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

AGENCY:

Forest Service, USDA.

ACTION:

Interim rule; request for comments.

SUMMARY:

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

DATES:

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

ADDRESSES:

Send written comments to Forest Service, USDA, Attn: Director, Minerals and Geology Management (MGM) Staff, (2810), Mail Stop 1126, Washington, DC 20250-1125; by electronic mail to 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 interim rule; explain the reasons for any recommended changes; and, where possible, reference the specific wording being addressed. All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on this interim rule in the Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza Central, 1601 North Kent Street, Arlington, Virginia, on business days between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at (703) 605-4646 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Sam Hotchkiss, Minerals and Geology Management Staff, (703) 605-4852.

SUPPLEMENTARY INFORMATION:

Public Notification and Request for Comments

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

Background and Need for Interim Rule

Since 1974, the Forest Service has applied the regulations at 36 CFR part 228, subpart A, to minimize adverse environmental impacts from mineral operations by requiring mineral operators to file proposed plans of operations for mineral operations which the District Ranger determines will likely cause significant surface disturbance to National Forest System (NFS) lands. These regulated operations may include the construction of storage facilities, mills, and mill buildings; placement of trailers or other personal equipment; residential occupancy and use; storage of vehicles and equipment; excavation of holes, trenches, and pits by non-mechanized procedures; diversion of water; use of sluice boxes and portable devices for separating gold from sediments; off highway vehicle use; road and bridge construction; handling and disposal of mine and other wastes; and signing and fencing to restrict public use of the National Forest area affected by mining. The Forest Service and the courts have consistently required locatable mineral operators to obtain approval of a plan of operations whenever such operations would likely cause a significant surface disturbance whether or not those operations would always involve mechanized earth moving equipment or the cutting of trees. However, last year a District Court departed from this consistent interpretation and ruled that 36 CFR 228.4 (a)(2)(iii) allows a mining operation to occur on NFS lands without prior notification to the Forest Service or Forest Service approval when the operation, irrespective of the impact of its surface disturbing activities, does not involve mechanized earthmoving equipment or the cutting of trees. This unprecedented ruling severely restricts the ability of the Forest Service to regulate miners engaged in surface disturbing operations which have serious environmental impacts although they do not involve mechanized earth moving equipment or the cutting of trees. Moreover, this new interpretation of 36 CFR 228.4 (a)(2)(iii), if left unclarified, will result in significant and unnecessary impacts to NFS lands and resources, including impacts to water quality, visual quality, natural features, species listed under the Endangered Species Act, and conflicts with other National Forest users.

The technical changes contained in this interim rule, for which prior notice and opportunity for public comment is not legally required, are designed to prevent confusion as to the proper interpretation of the regulations. Specifically, the technical amendments clarify the long-standing requirement that a notice of intent and/or plan of operations is mandatory whenever the District Ranger determines that there may be significant surface disturbance to NFS lands and resources, whether or not the operation involves the cutting of trees or use of mechanized earth moving equipment.

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

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

Exemption From Notice and Comment

Prior notice and opportunity for public comment is not required to promulgate technical amendments to a regulation. Moreover, even if the changes to 36 CFR 228.4(a) adopted herein were not technical amendments to that provision, the Administrative Procedure Act (the “APA”) allows agencies to promulgate rules without notice and comment when an agency, for good cause, finds that notice and public comment are “impracticable, unnecessary, or contrary to the public interest.” (5 U.S.C. 553(b)(3)(B)). Furthermore, the APA exempts certain rulemakings from its notice and comment requirements, including rulemakings involving “public property” (5 U.S.C. 553(a)(2)).

In 1971, Secretary of Agriculture Hardin announced a voluntary partial waiver from the APA notice and comment rulemaking exemptions. (July 24, 1971; 36 FR 13804). Thus, USDA agencies proposing rules generally provide notice and an opportunity for public comment on proposed rules. However, the Hardin policy permits agencies to publish final rules without prior notice and opportunity for public comment when an agency finds for good cause that notice and comment procedures would be impracticable, unnecessary, or contrary to the public interest. The courts have recognized this good cause exception of the Hardin policy and have indicated that since the publication requirement was adopted voluntarily, the Secretary should be afforded “more latitude” in making a good cause determination. See Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984).

To the extent that 5 U.S.C. 553 applies to this interim rule, good cause exists to exempt this rulemaking from advance notice and comment. (5 U.S.C. 553(b)(B) and 553(d)(3)). There has been widespread dissemination of the district court decision among groups of small miners who have long objected to obtaining prior approval for their mining operations, and who frequently believe that mining operations invariably justify residential occupancy of NFS lands. This, coupled with the fact that the season for locatable mineral operations has already begun in many areas of the country due to favorable weather conditions, including unusually low snow pack levels in much of the west, has resulted in the initiation of many mining operations on NFS lands for which a notice of intent to operate or a plan of operations has always been required without the submission of a notice of intent to operate or the approval of a plan of operations. Consequently, many operations are already ongoing and a much larger number are imminent which will unnecessarily and unjustifiably adversely impact NFS lands and resources, including water quality, visual quality, natural features and species listed under the Endangered Species Act. The only means by which such significant adverse environmental effects can be avoided during this field season for locatable mineral operations is to promulgate the amended rule immediately. Under these circumstances, the Department has determined that prior notice and opportunity for public comment are not practicable and are contrary to the public interest.

Comments received on this interim rule will be considered in adoption of a final rule, notice of which will be published in the Federal Register. The final rule will include a response to comments received and identify any revisions made to the rule as a result of the comments.

Regulatory Impact

This interim rule has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. It has been determined that this interim rule is not significant. It will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This interim rule would not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients of such programs.

Moreover, this interim rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been determined that this action will not have a significant economic impact on a substantial number of small entities as defined by that act. Therefore, a regulatory flexibility analysis is not required.

Environmental Impacts

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

Energy Effects

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

Controlling Paperwork Burdens on the Public

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

Federalism

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

Consultation and Coordination With Indian Tribal Governments

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

No Takings Implications

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

Civil Justice Reform

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

Unfunded Mandates

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

List of Subjects in 36 CFR Part 228

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

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

PART 228—MINERALS

Subpart A—Locatable Minerals

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

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

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