[Federal Register Volume 83, Number 178 (Thursday, September 13, 2018)]
[Proposed Rules]
[Pages 46451-46458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19961]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 228

RIN 0596-AD32


Locatable Minerals

AGENCY: Forest Service, USDA.

ACTION: Advance notice of proposed rulemaking; request for comment.

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SUMMARY: The Forest Service is requesting comments from the public 
regarding the need to clarify or to otherwise enhance its regulations 
that minimize adverse environmental impacts on National Forest System 
surface resources in connection with operations authorized by the 
United States mining laws. These rules and procedures govern 
prospecting, exploration, development, mining, and processing 
operations conducted on National Forest System lands authorized by the 
Mining Law of 1872, as amended, subsequent reclamation of the land, and 
any necessary long-term post-closure resource management. The goals of 
the regulatory revision are to expedite Forest Service review of 
certain proposed mineral operations authorized by the United States 
mining laws, and, where applicable, Forest Service approval of some of 
these proposals by clarifying the regulations, to increase consistency 
with the United States Department of the Interior, Bureau of Land 
Management (BLM) surface management regulations governing operations 
authorized by the United States mining laws to assist those who conduct 
these operations on lands managed by each agency, and to increase the 
Forest Service's nationwide consistency in regulating mineral 
operations authorized by the United States mining laws by clarifying 
its regulations .

DATES: Comments must be received by October 15, 2018.

ADDRESSES: Please submit comments via one of the following methods:
     Electronically: Go to the Federal eRulemaking Portal: 
http://www.regulations.gov. In the Search box, enter FS-2018-0052, 
which is the docket number for this Advanced Notice of Proposed 
Rulemaking. Then, in the Search panel on the left side of the screen, 
under the Document Type heading, click on the Notice link to locate 
this document. You may submit a comment by clicking on ``Comment Now!''
     By hard copy: Submit by U.S. mail to: USDA-Forest Service. 
Attn: Director--MGM Staff, 1617 Cole Boulevard, Building 17, Lakewood, 
CO 80401.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us.

FOR FURTHER INFORMATION CONTACT: Cheryl Nabahe, Minerals and Geology 
Management, 202-205-0800. Individuals who use telecommunication devices 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Time, 
Monday through Friday.

SUPPLEMENTARY INFORMATION: This advance notice is intended to give the

[[Page 46452]]

public an opportunity to help us develop ways to address challenges 
that the Forest Service has encountered in regulating such operations 
on National Forest System lands. These comments will help the Forest 
Service draft proposed amendments to the agency's regulations in a way 
that protects National Forest System surface resources, consistent with 
applicable statutes authorizing such operations on National Forest 
System lands. The Office of Management and Budget has determined that 
this advance notice is significant under E.O. 12866.

Background

    The Mining Law authorizes the prospecting, exploration, location, 
development, mining, and processing of valuable ``locatable'' mineral 
deposits on National Forest System lands reserved from the public 
domain by virtue of the Organic Administration Act, 16 U.S.C. 478, 482. 
``Locatable'' minerals are base and precious metal ores, ferrous metal 
ores, and certain classes of industrial minerals that include, but are 
not limited to, gold, silver, platinum, copper, lead, zinc, magnesium, 
nickel, tungsten, bentonite, barite, fluorspar, uranium, and uncommon 
varieties of sand, gravel, and dimension stone.
    In 1974, under authority granted to the Forest Service by the 
Organic Administration Act of 1897, 16 U.S.C. 478, 482, and 551, the 
Forest Service adopted regulations at 36 Code of Federal Regulation 
(CFR) part 252 (39 FR 31317, Aug. 28, 1974), which were later 
redesigated as 36 CFR part 228, subpart A (46 FR 36142, July 14, 1981), 
to regulate operations conducted on certain National Forest System 
lands under the Mining Law of 1872, as amended, 30 U.S.C. 22-54 (The 
Mining Law). The regulations at 36 CFR part 228, subpart A, require 
that all such locatable mineral prospecting, exploration, development, 
mining and processing operations, and associated means of access, 
whether occurring within or outside the boundaries of a mining claim 
located under the Mining Law, shall be conducted in a manner that 
minimizes adverse environmental effects on National Forest System 
surface resources.
    The regulations at 36 CFR part 228 subpart A reflect the fact that 
the Mining Law, as amended, confers the authority, by virtue of the 
Organic Administration Act, to enter upon certain National Forest 
System lands to search for, locate, and develop valuable minerals 
subject to the Mining Law. Thus, the Forest Service may not prohibit 
locatable mineral operations on lands subject to the Mining Law that 
otherwise comply with applicable law, nor regulate those operations in 
a manner which amounts to a prohibition.
    In 2005, 36 CFR part 228, subpart A, was amended to clarify when a 
plan of operations is required (36 CFR 228.4(a), 70 FR 32731, June 6, 
2005). However, these regulations have not been significantly revised 
since they took effect in 1974.
    Overall, the regulations at 36 CFR part 228, subpart A, have 
enabled the Forest Service to minimize adverse environmental effects on 
surface resources that could result from locatable mineral operations 
on National Forest System lands, via such methods as timing 
restrictions, reasonable mitigation measures, reclamation, and bonding. 
But since these regulations were promulgated in 1974, several 
inefficiencies and problems associated with them have become apparent 
to operators, members of the public, and the agency. Examples of such 
inefficiencies and problems include the need to clarify the process by 
which the Forest Service reviews certain locatable mineral operation 
proposals, the need to address topics such as reasonably incident use 
and occupancy of National Forest System lands as defined by the Surface 
Resources Act of 1955, 30 U.S.C. 612, a lack of administrative tools to 
address modifications of plans of operations and noncompliance issues, 
and challenges involving plans of operations including ensuring that 
proposed plans include their component reclamation plans and associated 
reclamation cost estimation. Specific recommendations to revise and 
update 36 CFR part 228, subpart A, have also been made in two reports: 
the 1999 National Research Council (NRC) publication ``Hard Rock Mining 
on Federal Lands'' (National Research Council. 1999. Hardrock Mining on 
Federal Lands. Washington, DC: The National Academies Press. https://doi.org/10.17226/9682.); and the 2016 United States Government 
Accountability Office (GAO) report ``Hardrock Mining: BLM and Forest 
Service Have Taken Some Actions to Expedite the Mine Plan Review 
Process but Could Do More'' (United States Government Accountability 
Office. 2016. Report to the Chairman, Committee on Natural Resources, 
House of Representatives. Hardrock Mining: BLM and Forest Service Have 
Taken Some Action To Expedite the Mine Plan Review Process but Could Do 
More. GAO-16-165. Washington, DC: U.S. Government Accountability 
Office. https://www.gao.gov/assets/680/674752.pdf).
    Many of the concerns identified by the NRC in 1999 are the same 
concerns the Forest Service has about 36 CFR part 228, subpart A. One 
example is the adequacy of the process set out in 36 CFR part 228, 
subpart A, for requiring operators to modify plans of operations in 
light of new circumstances or information, especially when needed to 
correct problems that have resulted in harm or threatened harm to 
surface resources. As examples of such new circumstances or 
information, the NRC's report lists ``unexpected acid drainage, 
problems with water balance, adequacy of approved containment 
structures, or discovery of impacts on wells and springs.'' The NRC was 
critical of the fact that 36 CFR part 228, subpart A, only allows the 
Forest Service to require a modification to a Plan of Operations if 
``unforseen significant disturbance of surface resources'' is occurring 
or probable. The NRC noted that this criterion entails a retroactive 
inquiry instead of a proactive one allowing the Forest Service to 
correct whatever problems have resulted in harm or threathen harm.
    The Forest Service also intends to consider the NRC's 
recommendation that the agency should adopt an expeditious process for 
reviewing proposed exploration operations affecting 5 acres or less of 
National Forest System lands similar to the one employed by the BLM 
with respect to the public lands it manages.
    The Forest Service also agrees with the 2016 GAO report's 
conclusion that expeditious review of proposed plans of operations is 
often hindered by the low quality of information operators include in 
those plans. The Forest Service intends to consider adoption of two 
measures the GAO's 2016 report concludes might improve the quality of 
proposed plans of operations submitted for the agency's review and 
approval. One is to establish a uniform process in which the Forest 
Service encourages persons seeking to conduct locatable mineral 
operations that require approval of a plan of operations to meet with 
the appropriate local Forest Service official prior to submitting the 
proposed plan. This will ensure that the operator is familiar with the 
requirements that a proposed plan of operations must meet to be found 
complete. The second is for the Forest Service to ensure that all 
proposed plans of operations are complete before required environmental 
analysis of those plans begin.
    In addition, the Forest Service is considering whether to amend 
portions of 36 CFR part 228, subpart A, to more closely correspond to 
43 CFR part 3710, subpart 3715 (65 FR 37125, July 16,

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1996) and 43 CFR part 3800, subpart 3809 (65 FR 70112, Nov. 21, 2000), 
which govern locatable mineral operations conducted on the public lands 
managed by the BLM, as permitted given the Forest Service's different 
statutory authorities. Specifically, the Forest Service contemplates 
increased consistency with the BLM's regulations regarding reasonably 
incident uses and occupancy, classification of operations (i.e., casual 
use, notice-level, and plan of operations-level), requirements for 
operating on segregated or withdrawn lands, special procedures 
applicable when a mineral or material may be subject to sale under the 
Materials Act of 1947, 30 U.S.C. 601-04, rather than to appropriation 
under the mining laws, and noncompliance and enforcement. Increasing 
the consistency of the agencies' procedures and rules would benefit 
persons who conduct locatable mineral operations on the public lands 
managed by the BLM as well as on National Forest System lands managed 
by the Forest Service.
    Pursuant to Executive Order 13817, A Federal Strategy to Ensure 
Secure and Reliable Supplies of Critical Minerals, issued December 20, 
2017, the Secretary of the Interior published a list of 35 mineral 
commodities vital to the economic and national security of the United 
States for which the United States is heavily reliant on imports (83 FR 
23295, May, 18, 2018). Predominantly, the critical commodities would be 
subject 36 CFR part 228, subpart A, if they are found on National 
Forest System lands which are subject to entry under the mining laws. 
Portions of the Executive Order direct the federal government to 
increase exploration for, and mining of, critical minerals (Sec. 3(b)) 
and to revise permitting processes to expedite exploration for, and 
production of, critical minerals (Sec. 3(d)) and the revision of 36 CFR 
part 228, subpart A, in the manner being contemplated and described in 
this advance notice would help achieve those ends. For example, the 
Forest Service is seeking to provide a more efficient process for 
approving exploration activities for locatable minerals, including 
those that also are critical commodities for purposes of Executive 
Order 13817. This change should enhance operators' interest in, and 
willingness to, conduct exploratory operations on National Forest 
System lands and ultimately increase the production of critical 
minerals, consistent with both of these sections of the Executive 
Order. Further, achieving the Forest Service's objectives of clarifying 
the requirements for submitting a proposed plan of operations or 
modifying such a plan and clarifying the process the Forest Service 
uses in receiving, reviewing, and approving a plan of operations should 
expedite the approval of plans of operations and derivatively actual 
extraction of critical minerals on National Forest System lands.
    The revision of 36 CFR part 228, subpart A, also would facilitate, 
support, and ensure the policy objectives of Executive Order 13783, 
Promoting Energy Independence and Economic Growth, issued March 28, 
2017, as outlined in its Section 2a. Providing a more efficient process 
for approving exploration activities for the energy-producing locatable 
minerals uranium and thorium would reduce regulatory burdens that 
unnecessarily encumber energy production consistent with Sec. 1(b) of 
the Order as well as ultimately expand the means of domestic energy 
production consistent with Sec. 1(c) of the Order. Increasing the 
clarity of requirements for submitting a proposed plan of operations or 
modifying such a plan along with the clarity of the process the Forest 
Service uses in receiving, reviewing, and approving a plan of 
operations would benefit and support the safe, efficient development of 
uranium, an important potential and current domestic energy resource, 
and thorium, a potential domestic energy resource, consistent with Sec. 
1(b) or the Order.
    Revision of the regulations at 36 CFR part 228, subpart A, will 
facilitate, support, and ensure the policy objectives of Executive 
Order 13807, Establishing Discipline and Accountability in the 
Environmental Review and Permitting Process for Infrastructure 
Projects, issued on August 15, 2017. For example, the USDA Forest 
Service is seeking to provide a more efficient process for approving 
exploration activities for the energy-producing locatable minerals 
uranium and thorium where that exploration will cause 5 acres or less 
of surface disturbance on National Forest System lands for which 
reclamation has not been completed. This would achieve the result of 
the Forest Service being a good steward of public funds by avoiding 
wasteful processes consistent with Section 2e of the Executive Order. 
Improving the quality of proposed plans of operations for uranium or 
thorium operations will allow more timely processing of those plans 
thereby giving public and private investors the confidence necessary to 
make funding decisions consistent with Section 2f of Executive Order 
13807. While other regulatory changes under consideration as detailed 
in the ``Comments Requested'' portion of this advance notice applicable 
to uranium and thorium operations would foster the policy objectives 
set out in Section 2 of the Executive Order, particularly those 
objectives in paragraphs d, e, f, and h.

Comments Requested

    The Forest Service particularly invites comment regarding 
challenges the public has experienced with respect to the aspects of 
the agency's current regulations at 36 CFR part 228, subpart A, and 
issues the public foresees with respect to potential amendments to 
these regulations, that are are relevant to the following topics.
    (1) Classification of locatable mineral operations.
    a. Currently, the regulations at 36 CFR part 228, subpart A, 
establish three classes of locatable mineral operations: Those which do 
not require an operator to provide the Forest Service with notice 
before operating, those requiring the operator to submit a notice of 
intent to conduct operations to the Forest Service before operating, 
and those requiring an operator to submit and obtain Forest Service 
approval of a proposed plan of operations. The operations which do not 
require an operator to provide notice before operating are idenitifed 
by 36 CFR 228.4(a)(1). Those operations include, but are not limited 
to, using certain existing roads, performing prospecting and sampling 
which will not cause significant surface resource disturbance, 
conducting operations which will not cause surface resource disturbance 
substantially different from that caused by other users of the National 
Forest System who are not required to obtain another type of written 
authorization, and conducting operations which do not involve the use 
of mechanized earthmoving equipment or the cutting of trees unless 
these operations might otherwise cause a significant disturbance of 
surface resources. The operations for which an operator must submit a 
notice of intent to the Forest Service before operating are identifed 
by 36 CFR 228.4(a) as those which might, but are not likely to, cause 
significant disturbance of surface resources. The operations for which 
an operator must submit and obtain Forest Service approval of a 
proposed plan of operations before operating are idenitifed by 36 CFR 
228.4(a)(3)-(a)(4) as those which will likely cause, or are actually 
causing, a significant disturbance of surface resources.

[[Page 46454]]

    b. The BLM's surface management regulations at 43 CFR 3809.10 
similarly establish three classes of locatable minerals operations: 
Casual use, notice-level operations, and plan-level operations. The 
operations which constitute casual use are identified by 43 CFR 3809.5 
as those which ordinarily result in no or negligible disturbance of the 
public lands or resources managed by the BLM. Per 43 CFR 3809.10(a) an 
operator is not required to notify the BLM before beginning operations 
classified as casual use. Notice-level operations are identified by 43 
CFR 3809.21 as exploration causing surface disturbance of 5 acres or 
less of public lands on which reclamation has not been completed. 
Generally 43 CFR 3809.10(b) requires an operator proposing to conduct 
notice-level operations to submit a notice to the BLM. In accordance 
with 43 CFR 3809.311 and 3809.312(d) an operator may not begin notice-
level operations until the BLM determines that the operator's notice is 
complete and the operator has submitted the required finacial 
guarantee. Typically, 43 CFR 3809.10(a) requires an operator to submit 
a proposed plan of operations for all other locatable mineral 
operations and 43 CFR 3809.412 prohibts the operator from begining 
those operations until the BLM approves the plan of operations and the 
operator has submitted the required financial guarantee.
    c. The Forest Service is contemplating amending its regulations at 
36 CFR part 228, subpart A, to increase consistency with the BLM's 
regulations which establish three classes of locatable mineral 
operations and specify the requirements an operator must satisfy before 
commencing operations in each such class, to the extent that the Forest 
Service's unique statutory authorities allow this. Do you agree with 
this approach?
    d. If you do not agree that 36 CFR part 228, subpart A, should be 
amended to increase consistency with the BLM's regulations which 
establish three classes of locatable mineral operations andspecify the 
requirements which an operator must satisfy before commencing 
operations in each such class, please identify the classes of locatable 
mineral operations that you think the Forest Service should adopt. Also 
please identify all requirements that you think an operator should have 
to satisfy before commencing the locatable mineral operations that 
would fall in each such class.
    e. If you previously concluded that 36 CFR part 228, subpart A, did 
not require you to give the Forest Service prior notice before you 
began conducting locatable mineral operations on National Forest System 
lands, what issues or challenges did you encounter once you began 
operating?
    f. If you previously concluded that 36 CFR part 228, subpart A, 
only required you to submit a notice of intent before you began 
conducting locatable mineral operations on National Forest System 
lands, what issues or challenges did you encounter after submitting 
your notice of intent or after you began operating?
    g. Should certain environmental concerns, such as threatened or 
endangered species, certain mineral operations, such as suction 
dredging, or certain land statuses, such as national recreation areas, 
be determinative of the classification of proposed locatable mineral 
operations? If so, please identify all circumstances which you think 
should require an opertor to submit a notice before operating, and all 
circumstances which you think should require an operator to submit and 
obtain Forest Service approval of a proposed plan of operations?
    (2) Submitting, Receiving, Reviewing, Analyzing, and Approving 
Plans of Operations.
    a. Today, 36 CFR 228.4(a)(3) and (4) requires an operator to 
submit, and obtain approval of, a proposed plan of operations before 
conducting locatable mineral operations which will likely cause, or are 
actually causing, a significant disturbance of National Forest System 
surface resources. Unfortunately, as the GAO's 2016 report entitled 
``Hardrock Mining: BLM and Forest Service Have Taken Some Action To 
Expedite the Mine Plan Review Process but Could Do More'' concludes, 
the quality of the information operators include in such plans is 
frequently low, resulting in substantially delayed approval of these 
insufficient proposed plans. The Forest Service thinks that increasing 
the clarity of the plan of operations content requirements in 36 CFR 
part 228, subpart A, would result in better proposed plans of 
operations. The Forest Service also thinks that clarifying 36 CFR part 
228, subpart A, to emphasize that proposed plans of operation must 
specify in detail the measures that operators intend to take to satisfy 
the requirements for environmental protection set out in 36 CFR 228.8 
would result in better proposed plans of operation.
    b. Nonetheless, the Forest Service has observed that the best 
proposed plans of operations often are submitted by operators who met 
with agency officials to discuss the formulation of their proposed 
plans. Thus, the Forest Service contemplates amending 36 CFR part 228, 
subpart A, to make operators aware that the Forest Service encourages 
them to meet with the appropriate local Forest Service official when 
the operator begins formulating a proposed plan to ensure that the 
operator knows and understands precisely what information a proposed 
plan of operations must contain for the agency to find it complete. The 
Forest Service thinks that routinely having such meetings would improve 
the quality of proposed plans of operation and consequently speed the 
approval of such plans.
    c. The Forest Service also is considering amending 36 CFR part 228, 
subpart A, to require that the appropriate agency official ensures that 
an operator's proposed plan of operations is complete before the agency 
begins the National Environmental Policy Act (NEPA)-related process of 
analyzing that plan and ensuring that the measures an operator intends 
to take to satisfy the requirements for environmental protection set 
out in 36 CFR 228.8 are appropriate. As the GAO's 2016 report finds, 
when analysis of a proposed plan of operations begins before the Forest 
Service has determined that the plan is complete, the consequence is 
likely to be that this analysis must be repeated or augmented due to 
subsequently identified gaps in the proposed plan. The GAO's 2016 
report observes, and the Forest Service agrees, that the ultimate 
consequence of begining to analyze an incomplete proposed plan of 
operations is delay in the plan's approval. Premature analysis of a 
proposed plan of operations also usually results in unnecessary 
expenditures on the part of the Forest Service, and sometimes the 
operator. Therefore, the Forest Service is considering amending 36 CFR 
part 228, subpart A, to require an appropriate Forest Service official 
to initially review all proposed plans of operation for completeness. 
If that official finds a proposed plan incomplete, the agency would 
notify the operator, identify the additional information the opertor 
must submit, and advise the operator that the Forest Service will not 
begin analyzing that plan until it is complete.
    d. Do you think that amending 36 CFR part 228, supart A, to provide 
an opportunity for an operator to meet with the Forest Service before 
submitting a proposed plan of opertions, or to require the Forest 
Service to determine that a proposed plan is complete before initiating 
its NEPA-related analysis of the plan will expedite approval of 
proposed plans of operations? Are there additional or alternate 
measures that you would recommend to expedite approval of proposed 
plans of operation

[[Page 46455]]

submitted to the Forest Service under 36 CFR part 228, subpart A?
    e. How should 36 CFR part 228, subpart A, be amended so that the 
requirements for submitting a proposed plan of operations and the 
process the Forest Service uses in receiving, reviewing, analyzing, and 
approving that plan are clear?
    f. What issues or challenges have you encountered with respect to 
preparing a proposed plan of operations or submitting that plan to the 
Forest Service pursuant to 36 CFR 228.4(c) and (d) or 36 CFR 
228.4(a)(3) and (4), respectively?
    g. What issues or challenges have you encountered with respect to 
the Forest Service's receipt, review, analysis, or approval of a 
proposed plan of operations that you submitted under 36 CFR part 228 
subpart A?
    (3) Modifying Approved Plans of Operations.
    a. After a plan of operations has been approved by the Forest 
Service under 36 CFR part 228 subpart A, either the operator or the 
Forest Service may see reason why that plan should be modified. 
However, 36 CFR part 228, subpart A, does not explicitly recognize that 
an operator may request modification of an approved plan or provide 
procedures for such a modification. Insofar as the Forest Service is 
concerned, 36 CFR part 228, subpart A, permits a Forest Service 
official to ask an operator to submit a proposed modification of the 
approved plan for the purpose of minimizing unforseen significant 
disturbance of surface resources. However, 36 CFR part 228, subpart A, 
provides that the Forest Service official cannot require the operator 
to submit such a proposed modification unless the official's immediate 
supervisor makes three findings. One of the necessary findings is that 
the Forest Service took all reasonable measures to predict the 
environmental impacts of the proposed operations prior to approving the 
plan of operations.
    b. The NRC's 1999 report entitled ``Hard Rock Mining on Federal 
Lands'' is strongly critical of these current 36 CFR part 228, subpart 
A, limitations upon the Forest Service's ability to require an operator 
to obtain approval of a modified plan of operations. The NRC's 1999 
report finds that ``. . . arguments over what should have been 
`foreseen' or whether a . . . Forest Service officer took `all 
reasonable measures' in approving the original plan makes the 
modification process dependent on looking backward. Instead, the 
process should focus on what may be needed in the future to correct 
problems that have resulted in harm or threatened harm . . . . 
Modification procedures should look forward, rather than backward, and 
reflect advances in predictive capacity, technical capacity, and mining 
technology.''
    c. Do you agree that 36 CFR part 228, subpart A, should be amended 
to explicitly permit an operator to request Forest Service approval for 
a modification of an existing plan of operations?
    d. Do you agree with the 1999 NRC report's conclusion that the plan 
of operations modification provisions in 36 CFR part 228, subpart A, 
should be amended to permit the Forest Service to require modification 
of an approved plan in order (1) to correct problems that have resulted 
in harm or threatened harm to National Forest System surface resources 
and (2) to reflect advances in predictive capacity, technical capacity, 
and mining technology? If you do not agree with the 1999 NRC report's 
conclusion that 36 CFR part 228, subpart A, should be amended to allow 
the Forest Service to require an operator to modify an approved plan of 
operations to achieve these two ends, please identify any circumstances 
in addition to those in the current regulations which you think should 
permit the Forest Service to require modification of an approved plan 
of operations.
    e. Do you think that the regulations at 36 CFR part 228, subpart A, 
should be amended to set out the procedures which govern submission, 
receipt, review, analysis, and approval of a proposed modification of 
an existing plan of operations? If so, please describe the procedures 
that you think should be added to 36 CFR part 228, subpart A, to govern 
modification of existing plans of operations, including any differing 
requirements that should be adopted if the modification is being sought 
by the operator rather than the Forest Service.
    (4) Noncompliance and Enforcement.
    a. Currently the noncompliance provisions in 36 CFR part 228, 
subpart A, simply require the Forest Service to serve a notice of 
noncompliance upon an operator when the operator is not in compliance 
with 36 CFR part 228, subpart A, or an approved plan of operations and 
this noncompliance is unnecessarily or unreasonably causing injury, 
loss or damage to surface resources. The notice of noncompliance must 
describe the noncompliance, specify the actions that the operator must 
take to come into compliance, and specify the date by which such 
compliance is required. The regulations at 36 CFR part 228, subpart A, 
do not specify what further administrative actions the Forest Service 
may take if the operator does not meet the requirements set out in the 
notice of noncompliance.
    b. There also are judicial remedies that the federal government may 
pursue when an operator fails to comply with 36 CFR part 228, subpart 
A, or an approved plan of operations. A United States Attorney may 
bring a civil action in federal court (1) seeking an injunction 
requiring an operator to cease acting in a manner which violates 36 CFR 
part 228, subpart A, or the approved plan, or (2) seeking an order 
requiring the operator to take action required by 36 CFR part 228, 
subpart A, or the approved plan of operations and to compensate the 
United States for any damages that resulted from the operator's 
unlawful act. Federal criminal prosecution of an operator also is 
possible for violations of the Forest Service's regulations at 36 CFR 
part 261, subpart A, which bar users of the National Forest System, 
including locatable mineral operators, from acting in a manner 
prohibited by that Subpart. An operator charged with violating 36 CFR 
part 261, subpart A, which is a misdemeanor, may be prosecuted in 
federal court. If the operator is found guilty of violating such a 
prohibition, the court can order the operator to pay a fine of not more 
than $5,000, to be imprisoned for not more than 6 months, or both. Some 
operators have challenged these criminal prosecutions when the Forest 
Service has not first served them a notice of noncompliance. Although 
these challenges have failed, their pursuit nonetheless indicates that 
increasing the clarity of the Forest Service's regulations pertaining 
to the enforcement of 36 CFR part 228, subpart A, and approved plans of 
operations is desirable.
    c. The BLM has more administrative enforcement tools it can employ 
when an operator does not comply with the agency's surface management 
regulations at 43 CFR part 3800, subpart 3809, a notice, or an approved 
plan of operations. However, the action that the BLM takes is dependent 
upon whether a violation is significant. Under the BLM's regulations, a 
significant violation is one that causes or may result in environmental 
or other harm or danger, or one that substantially deviates from a 
notice or an approved plan of operations. When the BLM determines that 
an operator's noncompliance is significant, the agency may issue the 
operator an immediate temporary suspension order. If the operator takes 
the required corrective action in accordance with an

[[Page 46456]]

immediate temporary suspension order, the BLM will lift the suspension. 
But if the operator fails to take the required corrective action, then 
once the BLM completes a specified process the agency may nullify the 
operator's notice or revoke the operator's approved plan of operations.
    d. When the BLM determines that an operator's noncompliance is not 
significant, the agency may issue the operator a noncompliance order 
which describes the noncompliance, specifies the actions the operator 
must take to come into compliance, and specifies the date by which such 
compliance is required. If the operator takes the required corrective 
action, the BLM will lift the noncompliance order. However, if the 
operator fails to take the required corrective action, the BLM again 
assesses the violation's significance. If the BLM determines that the 
noncompliance is still not significant, the agency may require the 
operator to obtain approval of a plan of operations for current or 
future notice-level activity. But, if the BLM determines that the 
operator's noncompliance has become significant, then once the agency 
completes a specified process the BLM may issue the operator a 
suspension order. When the BLM issues a suspension order, the agency 
follows the same process applicable to an immediate temporary 
suspension order. Thus, the operator's failure to take comply with a 
suspension order may result in the agency nullifying the operator's 
notice or revoking the operator's approved plan of operations.
    e. There are judicial remedies that the federal government may 
pursue if an operator fails to comply with any of the BLM's enforcement 
orders. The civil remedies that a United States Attorney can seek are 
the same as the ones available when the noncompliance involves lands 
managed by the Forest Service. But if an operator knowingly and 
willfully violates the BLM's regulations at 43 CFR subpart 3809, the 
consequences of the operator's criminal prosecution may be far more 
severe than those operative when an operator violates 36 CFR part 261, 
subpart A. An individual operator convicted of violating the BLM's 
regulations is subject to a fine of not more than $100,000, 
imprisonment for not more than 12 months, or both, for each offense. An 
organization or corporation convicted of violating the BLM's 
regulations is subject to a fine of not more than $200,000.
    f. As the NRC's 1999 report entitled ``Hard Rock Mining on Federal 
Lands'' finds, the Forest Service's inability to issue a notice of 
noncompliance unless the operator fails to comply with 36 CFR part 228, 
subpart A, and that noncompliance is unnecessarily or unreasonably 
causing injury, loss or damage to National Forest System surface 
resources ``has led to concern about the efficacy of the notice of 
noncompliance in preventing harm to [those] resources. . . .'' The fact 
that 36 CFR part 228, subpart A, does not expressly permit the Forest 
Service to suspend or revoke noncompliant plans of operations also 
poses an unnecessary risk that the agency would be challenged if it 
took these actions in order to prevent harm to National Forest System 
surface resources.
    g. The Forest Service is contemplating amending 36 CFR part 228, 
subpart A, to increase consistency with the BLM's regulations governing 
the enforcement of locatable mineral operations conducted upon public 
lands that the BLM manages, to the extent that the Forest Service's 
unique statutory authorities allow this. Do you agree with this 
approach?
    h. If you do not agree that 36 CFR part 228, subpart A, should be 
amended to increase consistency with the BLM's regulations governing 
the enforcement of locatable mineral operations conducted upon public 
lands that the BLM manages, please describe the enforcement procedures 
that you think the Forest Service should adopt to prevent noncompliance 
with the agency's requirements governing locatable mineral operations 
from harming National Forest System surface resources.
    i. Please describe the processes that the Forest Service should be 
mandated to follow if 36 CFR part 228, subpart A, is amended to permit 
the Forest Service to take the following enforcement actions: Ordering 
the suspension of noncompliant operations, in whole or in part, 
requiring noncompliant operators to obtain approval of a plan of 
operations for current or future notice-level operations, and 
nullifying a noncompliant operator's notice or revoking a noncompliant 
operator's approved plan of operations.
    (5) Reasonably Incident Use and Occupancy.
    a. The Surface Resources Act of 1955, 30 U.S.C. 612(a), aplies to 
National Forest System lands and prohibits the use of mining claims for 
any purpose other than prospecting, mining, or processing operations 
and uses reasonably incident thereto. But federal courts had held that 
the mining laws only entitle persons conducting locatable mineral 
operations to use surface resources for prospecting, exploration, 
development, mining, and processing purposes, and for reasonably 
incident uses long before 1955. Usually, two categories of uses that 
may be reasonably incident to prospecting, exploration, development, 
mining, and processing operations uses are recognized. One is called 
``occupancy,'' or sometimes ``residency,'' and means full or part-time 
residence on federal lands subject to the mining laws along with 
activites or things that promote such residence such as the 
construction or maintenance of structures for residential purposes and 
of barriers to access. The term ``use'' generally refers to all other 
activities or things that promote prospecting, exploration, 
development, mining, and processing, such as the maintenance of 
equipment and the construction or maintenance of access facilities.
    b. Unfortunately, the mining laws have long been widely abused by 
individuals and entities in an attempt to justify unlawful use and 
occupancy of federal lands. As the 1990 United States General 
Accounting Office report ``Federal Land Management: Unathorized 
Activities Occuring on Hardrock Mining Claims:'' (United States General 
Accounting Office. 1990. Report to the Chairman, Subcommittee on Mining 
and Natural Resources, Committee on Interior and Insular Affairs, House 
of Representatives. Federal Land Management: Unathorized Activities 
Occuring on Hardrock Mining Claims. GAO/RCED 90-111. Washington, DC: 
U.S. General Accounting Office. https://www.gao.gov/assets/220/212954.pdf) finds, some holders of mining claims were using them for 
unauthorized residences, non-mining commercial operations, illegal 
activities, or speculative activities not related to legitimate mining. 
The GAO's 1990 report also determines that these unauthorized 
activities result in a variety of problems, including blocked access to 
public land by fences and gates; safety hazards including threats of 
violence; environmental contamination caused by the unsafe storage of 
hazardous wastes; investment scams that defraud the public; and 
increased costs to reclaim damaged land or otherwise acquire land from 
claim holders intent on profiting from holding out for monetary 
compensation from parties wishing to use the land for other purposes. 
Accordingly, the GAO's 1990 report urges the Forest Service and the BLM 
to revise their regulations to limit use or occupancy under the mining 
laws to that which is reasonably incident.
    c. Issues regarding the propriety of use and occupancy under the 
Surface Resources Act's reasonably incident

[[Page 46457]]

standard have generated, and continue to generate, frequent and 
protracted diputes between persons who are conducting locatable mineral 
operations and Forest Service personnel responsible for preventing 
unalwful use and occupancy of National Forest System lands. Moreover, a 
signifcant percentage of the judicial enforcement actions the federal 
government commences with regard to locatable mineral operations on 
National Forest System lands involve use and occuapancy of the lands 
that is questionable or improper under 30 U.S.C. 612(a). Presently, 36 
CFR part 228, subpart A, lacks express standards or procedures for 
determining whether proposed or existing use and occuapancy is 
reasonably incident, regulating use and occuapancy per se, and 
terminating use and occupancy which is not reasonably incident.
    d. The BLM's regulations at 43 CFR part 3710, subpart 3715, are 
designed to prevent or eliminate uses and occupancies of public lands 
which are not reasonably incident to locatable mineral prospecting, 
exploration, development, mining, or processing. These regulations 
establish a framework for distinguishing between bona fide uses and 
occupancies and those that represent abuse of the mining laws for non-
mining pursuits. Specifically, the BLM's regulations establish 
procedures for beginning occupancy, inspection and enforcement, and 
managing existing uses and occupancies as well as standards for 
evaluating whether use or occupancy is reasonably incident.
    e. The Forest Service is contemplating amending 36 CFR part 228 
subpart A, which governs all operations conducted on National Forest 
System lands under the mining laws, to increase consistency with the 
BLM's regulations governing use and occupancy under the mining laws. Do 
you agree with this approach?
    f. If you do not agree that 36 CFR part 228, subpart A, should be 
amended to increase consistency with the BLM's regulations governing 
use and occupancy under the mining laws, please describe the 
requirements, standards, and procedures that you think the Forest 
Service should adopt to prevent unalwful use and occupancy of National 
Forest System surface resources that is not reasonably incident to 
prospecting, exploration, development, mining, or processing operations 
under the mining laws.
    (6) Financial Guarantees.
    a. Current regulations at 36 CFR part 228, subpart A, include a 
section entitled ``bonds'' but there are many alternate kinds of 
financial assurance which the regulations recognize as being acceptable 
substitutes. Therefore, the Forest Service contemplates changing the 
title of this section to the broader terminology ``Financial 
Guarantees.'' The current regulations provide for the Forest Service 
authorized officer to review the adequacy of the estimated cost of 
reclamation and of the financial guarantee's terms in connection with 
the approval of an initial plan of operations. But the regulations do 
not specifically provide that the authorized officer will subsequently 
review the cost estimate and the finanical guarantee to ensure that 
they remain sufficient for final reclamation. The Forest Service is 
considering amending 36 CFR part 228, subpart A, to provide for such a 
subsequent review. An issue that the agency will consider is whether 36 
CFR part 228, subpart A, should specifically provide that the review 
will occur at a fixed interval. The Forest Service also is considering 
whether to amend 36 CFR part 228, subpart A, to specfically provide for 
the establishment of a funding mechanism which will provide for post-
closure obligations such as long-term water treatment and maintaining 
long-term infrastructure such as tailings impoundments. Another concern 
is what forms of financial guarantee should an operator be allowed to 
furnish to assure these long-term post-closure obligations.
    b. What circumstances should permit the authorized officer to 
review the cost estimate and financial guarantee's adequacy and require 
the operator to furnish an upadated financial guarantee for reclamation 
or post-closure management?
    c. How frequently should the authorized officer be allowed to 
initiate this reivew and update of the finacial guarantees for 
reclamation or post-closure management?
    (7) Operations on Withdrawn or Segregated Lands.
    a. Segregations and withdrawals close lands to the operation of the 
mining laws, subject to valid existing rights. Generally the purpose of 
segregation and withdrawal is environmental resource protection, but 
sometimes they are used in advance of a realty action to prevent the 
location of mining claims which might pose an obstacle to the 
contemplated realty action. The Forest Service's regulations at 36 CFR 
part 228, subpart A, do not contain provisions governing proposed or 
existing notices of intent to conduct operations and proposed or 
approved plans of operations for lands subject to mining claims that 
embrace segregated or withdrawn lands. As a matter of policy, the 
Forest Service employs the same procedures appplicable to operations on 
segregated or withdrawn lands that are set forth in the BLM's 
regulations at 43 CFR 3809.100. However, the absence of explicit Forest 
Service regulations governing locatable mineral operations on 
segregated or withdrawn National Forest System lands has given rise to 
legal challenges concerning the propriety of this Forest Service 
policy.
    b. Under 43 CFR 3809.100, the BLM will not approve a plan of 
operations or allow notice-level operations to proceed on lands 
withdrawn from appropriation under the mining laws until the agency has 
prepared a mineral examination report to determine whether each of the 
mining claims on which the operations would be conducted was valid 
before the withdrawal and remains valid. Where lands have been 
segregated from appropriation under the mining laws, the BLM may, but 
is not required to, prepare such a mineral examination report before 
the agency approves a plan of operations or allows notice-level 
operations to proceed.
    c. If a BLM mineral examination report concludes that one or more 
of the mining claims in question are invalid, 43 CFR 3809.100 prohibits 
the agency from approving a plan of operations or allowing notice-level 
operations to occur on all such mining claims. Instead, the regulation 
requires the BLM to promptly initiate contest proceedings with respect 
to those mining claims. There is one exception to this process: Prior 
to the completion of a required mineral examination report and any 
contest proceedings, 43 CFR 3809.100 permits the BLM to approve a plan 
of operations solely for the purposes of sampling to corroborate 
discovery points or complying with assessment work requirements. If the 
U.S. Department of the Interior's final decision with respect to a 
mineral contest declares any of the mining claims to be null and void, 
the operator must complete required reclamation but must cease all 
other operations on the lands formerly subject to all such mining 
claims.
    d. The Forest Service is contemplating amending 36 CFR part 228, 
subpart A, to increase consistency with the BLM's regulations governing 
operations on segregated or withdrawn lands. However, since the 
authority to determine the validity of mining claims lies with the 
Department of the Interior, the amendments would need to direct the 
Forest Service to ask the BLM to initiate contest proceedings with 
respect to mining claims whose validity is questioned by the Forest 
Service--a process consistent with an existing agreement between the 
Department of the Interior and the Department of

[[Page 46458]]

Agriculture. Do you agree with this approach? Also, please specify 
whether you think that such amendments to 36 CFR part 228, subpart A, 
should treat locatable mineral operations conducted on segregated and 
withdrawn lands identically or differently, and the reasons for your 
belief.
    e. If you do not agree that 36 CFR part 228, subpart A, should be 
amended to increase consistency with the BLM's regulations governing 
operations on segregated and withdrawn lands, please describe the 
requirements and procedures that you think the Forest Service should 
adopt to govern locatable mineral operations on National Forest System 
lands segregated or withdrawn from appropriation under the mining laws?
    (8) Procedures for Minerals or Materials that May Be Salable 
Mineral Materials, Not Locatable Minerals.
    a. Effective July 24, 1955 in accordance with 30 U.S.C. 601, 611, 
mineral materials, including but not limited to common varieties of 
sand, stone, gravel, pumice, pumicite, cinders, and clay found on 
National Forest System lands reserved from the public domain ceased 
being locatable under the mining laws. Instead, the Forest Service 
normally is required to sell these substances, which are collectively 
referred to as mineral materials, to the highest qualified bidder after 
formal advertising pursuant to 30 U.S.C. 602 and Forest Service 
regulations at 36 CFR part 228, subpart C (49 FR 29784, July 24, 1984, 
as amended at 55 FR 51706, Dec. 17, 1990). However, uncommon varieties 
of sand, stone, gravel, pumice, pumicite, cinders, and clay found on 
National Forest System lands reserved from the public domain continue 
to be locatable under the mining laws, 30 U.S.C. 611.
    b. When there is a question as to whether one of these minerals or 
materials is a common variety of that substance which is salable under 
the Materials Act of 1947, 30 U.S.C. 601-04, or an uncommon variety of 
that substance which is subject to appropriation under the mining laws, 
30 U.S.C. 611, Forest Service policy calls for preparation of a mineral 
examination report to evaluate this issue. Pending resolution of the 
question as to whether the mineral or material is subject to 
appropriation under the mining laws, the Forest Service encourages an 
operator seeking to remove it in accordance with 36 CFR part 228, 
subpart A, to establish an escrow account and deposit the appraised 
value of the substance in that account. But if the operator refuses to 
establish and make payments to an escrow account, 36 CFR part 228, 
subpart A, does not expressly permit the Forest Service to delay the 
substance's removal while the Forest Service considers whether the 
substance is a mineral material rather than a locatable mineral.
    c. The BLM's regulations at 43 CFR 3809.101 establish special 
procedures applicable to substances that may be salable mineral 
materials rather than locatable minerals. That section generally 
prohibits anyone from initiating operations for the substance until the 
BLM has prepared a mineral examination report evaluating this question. 
Prior to completion of the report and any resulting contest 
proceedings, the BLM will allow notice-level operations or approve a 
plan of operations when (1) the operations' purpose is either sampling 
to confirm or corroborate existing mineral exposures physically 
disclosed on the mining claim or complying with assessment work 
requirements, or (2) the operator establishes an acceptable escrow 
account and deposits the appraised value of the substance in that 
account under a payment schedule approved by the agency. If the mineral 
examination report concludes that the substance is salable rather than 
locatable, the BLM will initiate contest proceedings with respect to 
all mining claims on which loctable mineral operations are proposed 
unless the mining claimant elects to relinquish those mining claims. 
Upon the relinquishment of all such mining claims or the U.S. 
Department of the Interior's issuance of a final decision declaring 
those mining claims to be null and void, the operator must complete 
required reclamation but must cease all other operations on the lands 
formerly subject to those mining claims.
    d. The Forest Service is contemplating amending 36 CFR part 228, 
subpart A, to increase consistency with the BLM's regulations governing 
substances that may be salable mineral materials rather than locatable 
minerals. However, since the authority to determine the validity of 
mining claims lies with the Department of the Interior, the amendments 
would need to direct the Forest Service to ask the BLM to initiate 
contest proceedings with respect to mining claims which the Forest 
Service thinks are based upon an improper attempt to appropriate 
salable mineral materials under the mining laws--a process consistent 
with an existing agreement between the Department of the Interior and 
the Department of Agriculture. Do you agree with this approach?
    e. If you do not agree that 36 CFR part 228, subpart A, should be 
amended to increase consistency with the BLM's regulations governing 
substances that may be salable mineral materials rather than locatable 
minerals, please describe the requirements and procedures that you 
think the Forest Service should adopt to help ensure that the public 
interest and the Federal treasury are protected by preventing mineral 
materials from being given away for free contrary to 30 U.S.C. 602 
which requires payment of their fair market value.
    f. If you submitted a proposed plan of operations under 36 CFR part 
228, subpart A, for what you thought was an uncommon variety of sand, 
stone, gravel, pumice, pumicite, cinders, and clay, what issues or 
challenges did you encounter in obtaining, or attempting to obtain, 
Forest Service approval of that plan?

National Environmental Policy Act

    This advance notice also serves as the USDA Forest Service's notice 
of intent to prepare an environmental assessment or environmental 
impact statement pursuant to the National Environmental Policy Act and 
initiates the scoping process for that document. The USDA Forest 
Service requests comments about the potential environmental effects of 
the propsective amendments to its current regulations at 36 CFR part 
228, subpart A, described in this advance notice.
    Regulatory Findings: This advance notice is not a regulatory action 
under Executive Order 13771.

    Dated: August 31, 2018.
Victoria Christiansen,
Interim Chief, USDA, Forest Service.
[FR Doc. 2018-19961 Filed 9-12-18; 8:45 am]
 BILLING CODE 3411-15-P