Wednesday, March 26, 2008

Proposed Revision of Forest Service Mining Regulations

Yesterday, the U.S. Forest Service proposed revision of the bonding and environmental requirements for hard-rock mines operating within national forests or grasslands.  Those regulations can be found at 73 FR 25694-01.  The summary and proposed provisions are provided below.  Comments are due May 27, 2008.

They purport to be based on the 1999 NRC recommendations.  It sure took them awhile -- the entirety of the Bush administration!

SUMMARY: This proposed rule would revise the regulations for locatable minerals operations conducted on National Forest System lands. The revised rule would apply to prospecting, exploration, development, mining and processing operations, and reclamation under the Mining Law of May 10, 1872, as amended. The Forest Service invites written comments on this proposed rule.

DATES: Comments must be received by May 27, 2008. Pursuant to the Paperwork Reduction Act, comments on the information collection burden that would result from this proposal must be received by May 27, 2008.

ADDRESSES: Send written comments to Forest Service, USDA, Attn: Director, Minerals and Geology Management (MGM) Staff, (2810), Mail Stop 1126, Washington, DC 20250-1125; by electronic mail to 36cfr228a@fs.fed.us; by fax to (703) 605-1575; or by the electronic process available at Federal eRulemaking portal at http:// www.regulations.gov. If comments are sent by electronic mail or by fax, the public is requested not to send duplicate written comments via regular mail. Please confine written comments to issues pertinent to the proposed rule; explain the reasons for any recommended changes; and, where possible, reference the specific wording being addressed. All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on the proposed rule in the Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza Central, 1601 North Kent Street, Arlington, Virginia, on business days between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at (703) 605- 4646 to facilitate entry into the building.

Comments concerning the information collection requirements contained in this action should reference OMB No. 0596-New, the docket number, date, and page number of this issue of the Federal Register. Comments should be sent to the address listed in the above paragraph.

FOR FURTHER INFORMATION CONTACT: Mike Doran, Minerals and Geology Management Staff, (208) 373-4132. 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 Daylight Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background and Need for Proposed Rule

Locatable mineral operations on National Forest System (NFS) lands have been regulated under the rules now at 36 CFR part 228, subpart A, since 1974. Under these rules, the Forest Service requires operators proposing to conduct such operations to file with the agency a notice of intent, or a plan of operation, or to amend a plan of operation, as appropriate, whenever the *15695 proposed mineral operations might or would likely cause significant disturbance of surface resources.
The regulations at 36 CFR part 228, subpart A, apply to all prospecting, exploration, and mining operations, whether within or outside the boundaries of a mining claim, conducted under the Mining Law of May 10, 1872, as amended. These regulations were originally promulgated in 1974 as 36 CFR part 252, and were based on the Forest Service's authority under the Organic Administration Act of 1897. The rules were redesignated as 36 CFR part 228, subpart A, in 1981. In 2005, a final rule clarifying when a plan of operations is required (§ 228.4(a)) also was adopted. However, the regulations have not been significantly revised since 1974.
The Forest Service recognizes that prospectors and miners have a statutory right, not a mere privilege, under the Mining Law of May 10, 1872, the Surface Resources Act of 1955, 30 U.S.C. 611-615 (sometimes referred to as the Multiple Use Mining Act of 1955 or as Public Law 167), and the Organic Administration Act of 1897, to go upon certain National Forest System lands for the purposes of locatable mineral exploration, development, and production. The Forest Service may not unreasonably restrict the exercise of that right. Under the revised regulation, Forest Service administrators would at all times apply the test of reasonableness, in that the regulations and their administration cannot extend beyond what is needed to preserve and protect the National Forests from needless surface resource damage. Particular consideration would be given to the economics of operations, the stage of the operations, along with other factors in applying the test of reasonableness.
The regulations at 36 CFR part 228, subpart A, have served the Forest Service fairly well in bonding and otherwise administering exploration, mining, and processing operations on National Forest System lands. However, since 1974, several inefficiencies and problems associated with these regulations have become apparent and field managers are asking that the regulations be revised and updated.
This proposed rule would implement recommendations contained in the 1999 National Research Council (NRC) publication "Hard Rock Mining on Federal Lands." This publication resulted when Congress asked the NRC to assess the adequacy of the regulatory framework for locatable mineral operations on Federal lands. In September 1999, the NRC published its conclusions and recommendations. Although the report concluded that the overall regulatory structure for locatable mineral operations on Federal lands is effective, the report recommended revision of several aspects of the Forest Service's regulations. Some of the concerns identified by the NRC are the same concerns the Forest Service has about the existing regulations, specifically, revising the regulations to improve the process for modifying and suspending injurious operations and adjusting reclamation bonds. The report also recommended major changes in the way the Forest Service approves exploratory operations causing less than 5 acres of surface resource disturbance. In response to this recommendation, the Forest Service proposes to adopt regulations similar to the Bureau of Land Management's (BLM) regulations governing notice level operations set forth in 43 CFR subpart 3809.
The Forest Service contacted representatives of the mining industry about its effort to revise 36 CFR part 228, subpart A. The Forest Service briefed those representatives as to what the agency then saw as its six main concerns with its current locatable mineral operations. These were:
(a) New provisions that essentially formalize the current process for, reviewing and approving proposed plans of operations;
(b) Streamlining the process for approving short-term, low impact operations;
(c) New provisions that improve the process and criteria for modification of an approved plan of operations;
(d) Providing additional detail with respect to the process the Forest Service uses to inspect operations and to remedy the operator's or the operations' noncompliance with applicable requirements;
(e) A new provision that explains the Forest Service's and the operator's responsibilities under the Clean Water Act in connection with the review and approval of proposed plans of operations; and
(f) Providing additional detail with respect to the process the Forest Service uses to review and adjust reclamation bonds to ensure that those bonds cover the full cost of reclaiming National Forest System lands.

Description of Substantive Proposed Changes by Section

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER

Section 223.14 Where Timber May Be Cut

Section 223.14(d) would be amended to add a citation to 36 CFR part 228, subpart A, to permit certain cutting of timber on a mining claim pursuant to a bonded notice as well as a plan of operations, and to otherwise reflect 36 CFR part 228, subpart A, as it would be revised by this proposed rule.

PART 228--MINERALS

Subpart A--Locatable Minerals

Section 228.3 Definitions

Eleven new terms would be added to the definitions section. Definitions of the terms "occupancy," "permanent structure", and "residence" would be set forth in § 228.3 to provide consistent interpretations for the public and for Forest Service personnel. These definitions would help reduce confusion about the propriety of proposed occupancy and residence on National Forest System lands in connection with locatable mineral operations, part of which has resulted from imprecise language in some Federal court decisions concerning such occupancy and residence. The three new definitions also would make the Forest Service regulations more consistent with the BLM Occupancy and Use regulations for Locatable minerals, 43 CFR subpart 3715. In addition, these definitions would be consistent with amendments to 36 CFR part 261, subpart A, proposed by this proposed rule.
The term "reasonably incident" would be defined to clarify that, by law, mineral operators are restricted to using only reasonable methods of surface disturbance that are appropriate to their stage of operations regardless of the validity of any mining claim on which the operations take place. This clarification is warranted by case law (such as United States v. Richardson, 599 F. 2d 290 (1979); cert. denied, 444 U.S. 1014 (1980)) and the Surface Resources Act of 1955 (30 U.S.C. 612). Reasonable and necessary uses of the National Forest System lands must employ sound and accepted practices to avoid or minimize adverse environmental impacts. These uses also must employ sound, accepted operational methods appropriate for the applicable stage of mining operations, including prospecting, exploration, production (mining and processing), or *15696 reclamation. The Forest Service General Technical Report INT-35, Anatomy of a Mine, from Prospect to Production (section 10-7), describes and gives examples of the reasonable stages of a mining operation.
The proposed term "reclamation" would be redefined to include seasonal and interim measures and long-term treatment after mineral operations have ceased.
The term "reclamation bond" would be included to clarify that interest earning escrow accounts may be used to cover the costs of long-term reclamation measures.
The term "significant disturbance of surface resources" would be defined at § 228.3(n) of the proposed rule to provide general criteria for evaluating the significance of the disturbance of surface resources. However, as discussed in a portion of the June 6, 2005, Federal Register notice for the final rule amending 36 CFR 228.4(a) (70 FR 32713) quoted below, it is impossible to define this term definitively given the variability of National Forest System lands.
"Questions and Answers developed by the Forest Service when the 1974 rule was originally adopted explained that a definition cannot be given that would apply to all lands subject to these regulations. Disturbance by a particular type of operation on flat ground covered by sagebrush, for example, might not be considered significant. But that same sort of operation in a high alpine meadow or near a stream could cause highly significant surface resource disturbance. The determination of what is significant thus depends on a case-by-case evaluation of proposed operations and the kinds of lands and other surface resources involved. In general, operations using mechanized earthmoving equipment would be expected to cause significant disturbance. Pick and shovel operations normally would not. Nor would explosives used underground, unless caving to the surface could be expected. Use of explosives on the surface would generally be considered to cause significant disturbance. Almost without exception, road and trail construction and tree clearing operations would cause significant surface disturbance. The Department continues to believe that a universal definition of the term 'significant disturbance' cannot be established for NFS lands. The lands within the NFS subject to the United States mining laws stretch from Alaska on the north, the Mississippi River on the east, the border with Mexico on the south, and the Pacific Ocean on the west. NFS lands within that large area occur in widely diverse climates, hydrogeologic conditions, landforms, and vegetative types. Due to the great variability of NFS ecosystems, identical operations could cause significant disturbance in one situation and insignificant disturbance in another.
However, the record for the 1974 rulemaking at 36 CFR part 228, subpart A, does identify tests that are of use in deciding whether proposed disturbance of NFS resources constitutes 'significant disturbance' for purposes of that rule. A March 28, 1974, letter from Forest Service Chief John McGuire to Senator Ted Stevens in response to Senator Stevens' comments on the rule proposed in 1973 explains that 'significant disturbance' refers to operations 'for which reclamation upon completion of [that operation] could reasonably be required,' and to operations that could cause impacts on NFS resources that reasonably can be prevented or mitigated."
Nonetheless, locatable mineral operations that fall within the criteria set forth in proposed § 228.3(n) would be judged as likely to cause a significant disturbance of surface resources absent unusual circumstances. It also should be understood that an operation not meeting these criteria might nonetheless be likely to cause "significant disturbance of surface resources" given the nature of the lands and surface resources that would be affected by proposed operations. Thus, even when proposed operations would not be judged as likely to cause significant disturbance of surface resources under the general criteria set forth in § 228.3(n), individualized evaluation of proposed operations might reveal that those operations indeed would be likely to cause "significant disturbance of surface resources."
The Federal Register notice for the final rule amending 36 CFR § 228.4(a) further notes that the March 28, 1974, letter from Forest Service Chief John McGuire "also emphatically makes the point that the Forest Service's locatable mineral regulations do not use the term 'significant' in the same manner as that term is used in the National Environmental Policy Act." It continues to be necessary to distinguish between "significant" disturbance of National Forest System surface resources and "significant" effects on the quality of the human environment. The Forest Service does not interpret a determination that locatable mineral operations are likely to cause significant disturbance of surface resources as an automatic invocation of Section 102(2) (C) of the National Environmental Policy Act of 1969, thus requiring preparation of an environmental impact statement (or an environmental assessment). This was never intended when what is now 36 CFR part 228, subpart A, was originally promulgated nor is it intended now.
As the Federal Register notice for the final rule amending 36 CFR 228.4(a) additionally observed, "Judicial decisions rendered in the 30 years since the rule at 36 CFR part 228, subpart A was promulgated also give context to the meaning of the term 'significant disturbance [of surface resources].' For example, it is well established that the construction or maintenance of structures, such as cabins, mill buildings, showers, tool sheds, and outhouses on NFS lands, constitutes a significant disturbance of NFS resources. United States v. Brunskill, 792 F.2d 938, 941 (9th Cir. 1986); United States v. Burnett, 750 F. Supp. 1029, 1035 (D. Idaho 1990)." These decisions demonstrate the erroneousness of equating a "significant" disturbance of National Forest System surface resources and a "significant" effect on the quality of the human environment. It is extremely unlikely that the maintenance, or even the construction, of such structures standing alone would require preparation of either an environmental impact statement or an environmental assessment unless the National Forest System lands at issue possess some noteworthy status such as being part of a proclaimed wilderness or the designated habitat for a threatened or an endangered species.
Of course, some operations that would be likely to cause significant disturbance of National Forest System surface resources also would be likely to cause significant effects on the quality of the human environment. Thus, some few, by no means all, proposed operations would be expected to require preparation of environmental impact statements. More frequently, but not uniformly or even regularly, proposed operations that would be likely to cause significant disturbance of National Forest System surface resources would trigger preparation of an environmental assessment, which might or might not be the basis for a Finding of No Significant Impact. (Whenever an environmental assessment or environmental impact statement would be required, it would be prepared by the Forest Service.)
The Forest Service requests comments on the adequacy of the proposed definition of "significant disturbance of surface resources" and its discussion set forth above in drawing the distinction between significant disturbance of *15697 National Forest System surface resources and significant effects on the quality of the human environment.
The proposed term "surface use determination" describes a management tool currently used by the authorized officer to determine if a proposed or ongoing use is reasonably incident. The inquiry would consist of an examination and a report completed by a certified mineral examiner that would provide information, conclusions and recommendations to the authorized officer regarding whether a proposed or existing use is logically sequenced, reasonably incident, and otherwise consistent with existing laws and regulations.
This proposed rule defines the term "United States mining laws" as the Mining Law of May 10, 1872, as amended and supplemented. This definition reflects the fact that the 1872 Act has since been affected by many other laws. One such law, the Organic Administration Act of 1897, is specifically mentioned for two reasons. It reapplied the United States mining laws to National Forest System lands following their reservation from the public domain and it provides the Forest Service with authority to promulgate these regulations. Another cited law, the Surface Resources Act of 1955, is specifically mentioned because it confirms requirements implicit in the 1872 Act itself. One such requirement is that operators must use reasonable methods of surface disturbance that are appropriate given the warranted stage of locatable mineral operations.

Section 228.4 Submission of Notices of Intent To Operate, Bonded Notices, and Plans of Operation

This section would be sequentially reorganized to first address operations that would cause little or no disturbance of surface resources, then operations that might cause significant disturbance of surface resources, and finally operations that are likely to cause significant disturbance of surface resources.
An operator would not be required to contact the Forest Service before beginning operations that would cause little or no disturbance of surface resources.
An operator would be required to submit a notice of intent to operate before beginning operations that might cause significant disturbance of surface resources. Among the operations that would require a notice of intent to operate are those that would involve occupancy of National Forest System lands lasting longer than the local forest stay limit and those involving motorized use of closed roads. Submission of a notice of intent for occupancy exceeding the local forest stay limit would be required because such occupancy along with the related mining operations might cause significant disturbance of surface resources. Submission of a notice of intent for motorized use of closed roads similarly would be required because such use along with the related mining operations might cause significant disturbance of surface resources. The notice of intent to operate also would provide an efficient means of evaluating, and when reasonably necessary, regulating occupancy that would exceed local forest stay limits and motorized use of closed roads.
An operator would be required to have either a complete bonded notice then in effect or an approved plan of operations then in effect before beginning operations likely to cause significant disturbance of surface resources. The criteria for deciding which of these instruments the operator would be required to have would be based upon the duration and the extent of the likely significant disturbance of surface resources. The subset of proposed operations likely to cause significant disturbance of surface resources which the rule addresses by means of a complete bonded notice, rather than an approved plan of operations, are those that would neither so disturb more than 5 acres at any point in time nor last more than 2 years. This proposed rule requires an operator to have an approved plan of operations before beginning other operations likely to cause significant disturbance of surface resources which do not satisfy both of these criteria.
The new bonded notice category of operations that this proposed rule creates is similar to the BLM's "notice" category of operations. However, the bonded notice category of operations would differ in one respect from the BLM's notice category of operations. The BLM restricts use of a notice to exploratory operations. The Forest Service proposes to allow use of a bonded notice for all short-term, low impact operations. As the rule is proposed, it is conceivable that some small mining operations would actually progress to the removal of the valuable locatable mineral deposit and the completion of reclamation under the terms of one or more bonded notices.

Section 228.5 Bonded Notice--Completeness Review

The proposed rule would provide that upon receipt of a bonded notice, the authorized officer, who usually would be the District Ranger, would perform a completeness review to determine whether the proposed operations satisfy the environmental protection requirements in § 228.9, assuming that the proposed operations do not require an approved plan of operations, and respond to the operator within 15 days.
The proposed rule generally provides that when a proposed bonded notice is found to be complete and to meet the requirements of § 228.9, the District Ranger would inform the operator that the notice would take effect upon receipt of an adequate reclamation bond. However, § 228.5(a)(5) of the proposed rule would provide that in cases where an operator has established a pattern of noncompliance with requirements applicable to past or ongoing operations, the operator may be required to have an approved plan of operations rather than a complete bonded notice. A process, which would require the authorized officer to seek the operator's input, would be established by the proposed rule to decide whether it would be appropriate to require the operator to obtain an approved plan of operations. The Forest Service specifically requests comment on the inclusion and formulation of § 228.5(a)(5) in the final rulemaking.
Under the proposed rule, once a bonded notice takes effect, the operator would be able to begin the proposed operations.
The proposed rule provides that when the authorized officer determines that operations being conducted in accordance with a complete bonded notice are resulting in significant disturbance of surface resources not fully described by that notice, the operator would be required to obtain a new complete bonded notice or an approved plan of operations, whichever would be appropriate.
Adopting the new bonded notice category of operations would meet recommendations contained in the NRC's 1999 report "Hard Rock Mining on Federal Lands." One of these recommendations is that: "Forest Service regulations should allow exploration disturbing less than 5 acres to be approved or denied expeditiously, similar to notice-level exploration activities on BLM lands." (pg. 97). Another of these recommendations is that: "The BLM and the Forest Service should plan for and implement a more timely permitting process, while still protecting the environment." (pg. 122).
Currently, an approved plan of operations is required for operations that would be subject to a bonded notice under the proposed rule. The existing approval process for a plan of *15698 operations often takes several months to two years. Adopting the bonded notice category of operations would shorten the Forest Service's review of identical low impact, short-term operations freeing up specialists needed to process more complex proposed plans of operations and to administer locatable mineral operations on the ground.
While the bonded notice category of operations would streamline the permitting process for less impactive short-term, operations, the proposed rule also ensures that any adverse impacts that operations conducted under a bonded notice might have on National Forest System lands would be minimized. All operations that would be conducted under a bonded notice would have to meet the environmental protection requirements set forth in § 228.9. All operations that would be conducted under a bonded notice also would have to be properly bonded.

Section 228.6 Plan of Operations--Approval

The procedures for the Forest Service's review of and response to a proposed plan of operations would be very similar to those that would be applicable to a proposed bonded notice.
Section 228.6(h) would include substantially different standards for requiring modification of a plan of operations than those set forth in the current rule. These changes are necessary because the provisions of the current rule governing modification of an approved plan of operations have been interpreted inconsistently. Questions have also been raised as to when incidental changes of operations authorized by the Forest Service rise to the level of requiring modification of the approved plan of operations. The current rule also contains limited and often ineffective criteria for requiring modification of an approved plan of operations. The NRC recognized the existence of such problems and recommended that: "The BLM and the Forest Service should revise their regulations to provide more effective criteria for modifications to plans of operation, where necessary, to protect the federal lands." (pg. 99). The proposed rule would address the NRC's recommendation by correcting these shortcomings.
Currently, 36 CFR part 228, subpart A, contains criteria for requiring modification of a plan of operations that look backward to focus on what should have been "foreseen" when the plan of operations was approved. In this proposed rule, the criteria for requiring modification of a plan of operations allows for a correction of problems manifested after the approval of the plan of operations and would keep approved operations abreast of changed circumstances. These criteria would draw upon those adopted by the Forest Service almost a decade ago in regulations governing locatable mineral operations within the Smith River National Recreation Area, 36 CFR part 292, subpart G. Under the proposed rule, modification of an approved plan of operations might be required to reflect advances in predictive capability, technical capacity, and mining technology. Modification of an approved plan of operations also might be required to address uses of National Forest System land that are no longer, or have become, reasonably incident.
The proposed rule also would reflect the Forest Service's conclusion that it is not reasonable for an operator to continue to conduct any aspect of locatable mineral operations that is causing irreparable or unnecessary injury, loss or damage to National Forest System surface resources even if that aspect of the operations was previously approved by the authorized officer. Thus, the proposed rule would allow the authorized officer to require an operator to suspend any aspect of operations that is causing such injury, loss or damage while the process of modifying the approved plan of operations is ongoing.
Section 228.6(i) would note the Clean Water Act (CWA) obligations that an operator or the Forest Service itself must meet in connection with the approval of a plan of operations. In 2006, a Federal District Court held that the Forest Service cannot approve a proposed plan of operations that may result in a discharge to navigable waters until the operator has obtained a proper 401 CWA certification and presented it to the authorized officer unless the certification requirement has been properly waived. The proposed rule would alert operators and authorized officers to the applicability of this requirement. (The Forest Service Manual has also been amended to include direction for complying with the CWA (FSM 2817.23a)).

Section 228.8 Inspecting Operations and Remedying Noncompliance

The Forest Service has experienced some difficulty in enforcing compliance with the current regulations. A consistent and clearly understood response to noncompliance is needed. The NRC report stated: "* * * the committee is persuaded that more consistent and accessible procedures for deciding when to refer apparent violations to other agencies and the ability to issue reasonable administrative penalties, subject to the appropriate due process, would improve the efficiency of agency operations and enhance the protection of then environment." (pgs.102-103).
This section would list enforcement steps the authorized officer can take if the operator fails to comply with a notice of noncompliance. This proposed rule notes, as is true today, that the authorized officer may initiate a civil action, issue a Violation Notice under 36 CFR part 261, or use the reclamation bond to take all necessary measures to protect the environment specified by the notice of noncompliance.

Section 228.9 Environmental Protection Requirements

This proposed rule would update and revise the environmental protection requirements applicable to locatable mineral operations. A new paragraph, § 228.9(e), would reference the requirements of the Endangered Species Act (ESA). This change would be made because some people have asserted that the ESA does not apply to locatable mineral operations given that the ESA is not mentioned in the currently applicable requirements for environmental protection.
Some operators also do not understand that the Forest Service may require bond coverage that includes the cost of removing any abandoned equipment or other property from National Forest System lands. Some have argued that since the current regulations do not specifically state that removal of equipment is part of reclamation, the operator cannot be required to post a bond for the removal of that equipment. As in the current rule, a separate section of this proposed rule (§ 228.11) would require removal of structures and equipment upon the cessation of operations. However, to prevent further confusion, a new paragraph, § 228.9(i), would be included in the proposed rule to make it clear that a required element of reclamation is the removal of structures and equipment from National Forest System lands. Section 228.13(c)(1), would govern reclamation bonding and also would specify that the cost of complying with proposed § 228.9(i) would be factored into a reclamation bond's required coverage.
This section also would be revised to make the environmental protection requirements applicable to bonded notices as well as plans of operations.

*15699 Section 228.10 Reasonably Incident Uses

This new section would allow an authorized officer to require an operator to cease uses of National Forest System lands that are not reasonably incident to locatable mineral prospecting, exploration, development, mining, processing, or reclamation. This proposed rule would establish a process for evaluating the reasonableness of operations or incidental uses, and to initiate a surface use determination.
Uses such as occupancy and in particular, residence, would be evaluated under this section to determine whether those uses are necessary based on the nature or stage of ongoing or proposed operations. These proposed requirements and requirements proposed elsewhere in this proposed rule are modeled upon the BLM's parallel rule (43 CFR subpart 3715) governing occupancy and reasonably incident uses and operations on the public lands.

Section 228.11 Cessation of Operations

This section would be revised to give the authorized officer a clearly stated process and criteria to use when responding to a proposed or actual cessation or temporary closure of operations. The Forest Service has noticed inappropriate characterizations of closures or cessations of operations as "temporary." These characterizations sometimes appear to be attempts to delay or avoid taking appropriate interim or final actions to clean up and otherwise close and reclaim completed or abandoned operations. These changes would address any such abuse.

Section 228.12 Access for Operations

This section would be revised to clarify that all access must be reasonable. A clarification also would be added stating that the Forest Service may elect to regulate access on National Forest System lands for associated work on lands patented under the United States mining laws pursuant to 36 CFR part 228, subpart A. The vehicle for regulating such access would be either a complete bonded notice or an approved plan of operations.

Section 228.13 Reclamation Bonds for Bonded Notices and Plans of Operation

The revisions in this section would clearly identify the different types of financial instruments that can be used as a reclamation bond. This proposed rule would retain the use of statewide or nationwide blanket bonds while including a new mechanism to insure the adequacy of any blanket bond.
The current regulations do not contain an appropriately detailed process for the administration of reclamation bonds, which results in inconsistent administration of such bonds. As it would be revised, this section would lay out a clear process and definitive standards for administering reclamation bonds. This would facilitate consistent administration of reclamation bonds by Forest Service authorized officers.
Questions have been raised as to whether the authorized officer has authority to require periodic reviews of reclamation bonds, and to require appropriate adjustments of reclamation bonds based upon those reviews. To forestall such questions in the future, the proposed rule would be expanded to set forth detailed language providing criteria and a process for the authorized officer's review of reclamation bonds. The proposed rule would permit review of a reclamation bond's adequacy whenever the authorized officer believes it is necessary. However, the proposed rule would require the authorized officer to seek input from the operator before requiring any adjustment of the bond.
The proposed rule would provide that value should not be attributed to any property that an operator places or creates on National Forest System lands for purposes of determining the cost to fully reclaim such lands in accordance with § 228.13(c). Any other approach would not be reasonable. The operator not only is entitled, but would be required, to remove such property in accordance with § 228.9(i) of the proposed rule. The value of any property impermissibly abandoned on the area of operations also could not be determined in advance. An operator might not own property placed or constructed on National Forest System lands. Even if the operator owned such property initially, ownership of it could pass to another person during the course of the operations voluntarily by sale or involuntarily by bankruptcy. When operations are lengthy, property that was initially valuable may be worth less than the cost to remove it when the operations cease or are concluded. Liability could also be associated with any such abandoned property that the United States would not accept.
This proposed rule would require mandatory bonding for all bonded notices as well as all newly approved plans of operation.
Under current practice, few, if any, operations requiring an approved plan of operations are authorized today without reclamation bond coverage given serious problems that have arisen with respect to previously approved operations for which a bond was not required. However, approved plans of operations are in effect for which a reclamation bond was not required. This proposed rule would require an operator to furnish a bond complying with the requirements of the proposed rule for all existing operations subject to an approved plan of operations, including those for which a reclamation bond initially was not required. Operators would be given 180 days after the effective date of the final rule to furnish such a bond. The BLM also required bonds for existing operations subject to an approved plan of operations to be brought into compliance with the bonding requirements of its revised 43 CFR subpart 3809 regulations within 180 days of that rule's effective date.
As it would be revised, this proposed rule would provide for use of escrow accounts to cover long-term monitoring, maintenance, or treatment measures to prevent or otherwise minimize on-site or off-site damage. The BLM has successfully used this kind of financial instrument to bond such obligations as long-term water treatment (see 43 CFR 3809.556).
This proposed rule also would be expanded to set forth specific criteria and a formal process that the authorized officer must use in deciding whether to permit the release of a reclamation bond or to require the replacement or forfeiture of a reclamation bond. The authorized officer also would be obligated to seek the operator's input before requiring the replacement or forfeiture of a reclamation bond.

Section 228.14 Operations on Withdrawn or Segregated National Forest System Lands Including National Forest Wilderness

The provisions in the current rule governing operations in National Forest Wilderness are reorganized for clarity. Another clarification is made concerning information gathering about any type of mineral as authorized by the Wilderness Act on lands which that Act has withdrawn from appropriation under the United States mining laws. Although the United States mining laws do not govern such information gathering, this proposed rule would make the procedures set forth in this subpart applicable to that work given the similar methods by which such information is gathered.
Proposed paragraphs (f) through (i) of this section would establish the requirements for conducting locatable mineral operations on all National Forest System lands segregated or withdrawn from the operation of the *15700 United States mining laws. National Forest System lands are withdrawn or segregated pursuant to many authorities and there is no logical reason to distinguish between lands segregated or withdrawn from appropriation under one versus another authority.
These proposed provisions specify that operations generally are allowable on all National Forest System lands segregated or withdrawn from the mining laws only to the extent that a person has valid existing rights to proceed, regardless of whether the operations may proceed under a complete bonded notice or an approved plan of operations. Thus, the proposed rule allows the Forest Service to protect genuine valid existing rights (by requiring a determination that such rights exist) while at the same time protecting areas that have been withdrawn or are being proposed to be withdrawn from operation of the mining laws. However, these proposed provisions specify that the Forest Service may allow limited activities before the existence of valid existing rights is established or disproven, including certain limited sampling and limited annual assessment work.
Proposed paragraph (f) of this section would require the Forest Service to prepare a mineral examination report before approving a plan of operations for proposed operations on National Forest System lands withdrawn from the operation of the mining laws. Additionally, this section would grant the Forest Service the discretion to prepare a mineral examination report before confirming that a bonded notice is complete or approving a plan of operations for proposed operations on National Forest System lands that have been segregated under section 204 of FLPMA (43 U.S.C. 1714) for consideration of a withdrawal. This section also would provide that when a mineral examination report finds that a mining claim is invalid but the operator declines to alter the proposed operations to avoid the segregated or withdrawn National Forest System lands in question, the Forest Service will request that the BLM promptly initiate contest proceedings to determine the validity of all such mining claims.
However, in specified limited circumstances proposed paragraph (g) would allow the Forest Service to approve a plan of operations before a mineral examination report for a claim located on withdrawn lands has been prepared. Specifically, the Forest Service may allow operations to take samples to confirm or corroborate mineral exposures that were physically disclosed and existing on the mining claim before the segregation or withdrawal date, whichever is earlier; and to perform any minimum necessary annual assessment work under 43 CFR 3851.1. This section also would permit an operator to conduct the same limited operations on segregated lands under either a bonded notice that the Forest Service has confirmed is complete or a plan of operations that the Forest Service has approved.
Proposed paragraph (h) allows the Forest Service to suspend the time limit the agency would take for final action on a proposed plan of operations until the existence of valid existing rights is finally established or disproven pursuant to paragraph (f) of this section, whether by virtue of the mineral examination report, a mineral contest, or federal court proceedings. The section also provides for the suspension of the time limit for the Forest Service to confirm that a proposed bonded is complete under identical terms.
Proposed paragraph (i) requires an operator to cease all operations, except required reclamation, when the absence of valid existing rights is finally established pursuant to paragraph (f) of this section, whether by virtue of the mineral examination report, a mineral contest, or federal court proceedings.

Section 228.16 Applicability of This Subpart

This section would specify how the revised rule would apply to classes of operations such as approved and ongoing operations, preexisting proposed plans of operation, preexisting unapproved modifications of approved plans, and other preexisting operations. This section would directly parallel the applicability of the BLM's revised 43 CFR subpart 3809 regulations to the same classes of ongoing or proposed locatable mineral operations.

PART 261--PROHIBITIONS

Section 261.2 Definitions

The definition of "operating plans" set forth in this section would be revised to include bonded notices within its scope. A new definition of "residence," patterned upon the definition of "residence" which would be set forth at 36 CFR part 228.3(m), also would be added to this section.

Section 261.10 Occupancy and Use

Paragraphs (a), (b) and (l) of this section would be revised to apply to bonded notices as well as to plans of operation. This change has no substantive effect. These paragraphs presently apply to operations requiring an approved plan of operations. Operations that would be conducted under a complete bonded notice should the proposed rule be adopted, presently require an approved plan of operations under 36 CFR part 228, subpart A. Thus, whether or not the proposed rule is ultimately adopted, the same operations would be subject to these three paragraphs.
New paragraphs (p) and (q) also would be added to this section. Paragraph (p) would prohibit the use or occupancy of National Forest System land or facilities without a complete bonded notice or an approved plan of operations when the operations require such a bonded notice or plan of operations. Paragraph (q) would prohibit the use of National Forest System land as storage sites without a complete bonded notice or an approved plan of operations when the operations would require such a bonded notice or an approved plan of operations.

PART 292--NATIONAL RECREATION AREAS

Subpart D--Sawtooth Natural Recreation Area--Federal Lands

Section 292.17 General Provisions

This section would be amended to add a citation to 36 CFR part 228, subpart A.

Subpart G--Smith River National Recreation Area

Section 292.63 Plan of Operations--Supplementary Requirements

This section would be amended to reflect the revised requirements that would be set forth at proposed 36 CFR part 228.4(f)(1) through (f)(4) and proposed 36 CFR part 228.9. This section also would be revised to employ the same terminology that would be set forth at 36 CFR part 228, subpart A.

PART 293--WILDERNESS--PRIMITIVE AREAS

Section 293.2 Objectives

This section would be amended to add a citation to 36 CFR part 228, subpart A.

Section 293.15 Gathering Information About Resources Other Than Minerals

This section would be amended to add a citation to 36 CFR part 228, subpart A.

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Governance/Management, Mining, Sustainability, Toxic and Hazardous Substances, US | Permalink

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