18(a) and 
36 CFR 261.21(b), which govern the conduct of all users of National 
Forest Wilderness and National Forest primitive areas, including 
mineral operators. The effect of the proposed amendment also appears to 
have been cause for great alarm to the persons who commented on the 
proposed rule. For these reasons, the definition of the term 
``motorized equipment'' is not being amended by this final rule.
    Comment: Five respondents commented that the Forest Service 
violated the Regulatory Flexibility Act by failing to prepare and make 
available for public comment a regulatory flexibility analysis on the 
rule's potential economic costs on heritage, individuals, development, 
and productivity. Additionally, those respondents stated that these 
violations of the Regulatory Flexibility Act also constitute a 
violation of the Congressional review requirements at 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: Prior to publishing the proposed rule in the Federal 
Register, the Office of Management and Budget (OMB) reviewed the 
proposed rule and determined that it was not a significant rulemaking. 
Consequently, the economic analysis described by the comment was not 
required.
    Given that the Forest Service did not violate the Regulatory 
Flexibility Act in promulgating the proposed rule, there is no 
cumulative violation of 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Comment: Several respondents believe the wording of the proposed 
rule implies that the rule would ``override'' or ``change'' the United 
States mining laws and was therefore illegal. Several respondents 
stated that the Forest Service can not amend the United States mining 
laws, the Mining and Mineral Policy Act of 1970, or the Surface 
Resource Act of 1955 by issuing administrative rules. Four respondents 
stated that the Forest Service can not substitute its regulatory 
authority under the 1897 Organic Act for that of the United States 
mining laws.
    Response: The Department agrees that only the United States 
Congress has authority to make or amend Federal laws. However, the 
changes to 36 CFR part 261, subpart A do not amend, change or alter any 
Federal laws. Nor does the proposed regulation conflict with the United 
States mining laws.
    As discussed above, the statutory authority to regulate locatable 
mineral operations conducted on NFS lands that may disturb surface 
resources clearly both exists and has been delegated to the Sectary of 
Agriculture, not the Secretary of the Interior. ``[T]here can be no 
doubt that the Department of Agriculture possesses statutory authority 
to regulate activities related to mining * * * in order to preserve the 
national forests.'' Clouser v. Espy, 42 F.3d 1522, 1530 (9th Cir. 
1994), cert. denied sub nom. Clouser v. Glickman, 515 U.S. 1141 (1995). 
Indeed, ``[s]ince 1897 the Secretary of Agriculture has had authority 
under sections 478 and 551 of Title 16 [The Organic Administration Act 
of 1897] to promulgate regulations concerning the methods of 
prospecting and mining in national forests. * * *'' United States v. 
Richardson, 599 F.2d 290, 292 (9th Cir. 1979).
    As also discussed above, this Department has authority to adopt 
regulations prohibiting conduct on NFS lands and to permit the issuance 
of a criminal citation for the violation of those prohibitions. 
Responses to previous comments demonstrate that there is no reasonable 
basis to doubt the legality of applying the prohibitions set forth in 
36 CFR part 261, subpart A to operations conducted pursuant to the 
United States mining laws.
    For these reasons, these comments did not warrant changing the 
final rule.
    Comment: Two respondents stated that the proposed rule violated 
E.O. 13132 by permitting the Forest Service to regulate locatable 
mineral operations taking place in waters, failing to disclose the 
rule's effect upon Federalism principles, and failing to consult with 
affected State and local officials. The commenters further asserted the 
Department's violation of E.O. 13132 also violates 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: E.O. 13132 is only applicable to rulemakings having 
Federalism implications which by definition are those ``regulations * * 
* that 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'' (Sec. 1(a)). This rulemaking amends the list of prohibited 
actions involving occupancy of National Forest System lands set forth 
in 36 CFR 261.10. If a person commits an act prohibited by 36 CFR 
261.10, that person may receive a citation pursuant to 36 CFR part 261, 
subpart A which initiates a criminal misdemeanor prosecution in federal 
court pursuant to Fed. R. Crim. P. 58. Such a prosecution does not have 
substantial direct effects on States, the relationship between the 
Federal government and the States, or the distribution of power and 
responsibilities among the various levels of government.''
    For these reasons, in proposing or adopting the amendments to 36 
CFR part 261, subpart A, the Department did not violate E.O. 13132 or 
cumulatively violate 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Given that the Forest Service did not violate E.O. 13132 in 
promulgating the proposed rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: One respondent claimed that the proposed rule's bonding 
requirement was preclusive in that a bond would be required for every 
mining operation regardless of size or impact level.
    Response: The proposed rule does not address bonding requirements. 
Bonding requirements are described at 36 CFR 228.13. Indeed, as 
discussed above, this rule does not impose any requirement governing 
locatable mineral operations.

[[Page 65991]]

    Comment: One respondent stated that the proposed rule is ``time 
prohibitive'' in that there are no time limits on processing either a 
notice of intent or a plan of operations.
    Response: Nothing in the proposed rule addresses time limitations 
on processing notices or plans of operation, nor should it. Time 
limitations are addressed in the regulations at 36 CFR part 228, 
subpart A. Again, this rule does not impose any requirement governing 
locatable mineral operations.
    Comment: Four respondents stated that nowhere in the history of the 
36 CFR part 228, subpart A regulations (from 1974) did the Forest 
Service ever tell Congress that the Forest Service would ever issue a 
criminal citation pursuant to 36 CFR part 261 to enforce the locatable 
mineral regulations.
    Response: Given the passage of 35 years, it is impossible to 
determine what representatives of the Department told representatives 
of Congress in connection with the promulgation of the regulations 
currently designated as 36 CFR part 228, subpart A. In any event, the 
will of an individual Congressman, or even a Congressional committee, 
must be distinguished from the will of Congress, as a legislative body 
that enacts, amends and repeals laws, usually by majority vote. Insofar 
as the Department's authority with respect to locatable mineral 
operations on NFS lands is concerned, Congress as a body passed 
legislation transferring to the Secretary of Agriculture the authority 
to administer NFS lands reserved from the public domain except as 
provided by the Transfer Act of 1905. Thus, the Department is charged 
to administer these lands under the terms of the Organic Administration 
Act.
    Members of Congress certainly have learned of judicial decisions, 
including, without doubt, United States v. Doremus, 888 F.2d 630, 632 
(9th Cir. 1989), cert. denied, 498 U.S. 1046 (1991), the first Court of 
Appeals decision holding that the prohibitions in 36 CFR part 261, 
subpart A apply to persons operating on NFS lands under the United 
States mining laws and 36 CFR part 228, subpart A. However, Congress as 
a legislative body took no action to enact legislation depriving the 
Department of this authority had it been Congress' intent to do so. 
Thus, there is no reason to suppose that Congress as a legislative body 
has an intent different from what it had in enacting the Organic 
Administration Act and the Transfer Act. As explained by the Supreme 
Court in United States v. Grimaud, 220 U.S. 506, 517 (1911), pursuant 
to that Congressional intent, the Department ``is required to make 
provision to protect [the forest reservations] from depredations and 
from harmful uses'' and ``to regulate the occupancy and use and to 
preserve the forests from destruction.'' The Department's promulgation 
of both 36 CFR part 228, subpart A and 36 CFR part 261, subpart A serve 
to fulfill those twin Congressional intents.
    Comment: Who has the right to decide what mineral operations are 
``unauthorized''?
    Response: The District Ranger, not a Forest Service Law Enforcement 
Officer, makes the determination whether mineral operations are 
consistent with 36 CFR part 228, subpart A.
    Comment: One respondent stated the Forest Service has no 
jurisdiction to administer activities conducted under the United States 
mining laws.
    Response: Clearly, the Secretary of the Interior is statutorily 
charged with the administration of the United States mining laws. 
However, there is a difference between administering the United States 
mining laws and regulating locatable mineral operations conducted on 
NFS lands that may disturb surface resources.
    United States v. Weiss, 642 F.2d 296, 298 (9th Cir. 1981) holds 
``the Act of 1897, 16 U.S.C. 478 and 551, granted to the Secretary the 
power to adopt reasonable rules and regulations regarding mining 
operations within the national forests.'' That holding has never been 
meaningfully questioned by any court. Consequently, ``[t]he Forest 
Service may properly regulate the surface use of forest lands. While 
the regulation of mining per se is not within Forest Service 
jurisdiction, where mining activity disturbs national forest lands, 
Forest Service regulation is proper.'' United States v. Goldfield Deep 
Mines Co., 644 F.2d 1307, 1309 (9th Cir. 1981), cert. denied, 455 U.S. 
907 (1982). Simply put, ``there can be no doubt that the Department of 
Agriculture possesses statutory authority to regulate activities 
related to mining * * * in order to preserve the national forests. 
Clouser v. Espy, 42 F.3d 1522, 1530 (9th Cir. 1994), cert. denied sub 
nom. Clouser v. Glickman, 515 U.S. 1141 (1995).
    Comment: Several respondents claimed that the Forest Service 
violated the Endangered Species Act (ESA) by failing to engage in 
formal consultation with the Department of the Interior before 
publishing the proposed rule. Those respondents further said that the 
violation of the ESA also constitutes a violation of Congressional 
review requirements.
    Response: This rulemaking has no impact on any threatened or 
endangered species or the habitat of a threatened or endangered 
species. As discussed previously, the rule amends 36 CFR part 261, 
subpart A, which specifies prohibited acts whose commission by a person 
conducting mineral operations pursuant to 36 CFR part 228 may result in 
that person being charged with committing a misdemeanor. However, 36 
CFR part 261, subpart A does not create the underlying requirements 
whose violation that subpart prohibits. Rather, those circumstances 
requiring an approved operating plan are set forth in the subpart of 36 
CFR part 228 applicable to the mineral operations in question. The ESA 
consequently imposes no obligation upon the Forest Service to engage in 
formal consultation before the agency receives a proposed plan of 
operations from a miner. Given that the Forest Service did not violate 
the ESA in promulgating the proposed rule, there is no cumulative 
violation of Congressional review requirements.
    Comment: A number of commenters contend that the Forest Service's 
adoption of the amendments to 36 CFR part 261, subpart A will violate 
Executive Order 12630 which requires Federal agencies to avoid 
interference with private property rights. The respondents believe that 
such interference will arise from the Forest Service's plan to use the 
amendments to prohibit occupancy of NFS lands which they further expect 
will be implemented without meaningful administrative notice and 
opportunity for a hearing. They also point to the rule's supposed 
preclusion of the use of motorized mining equipment for small scale 
mining operations as another prohibited interference with their 
property rights. Finally, the commenters see such interference 
resulting from the Forest Service's asserted intention to require a 
bond for all small scale mining operations. The commenters further say 
that the violation of the E.O. also will constitute a violation of 5 
U.S.C. 801(a)(1)(B)(iii) and (iv).
    Response: Nothing in the proposed or final rule reflects a Forest 
Service intention, desire or policy to prohibit ``mining occupancy''. 
Nor does the rule address, or purport to address, bonding requirements 
for locatable mineral operations or the use of motorized equipment 
during such operations. Moreover, as discussed above, it is plain on 
the face of proposed and final Sec. 261.10(a), (b) and (p) that those 
prohibitions do not add to the regulatory requirements applicable to 
persons subject to 36 CFR part 228. Rather, the amendments to 36 CFR 
part 261, subpart A provide for criminal prosecution of miners who 
violate critical requirements governing mineral

[[Page 65992]]

operations set forth at 36 CFR part 228, subpart A. (In actuality, the 
amendments adopted by this rulemaking do not work to halt prohibited 
aspects locatable mineral operations. The amendments simply serve to 
deter persons from committing the prohibited acts, and to provide for 
the criminal enforcement of the prohibitions should deterrence fail.)
    More fundamentally, the proposed amendments to 36 CFR part 261, 
subpart A can have no effect on any person conducting mining operations 
who complies with the requirements of 36 CFR part 228, subpart A. This 
fact itself disposes of the claim that the amendments to 36 CFR part 
261, subpart A will take the property of miners because a person has no 
constitutionally protected right to commit illegal acts. Imposing 
criminal penalties for conducting illegal operations consequently does 
not take miners' property.
    Comment: Four respondents provided a series of citations of the 
U.S. Code, along with narrative comments addressing rights granted 
under the United States mining laws. The comments center around the 
legality of the Forest Service proposing the regulatory clarifications 
as published in the Federal Register on May 10, 2007. The respondents 
state that the amendments ``are prohibitive and not merely regulatory'' 
and therefore are unlawful. The four respondents view the changes as an 
attempt to modify laws that Congress has enacted.
    Response: The Forest Service has a clear and substantial 
responsibility to regulate the occupancy and use of NFS lands, 
including those lands used for activities conducted under the United 
States mining laws, as amended. The Forest Service fulfills this 
responsibility by working with prospectors and miners to comply with 
the locatable mineral regulations at 36 CFR part 228, subpart A. It 
follows that prospectors and miners who are not complying with the 
regulations and are conducting activities without authorization, when 
it has been determined that such authorization is needed, must be 
prevented from violating the locatable mineral regulations. As a 
result, the 36 CFR 261.10 ``Prohibitions'' define the occupancy and 
uses that are in deed, prohibited activities on NFS lands.
    In the background discussion published in the Federal Register on 
May 10, 2007, it was explained that the Forest Service has two 
enforcement options, civil and criminal. The proposed regulatory 
clarification addresses only the criminal enforcement course of action. 
The regulation does not ``make miners criminals''; it is a legal course 
of action to enforce activities that fall within the locatable mineral 
regulations. In some cases, the Forest Service must initiate legal 
action to obtain compliance with the locatable mineral regulations.
    As an example, if an operator intends to construct a permanent 
structure on NFS land in connection with some mining activity and the 
District Ranger determines this activity requires an approved plan of 
operation pursuant to 36 CFR 228.4(a), then the operator is 
``prohibited'' from constructing such a structure until obtaining an 
approved Plan of Operation. If the operator began such unauthorized 
construction, the Forest Service, could issue the operator a criminal 
citation under the final rule for conducting a prohibited activity on 
NFS lands. Alternatively and depending on the facts of the case, the 
Forest Service could seek to obtain the operator's compliance through a 
civil procedure by bringing an enforcement case in civil court.
    Comment: One person suggested that the amendments to 36 CFR part 
261, subpart A, will discourage small operators from seeking approval 
of a plan of operations under 36 CFR part 228, subpart A. The 
individual identified the disincentive as he perceives it: An 
operator's admission that a plan of operations is required subjects the 
operator to the risk of fines and imprisonment if the operator simply 
runs a vehicle, generator, or other basic machinery before the Forest 
Service approves a plan of operations pursuant to 36 CFR 228.5, 
completely detailing permitted work.
    Response: The regulations at 36 CFR part 228, subpart A specify 
when a plan of operation is necessary and describe the type of 
information that must be submitted to the District Ranger. The 
regulations at 36 CFR part 261, subpart A, do not address when a plan 
of operation is needed or what information the operator is required to 
submit.
    Comment: Several respondents stated that they view the amendments 
to 36 CFR part 261, subpart A, under consideration as a Forest Service 
attempt to stymie multiple use of NFS lands by stopping mining.
    Response: Under the Multiple-Use Sustained-Yield Act of 1960, 
renewable surface resources are to be managed as multiple uses. 16 
U.S.C. 529. Mineral development is not a multiple use of NFS lands. 16 
U.S.C. 528. But this does not mean development of minerals resources 
has no role on NFS lands. In 16 U.S.C. 528, Congress provided that 
``[n]othing herein shall be construed so as to affect the use or 
administration of the mineral resources of national forest lands * * 
*''. Thus, the amendments to 36 CFR part 261, subpart A will have no 
effect on the Department's charge to administer NFS lands for multiple 
use.
    Comment: Some respondents stated that use of criminal enforcement 
options was contrary to the Mining and Mineral Policy Act of 1970, 
which promoted terms later adopted as part of the Forest Service 
Minerals and Geology Program Policy of ``fostering and encouraging the 
private development of the Nation's mineral wealth''.
    Response: It is a misunderstanding of the Mining and Minerals 
Policy Act of 1970 to conclude that enforcing the requirements of 36 
CFR part 228, subpart A on NFS lands is contrary to the Act or the 
corresponding Forest Service policy. Having the option to criminally 
enforce 36 CFR part 228, subpart A when a miner fails or refuses to 
minimize the adverse environmental impacts of the miner's operations or 
when an operator is using NFS lands for purposes that are not 
reasonably incidental to appropriate locatable mineral prospecting, 
exploration, development, mining, processing, reclamation, or closure 
does nothing to ``foster and encourage'' responsible mineral 
development.
    The Forest Service would shirk its statutorily assigned mandate to 
preserve National Forests if it countenanced non-compliant mineral 
operations under the guise of ``fostering and encouraging'' mineral 
development. As discussed above, the Act establishes that the nation is 
served by Forest Service regulation of mineral operations as provided 
for by 36 CFR part 228, and to enforce those regulations.
    Comment: A respondent expressed the opinion that 36 CFR 261.10(p), 
should be revised to provide that some types of mineral related 
activities do not require either a special use authorization under 36 
CFR part 251, subpart or an approved operating plan pursuant to 36 CFR 
part 228.
    Response: The Department does not agree with this suggestion. As 
proposed, 36 CFR 261.10(p) prohibits ``[u]se or occupancy of National 
Forest System lands or facilities without an approved operating plan 
when such authorization is required.'' This language leaves no doubt 
that there are mineral operations for which an approved plan of 
operations is not required.
    Nor does the Department agree that Sec. 261.10(p) needs to address 
the fact that mineral operations do not require a special use 
authorization. The inapplicability of the special uses regulations at 
36 CFR part 251, subpart B, to mineral operations subject to 36

[[Page 65993]]

CFR part 228 is explicitly stated by 36 CFR 251.50(a). This issue is 
also discussed extensively in the preamble.
    For this reason, no change was made in final Sec. 261.10(p) in 
response to this comment.
    Comment: Where is ``significant surface disturbance'' defined?
    Response: The term ``significant surface disturbance'' appears in 
final Sec. 261.10(a) among a listing of prohibited actions with respect 
to certain uses of NFS lands without an ``approved operating plan when 
such authorization is required. It refers to the ground disturbance 
resulting from a ``significant disturbance of NFS surface resources'' 
for purposes of 36 CFR part 228, subpart A.
    Significant surface disturbance is a site-specific term and the 
responsibility for making the determination of what disturbances are 
likely to be ``significant'' to the environment belongs to the District 
Ranger. According to published response to public comments in the final 
rule dated June 6, 2005, the District Ranger uses past experience, 
direct evidence, or sound scientific projection to determine whether a 
proposed impact is likely to cause a significant surface disturbance.
    Comment: Four respondents appear to read the proposed change as an 
outright prohibition on mine access or occupancy and conclude that the 
changes will materially interfere with existing rights to access under 
the United States mining laws.
    Response: As discussed above, the amendments to 36 CFR part 261, 
subpart A being adopted by this rulemaking do not establish 
requirements governing mineral operations. The amendments merely 
provide an avenue for the Forest Service to use the criminal judicial 
process to bring mineral operations that are not in compliance with the 
requirements set forth in the applicable subpart of 36 Code part 228. 
Those regulations continue to provide the regulatory framework for 
operators to use and occupy NFS lands for mining purposes, and 
reasonably incidental uses while minimizing adverse environmental 
impacts (See 36 CFR 228.1 and 228.3(a)).
    Comment: A mining district stated its interest pertains directly to 
how the amendments would be applied to mining operations and reasonably 
incidental uses of the NFS that normally do not require prior approval 
pursuant to 36 CFR 228.4(a). They note that these operations typically 
include prospecting, small-scale mining, and suction dredge mining.
    Response: Proposed Sec. 261.10(a), (b) and (p) specifically 
prohibits conduct not provided for by an operating plan ``when such 
authorization is required.'' As discussed extensively above, operations 
not requiring an operating plan as that term is defined by Sec. 261.2 
are not subject to 36 CFR part 261. Thus, the prohibitions in Sec. 
261.10(a), (b), and (p) do not apply when an operator is conducting 
operations which do not require an operating plan.
    For example, if an operator intends to conduct prospecting 
activities such as panning and hand-sluicing and, providing it is 
reasonably incidental, to camp on site for some period of time, then a 
Plan of Operations would not be required under 36 CFR 228.4 unless 
those operations are likely to cause significant disturbance of surface 
resources. If the level of locatable mineral prospecting, exploration, 
development, mining or processing, and reasonably incidental activities 
do not trigger the need for prior notice or prior approval under 36 CFR 
part 228, subpart A, then 36 CFR part 261, subpart A would not apply to 
those operations because they do not require an approved plan of 
operations.
    Comment: A respondent claims Forest Service wishes to presume 
regulatory authority, in the form of requiring approved plans of 
operations, for all prospecting and/or small-scale mining activities 
and camping in connection with such activities that last longer than 
the undefined term ``temporary.''
    Response: The proposed rule to amend 36 CFR part 261, subpart A 
sets forth prohibited acts whose commission by a person conducting 
mineral operations pursuant to 36 CFR part 228 may result in that 
person being charged with committing a misdemeanor. The prohibitions 
forbid specified acts without an ``approved operating plan when such 
authorization is required.'' However, the amendments do not specify any 
circumstance in or for which persons conducting mineral operations must 
obtain an approved operating plan. Rather, those circumstances 
requiring an approved operating plan are set forth in the subpart of 36 
CFR part 228 applicable to the mineral operations in question. The sole 
function of the provisions in the amendments is to attach a 
consequence, a possible criminal sanction, to a person's failure to 
comply with 36 CFR part 228 provisions requiring that person to hold an 
approved operating plan. Thus, provisions in the subparts of 36 CFR 
part 228 create enforceable duties while provisions in the amendments 
authorize criminal enforcement for violating a few of those enforceable 
duties.
    Comment: Respondents want to know how adoption of the proposed 
amendments will affect camping, or occupancy of NFS lands which does 
not represent conventional notions of residing on property, in 
connection with small-scale mining and prospecting activities.
    Response: The scale of residence generally is not relevant to the 
application of 36 CFR part 261, subpart A. However, there is an 
exception insofar as residence involving permanent structures is 
concerned. Over time, the requirement that maintenance or other use of 
a permanent structure on NFS lands by an operator must be authorized by 
an approved plan of operations has been judicially recognized. Thus, 
even if occupancy of NFS lands involving a permanent structure is 
reasonably incidental to locatable mineral prospecting, exploration, 
development, mining or processing, it invariably requires a plan of 
operations. Thus, an operator's failure to obtain an approved plan of 
operations before conducting operations on NFS lands that will involve 
a permanent structure clearly would violate Sec. 261.10(b) because 
those operations clearly require prior submission and approval of a 
plan of operations. Any other form of camping or use of NFS lands for 
living or sleeping quarters will be analyzed in the manner discussed in 
detail in response to previous comments.
    Comment: A few respondents seek an explanation for the presence of 
the terms ``temporary'' and ``permanent'' in proposed Sec. 261.2, the 
definition of ``residence.'' They express their belief that these terms 
reflect the Forest Service's obvious intent to require miners to obtain 
approval in order to camp on NFS lands in conjunction with locatable 
mineral operations for a period longer than the local stay limit. They 
also speculate that the Forest Service intends to prosecute criminally 
miners who camp for periods in excess of the stay limit without 
obtaining such approval.
    Response: The primary reason for distinguishing residence on the 
basis of its permanence relates to United States efforts to combat 
attempted occupancy trespass on NFS lands under the color of the United 
States mining laws. By occupancy trespass, the Department refers to 
attempts to justify structures on NFS lands on the grounds that they 
are reasonably incidental to bona fide operations under the United 
States mining laws when their intended purpose is a weekend cabin, a 
summer

[[Page 65994]]

or hunting camp, and even full-time residences and the proposed 
operations are merely a ruse. Residential occupancy trespass is a 
pervasive problem on Federal lands. The magnitude of this and other 
abuses of the United States mining laws led to the enactment of the 
Surface Resources Act, as the BLM noted in the preamble for 43 CFR part 
3710, subpart 3715.

    ``[B]y the 1950's it had become clear that widespread abuse of 
the general mining law was taking place. People were locating mining 
claims who either had no intention of mining or who never got around 
to it. Some of the uses taking place on unpatented claims included 
permanent residences, summer homes, townsites, orchards, farms, a 
nudist colony, restaurants, a rock museum, a real estate office, 
hunting and fishing lodges, filling stations, curio shops and 
tourist camps. To deal with this, Congress passed the Surface 
Resources Act of 1955 (69 Stat. 367, 30 U.S.C. 601-615), which 
included a provision that any unpatented mining claim may not be 
used for purposes other than prospecting, mining or processing 
operations and reasonably incident uses.'' (61 FR 37116 (July 16, 
1996))

As noted in the previous response, the courts have recognized that an 
approved plan of operations is invariably required where operations 
will involve maintenance or other use of a permanent structure on NFS 
lands.
    The Department should not be understood to suggest that actions 
involving a permanent structure can never be reasonably incident to 
bona fide locatable mineral operations. When intensive operations are 
proposed in a very remote area where there is no private land in 
reasonable proximity to a mining claim, an operator's construction and 
use of a permanent residence certainly could be reasonably incidental 
to the proposed mining. Nonetheless, even in this case, the Department 
considers requiring prior approval of permanent structures essential to 
discharging the Forest Service's duty to protect and preserve NFS lands 
given the magnitude and duration of the disturbance of surface 
resources usually associated with residential occupancy of NFS lands.
    To the extent that respondents fear the Forest Service might cite 
an operator who is camping on NFS for the operator's failure to submit 
a notice of intent to operate when one is required, those fears are 
groundless. None of the prohibitions set forth in 36 CFR part 261, 
subpart A, including those adopted by this final rule, prohibit an 
action requiring a notice of intent to operate. Rather, the 
prohibitions applicable to occupancy of lands in conjunction with 
locatable mineral operations that require prior notice or approval 
apply when an operator acts ``without * * * an operating plan when such 
authorization is required.'' For purposes of 36 CFR part 228, subpart 
A, Sec. 261.2 defines the term ``operating plan'' to mean a plan of 
operations that has been approved. There is no prohibition applicable 
to acting without a notice of intent to operate when it is required by 
36 CFR part 228, subpart A.
    Absent extraordinary circumstances such as conducting operations on 
withdrawal lands or within areas of NFS lands or waters known to 
contain Federally listed threatened or endangered species or their 
designated critical habitats it would be very unusual for a plan of 
operations to be triggered simply because a miner proposes to occupy 
lands using a temporary shelter or structure. However, a plan of 
operations easily could be triggered by the cumulative effect of 
proposed locatable mineral prospecting, exploration, development, 
mining, or processing in combination with reasonably incidental 
occupancy of NFS lands using a temporary shelter or structure.
    Note, however, it is the effects associated with the occupancy of 
NFS lands for living or sleeping quarters that determines the need for 
an approved plan of operations, not whether it exceeds the local stay 
limit. Of course, the duration of such occupancy could have a bearing 
on the effects of that occupancy. But the duration of such occupancy 
per se does not determine the need for an operator to submit a notice 
of intent to conduct operations or submit and obtain approval of a 
proposed plan of operations.
    Moreover, nothing in the proposed or final definition of residence 
appearing in Sec. 261.2 nor in the proposed or final text of Sec. 
261.10(a), (b) or (p) requires an operator to submit and obtain 
approval of a plan of operations to camp longer than permitted by a 
Forest Order. Nor is this rulemaking prompted by an intent to require 
mineral operators to comply with the camping limits published in the 
Forest Orders.
    Pursuant to 36 CFR 228.4, an operator's need to submit a plan of 
operations arises when the operator reasonably expects or is uncertain 
whether the proposed operations, including reasonably incidental 
occupancy of NFS lands, is likely to cause significant surface 
disturbance. Alternatively, if the District Ranger determines that an 
operation is causing or is likely to cause significant disturbance of 
NFS surface resources, the district ranger can require an operator to 
submit and obtain approval of a plan of operations pursuant to 36 CFR 
228.4(a)(4).
    However, there is a more fundamental issue concerning the 
acceptability of occupancy of NFS lands for living or sleeping 
quarters: Whether that occupancy is reasonably incidental and necessary 
for the type, duration and stage of the proposed mining operations 
themselves. If locatable mineral prospecting, exploration, development, 
mining or processing is absent or not robust, that activity might not 
justify any, or more than limited, residency on site. If so, residence 
exceeding this level is not an operation for purposes of 36 CFR 228.3 
which is authorized by the United States mining laws. In this 
circumstance, residence exceeding the reasonably incidental level 
constitutes a special use and is subject to the applicable stay limit.
    Comment: One respondent suggests revising the definition of the 
term ``motorized equipment'' which appears in proposed Sec. 261.2. The 
respondent proposes defining the term as mining equipment able to move 
more than 20 yards of material per operational hour. The respondent 
also proposes that the definition note that suction dredges that move 
less than 20 yards of material are not mechanized earthmoving mining 
equipment.
    Response: As discussed above, the final rule does not alter the 
definition of the term ``motorized equipment'' which currently appears 
in 36 CFR 261.2.
    Comment: Several respondents who stated that their locatable 
mineral operations are recreational or a hobby, observed that most 
miners and prospectors respect the land and do not ``damage'' it.
    Response: The Department agrees that most miners and prospectors 
respect the land and do not intend to affect surface resources 
adversely. Occasionally, miners and prospectors unintentionally cause 
such effects and are responsive when Forest Service employees seek 
changes in their mining practices. Unfortunately, some prospectors and 
miners who are adversely affecting surface resources refuse to work 
with the Forest Service to minimize those impacts. This rulemaking 
provides a means for the Department to enforce the requirements of 36 
CFR part 228, subpart A, in situations where the Forest Service is 
unable to obtain the miner's willing compliance with those rules and 
excessive adverse environmental effects result. The proposed 
clarification to the regulation will address the criminal enforcement 
options available to the Forest Service to bring unauthorized occupancy 
and use into compliance with the locatable

[[Page 65995]]

mineral regulations. The proposed rule does not affect activities that 
are in compliance with the locatable mineral regulations.
    Comment: Two respondents said that the Forest Service, in 
promulgating the proposed rule, violated E.O. 12866 by failing to make 
a required disclosure as to the effect of the rule on the Federal 
budget. Those respondents further stated that this violation of the 
E.O. also constitutes a violation of Congressional reporting 
requirements.
    Response: The respondents did not cite the applicable provision of 
E.O. 12866 which they believe requires ``disclosures concerning whether 
the proposed rule represents a government action that would 
significantly effect the Federal budget'' and the E.O. does not use the 
term ``Federal budget'' or any obvious synonym. The only provision in 
the E.O. to which the respondents might be referring appears to be Sec. 
6(a)(3)(C)(ii) which requires ``an assessment * * * of costs 
anticipated from the regulatory action (such as, but not limited to, 
the direct cost * * * to the government in administering the regulation 
* * *).'' However, such an assessment only is required ``for those 
matters identified as, or determined by the Administrator of OIRA to 
be, a significant regulatory action. * * *'' (Sec. 6(a)(3)(C)).
    The Administrator of the Office of Information and Regulatory 
Affairs of the OMB found that the proposed rule for 36 CFR 261.10 was 
non-significant for purposes of E.O. 12866. Thus, the assessment 
mandated by Sec. 6(a)(3)(C)(ii) of the E.O. was not required for the 
proposed rule.
    Given that the Forest Service did not violate E.O. 12866 in 
promulgating the proposed rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: A respondent asked how many serious problems really exist 
with mineral operators right now that cannot be managed with the civil 
remedies. The respondent also asks whether there would be an additional 
cost in relying upon the existing civil remedy, rather than a penal 
remedy which requires the United States to meet the burden of proving 
there is a violation of Sec. 261.10(a), (b) or (p) beyond a reasonable 
doubt.
    Response: The respondent infers that only ``mineral operators'' are 
subject to the Part 261 prohibitions and this final rule. However, the 
prohibitions generally apply to all persons who use NFS lands. 
Practically speaking, the Department believes the amended prohibitions 
will have little or no effect on the large majority of legitimate 
locatable mineral operators who are complying with the requirements of 
both the United States mining laws and the regulations governing those 
operations set forth at 36 CFR part 228, subpart A. These conclusions 
are based upon the fact that the amendments to Sec. 261.10(a) and (b) 
prohibit specified actions without an ``approved operating plan when 
such authorization is required'' pursuant to 36 CFR part 228.
    Comment: Respondents asserted that this rulemaking could not affect 
maintenance work on roads constructed before 1976 in accordance with 43 
U.S.C. 932 (1938), which is commonly known as ``R.S. 2477'' and was 
repealed by Federal Land Policy and Management Act of 1976, Sec.  
704(a), 90 Stat. 2743, 2792 (1976).
    Response: Given that work on R.S. 2477 roads is not an operation 
subject to 36 CFR part 228 and does not involve residence on National 
Forest System lands, this comment is beyond the scope of this 
rulemaking. For this reason, the rule was not changed in response to 
this comment.
    Comment: A number of commenters asserted that as a matter of law, 
unauthorized occupancy does not exist if that occupancy occurs with 
mining operations, regardless of the type of mining operations, as long 
as a prudent prospector or miner requires that occupancy for the mining 
operations.
    Response: The commenters' understanding of the law is incorrect. 
Occupancy of National Forest System lands is not analyzed in a vacuum. 
By definition, uses of National Forest System lands that are reasonably 
incidental to locatable mineral prospecting, exploration, development, 
mining or processing are a component of locatable mineral operations 
(36 CFR 228.3(a)). Assuming that proposed operations, including all 
reasonably incident uses, will likely cause a significant disturbance 
of surface resources, they must be authorized by an approved plan of 
operations before those operations commence (36 CFR 228.4(a)(2) through 
(a)(4)).
    The United States Court of Appeals for the Ninth Circuit has 
consistently rejected miners' arguments that reasonably incidental uses 
of National Forest System lands are not subject to regulation by the 
Forest Service. United States v. Doremus, 888 F.2d 630, 633 n.2 (9th 
Cir. 1989), cert. denied, 498 U.S. 1046 (1991) was the first decision 
to do so. It was followed by United States v. Campbell, 42 F.3d 1199, 
1203 (9th Cir. 1994) in which the Ninth Circuit held:

    In United States v. Doremus, 888 F.2d 630 (9th Cir. 1989), two 
miners cut timber on National Forest lands without an approved plan 
of operations. We upheld their convictions for damaging ``any 
natural feature or other property of the United States'' 36 CFR 
261.9(a) (1987). We rejected the argument, raised by Campbell on 
this appeal, that in order to prosecute the government must first 
prove that the unauthorized logging was not ``reasonably incident'' 
to legitimate mining operations under 30 U.S.C. 612. Here, as in 
Doremus, ``[t]he flaw in appellant's argument is that 30 U.S.C. 612 
does not authorize mining operators to act without Forest Service 
approval, and the operating plan did not authorize the cutting of 
live trees.'' Id. at 635.

    Doremus was also cited with approval in Clouser v. Espy, 42 F.3d 
1522, 1530 (9th Cir. 1994), cert. denied sub nom. Clouser v. Glickman, 
515 U.S. 1141 (1995). ``In reaffirming the Forest Service's authority 
to regulate mining, the Doremus court rejected a miner's contention 
that conduct `reasonably incident[al]' to mining could not be so 
regulated. Doremus, 888 F.2d at 632.'' Id.
    For these reasons, no change has been made in the final rule in 
response to these comments.
    Comment: Several respondents said the Department violated the 
Congressional Review Act, 5 U.S.C. 801(a)(1)(A), by failing to submit 
the proposed rule to amend 36 CFR part 261, subpart A to the 
Administrator of the Office of Information and Regulatory Affairs of 
the Office of Management and Budget for a determination as to whether 
the rule, if ultimately adopted, would be a major rule as defined by 5 
U.S.C. 801(a)(1)(A)(i), 804(2). The commenter insists that the rule 
clearly would be a major rule for purposes of the Congressional Review 
Act because it would have an annual effect on the economy of 
$100,000,000 and meet other criteria in the Act's definition of the 
term ``major rule.'' 5 U.S.C. 804(2) The commenter also maintains the 
Department violated the Act by failing to submit required reports on 
the proposed rule to each House of Congress and the Comptroller 
General.
    Response: The statute to which the respondent refers, 5 U.S.C. 801-
808, is officially titled the Small Business Regulatory Enforcement 
Fairness Act of 1996 but often is referred to as the Congressional 
Review Act.
    As discussed in response to a previous comment, before the proposed 
rule was published in the Federal Register, the Administrator of the 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget reviewed the proposed rule and determined that it 
was not a significant rulemaking because it would not have an annual 
effect on the economy of at

[[Page 65996]]

least $100,000,000. Consequently, this rule as proposed and as adopted 
is not a major rule for purposes of 5 U.S.C. 801(a)(1)(A)(i), 804(2). 
When the final rule is published, reports will be sent to Congress and 
the GAO as required by SBA.
    For these reasons, the Department has not violated the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801-808 
in publishing the proposed rule or adopting the final rule.
    Comment: Several respondents claimed that the proposed rule was 
vague and standardless.
    Response: It is not our desire to produce a rule that is vague or 
standardless. The consequence is that the rule would not be 
enforceable. However, only the judicial branch of government can 
conclusively resolve the question of the proper interpretation of any 
rule or decide whether a rule is impermissibly vague.
    Comment: One respondent faulted the Department for its failure to 
comply with the Administrative Procedure Act (APA), 5 U.S.C. 553(b), by 
giving public notice and providing an opportunity for comment before 
this Department ``implement[ed] the Proposed Rule * * *,'' that the 
respondent asserts is a substantive rule. The commenter said this 
Department's violation of the APA also violates the Small Business 
Regulatory Enforcement Fairness Act's requirements at 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: The Department agrees that the regulations under 
consideration in this rulemaking primarily are substantive rules for 
purposes of the APA, 5 U.S.C. 553(b). The Department also agrees this 
rulemaking is subject to 5 U.S.C. 553(b) and (c) because there is not 
good cause to find those procedures ``impracticable, unnecessary, or 
contrary to the public interest'' and the Department voluntarily 
partially waived the Act's notice and comment procedures for 
rulemakings such as the instant one involving ``public property.'' (36 
FR 13804 (Jul. 24, 1971))
    The proposed rulemaking complying with the Act's requirements to 
give ``[g]eneral notice of proposed rulemaking * * * published in the 
Federal Register including a statement of the ``nature of the public 
rule making proceedings; * * * the legal authority under which the 
rulemaking is proposed; and * * * the terms or substance of the 
proposed rule * * *'' (5 U.S.C. 553(b)) is the one published at 72 FR 
26578-80 (May 10, 2007). The Department also complied with the Act's 
requirements to ``give interested persons an opportunity to participate 
in the rulemaking through submission of written data, views, or 
arguments'' (5 U.S.C. 553(c)) as evidenced by the respondent's 
comments. After considering all such comments, this Department is 
promulgating this final rule in accordance with 5 U.S.C. 553(c).
    The respondent's uncertainty as to the nature of this rulemaking 
may stem from another rulemaking this Department undertook several 
years ago. There, the rulemaking was initiated by promulgation of an 
interim rule which took effect 30 days after its Federal Register 
publication (69 FR 41428) given the Department's conclusion that the 
earlier rulemaking was not subject to the APA's requirements for prior 
notice and opportunity for public comment (69 FR 41429). However, the 
current rulemaking, which is subject to those requirements, was 
initiated by publication of a proposed rule that has not taken effect 
(see 72 FR 26578-80).
    For these reasons, neither the proposal or the adoption of the 
amendments to 36 CFR part 261, subpart A violated the APA or, 
cumulatively, 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Comment: One commenter said this rule is substantive because it 
will substantially change 36 CFR parts 228, 250 and 261. The commenter 
asserted that the Forest Service failed to acknowledge that this rule 
will effectively cancel or void 36 CFR part 228 and 36 CFR 251.50(a).
    Response: The Department agrees that the rule is substantive and 
this point is discussed in more detail in the response to a comment 
concerning the applicability of the Administrative Procedure Act to the 
rule. Other comments also contain detailed explanations of the reasons 
why this rulemaking has not effect on 36 CFR part 228 and 36 CFR 
251.50(a), 36 CFR part 228 and 36 CFR 251.50(a).
    Comment: One respondent said the amendments to 36 CFR part 261, 
subpart A are tantamount to requiring a new and different collection of 
information in the form of either a notice of intent to conduct 
operations or a plan of operations from everyone conducting locatable 
mineral operations on NFS lands. Accordingly, the respondent believes 
that the Forest Service violated the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501-3520, by failing to obtain OMB Control Numbers for these 
collections of information. The respondent asserts the violation's 
consequence is locatable mineral operators cannot be cited or penalized 
under 36 CFR part 261, subpart A rendering the amendments to 36 CFR 
part 261, subpart A and 36 CFR 228.4 unenforceable.
    Two other respondents said it was possible that the Forest Service 
will violate the Paperwork Reduction Act if the agency has not obtained 
an OMB Control Number for the amended definition of the term 
``operating plan'' to be set forth in 36 CFR 261.2 given that 
definition's inclusion of plans of operation required by 36 CFR 228.4.
    Response: As previously noted, the amendments to 36 CFR part 261, 
subpart A do not alter the requirements applicable to persons 
conducting mineral operations on NFS lands pursuant to 36 CFR part 228. 
The function of the amendments is two-fold. They authorize criminal 
enforcement for selected serious violations of the regulations 
governing mineral operations, 36 CFR part 228. They also provide the 
public notice of actions prohibited on NFS lands whose commission can 
lead to the criminal prosecution of the person or an organization who 
violated a prohibition. No collection of information subject to the 
Paperwork Reduction Act is required by 36 CFR part 261, subpart A 
currently, or as it will be amended.
    Moreover, the Paperwork Reduction Act specifically provides that it 
does ``not apply to the collection of information * * * during the 
conduct of a Federal criminal investigation or prosecution, or during 
the disposition of a particular criminal matter.'' 44 U.S.C. 
3518(c)(1)(A). A citation issued by a Forest Service official pursuant 
to 36 CFR part 261, subpart A is the charging document which initiates 
a criminal prosecution, in accordance with FED. R. CRIM. P. 58. 
Consequently, even if the amendments were found to contain a collection 
of information, the Paperwork Reduction Act unquestionably would not 
govern those amendments given their function in criminal prosecutions.
    For these reasons, in proposing, adopting and administering the 
amendments to 36 CFR part 261, subpart A, the Department did and will 
not violate Paperwork Reduction Act and the Act will not shield anyone 
who commits a prohibited act.
    Comment: Commenters said the adoption of definition of the term 
``operating plan,'' a catch-all term, in Sec. 261.2 coupled with the 
definition's inclusion of a plan of operations for purposes of 36 CFR 
part 228, subpart A violates the ``Right to Privacy Act'' and possibly 
the Paperwork Reduction Act.
    Response: The respondent's comments concerning the Privacy Act and 
the Paperwork Reduction Act are too general to permit a detailed 
response. Neither statute is applicable to

[[Page 65997]]

this rulemaking. The Paperwork Reduction Act is discussed in more 
detail in response to a specific comment above.
    Comment: Two respondents contend that the Forest Service's 
publication of the proposed rule violated Subchapter II of the Unfunded 
Mandates Reform Act of 1955, 2 U.S.C. 1531-38. They maintain the 
proposed rule would have an impact on the private sector of more than 
100 million dollars per year triggering preparation of a statement 
required by 2 U.S.C. 1532, consultation with affected State, local and 
tribal governments pursuant to 2 U.S.C. 1534, and consideration of 
regulatory alternatives to the rule pursuant to 2 U.S.C. 1535. Those 
respondents further asserted that the Department, by violating the 
Unfunded Mandates Reform Act, in turn, violated 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: A written statement under 2 U.S.C. 1532 is required when 
an agency publishes a general notice of proposed rulemaking that is 
likely to include a Federal mandate that may cause expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more in any 1 year * * *'' The Act 
recognizes two types of ``federal mandates'' (2 U.S.C. 658(6)), a 
``Federal intergovernmental mandate'' and a ``Federal private sector 
mandate'' as defined by 2 U.S.C. 658(5), 658(7), respectively.
    The amendments do not create a Federal intergovernmental mandate 
for purposes of 2 U.S.C. 658(5) because they will not impose 
enforceable duties upon any State, local, or tribal government (2 
U.S.C. 658(5)(A)(i)) and they do not relate to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority * * *'' (2 
U.S.C. 658(5)(B)). Nor do the amendments create a Federal private 
sector mandate for purposes of 2 U.S.C. 658(7) because they will not 
impose enforceable duties upon anyone in the private sector (2 U.S.C. 
658(7)(A)) and they do not ``reduce or eliminate the amount of 
authorization of appropriations for Federal financial assistance that 
will be provided to the private sector for the purposes of ensuring 
compliance with'' an enforceable duty the adopted regulation imposes on 
the private sector (2 U.S.C. 658(7)(B)). For these reasons, the 
amendments to 36 CFR part 261, subpart A do not contain a Federal 
mandate (2 U.S.C. 658(6)).
    Consequently, the requirements to prepare a written statement and 
to seek input from elected officers of State, local, and tribal 
governments set forth at 2 U.S.C. 1532 and 1534, respectively, were not 
applicable because the proposed rulemaking was not likely to result in 
promulgation of any rule that includes a Federal mandate. In turn, the 
requirement set forth at 2 U.S.C. 1535 and to consider regulatory 
alternatives to the amendments to 36 CFR part 261, subpart A, was not 
applicable because it is dependent upon a written statement being 
required pursuant to 2 U.S.C. 1535(a).
    For these reasons, in publishing the proposed rule, the Department 
did not violate the Unfunded Mandates Reform Act, or cumulatively 
violate 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Comment: Several respondents said that the Forest Service violated 
the National Environmental Policy Act (NEPA) by failing to prepare an 
environmental impact statement (EIS).
    Response: The respondents' assertion that an EIS was required for 
the promulgation of the proposed rule is solely predicated upon the 
conclusion that the rule's promulgation was a major Federal action 
which, under NEPA, requires the preparation of an EIS. However, NEPA 
requires the preparation of an EIS only for those major Federal actions 
significantly affecting the quality of the human environment (42 U.S.C. 
4332(2)(C)) and does not require an EIS for a major action which does 
not have a significant impact on the environment. Sierra Club v. 
Hassell, 636 F.2d 1095, 1097 (5th Cir. 1981); Cf. Marsh v. Oregon 
Natural Resources Council, 490 U.S. 360, 374 (1989).
    The respondents do not identify or describe the significant 
environmental impacts they believe resulted from promulgation of the 
proposed rule. In fact, the proposed rule has no impact on the human 
environment. For these reasons, NEPA did not require the preparation of 
an EIS prior to the promulgation of the proposed rule. As noted below, 
this rule is categorically excluded from the requirements of additional 
NEPA documentation.
    Comment: Several respondents stated the Forest Service violated 
NEPA by failing to use reliable methodology.
    Response: The respondents did not explain why they believe that the 
Forest Service used unreliable methodology in promulgating the proposed 
rule. In fact, the totality of the respondents' description of this 
issue consists of the statement that ``[t]he Proposed rule fails to use 
reliable methodology in violation of NEPA and its implementing 
regulations.''
    The Department's review of the proposed rule identified no instance 
where unreliable methodology was used in the rule's promulgation.
    Comment: Several respondents said that the Forest Service violated 
NEPA by failing to conduct scoping on the rule.
    Response: Scoping is the process by which the agency determines 
what, if any, environmental issues are presented by a proposed action 
and how best to involve the public in that process. Here, the agency 
has given public notice of the proposed rule and received comments from 
the public on all aspects of the proposal. In such cases, the scoping 
function is conducted through the rulemaking process.
    Comment: Two respondents commented that the Forest Service failed 
to solicit comment on the proposed rule from Western Governors which 
violates the spirit of the 1998 Department of the Interior and Related 
Agencies Appropriations Act, Public Law 105-83, Sec.  339, 111 Stat. 
1543, 1602 (1997).
    Response: The cited provision of the 1998 Department of the 
Interior and Related Agencies Appropriations Act does not apply to this 
rulemaking. All interested parties have had an equal opportunity to 
submit comments. State and local governments regularly monitor proposed 
rules promulgated by the Forest Service and frequently submit comments 
when they believe it serves their interests.
    Comment: Numerous respondents said that the proposed rule unfairly 
restricts entities or persons, whom the respondents characterized as 
mining clubs, recreational miners, hobby miners, and recreational 
suction dredgers. Some of the respondents also commented that the 
proposed rule could collapse the recreational mining industry. Other 
respondents said that United States mining laws authorize recreational 
and hobby mining.
    Response: The respondents did not describe how the proposed rule 
would have such a drastic effect on their groups. Consequently, a 
specific response to this comment cannot be provided.
    Nonetheless, the Organic Administration Act (16 U.S.C. 482) 
reapplied the United States mining laws (30 U.S.C. 22 et seq.) to 
Forest Service lands reserved from the public domain pursuant to the 
Creative Act of 1891 (Sec.  24, 26 Stat. 1095, 1103 (1891), repealed by 
Federal Land Policy and Management Act of 1976, Sec.  704(a), 90 Stat., 
2743, 2792 (1976)). Under the United States mining laws, United States 
citizens may enter such reserved NFS lands to prospect or explore for 
and remove valuable deposits of certain

[[Page 65998]]

minerals referred to as locatable minerals. However, no distinction 
between persons conducting locatable mineral operations primarily for 
``recreational'' versus ``commercial'' purposes nor a difference 
between the requirements applicable to operations conducted for these 
purposes is recognized by the United States mining laws, the Organic 
Administration Act, 36 CFR part 228, subpart A or 36 CFR part 261, 
subpart A. Thus, to the extent that individuals or members of mining 
clubs are prospecting for or mining valuable deposits of locatable 
minerals, and making use of or occupying Forest Service lands for 
functions, work or activities which are reasonably incidental to such 
prospecting and mining, it does not matter whether those operations are 
described as ``recreational'' or ``commercial.''
    One thing which often is unique insofar as functions, work, or 
activities are proposed by individuals, members of mining clubs, or 
mining clubs themselves whose interest in locatable mineral operations 
is primarily recreational, is that they far exceed the scope of the 
United States mining laws. Such functions, work, or activities that are 
not authorized by the United States mining laws include educational 
seminars, treasure hunts, and use of mining claims as sites for hunting 
camps or summer homes. Accordingly, a major impetus for this rulemaking 
culminating in the final rule being adopted is to prohibit operations 
conducted under the color of the mining laws that clearly are not 
within the scope of bona fide operations consistent with the United 
States mining laws. Thus, the final rule being adopted by this 
rulemaking applies to every person or entity conducting or proposing to 
conduct locatable mineral operations on Forest Service lands under the 
United States mining laws.
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: One commenter asserted that adoption of Sec. 261.10(a), 
(b) and (p) would amount to a de facto withdrawal of National Forest 
System lands from the operation of the United States mining laws. The 
individual asserted the de facto withdrawal would be the consequence of 
the proposed rule's taking of all mining claims located on National 
Forest System lands.
    Response: As discussed above, the amendments to 36 CFR part 261, 
subpart A being adopted will not substantively alter the requirements 
governing locatable mineral operations on NFS lands. Those requirements 
are set forth at 36 CFR part 228, subpart A, and in some circumstances 
other parts of Title 36 of the Code of Federal Regulations, not in 36 
CFR part 261, subpart A. The amendments solely provide for the 
imposition of a penalty, in the nature of a fine, incarceration, or 
both, for a miner's failure to comply with requirements applicable to 
operator's operations by virtue of 36 CFR part 228, subpart A. 
Accordingly, adoption of the rule will not affect a taking of a miner's 
property.
    The commenter's assertions concerning the purported withdrawal also 
are inherently inconsistent. The respondent concluded the comment on 
this issue by contending that the withdrawal would be void ab initio 
given that it would not comply with the procedures specified by the 
Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714.
    Comment: One respondent claimed that hearings are required prior to 
revocation of state permits. He claimed that the proposed rule would 
revoke his California permit without good cause.
    Response: The rule does not authorize or effect the revocation of 
any state permit.
    Comment: Several respondents commented that the proposed rule is 
inconsistent with a National Research Council report entitled 
``Hardrock Mining on Federal Lands.''
    Response: The comments did not identify or describe in any manner 
inconsistencies between the proposed rule and the National Research 
Council report, whose main body is 126 pages in length. The 
respondents' comments only addressed the BLM's 3809 regulations, not 
the proposed Forest Service rule. For these reasons, no change has been 
made in the final rule as a result of these comments.

Regulatory Certifications

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this final 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 proposed 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 obligations of recipients of such programs.
    Moreover, this proposed 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 proposed rule more clearly establishes when mineral operators 
can be issued a criminal citation for unauthorized occupancy and use of 
National Forest System lands and facilities when such authorization is 
required. Section 31.1(b) of Forest Service Handbook 1909.15 (57 FR 
43168; September 18, 1992) excludes from documentation in an 
environmental assessment or environmental impact statement ``rules, 
regulations, or policies to establish Service-wide administrative 
procedures, program processes, or instructions.'' This proposed rule 
falls within this category of actions and no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or an environmental impact statement.
    Moreover, this rule itself has no impact on the human environment. 
It requires mineral operations to be conducted in compliance critical 
provisions of the applicable subpart of 36 CFR part 228, and any 
operating plan governing such operations. Additionally, the rule 
provides that an operator's violation of the prohibitions can be 
enforced criminally. These functions do not have environmental 
consequences. Actions with the potential to have environmental 
consequences are those provided for by the applicable subpart of 36 CFR 
part 228. Therefore, the adoption of this final rule does not require 
preparation of an environmental assessment or an environmental impact 
statement.

Energy Effects

    This proposed 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 proposed rule does not constitute a significant energy action 
as defined in the Executive Order.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any new recordkeeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR part 1320 that are not already

[[Page 65999]]

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 proposed rule under the requirements 
of Executive Order 13132, Federalism, and Executive Order 12875, 
Government Partnerships. The agency has completed an assessment finding 
that the final 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.

Consultation and Coordination With Indian Tribal Governments

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

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630--Government 
Actions and Interference with Civil Constitutionally Protected Property 
Rights. It has been determined that the proposed rule does not pose the 
risk of a taking of private property.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988--
Civil Justice Reform. Pursuant to this final rule, (1) all State and 
local laws and regulations that are in conflict with the rule or that 
impede its full implementation are preempted; (2) no retroactive effect 
is given to the rule; and (3) the rule does not require administrative 
proceedings before parties may file suit in court to challenge 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 Forest Service has assessed the effects of this proposed rule 
on State, local, and tribal governments and the private sector. This 
proposed 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 is not 
required.

List of Subjects in 36 CFR Part 261

    Law enforcement, Mines, National Forests.


0
Therefore, for the reasons set forth in the preamble, amend subpart A 
of part 261 of Title 36 of the Code of Federal Regulations as follows:

PART 261--PROHIBITIONS

0
1. The authority citation for part 261 continues to read as follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f), 
1133(c), (d)(1), 1246(i).

Subpart A--General Prohibitions

0
2. Amend Sec.  261.2 by revising the definition for operating plan, and 
adding a definition for residence to read as follows:


Sec.  261.2  Definitions.

* * * * *
    Operating plan means the following documents, providing that the 
document has been issued or approved by the Forest Service: A plan of 
operations as provided for in 36 CFR part 228, subparts A and D, and 36 
CFR part 292, subparts C and G; a supplemental plan of operations as 
provided for in 36 CFR part 228, subpart A, and 36 CFR part 292, 
subpart G; an operating plan as provided for in 36 CFR part 228, 
subpart C, and 36 CFR part 292, subpart G; an amended operating plan 
and a reclamation plan as provided for in 36 CFR part 292, subpart G; a 
surface use plan of operations as provided for in 36 CFR part 228, 
subpart E; a supplemental surface use plan of operations as provided 
for in 36 CFR part 228, subpart E; a permit as provided for in 36 CFR 
251.15; and an operating plan and a letter of authorization as provided 
for in 36 CFR part 292, subpart D.
* * * * *
    Residence. Any structure or shelter, whether temporary or 
permanent, including, but not limited to, buildings, buses, cabins, 
campers, houses, lean-tos, mills, mobile homes, motor homes, pole 
barns, recreational vehicles, sheds, shops, tents and trailers, which 
is being used, capable of being used, or designed to be used, in whole 
or in part, full or part-time, as living or sleeping quarters by any 
person, including a guard or watchman.
* * * * *

0
3. Amend Sec.  261.10 by revising paragraphs (a) and (b) and adding 
paragraph (p) to read as follows:


Sec.  261.10  Occupancy and use.

* * * * *
    (a) Constructing, placing, or maintaining any kind of road, trail, 
structure, fence, enclosure, communication equipment, significant 
surface disturbance, or other improvement on National Forest System 
lands or facilities without a special-use authorization, contract, or 
approved operating plan when such authorization is required.
    (b) Construction, reconstructing, improving, maintaining, occupying 
or using a residence on National Forest System lands unless authorized 
by a special-use authorization or approved operating plan when such 
authorization is required.
* * * * *
    (p) Use or occupancy of National Forest System lands or facilities 
without an approved operating plan when such authorization is required.

    Dated: October 31, 2008.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. E8-26448 Filed 11-5-08; 8:45 am]
BILLING CODE 3410-11-P