[Federal Register Volume 70, Number 107 (Monday, June 6, 2005)]
[Rules and Regulations]
[Pages 32713-32732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11138]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 228

RIN 0596-AC17


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

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the regulations governing the use of 
National Forest System lands in connection with operations authorized 
by the United States mining laws. The final rule clarifies the 
regulations at 36 CFR 228.4(a) concerning the requirements for mining 
operators to submit a ``notice of intent'' to operate and requirements 
to submit and obtain an approved ``plan of operations.'' Clarification 
of the requirements in Sec.  228.4(a) are necessary to minimize adverse 
environmental impacts to National Forest System lands and resources.

DATES: The final rule is effective July 6, 2005.

ADDRESSES: The documents used in developing this final rule are 
available for inspection and copying at the office of the Director, 
Minerals and Geology Management, Forest Service, USDA, 1601 N. Kent 
Street, 5th Floor, Arlington, VA 22209, during regular business hours 
(8:30 a.m. to 4:30 p.m.), Monday through Friday, except holidays. Those 
wishing to copy or inspect these documents are asked to call ahead 
(703) 605-4818 to facilitate access to the building.

FOR FURTHER INFORMATION CONTACT: Mike Doran, Minerals and Geology 
Management Staff, (703) 605-4818.

SUPPLEMENTARY INFORMATION: 

Background and Need for Final Rule

    For purposes of this final rule, all references to 36 CFR part 228, 
Subpart A, without qualifying terms ``interim rule'' or ``final rule,'' 
refer to language

[[Page 32714]]

in that subpart in effect prior to issuance of the interim rule (69 FR 
41428, Jul. 9, 2004).
    Since 1974, the Forest Service has applied the regulations now set 
forth at 36 CFR part 228, subpart A, to minimize adverse environmental 
impacts from mineral operations authorized by the United States mining 
laws by requiring mineral operators to file proposed plans of 
operations for mineral operations which the District Ranger determines 
will likely cause significant surface disturbance of National Forest 
System (NFS) lands. These regulated operations may include, but are not 
limited to, 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 mechanized or 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 NFS lands 
affected by mining operations. The Forest Service and the courts had 
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 
involve mechanized earth moving equipment or the cutting of trees.
    However, two years ago, a District Court departed from this 
consistent interpretation and ruled that 36 CFR 228.4(a)(2)(iii) 
allowed a mining operation to occur on NFS lands without prior 
notification to the Forest Service or prior Forest Service approval of 
a plan of operations when the operation did not involve mechanized 
earthmoving equipment, such as bulldozers or backhoes, or the cutting 
of trees, irrespective of the surface disturbing impacts that the 
operation would likely cause. This unprecedented ruling severely 
restricted the ability of the Forest Service to regulate miners engaged 
in surface disturbing operations not involving mechanized earth moving 
equipment or the cutting of trees, but have serious environmental 
impacts, including impacts to water quality, visual quality, natural 
features, fisheries, and species listed under the Endangered Species 
Act, as well as conflicts with other NFS users.
    To prevent confusion as to the proper interpretation of 36 CFR 
228.4(a), the Forest Service published an interim rule in the Federal 
Register on July 9, 2004 (69 FR 41428), which took effect on August 9, 
2004. The interim rule sought to clarify that the requirement to file a 
notice of intent to operate with the District Ranger is mandatory in 
any situation in which a mining operation might cause disturbance of 
surface resources, regardless of whether that operation would involve 
the use of mechanized earth moving equipment, such as a bulldozer or 
backhoe, or the cutting of trees. The interim rule also sought to 
eliminate possible confusion by more specifically addressing the issue 
of what level of operation requires prior submission of a notice of 
intent to operate and what level of operation requires prior submission 
and approval of a plan of operations. The interim rule directs a mining 
operator to submit a notice of intent to operate when the proposed 
operation might cause a disturbance of surface resources. After a 
notice of intent to operate is submitted, the District Ranger would 
determine whether the proposed operations would likely cause a 
significant disturbance of surface resources. If the District Ranger 
determines that the proposed operations would likely cause a 
significant disturbance of surface resources, the District Ranger would 
notify the operator that prior submission and approval of a plan of 
operations is required before the operations commence.
    The opportunity for public comment was not legally required to 
promulgate the interim rule. Nonetheless, the Forest Service provided a 
60-day comment period and stated that comments received on the interim 
rule would be considered in adopting a final rule. The Department has 
considered those comments and has modified several provisions of the 
interim rule in this final rule.

Analysis of Public Comment

Overview

    The Forest Service received 2,373 responses to the interim rule (69 
FR 41428), including fifteen responses which said they were responding 
to the interim rule, but in actuality were nonresponsive and dealt with 
different issues, such as timber harvesting and investment 
opportunities. The total number also includes three challenges to the 
interim rule: (1) A notice of appeal of the interim rule, (2) a 
petition seeking the repeal of the interim rule pursuant to rule making 
requirements that give an interested person the right to petition 
repeal of the rule at 5 U.S.C. 553(e), and (3) a lawsuit seeking to 
enjoin the interim rule. The three challenges to the interim rule were 
disposed of separately and consequently were not independently 
considered in the development of the final rule. However, every issue 
raised in the three challenges to the interim rule also was raised in 
one or more of the comments submitted on the interim rule. Also 
included in the total number were several responses received after the 
comment period ended.
    There were 2,230 comments in favor of the interim rule. Most were 
an identical one-page email supporting the provisions in the interim 
rule, namely the long-standing requirement that miners either notify 
the Forest Service or obtain Forest Service approval before conducting 
proposed mining operations. Several industry organizations submitted 
detailed comments which expressed general support for the interim rule, 
but suggested specific revisions of the rule's text to make its 
requirements clearer. Other letters of support came from State 
regulatory agencies, environmental groups, and the United States 
Environmental Protection Agency.
    Most of the 125 comments in opposition to the interim rule were 
submitted by individuals, many of whom identified themselves as miners 
or prospectors engaging in small scale mining operations.
    All comments submitted on the interim rule and the administrative 
record are available for review in the Office of the Director, Minerals 
and Geology Management Staff, 1610 N. Kent St., 5th Floor, Arlington, 
Virginia, 22209, during regular business hours (8 a.m. to 5 p.m.), 
Monday through Friday, except Federal holidays. Those wishing to view 
the comments and the administrative record should call in advance to 
arrange access to the building (see FOR FURTHER INFORMATION CONTACT).

Response to Comments

1. Comments on the Validity of the Interim Rule's Promulgation
    Comment: Many respondents stated that the Forest Service cannot 
adopt a rule altering the interpretation of Sec.  228.4(a), a portion 
of the rule promulgated in 1974, and adopted in United States v. Lex, 
300 F. Supp. 2d 951 (E.D. Cal. 2003).
    Response: Nothing in Lex could, or purports to, restrict the Forest 
Service's clear authority to promulgate rules regulating the effects of 
locatable mineral resources on NFS lands. Indeed, the court in Lex, 
after noting that it was ``not unsympathetic to the problem posed by 
the [former 36 CFR 228.4(a)] in this case,'' specifically stated that 
``[t]he solution to this problem* * * is

[[Page 32715]]

to amend the regulations * * *'' United States v. Lex, 300 F. Supp. 2d 
951, 962 n.10 (E.D. Cal. 2003). Thus, the contention that Lex somehow 
precludes the Forest Service from adopting the precise solution which 
the decision identified is untenable.
    Comment: Four respondents said that the interim rule is a 
substantive rule which substantially, and improperly, changes 
exemptions to plan of operations and notice of intent to operate 
requirements previously applied to small scale mining operations. These 
comments appear to involve the application of the Administrative 
Procedure Act (APA) to the promulgation of the interim rule.
    Response: These comments are predicated upon the interpretation of 
Sec.  228.4(a) adopted in United States v. Lex, 300 F. Supp. 2d 951 
(E.D. Cal. 2003). As the preamble to the interim rule notes, the 
departure from the long-standing interpretation of Sec.  228.4(a) is 
not the interim rule, but Lex itself. The technical amendments to Sec.  
228.4(a) set forth in the interim rule simply reinforce the long-
standing interpretation of that provision held by the Forest Service 
and previous reviewing courts that a locatable mineral operator may be 
required to submit a notice of intent to operate or to submit and 
obtain approval of a proposed plan of operations whether or not the 
proposed operations would involve the cutting of trees or the use of 
mechanized earth moving equipment, as do the amendments set forth in 
the final rule. Similarly, the technical amendments to Sec.  228.4(a) 
in the interim rule simply reinforce the long-standing interpretation 
of that provision held by the Forest Service and previous reviewing 
courts that a locatable mineral operator is required to obtain approval 
of a proposed plan of operations whenever the operator or the 
applicable District Ranger determines that the proposed operations will 
likely result in significant disturbance of NFS lands and resources, 
irrespective of whether the operator first was required to submit a 
notice of intent to operate, as do the amendments set forth in the 
final rule.
    Moreover, even if the changes to Sec.  228.4(a) adopted in the 
interim rule were not technical amendments to that provision, the 
interim rule was proper under the APA given that the Department found 
for good cause that prior notice and public comment on the rule was 
``impracticable, unnecessary, or contrary to the public interest'' (5 
U.S.C. 553(b)(3)(B)).
    Comment: A number of respondents stated that the Forest Service 
violated the public participation requirements of the Forest and 
Rangeland Renewable Resources Planning Act (RPA) (16 U.S.C. 1612(a)) by 
not giving the public notice and an opportunity to comment before 
adopting the interim rule.
    Response: The public participation provisions of 16 U.S.C. 1612(a) 
do not mandate prior notice and an opportunity to comment before the 
Forest Service adopts a rule in every case. Rather, it requires the 
Forest Service to give ``adequate'' notice and an opportunity to 
comment. The Forest Service provided the public adequate notice and 
opportunity to comment in connection with the technical amendment of 
Sec.  228.4(a) in the interim rule by providing for a public comment 
period on the interim rule and considering those comments in adopting 
the final rule.
    Comment: Several respondents commented that the public 
participation requirements of RPA makes the exceptions of APA's rule 
making requirements at 5 U.S.C. 553(b)(3) and 553(d) inapplicable to 
the interim rule.
    Response: The exceptions to the APA's requirements for prior notice 
and opportunity for public comment on the adoption of rules and for a 
delay in the effective date of certain rules are not overridden by the 
public participation requirements of RPA. That provision clearly did 
not specifically repeal or be construed as an implicit repeal of the 
rule making requirements at 5 U.S.C. 553(b)(3)(A)-(B) or 553(d)(1)-(3).
    `` `It is, of course, a cardinal principle of statutory 
construction that repeals by implication are not favored.' '' 
Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976) (citation 
omitted). Indeed, an implied partial repeal will not be recognized 
unless there is an irreconcilable conflict between the two statutes at 
issue or the later statute covers the whole subject of the earlier one 
and is clearly intended as a substitute. `` `But, in either case, the 
intention of the legislature to repeal must be clear and manifest * * 
*' '' (alteration in original) (citation omitted). Moreover, `` 
`[r]epeal is to be regarded as implied only if necessary to make the 
[later enacted law] work, and even then only to the minimum extent 
necessary.' '' at 155 (alteration in original) (citation omitted).
    In adopting the public participation requirements of RPA, Congress' 
intention to repeal APA's exceptions at 5 U.S.C. 553(b)(3)(A)-(B) and 
553(d)(1)-(3), insofar as Forest Service rules are concerned, certainly 
is not manifest. Furthermore, it is not necessary to read 16 U.S.C. 
1612(a) as repealing the exceptions set forth at 5 U.S.C. 553(b)(3)(A)-
(B) to the APA's requirement for prior notice and opportunity for 
public comment on the adoption of rules in E.O. to make 16 U.S.C. 
1612(a) work, even assuming that 16 U.S.C. 1612(a) is applicable to the 
adoption of the interim rule. Adequate notice and opportunity to 
comment for purposes of 16 U.S.C. 1612(a) can be provided by accepting 
public comments on an interim rule which are considered in the adoption 
of the final rule, as is being done in the context of the revision of 
Sec.  228.4(a). Nor is it necessary to read 16 U.S.C. 1612(a) as 
repealing the exceptions set forth at 5 U.S.C. 553(d)(1)-(3) to the 
APA's requirements for a delay in the effective date of certain rules 
in E.O. to make 16 U.S.C. 1612(a) work, even assuming that 16 U.S.C. 
1612(a) is applicable to the adoption of the interim rule. Agencies can 
delay the effective dates of rules, as was done in the context of the 
interim rule.
    Comment: Several respondents said that the interim rule's violation 
of the public participation requirements of RPA (16 U.S.C. 1612(a)) 
also constitutes a violation of the Congressional Review Requirements 
at 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Response: Given that the Forest Service did not violate the public 
participation requirements of RPA in promulgating the interim rule for 
the reasons previously discussed, there is no cumulative violation of 
the Congressional review requirements as suggested by the respondents.
    Comment: Five respondents commented that the Forest Service 
violated the Regulatory Flexibility Act by failing to prepare and make 
available for public comment both an initial and a final regulatory 
flexibility analysis on the rule and failed to list the interim rule on 
its regulatory flexibility agenda. Additionally, those respondents 
stated that these violations of the Regulatory Flexibility Act also 
constitutes a violation of the Congressional review requirements at 5 
U.S.C. 801(a)(1)(B)(iii) and (iv).
    Response: The obligation to prepare and make available for public 
comment an initial regulatory flexibility analysis is triggered 
``[w]henever an agency is required by section 553 of this title, or any 
other law, to publish general notice of proposed rulemaking for any 
proposed rule * * *'' (5 U.S.C. 603(a)). As previously discussed, the 
interim rule made technical, rather than substantive, changes to Sec.  
228.4(a). Under the APA, a rulemaking which does not constitute a 
substantive rule is exempted from the notice and comment requirements 
of the Act by 5 U.S.C.

[[Page 32716]]

553(b)(3)(A) (Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 927 
(Fed. Cir. 1991)). Further, even if the changes which the interim rule 
made to Sec.  228.4(a) were properly viewed as substantive changes to 
that provision, the APA still would not have required general notice of 
proposed rulemaking for the promulgation of the interim rule because 
the Department, for good cause, found that notice and public procedure 
on the interim rule was impracticable and contrary to the public 
interest pursuant to another of the Act's exception at 5 U.S.C. 
553(b)(3)(B). Moreover, no other law required a general notice of 
proposed rulemaking for the interim rule. Consequently, the Forest 
Service was not under an obligation to prepare and make available for 
public comment an initial regulatory flexibility analysis for the 
interim rule because general notice of proposed rulemaking was not 
required for the promulgation of that rule.
    The obligation to prepare a final regulatory flexibility analysis 
is triggered ``[w]hen an agency promulgates a final rule under section 
553 of this title, after being required by that section or any other 
law to publish a general notice of proposed rulemaking * * *.'' 5 
U.S.C. 604(a). The interim rule is not a final rule. As the interim 
rule explained, ``[c]omments 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'' (69 FR 41428, July 9, 2004).
    Any failure to list the interim rule on the Forest Service's 
regulatory flexibility agenda prior to the rule's adoption does not 
constitute a violation of the Regulatory Flexibility Act which 
specifically provides that ``[n]othing in this section precludes an 
agency from considering or acting on any matter not included in a 
regulatory flexibility agenda * * *.'' 5 U.S.C. 602(d).
    Given that the Forest Service did not violate the Regulatory 
Flexibility Act in promulgating the interim rule, there is no 
cumulative violation of the Congressional review requirements as 
suggested by the respondents.
    Comment: Several respondents stated that the interim rule is a 
major rule for purposes of the Regulatory Flexibility Act, 5 U.S.C. 
801-808.
    Response: On March 15, 2004, the Administrator of the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (OMB) found that the interim rule proposed for Sec.  228.4(a) 
was not a major rule for purposes of 5 U.S.C. 801-808.
    Comment: Three respondents said that the Forest Service violated 
the Congressional review requirements of the Regulatory Flexibility Act 
by failing to submit required reports on the rule to each House of 
Congress and the Comptroller General.
    Response: The Forest Service did comply with this requirement. On 
July 19, 2004, the Forest Service submitted a Congressional Rulemaking 
Report to the House of Representatives (Congressman Hastert), the 
Senate (Vice President Cheney), and the General Accounting Office 
(Comptroller General Walker), containing the provision of the interim 
rule and therefore meeting the Congressional rulemaking reporting 
requirements in the Act.
    Comment: Two respondents commented that the Forest Service violated 
the Unfunded Mandates Reform Act by failing to prepare a required 
written statement, failing to seek input from elected officers of 
State, local and tribal governments, and failing to consider regulatory 
alternatives to the rule. Those respondents further stated that these 
violations of the Act also constitute violations of the Congressional 
review requirements.
    Response: The obligation to prepare the written statement required 
by the Unfunded Mandates Reform Act (act) (2 U.S.C. 1532) is triggered 
by the intention to publish certain ``general notice[s] of proposed 
rulemaking'' or ``any final rule for which a general notice of proposed 
rulemaking was published.'' As previously discussed, the interim rule 
is neither a general notice of proposed rulemaking or a final rule. 
Therefore, the Forest Service was not under an obligation to prepare a 
statement pursuant to the act in promulgating the interim rule.
    The obligation to seek input from elected officers of State, local, 
and tribal governments as required by the act at Sec.  1532 is 
triggered by ``the development of regulatory proposals containing 
significant Federal intergovernmental mandates.'' 2 U.S.C. 1534(a). For 
purposes of this act at Sec.  15342, the term ``Federal 
intergovernmental mandate'' means:

    (A) any provision in legislation, statute, or regulation that--
    (i) would impose [certain] enforceable dut[ies] upon State, 
local, or tribal governments * * *; or
    (ii) would reduce or eliminate the amount of [certain] 
authorization[s] of appropriations * * *; [or]
    (B)[certain] provision[s] in legislation, statute, or regulation 
that relate[] to a then-existing Federal program under which 
$500,000,000 or more is provided annually to State, local, and 
tribal governments under entitlement authority * * *. 2 U.S.C. 
658(5), 1502(1).

    Nothing in the interim rule imposes enforceable duties upon State, 
local, or tribal governments, reduces or eliminates appropriations, or 
relates to an existing program under which money is provided annually 
to State, local, or tribal governments. Consequently, the Forest 
Service was not under an obligation to seek input from elected officers 
of State, local, and tribal governments pursuant to this act in 
promulgating the interim rule.
    Compliance with the requirements of Sec.  1535 of this act 
concerning consideration of regulatory alternatives to a rule is 
mandated ``before promulgating any rule for which a written statement 
is required under section 1532 of this title * * *'' (2 U.S.C. 
1535(a)). For the reasons previously stated, the Forest Service was not 
under an obligation to prepare a statement pursuant to Sec.  1532 of 
the act in promulgating the interim rule.
    Given that the Forest Service did not violate the Unfunded Mandates 
Reform Act in promulgating the interim rule, there is no cumulative 
violation of the Congressional review requirements.
    Comment: Two respondents said that the Forest Service violated the 
Paperwork Reduction Act by failing to have a control number for the 
collection of information in paragraph 228.4(a) of the interim rule.
    Response: The OMB control number for Sec.  228.4 is 0596-0022 and 
was current upon adoption of the interim rule and is approved through 
July 31, 2005. While the interim rule amended the language of Sec.  
228.4(a), the amended language was a clarification which did not alter 
the meaning of that provision and did not change the scope of 
information or number of burden hours associated with this collection 
number. Therefore, the Forest Service did not need to obtain another 
control number or modify control number 0596-0022 prior to the adoption 
of the interim rule. Nothing in the Paperwork Reduction Act renders the 
interim rule or the final rule unenforceable.
    Comment: Two respondents commented that the Forest Service violated 
the Endangered Species Act (ESA) by failing to engage in formal 
consultation with the Department of the Interior before publishing the 
rule. Those respondents further said that the violation of the ESA also 
constitutes a violation of Congressional review requirements.
    Response: The assertion that formal consultation was required for 
the

[[Page 32717]]

promulgation of the interim rule is predicated upon a conclusion that 
the purpose of the interim rule was to prevent undue degradation 
coupled with an assumption that the undue degradation of concern 
involved threatened and endangered species. However, the purpose of the 
interim rule is not the prevention of undue degradation as is made 
evident by the rule's preamble. Indeed, the term ``undue degradation'' 
is not employed in either the text of the interim rule or its preamble.
    Moreover, the interim rule itself has no impact on any threatened 
or endangered specie or the habitat of a threatened or endangered 
specie. Rather, in the context of 36 CFR part 228, subpart A, the 
action which the Forest Service takes which might have such an effect 
is approving a proposed plan of operations. The ESA consequently 
imposes no obligation upon the Forest Service to engage in formal 
consultation before the agency receives a proposed plan of operations 
from a miner.
    Given that the Forest Service did not violate the ESA in 
promulgating the interim rule, there is no cumulative violation of 
Congressional review requirements.
    Comment: Several respondents said that the Forest Service violated 
the National Environmental Policy Act (NEPA) by failing to prepare an 
environmental impact statement (EIS).
    Response: The respondents' assertion that an EIS was required for 
the promulgation of the interim rule is solely predicated upon the 
conclusion that the rule's promulgation was a major Federal action 
which, under NEPA, requires the preparation of an EIS. However, NEPA 
requires the preparation of an EIS only for those major Federal actions 
significantly affecting the quality of the human environment (42 U.S.C. 
4332(2)(C)) and does not require an EIS for a major action which does 
not have a significant impact on the environment. Sierra Club v. 
Hassell, 636 F.2d 1095, 1097 (5th Cir. 1981); Cf. Marsh v. Oregon 
Natural Resources Council, 490 U.S. 360, 374 (1989).
    The respondents do not identify or describe the significant 
environmental impacts which they believe resulted from promulgation of 
the interim rule. In fact, the interim rule has no impact on the human 
environment. For these reasons, NEPA did not require the preparation of 
an EIS prior to the promulgation of the interim rule.
    Comment: Several respondents said that the Forest Service violated 
NEPA by failing to prepare both an environmental assessment (EA) and an 
EIS.
    Response: The respondents did not explain the reasons for their 
conclusion that the interim rule should have been deemed a proposal for 
major Federal action significantly affecting the quality of the human 
environment such that an EIS should have been prepared in connection 
with the promulgation of the rule. Nor did the respondents explain why 
they concluded that an EA should have been prepared in connection with 
the promulgation of the interim rule. However, the comments do seem to 
imply that the interim rule should not have been categorically excluded 
from documentation in an EIS or an EA because extraordinary 
circumstances listed in Forest Service Handbook (FSH) 1905.15, section 
30.3, paragraphs 1 & 2 are present. The comments also appear to suggest 
that an EA must always be prepared prior to the preparation of an EIS.
    The assumption that an EA always must be prepared prior to an EIS 
clearly is incorrect, because an EA is not necessary if the agency has 
decided to prepare an EIS (40 CFR 1501.3(a)).
    The Department has not independently identified a reason to 
conclude that the interim rule was inappropriately categorically 
excluded from documentation in an EIS or an EA. The interim rule 
squarely fits within the Forest Service's categorical exclusion for 
``[r]ules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instructions.'' (FSH 
1909.15, sec. 31.1b, para 2).
    Even if an action falls within a category of proposed actions 
normally excluded from further analysis and documentation in an EIS or 
an EA, the presence of certain resource conditions, such as wilderness 
or flood plains, specified in the Forest Service's NEPA procedures may, 
in some cases, constitute extraordinary circumstances warranting such 
analysis and documentation. Nonetheless, the mere existence of such 
resource conditions is not determinative in deciding whether it is 
proper to categorically exclude an action from documentation in an EIS 
or an EA. The Forest Service's NEPA procedures specifically provide 
that ``[t]he mere presence of one or more of these resource conditions 
does not preclude use of a categorical exclusion. It is the degree of 
the potential effect of a proposed action on these resource conditions 
that determines whether extraordinary circumstances exist.''
    Although the interim rule will govern locatable mineral operations 
which might affect the resource conditions listed in FSH 1909.15, 
section 31.1b, paragraph 2, the distinction quoted in the previous 
paragraph is crucial because the interim rule itself has no impact on 
the human environment, including the specified resource conditions. For 
these reasons, NEPA did not require the preparation of both an EA and 
an EIS prior to the promulgation of the interim rule.
    Comment: A number of respondents stated that the Forest Service 
violated NEPA by failing to consider all reasonable alternatives to the 
rule.
    Response: NEPA only requires consideration of alternatives to 
``proposals for * * * major Federal actions significantly affecting the 
quality of the human environment'' (42 U.S.C. 4332(2)(C)(iii)). As 
previously discussed, the promulgation of the interim rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment.
    Additionally, the interim rule does not involve unresolved 
conflicts concerning the alternative uses of available resources. Both 
the original and revised (interim rule) Sec.  228.4(a) provide for the 
development of locatable mineral resources upon the completion of 
certain procedural requirements. Consequently, the promulgation of the 
interim rule was not a ``proposal which involves unresolved conflicts 
concerning alternative uses of available resources'' requiring the 
consideration of alternatives.
    For these reasons, NEPA did not require the Forest Service to 
consider all reasonable alternatives to the interim rule.
    Comment: A number of respondents commented that the Forest Service 
violated NEPA by failing to consider and disclose the direct, indirect, 
and cumulative effects of the interim rule and its reasonable 
alternatives. These respondents also faulted the Forest Service for 
failing to consider the cumulative adverse socio-economic impacts of 
the interim rule in connection with other Federal regulatory actions.
    Response: The respondents did not identify or describe the direct, 
indirect, or cumulative impacts which they believe resulted from 
promulgation of the interim rule which the Forest failed to consider or 
assess. The respondents also neglected to identify the other Federal 
regulatory actions finalized and proposed in recent years, which work 
to increase the cumulative cost of the interim rule, while also 
diminishing marginal environmental benefit.
    As previously discussed, the Department has not independently 
identified an impact on the environment

[[Page 32718]]

which would result from the promulgation of the interim rule, nor was 
the consideration of reasonable alternatives required given that the 
interim rule was properly categorically excluded from documentation in 
an EIS or an EA (40 CFR 1508.4).
    The Department also disagrees with the respondents' statements that 
there have been other Federal regulatory actions proposed or finalized 
in recent years which would have, or have, had any impact on locatable 
mineral operations proposed or occurring on NFS lands. The rules 
governing these operations at 36 CFR part 228, subpart A, have not been 
substantively changed since their promulgation in 1974. Nor has a rule 
contemplating such a change been proposed.
    For these reasons, NEPA did not require the consideration and 
disclosure of the direct, indirect, and cumulative effects of the 
interim rule and its reasonable alternatives.
    Comment: Several respondents stated the Forest Service violated 
NEPA by failing to use reliable methodology.
    Response: The respondents did not explain why they believe that the 
Forest Service used unreliable methodology in promulgating the interim 
rule. In fact, the totality of the respondents' description of this 
issue consists of the statement that ``[t]he Interim Rule fails to use 
reliable methodology in violation of NEPA and its implementing 
regulations.''
    The Department's review of the interim rule identified no instance 
where unreliable methodology was used in the rule's promulgation.
    Comment: Several respondents said that the Forest Service violated 
NEPA by failing to conduct scoping on the rule.
    Response: The Council on Environmental Quality regulations 
implementing NEPA only require scoping where an agency is preparing an 
EIS (40 CFR 1501.4(d)). As previously discussed, NEPA did not require 
the preparation of an EIS prior to the promulgation of the interim 
rule. Accordingly, NEPA did not require scoping prior to the 
promulgation of the interim rule.
    Comment: Two respondents said that the Forest Service violated 40 
CFR part 25 by failing to meet the requirements for public 
participation set forth in that part. Those respondents also stated 
that the Forest Service's violation of the public participation 
requirement at 40 CFR part 25 also constitutes a violation of 
Congressional review requirements.
    Response: The regulations at 40 CFR part 25 govern ``public 
participation in operations under the Clean Water Act (Pub. L. 95-217), 
the Resource Conservation and Recovery Act (Pub. L. 94-580), and the 
Safe Drinking Water Act (Pub. L. 93-523).'' The Forest Service's 
regulation of the impacts of locatable mineral operations on NFS 
resources is not an activity undertaken pursuant to any of these acts. 
Rather, the interim rule was adopted pursuant to authority conferred 
upon the Forest Service by portions of the Organic Administration Act 
(16 U.S.C. 478, 551). Consequently, 40 CFR part 25 is inapplicable to 
the adoption of the interim rule.
    Given that the Forest Service did not violate 40 CFR part 25 in 
promulgating the interim rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: Two respondents stated that the interim rule is 
inconsistent with Executive Order (E.O.) 13132 because it would permit 
the Forest Service to regulate locatable mineral operations which take 
place in waters which the respondents believe is committed to States, 
not the Federal government. More specifically, those respondents said 
that the Forest Service, in promulgating the interim rule, violated the 
E.O. by failing to make a required disclosure as to the effect of the 
rule upon principles of Federalism. Those respondents also commented 
that the Forest Service violated the E.O. by failing to consult with 
affected State and local officials and that a violation of the E.O. 
also constitutes a violation of the Congressional reporting 
requirements.
    Response: For purposes of 36 CFR part 228, subpart A, there can be 
no doubt that the Forest Service's authority to regulate the 
disturbance of NFS surface resources resulting from locatable mineral 
operations generally encompasses the effects of those operations on 
water, streambeds, or other submerged lands. Section 228.8 
characterizes fisheries habitat as a ``National Forest surface 
resource'' and requires rehabilitation of fisheries habitat. Fisheries 
habitat, of course, can consist of nothing other than water, 
streambeds, or other submerged lands. Only where adjudication has 
established that watercourses were navigable at the time that a State 
was admitted to the Union are those resources solely subject to State 
regulation. Thus, the Forest Service has clear authority to regulate 
the effects which locatable mineral operations have on water, 
streambeds, or other submerged lands, whether or not those operations 
are taking place in waters themselves, except where adjudication has 
established that watercourses were navigable at the time that a State 
was admitted to the Union.
    The disclosures and consultations required by E.O. 13132 only apply 
to those policies which have Federalism implications which by 
definition are those ``regulations * * * that have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' (Sec. 1(a)). 
Nothing in the interim rule restricts State or local government's 
current regulatory powers over locatable mineral operations which take 
place in waters. Thus, as explained in the interim rule's preamble, 
that rule ``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'' (69 FR 41428-41430). Consequently, the Forest Service 
was not required to make the disclosures or undertake the consultation 
referenced in these comments.
    Given that the Forest Service did not violate E.O. 13132 in 
promulgating the interim rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: Two respondents commented that the Forest Service violated 
E.O. 12630 by failing to disclose the potential impact of the rule on 
property rights. Those respondents further commented that this 
violation of the E.O. also constitutes a violation of 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: In their discussions of E.O. 12630, the respondents do 
not specifically identify or describe the impact of the interim rule 
which they believe would constitute a regulatory taking of mining 
claimants' property rights. Rather, the respondents simply state that 
``[a]s was established above, the Interim Rule would affect a 
regulatory taking of all [mining claims].'' However, the respondents' 
only other reference to a regulatory taking appears in their discussion 
of the impact of requiring a bond from miners for small scale mining 
operations.
    The interim rule does not address, or purport to address, bonding 
of locatable mineral operations. Moreover, it is well established that 
a rule such as the interim rule, which in certain circumstances 
requires a miner to obtain approval before conducting locatable mineral 
operations, does not deprive the miner of any property right conferred 
by a mining claim. Freese v. United States, 6 Cl. Ct. 1, 14-16 (1984), 
aff'd mem., 770

[[Page 32719]]

F.2d 177 (Fed. Cir. 1985); Trustees for Alaska v. Environmental 
Protection Agency, 749 F.2d 549, 559-60 (9th Cir. 1984); cf. Clouser v. 
Espy, 42 F.3d 1522, 1530 (9th Cir. 1994), cert. denied sub nom. Clouser 
v. Glickman, 515 U.S. 1141 (1995). Therefore, the Department properly 
found that an analysis of the interim rule conducted pursuant to E.O. 
12630 properly ``determined that the interim rule does not pose the 
risk of a taking of private property'' (69 FR 41430, Jul. 9, 2004).
    For these reasons, the Forest Service did not violate E.O. 12630 in 
promulgating the interim rule. Given that, there is no cumulative 
violation of Congressional reporting requirements.
    Comment: Two respondents said that the Forest Service, in 
promulgating the interim rule, violated E.O. 12866 by failing to make a 
required disclosure as to the effect of the rule on the Federal budget. 
Those respondents further stated that this violation of the E.O. also 
constitutes a violation of Congressional reporting requirements.
    Response: The respondents did not cite the applicable provision of 
E.O. 12866 which they believe requires ``disclosures concerning whether 
the interim rule represents a government action that would 
significantly effect the Federal budget'' and the E.O. does not use the 
term ``Federal budget'' or any obvious synonym. The only provision in 
the E.O. to which the respondents might be referring appears to be Sec. 
6(a)(3)(C)(ii) which requires ``an assessment * * * of costs 
anticipated from the regulatory action (such as, but not limited to, 
the direst cost * * * to the government in administering the regulation 
* * *).'' However, such an assessment only is required ``for those 
matters identified as, or determined by the Administrator of OIRA to 
be, a significant regulatory action * * *.'' Sec. 6(a)(3)(C).
    On March 15, 2004, the Administrator of the Office of Information 
and Regulatory Affairs of the OMB found that the interim rule proposed 
for 36 CFR 228.4(a) was non-significant for purposes of E.O. 12866. 
Thus, the assessment mandated by Sec. 6(a)(3)(C)(ii) of the E.O. was 
not required for the interim rule.
    Given that the Forest Service did not violate E.O. 12866 in 
promulgating the interim rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: Two respondents commented that the Forest Service failed 
to solicit comment on the interim rule from western governors which 
violates the spirit of the 1998 Department of the Interior and Related 
Agencies Appropriations Act, Pub. L. 105-83, Sec.  339, 111 Stat. 1543, 
1602 (1997).
    Response: The cited provision of the 1998 Department of the 
Interior and Related Agencies Appropriations Act required the Bureau of 
Land Management (BLM), Department of the Interior, to consult with the 
governors from each Western State containing public lands open to 
location under the United States mining laws before adopting a rule to 
amend or replace 43 CFR part 3800, subpart 3809. These regulations are 
the Department of the Interior's counterpart to 36 CFR part 228, 
subpart A. The Department's promulgation of the interim rule did not 
violate this provision because the provision, by its own terms, is not 
applicable to 36 CFR part 228, subpart A.
    Prior to the enactment of the 1998 Department of the Interior and 
Related Agencies Appropriations Act, the Department of the Interior had 
announced its intent to prepare an EIS for the proposed revision of 43 
CFR part 3800, subpart 3809 (62 FR 16177). That notice described the 
scope of the contemplated revisions to 43 CFR part 3800, subpart 3809, 
as ``comprehensive.'' In contrast, the scope of the interim rule at 
Sec.  228.4(a) is limited and only concerns the form of authorization 
required for conducting locatable mineral operations on National Forest 
System lands.
    Given the vastly different scopes of the Department of the 
Interior's 1997 proposal to a ``comprehensive'' revision of their 
regulations and the clarification of Sec.  228.4(a) provided for in the 
Department's interim rule, there is no reason to presume that Congress 
would have intended that consultation, such as it required for the 
comprehensive revision of 43 CFR part 3800, subpart 3809, be performed 
for the promulgation of the interim rule. Therefore, the promulgation 
of the interim rule is not in any manner inconsistent with the 
``spirit'' of Sec. 339 of the 1998 Department of the Interior and 
Related Agencies Appropriations Act.
    Comment: Two respondents stated that the Small Business 
Administration (SBA) would find that the interim rule will have a major 
impact on small entities given the SBA's finding that a purportedly 
similar rule, 43 CFR part 3800, subpart 3809, would have a major impact 
on small entities.
    Response: As discussed in the response to the previous comment, the 
scope of the interim rule, which only concerns the form of 
authorization required for conducting locatable mineral operations on 
NFS lands, is dramatically less sweeping than the scope the proposed 
changes to 43 CFR part 3800, subpart 3809. While 43 CFR part 3800, 
subpart 3809, addresses a similar issue for lands administered by the 
BLM, it additionally sets forth a host of other requirements. 
Therefore, any finding which the SBA made on the effect of 43 CFR part 
3800, subpart 3809, on small entities consequently has exceedingly 
limited predictive value in terms of the SBA's possible assessment of 
the impact of the Forest Service's interim rule.
    Comment: Many respondents noted that the Forest Service improperly 
invoked an emergency as the grounds for implementing the interim rule 
before receiving and responding to public comment.
    Response: The Forest Service did not rely upon the existence of an 
emergency in adopting the interim rule. Neither the text of the interim 
rule nor its preamble employ the term ``emergency'' or any of its 
synonyms. The Forest Service consequently did not need to meet the test 
advocated by the respondents to assess the existence of an emergency 
prior to adopting and implementing the interim rule. Moreover, even if 
such terminology had been used, the legal standards governing the 
adoption of rules are set forth in the Administrative Procedure Act, 5 
U.S.C. 553. The preamble to the interim rule explains the Department of 
Agriculture's compliance with that Act's standards in promulgating the 
interim rule.
2. Comments on the Effect of the Interim Rule

General Issues

    Comment: Numerous respondents stated that the changes to 36 CFR 
228.4(a) adopted by the interim rule have confused miners and are 
capable of being misapplied.
    Response: Given these comments and other specific comments made on 
individual paragraphs of the interim rule, the Department agrees that 
changes are required to make the text of the interim rule clearer to 
foster the consistency of its application by Forest Service employees. 
These changes generally are described in the following subsection 
entitled ``Comments on Specific Sections of the Interim Rule,'' of this 
section of the Response to Comments. In addition, the final rule also 
reorganizes the text of the interim rule so that its sequence is more 
logical and reflects an increasing level of Forest Service 
consideration of the environmental impacts of locatable mining 
operations on NFS resources. As reorganized by the final rule, Sec.  
228.4(a)

[[Page 32720]]

will describe in sequence when an operator is required to submit a 
notice of intent to operate before commencing operations, what 
operations are exempt from the requirement for prior submission of a 
notice of intent to operate, when an operator is required to submit and 
obtain approval of a proposed plan of operations before commencing 
operations, what operations are exempt from the requirement for prior 
submission and approval of a proposed plan of operations, and a 
District Ranger's authority to require submission and approval of a 
proposed plan of operations before an operator commences proposed 
operations or continues ongoing operations. This reorganization 
parallels the typical progression of mining operations from the least 
functions, work, or activities for prospecting or casual use, which 
would not normally require prior submission and approval of a plan or 
operations, through exploration, which often would require prior 
submission of a notice of intent to operate, and might require prior 
submission and approval of a plan of operations, to development and 
production, which normally would require prior submission and approval 
of a plan of operations. These changes should enhance the final rule's 
clarity and comprehensibility.
    Comment: Numerous respondents said that the interim rule unfairly 
restricts entities or persons, whom the respondents characterized as 
mining clubs, recreational miners, hobby miners, and recreational 
suction dredgers. Some of the respondents also commented that the 
interim rule could collapse the recreational mining industry. Other 
respondents said that United States mining laws authorize recreational 
and hobby mining.
    Response: The Organic Administration Act (16 U.S.C. 482) makes the 
United States mining laws (30 U.S.C. 22 et seq.) applicable to NFS 
lands reserved from the public domain pursuant to the Creative Act of 
1891 (Sec.  24, 26 Stat. 1095, 1103 (1891), repealed by Federal Land 
Policy and Management Act of 1976, Sec.  704(a), 90 Stat, 2743, 2792 
(1976)). Under the United States mining laws, United States citizens 
may enter those NFS lands to prospect or explore for and remove 
valuable deposits of certain minerals referred to as locatable 
minerals.
    Neither the United States mining laws or 36 CFR part 228, subpart 
A, recognize any distinction between ``recreational'' versus 
``commercial'' miners, or provide any exceptions for operations 
conducted by ``recreational'' miners. The same rules apply to all 
miners. Thus, to the extent that individuals or members of mining clubs 
are prospecting for or mining valuable deposits of locatable minerals, 
and making use of or occupying NFS surface resources for functions, 
work or activities which are reasonably incidental to such prospecting 
and mining, it does not matter whether those operations are described 
as ``recreational'' or ``commercial.'' However, functions, work, or 
activities proposed by individuals, members of mining clubs, or mining 
clubs themselves, such as educational seminars, treasure hunts, hunting 
camps, and summer homes, far exceed the scope of the United States 
mining laws. Accordingly, the purpose of both the interim rule and the 
final rule adopted by this rulemaking is to regulate all permissible 
operations under the United States mining laws. Thus, the interim rule, 
as well as the final rule being adopted by this rulemaking, apply to 
every person or entity conducting or proposing to conduct locatable 
mineral operations on NFS lands under the United States mining laws.
    For purposes of the final rule being adopted by this rulemaking, 
the requirement for prior submission of a notice of intent to operate 
alerts the Forest Service that an operator proposes to conduct mining 
operations on NFS lands which the operator believes might, but are not 
likely to, cause significant disturbance of NFS surface resources and 
gives the Forest Service the opportunity to determine whether the 
agency agrees with that assessment such that the Forest Service will 
not exercise its discretion to regulate those operations. For purposes 
of both the interim rule and the final rule being adopted by this 
rulemaking, the requirement for prior submission and approval of a 
proposed plan of operations ensures that the Forest Service can 
evaluate the environmental impacts of potentially more impactive 
proposed mining operations on NFS resources and enables the Forest 
Service to require less disruptive means of conducting those 
operations. Freese v. United States, 6 Cl. Ct. 1, 15 (1984), aff'd 
mem., 770 F.2d 177 (Fed. Cir. 1985). While these requirements do affect 
the manner in which mining operations are conducted, they do not 
deprive operators of the ability to conduct such operations. As such, 
the requirements fall within the Department's ``broad discretion to 
regulate the manner in which mining activities are conducted on the 
national forest lands.''
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: One respondent said that a new provision should be added 
to the final rule which states that the use of small portable suction 
dredges, such as those with an intake of four inches or less, does not 
require prior submission of a notice of intent to operate or prior 
submission and approval of a proposed plan of operations. The 
respondent said that various studies, including those by the United 
States Environmental Protection Agency, the Department of Interior, 
United States Geological Survey, and the State of Alaska Department of 
Natural Resources, have shown that these dredges do not cause 
significant disturbance of streams or rivers. The respondent also 
stated that such a provision would be consistent with the 
recommendations of the National Academy of Sciences, National Research 
Council's 1999 report entitled, ``Hardrock Mining on Federal Lands.''
    Response: The environmental impacts of operating suction dredges, 
even small ones, are highly site-specific depending on the 
circumstances and resource conditions involved. The environmental 
impacts of using a suction dredge on two bodies of water which are 
otherwise similar can vary greatly if a threatened or endangered specie 
inhabits one body of water but not the other. Even with respect to a 
particular body of water, the environmental impacts of suction dredge 
operations can vary by season due to climatic conditions or the life 
cycles of aquatic species. Given this variability, the Department 
believes that, insofar as suction dredge operations are concerned, the 
need for the prior submission of a notice of intent to operate or for 
the prior submission and approval of a proposed plan of operations must 
be evaluated on a site-specific basis. While the operation of suction 
dredges with intakes smaller than four inches may not require either a 
notice of intent to operate or an approved plan of operations in many 
cases, the prior submission of a notice of intent to operate will be 
required in some cases, and the prior submission and approval of a 
proposed plan of operations will be required in fewer cases.
    For these reasons, no change has been made in the final rule in 
response to this comment.
    Comment: Three respondents stated that the interim rule could be 
considered a taking of private property. Specifically, one of those 
respondents said that the rule could effect an unconstitutional 
regulatory taking of State land because States own the beds

[[Page 32721]]

beneath all waters and, in certain states, other riparian lands. 
Another respondent commented that delay inherent in the process of 
submitting a notice of intent to operate or submitting and obtaining 
approval of a proposed plan of operations could put a miner out of 
business or deny the miner the opportunity to extract minerals from the 
miner's mining claims, either of which could be considered a taking of 
private property. The remaining individual did not identify the impact 
of interim rule which he or she believes could constitute a regulatory 
taking of private property rights.
    Response: As previously discussed, NFS surface resources subject to 
36 CFR part 228, subpart A, usually include streambeds or other 
submerged lands. However, where adjudication has established that 
watercourses were navigable at the time that a State was admitted to 
the Union, those resources are solely subject to State regulation. The 
provisions of 36 CFR part 228, subpart A, as amended by the interim 
rule, are not applicable in a situation where streambeds or other 
submerged lands passed into a State's ownership upon that State's 
admission into the Union, because that subpart only applies to 
``National Forest System lands'' (Sec.  228.2). Therefore, the interim 
rule clearly does not have the potential to take property owned by 
States.
    In evaluating the effect of regulatory action on the property 
rights associated with a valid mining claim, it is important to 
remember that mining claims are a ``unique form of property'' (Best v. 
Humboldt Placer Mining Co., 371 U.S. 334, 335 (1963)), and the ``power 
to qualify [such] property rights is particularly broad * * *.'' 
(United States v. Locke, 471 U.S. 84, 104 (1985)).

    Claimants thus must take their mineral interests with the 
knowledge that the Government retains substantial regulatory power 
over those interests. In addition, the property right here is the 
right to a flow of income from production of the claim. Similar 
vested economic rights are held subject to the Government's 
substantial power to regulate for the public good the conditions 
under which business is carried out and to redistribute the benefits 
and burdens of economic life (Id. at 105; citations omitted).

    Moreover, as previously discussed, it is well established that a 
rule, such as the interim rule, which in certain circumstances requires 
a miner to obtain approval before conducting locatable mineral 
operations, does not deprive the miner of any property right conferred 
by a mining claim.
    For these reasons, the interim rule does not pose the risk of 
taking private property and no change has been made in the final rule 
in response to these comments.
    Comment: Several respondents said that the interim rule is fatally 
flawed because it has no enforcement provision and 36 CFR part 261 
cannot be applied to mining operations conducted pursuant to 36 CFR 
part 228, subpart A, including the interim rule.
    Response: The conclusion that 36 CFR part 261 is not applicable to 
locatable mineral operations conducted pursuant to the interim rule or 
the remainder of 36 CFR part 228, subpart A, is directly contrary to 
the holding of United States v. Doremus, 888 F.2d 630, 631-32 (9th Cir. 
1989). In this case, the appellants contended that they are exempted 
from the prohibitions of 36 CFR part 261(b) which states that ``nothing 
in this part shall preclude operations as authorized by * * * the U.S. 
Mining Laws Act of 1872 as amended.'' They also contended that their 
operations were authorized by statute and, therefore, the regulations 
do not prohibit such operations. However, the court rejected their 
argument, stating that:

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

Further, the interim rule also is enforceable by means of civil 
litigation seeking declaratory, injunctive, or other appropriate 
relief.
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: Several respondents commented that the interim rule is 
preclusive because it requires a bond from miners for small scale 
mining operations.
    Response: The interim rule did not address, or purport to address, 
bonding of locatable mineral operations. Bonding of locatable mineral 
operations is governed by 36 CFR 228.13, which was not affected by the 
interim rule.
    For this reason, no change has been made in the final rule in 
response to these comments.
    Comment: A number of respondents expressed concern that the interim 
rule does not contain limitations on the time allowed for the Forest 
Service to process either a notice of intent to operate or a proposed 
plan of operations.
    Response: Section 228.4(a)(2)(iii) of the rule in effect prior to 
adoption of the interim rule provided that ``[i]f a notice of intent is 
filed, the District Ranger will, within 15 days of receipt thereof, 
notify the operator whether a plan of operations is required. This 
requirement was not changed in the interim rule, but was moved to Sec.  
228.4(a)(2).
    Limitations on the time available to process a plan of operations 
does not appear in Sec.  228.4(a). That issue is addressed in Sec.  
228.5(a), which was not affected by the interim rule. However, Sec.  
228.5(a) cannot circumscribe the Forest Service's obligation to comply 
with statutes, such as the National Environmental Policy Act or the 
Endangered Species Act, even if this compliance takes longer than the 
time stated in Sec.  228.5(a). Baker v. United States Department of 
Agriculture, 928 F. Supp. 1513, 1519-21 (D. Idaho 1996); cf. United 
States v. Boccanfuso, 882 F.2d 666, 671 (2d Cir. 1989).
    For these reasons, no change has been made in the final rule as a 
consequence of these comments.
    Comment: Several respondents commented that the Forest Service 
lacks jurisdiction to manage suction dredge mining because suction 
dredge mining has been exempted through agreements with each of the 
Western States. Additionally, these respondents said that each of the 
Western States regulate suction dredge mining thereby precluding Forest 
Service enforcement of the interim rule insofar as suction dredge 
mining operations are concerned.
    Response: None of the agreements between the Forest Service and a 
State government exempts persons wishing to conduct locatable mineral 
operations on NFS lands from complying with the interim rule, or any 
other provision of 36 CFR part 228, subpart A, in conducting those 
operations, including suction dredge mining.
    A State cannot preclude the Federal Government from regulating 
those things over which the Federal Government has authority, including 
Federal lands. Rather, Congress has absolute power to adopt legislation 
governing the use of Federal lands and to delegate authority to the 
executive

[[Page 32722]]

branch of government to adopt further rules for this purpose, as 
Congress did in the context of the Organic Administration Act, 16 
U.S.C. 478, 482, 551, which made the United States mining laws 
applicable to NFS lands reserved from the public domain pursuant to the 
Creative Act of 1891, Sec.  24, 26 Stat. 1095, 1103 (1891), repealed by 
Federal Land Policy and Management Act of 1976, Sec.  704(a), 90 Stat, 
2743, 2792 (1976), but which also made miners subject to regulations 
adopted by what is now the Department of Agriculture. Thus, it is State 
regulation of suction dredge mining operations which is pre-empted when 
it conflicts with Federal law, including rules adopted by executive 
agencies, such as the interim rule.
    For these reasons, no change has been made in the final rule in 
response to these comments.
    Comment: Several respondents stated that the interim rule will 
effectively revoke State of California Suction Dredge Permits held by 
miners operating on NFS lands. Those respondents also said that the 
Forest Service must provide those miners a hearing prior to that 
revocation.
    Response: These comments seem to presume that the Forest Service's 
regulation of suction dredge mining occurring on NFS lands pursuant to 
the interim rule will preclude the State of California from issuing 
suction dredge permits for those same operations. However, as 
previously stated, this assumption is inaccurate. It is entirely 
possible that both the Forest Service and a State can permissibly 
regulate suction dredge mining operations for locatable minerals 
occurring on NFS lands. Indeed, the Forest Service's locatable mineral 
regulations (36 CFR 228.8) specifically provide that persons conducting 
locatable mineral operations on NFS lands also must comply with 
applicable State imposed requirements, such as water quality 
requirements.
    The State of California itself recognizes that a miner who has 
obtained a suction dredge permit pursuant to California Fish & Game 
Code Sec.  5653 must also obtain all required authorizations from the 
Federal agency managing lands on which proposed suction dredge mining 
operations will occur. Specifically, Cal. Code Regs. tit. 14, Sec.  
228(g) provides that ``[n]othing in any permit issued pursuant to these 
regulations authorizes the permittee to trespass on any land or 
property, or relieves the permittee of the responsibility of complying 
with applicable Federal, State, or local laws or ordinances.'' 
Similarly, the State of California Department of Fish and Game's Notice 
to All Suction Dredge Permittees states on the second page under the 
heading ``General Information Concerning Suction Dredging'' that:

[t]he regulations in Sections 228 and 228.5 of title 14 in the 
California Code of Regulations govern suction dredging in 
California. In addition to those regulations, other laws, 
regulations, and policies may apply, including, but not limited to, 
the following:
    A suction dredge permit does not allow trespassing. Be sure you 
have permission from the landowner or the land managing agency 
before entering private or public lands.

    Thus, it is clear that the interim rule will not effect a 
revocation of State of California Suction Dredge Permits held by miners 
operating on NFS lands and no change has been made in the final rule as 
a consequence of these comments.
    Comment: A number of respondents said that the interim rule is 
vague and standardless and consequently a court would construe it in 
the manner most favorable to mining operators.
    Response: If a rule is vague or standardless, which is not the case 
insofar as the interim rule is concerned, the consequence is that the 
rule is not enforceable against the public. However, only the judicial 
branch of government can conclusively resolve the question of the 
proper interpretation of any rule or decide whether a rule is 
impermissibly vague.
    For these reasons, no change has been made in the final rule in 
response to these comments.
    Comment: Several respondents commented that the interim rule is 
inconsistent with a National Research Council report entitled 
``Hardrock Mining on Federal Lands.''
    Response: The comments do not identify or describe in any manner 
inconsistencies between the interim rule and the National Research 
Council report, whose main body is 126 pages in length. The 
Department's review of the National Research Council report identified 
no inconsistencies between it and the interim rule.
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: One respondent stated that the Forest Service should issue 
internal guidance documents to its employees about the intent and 
application of the interim rule. The respondent also commented that the 
internal guidance document should state that the final rule is not 
intended to change the long-standing interpretation of Sec.  228.4(a) 
concerning the circumstances in which prior submission of a notice of 
intent to operate or prior submission and approval of a proposed plan 
of operations is required.
    Response: The Forest Service has a large and active national 
minerals and geology training program and certification and training 
requirements for all of its mineral administrators. The Forest Service 
will appropriately revise its internal agency guidance documents and 
the instruction given as part of its national training curriculum to 
reflect any substantive change to the requirements for prior submission 
of a notice of intent to operate and prior submission and approval of a 
proposed plan of operations which are adopted by the final rule.
    No change was required in the final rule in response to this 
comment.

Comments on Specific Sections of the Interim Rule

    The following discusses and responds to public comments to specific 
paragraphs in the interim rule for Sec.  228.4(a) received during the 
60-day comment period. As a result of the comments received, the 
section has been reorganized and revised. The reorganization of Sec.  
228.4(a) is displayed in the following table:

         Table 1.--Comparison of the Interim Rule and Final Rule
------------------------------------------------------------------------
             Interim Rule                          Final Rule
------------------------------------------------------------------------
  Sec.   228.4 Plan of operations--     Sec.   228.4 Notice of intent--
    notice of intent--requirements      plan of operations--requirements
 
------------------------------------------------------------------------
(a) If the District Ranger determines  This provision is redesignated at
 that the operation is causing or       paragraph (a)(3).
 will likely cause significant
 surface disturbance a plan of
 operations is required.
                                       (a) A notice of intent is
                                        required from any person
                                        proposing to conduct operations
                                        that might cause significant
                                        surface disturbance.

[[Page 32723]]

 
(1) Unless there are significant       This provision with respect to
 surface disturbing activities, a       plan of operations is
 plan of operations is not required     redesignated at paragraph
 when one of the provisions in          (a)(3).
 paragraphs (i) through (iv) are met.
                                       (1) A notice of intent is not
                                        required when one of the
                                        provisions in paragraphs (i)
                                        through (vii) are met.
(i) A plan of operations is not        This provision with respect to
 required for operations limited to     plan of operations is
 existing roads.                        redesignated at paragraph (a)(3)
                                        by referencing paragraph
                                        (a)(1)(i).
                                       (i) A notice of intent is not
                                        required for operations limited
                                        to existing roads.
(ii) A plan of operations is not       This provision with respect to
 required when individuals search for   plan of operations is
 and remove small mineral samples.      redesignated at paragraph (a)(3)
                                        by referencing paragraph
                                        (a)(1)(ii).
                                       (ii) A notice of intent is not
                                        required for prospecting and
                                        sampling not causing significant
                                        surface disturbance and other
                                        listed examples.
(iii) A plan of operations is not      This provision with respect to
 required for prospecting and           plan of operations is
 sampling.                              redesignated at paragraph (a)(3)
                                        by referencing paragraph
                                        (a)(1)(ii).
                                       (iii) A notice of intent is not
                                        required for monumenting and
                                        marking a mining claim.
(iv) A plan of operations is not       This provision with respect to
 required for monumenting and marking   plan of operations is
 a mining claim.                        redesignated at paragraph (a)(3)
                                        by referencing paragraph
                                        (a)(1)(iii).
                                       (iv) A notice of intent is not
                                        required for underground
                                        operations.
(v) A plan of operations is not        This provision with respect to
 required for subsurface operations.    plan of operations is
                                        redesignated at paragraph (a)(3)
                                        by referencing paragraph
                                        (a)(1)(iv).
                                       (v) A notice of intent is not
                                        required for operations, which
                                        in their entirety, have the same
                                        resource disturbance as other
                                        users of NFS lands who are not
                                        required to get a Forest Service
                                        authorization. This provision
                                        was not provided for in the
                                        interim rule.
                                       (vi) A notice of intent is not
                                        required for operations not
                                        involving mechanized earthmoving
                                        equipment or the cutting of
                                        trees unless these operations
                                        might cause significant
                                        disturbance to surface
                                        resources. This provision was in
                                        paragraph (a)(2)(iii) in the
                                        interim rule.
                                       (vii) A notice of intent is not
                                        required when a plan of
                                        operations is submitted. This
                                        provision was in paragraph
                                        (a)(2)(i) in the interim rule.
(2) A notice of intent is required     The provision for filing a notice
 from any person proposing to conduct   of intent is redesignated at
 operations that might cause            paragraph (a); the 15-day
 significant surface disturbance; the   requirement is redesignated at
 District Ranger has 15 days to         paragraph (a)(2); and the
 notify the operator if a plan of       exceptions for filing a notice
 operations is needed. A notice of      of intent are redesignated at
 intent is not needed if one of the     paragraphs (a)(1)(i)-(vii).
 provisions in paragraphs (a)(2)(i)
 through (iii) are meet.
                                       (2) The District Ranger has 15
                                        days to notify the operator if a
                                        plan of operations is needed.
(i) A notice of intent is not          This provision is redesigned at
 required when a plan of operations     paragraph (a)(1)(vii).
 is submitted.
(ii) Exempts the requirement for a     This provision is redesignated in
 notice of intent for operations        paragraphs (a)(1)(i)-(iv).
 exempt from the requirement of a
 plan of operation found in paragraph
 (a)(1).
(iii) A notice of intent is not        This provision is redesignated at
 required for operations not            paragraph (a)(1)(vi).
 involving mechanized earthmoving
 equipment or the cutting of trees
 unless these operations might cause
 significant disturbance to surface
 resources.
                                       (3) Requires an operator to
                                        submit a plan of operations when
                                        proposed operations will likely
                                        cause significant disturbance of
                                        surface resources, except as
                                        exempted in paragraph (a)(1)(i)-
                                        (v).
                                       (4) Requires the District Ranger
                                        to notify an operator of the
                                        requirement to submit a plan of
                                        operations for operations
                                        causing or will likely cause
                                        significant disturbance of
                                        surface resources and that
                                        operations can not be conducted
                                        until a plan of operations is
                                        approved. These provisions were
                                        not explicitly provided for in
                                        the interim rule.
------------------------------------------------------------------------

    The analysis and response to comments on the interim rule is 
organized sequentially by the paragraphs of the interim rule.

Section 228.4(a)

    Comment: One respondent commented that the term ``significant'' in 
the prefatory language of Sec.  228.4(a) of the interim rule, which 
requires the submission of a proposed plan of operations for operations 
which a District Ranger determines are causing or will likely cause a 
significant disturbance of surface resources, was not defined and 
consequently was arbitrary and capricious.
    Response: The interim rule did not change the requirement initially 
adopted in 1974 that an operator must submit a proposed plan of 
operations if the applicable District Ranger determines that the 
proposed operations ``will likely cause significant disturbance of 
surface resources.'' Questions and Answers developed by the Forest 
Service when the 1974 rule was adopted explained that it was impossible 
to precisely define the term ``significant disturbance.''

    A definition cannot be given that would apply to all lands 
subject to these regulations. Disturbance by a particular type of 
operation

[[Page 32724]]

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.
    The March 28, 1974, letter 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.

    Significant disturbance to the environment, we find, needs to be 
clearly distinguished from ``significant'' disturbance of surface 
natural resources. The former could be interpreted as an automatic 
invocation of Section 102(2)(C) of the National Environmental Policy 
Act of 1969 for an environmental statement. This was never intended. 
Some few, by no means all, proposals are expected to require 
environmental statements, which would be prepared by the Forest 
Service.

    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.'' 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).
    For these reasons, no change has been made in the final rule in 
response to this comment. However, the Department finds that the Forest 
Service has interpreted the terms ``significant'' and ``significant 
disturbance'' in the same manner since 1974, including for purpose of 
the interim rule. It also is how these terms should be interpreted for 
purposes of the final regulation being adopted by this rulemaking.
    Comment: A number of respondents said that the interim rule did not 
resolve widespread confusion about the level of activity which requires 
the filing of a proposed plan of operations, and its approval, before 
mining operations can be conducted.
    Response: As previously stated, the interim rule did not alter the 
requirement initially adopted in 1974 that an operator must submit a 
proposed plan of operations if the applicable District Ranger 
determines that the proposed operations ``will likely cause significant 
disturbance of surface resources.'' The phrase ``will likely cause 
significant disturbance of surface resources'' means that, based on 
past experience, direct evidence, or sound scientific projection, the 
District Ranger reasonably expects that the proposed operations would 
result in impacts to NFS lands and resources which more probably than 
not need to be avoided or ameliorated by means such as reclamation, 
bonding, timing restrictions, and other mitigation measures to minimize 
adverse environmental impacts on NFS resources.
    No change has been made in the final rule in response to these 
comments.
    Comment: One respondent stated that the term ``surface'' in the 
prefatory language of Sec.  228.4(a) of the interim rule was not 
defined and that as a consequence suction dredge mining, which occurs 
underwater, could be considered a subsurface activity which was beyond 
the regulatory authority of the Forest Service.
    Response: As previously discussed, section 228.8 characterizes 
fisheries habitat as a NFS surface resource and it is clear that for 
purposes of 36 CFR part 228, subpart A, including Sec.  228.4(a)(1)(v) 
of the interim rule, water, streambeds, or other submerged lands 
generally should be construed as a NFS surface resource. Only where 
adjudication has established that watercourses were navigable at the 
time that a State was admitted to the Union are those resources solely 
subject to State regulation. Thus, the Forest Service has clear 
authority to regulate the effects which locatable mineral operations 
have on water, streambeds, or other submerged lands, whether or not 
those operations are taking place wholly or partially in waters 
themselves, except where adjudication has established that watercourses 
were navigable at the time that a State was admitted to the Union.
    For these reasons, no change was required in the final rule in 
response to these comments. However, for purposes of the final 
regulation being adopted by this rulemaking, the term ``surface 
resources'' should be interpreted as including water, streambeds, or 
other submerged lands, except where adjudication has established that 
the applicable watercourse was navigable at the time that the State in 
which the watercourse occurs was admitted to the Union.
    The provisions in Sec.  228.4(a) in the interim rule have been 
redesignated to Sec.  228.4(a)(3) in the final rule.

Section 228.4(a)(1)

    Comment: Numerous respondents commented that the phrase, ``[u]nless 
the District Ranger determines that an operation is causing or will 
likely cause a significant disturbance of surface resources'' gives too 
much discretion to District Rangers. Those respondents stated that the 
phrase would permit a District Ranger to require a plan of operations 
for surface disturbance of any magnitude, including that which will 
likely result from the operations listed in the exemptions in 
paragraphs 4(a)(1)(i)-(v) of the interim rule, such as vehicle use on 
existing roads, removal of small mineral samples, and marking or 
monumenting mining claims. Other respondents characterized the phrase 
as eliminating the exemptions to the requirement for prior submission 
and approval of a plan of operations previously in Sec.  
228.4(a)(1)(i)-(v).
    Two respondents specifically requested the deletion of the phrase 
and its replacement by the prefatory

[[Page 32725]]

language of Sec.  228.4(a)(1) and the language of Sec.  228.4(a)(1)(i)-
(v). Those respondents commented that this change would ensure the 
continuation of the historic application of the terms ``disturbance'' 
and ``significant disturbance.''
    Response: The intent in adopting Sec.  228.4(a)(1) of the interim 
rule was not to authorize a District Ranger to require a plan of 
operations for operations which will not exceed the scope of one or 
more of the exemptions in Sec.  228.4(a)(1)(i)-(v) of the interim rule. 
To ensure that the final rule is not interpreted in such an unintended 
manner, the phrase ``unless the District Ranger determines that an 
operation is causing or will likely cause a significant disturbance of 
surface resources'' is not included in the final rule. Thus, pursuant 
to Sec.  228.4(a)(3) of the final rule, it is clear that prior 
submission and approval of a proposed plan of operations is not 
required if the proposed operations will be confined in scope to one or 
more of the exempted operations mentioned in that paragraph.
    Comment: Several respondents stated that the Forest Service should 
add more specific examples of operations which do not require prior 
submission and approval of a plan of operations to the listing in Sec.  
228.4(a)(1)(i)-(v) of the interim rule.
    Response: The Department agrees with this suggestion. By virtue of 
its incorporation by reference of Sec.  228.4(a)(1)(v), Sec.  
228.4(a)(3) of the final rule adds an additional category of operations 
which can be conducted without prior submission and approval of a plan 
of operations. This includes operations which, in their totality, will 
not cause surface resource disturbance substantially different than 
that caused by other users of the National Forest System who are not 
required to obtain a Forest Service special use authorization, 
contract, or other written authorization. Section 228.4(a)(3) of the 
final rule also adds another category of operations which can be 
conducted without prior submission and approval of a plan of operations 
and include operations which will not involve the use of mechanized 
earthmoving equipment, such as bulldozers or backhoes, or the cutting 
of trees, unless those operations otherwise will likely cause a 
significant disturbance of surface resources. The incorporation by 
reference of Sec.  228.4(a)(1)(ii) in Sec.  228.4(a)(3) of the final 
rule adds more specificity to two categories of operations exempted 
from the requirement for prior submission and approval of a plan of 
operations which were included in the interim rule as section 
228.4(a)(1)(ii) and (iii), but are combined into one category in the 
final rule at Sec.  228.4(a)(1)(ii).
    These changes to the final rule better delineate the level of work, 
functions, or activities which constitutes significant disturbance of 
NFS resources and requires the filing of a proposed plan of operations, 
and its approval, before mining operations can be conducted. 
Conversely, the changes also better identify the level of work, 
functions or activities which does not constitute significant 
disturbance of NFS resources and therefore does not trigger the 
requirement for prior submission and approval of a plan of operations. 
Section 228.4(a)(3) of the final rule makes it clear that prior 
submission and approval of a plan of operations is required for any 
proposed operation which will not be limited to one or more of the 
categories of exempted work, functions and activities mentioned in that 
paragraph if the operation will likely cause a significant disturbance 
of surface resources. Section 228.4(a)(3) of the final rule, also makes 
it clear that an operator lacking a currently approved plan of 
operations must submit and obtain approval of a proposed plan of 
operations in order to continue to conduct ongoing operations which 
actually are causing a significant disturbance of surface resources. 
Furthermore, pursuant to Sec.  228.4(a)(3) of the final rule, an 
operator holding a currently approved plan of operations must submit 
and obtain approval of a supplemental plan of operations in order to 
continue to conduct any portion of an ongoing operation not covered by 
the currently approved plan which actually is causing a significant 
disturbance of surface resources.
    Comment: One respondent said that the use of small portable suction 
dredges, such as those with an intake of four inches or less, should be 
added to the listing of operations in 228.4(a)(1) of the interim rule 
which are exempt from the requirement for prior submission and approval 
of a proposed plan of operations providing that use of such a dredge is 
authorized by State law. The respondent said that various studies, 
including those by the United States Environmental Protection Agency, 
the Department of Interior, United States Geological Survey, and the 
State of Alaska Department of Natural Resources, have shown that these 
dredges do not cause significant disturbance of streams or rivers. The 
respondent also stated that such a provision would be consistent with 
the recommendations of the National Academy of Sciences, National 
Research Council's 1999 report entitled, ``Hardrock Mining on Federal 
Lands.''
    Response: As previously discussed, the environmental impacts of 
operating suction dredges, even small ones, are highly site-specific 
depending on the circumstances and resource conditions involved. Given 
this variability, the Department believes that insofar as suction 
dredge mining operations are concerned, the need for the prior 
submission and approval of a proposed plan of operations must be 
evaluated on a site-specific basis. While the operation of suction 
dredges with intakes smaller than four inches may not require an 
approved plan of operations in many cases, the prior submission and 
approval of a proposed plan of operations will be appropriately 
required in some cases.
    For these reasons, no change has been made in the final rule as a 
result of this comment.
    Comment: Several respondents commented that Sec.  228.4(a)(1) of 
the interim rule eliminated the exemptions to the requirement that an 
operator proposing to conduct operations which might cause disturbance 
of surface resources must submit a notice of intent to operate to the 
Forest Service before commencing those operations.
    Response: Section 228.4(a)(1) in effect prior to the interim rule 
and Sec.  228.4(a)(1) of the interim rule only set forth exemptions to 
the requirement for prior submission and approval of a plan of 
operations. Section 228.4(a)(2) in effect prior to the interim rule and 
Sec.  228.4(a)(2) of the interim rule set forth the exemptions to the 
requirement that an operator must submit a notice of intent to operate 
to the Forest Service before commencing specified operations, although 
each section did so by incorporating the exemptions in (a)(1)(i)-(v). 
Specifically, Sec.  228.4(a)(2) of both rules provides that ``[a] 
notice of intent need not be filed * * * (ii) For operations excepted 
in paragraph (a)(1) of this section from the requirement to file a plan 
of operations * * *.''
    Technically, the changes to Sec.  228.4(a)(1) of the interim rule 
had no effect on the exemptions to the requirement for a notice of 
intent to operate. As a practical matter, however, since Sec.  
228.4(a)(2) of the interim rule adopts the same exemptions for purposes 
of the submission of a notice of intent to operate that Sec.  
228.4(a)(1) of the interim rule adopts for the submission and approval 
of a proposed plan of operations, the changes made in the exemptions at 
Sec.  228.4(a)(1)(i)-(v) of the interim rule do affect the exemptions 
to the requirement to submit a notice of intent to operate.

[[Page 32726]]

    To understand the effect of these changes, please see the comments 
and responses to Sec.  228.4(a)(1) and Sec.  228.4(a)(1)(ii)-(v).
    The provisions in Sec.  228.4(a)(i) in the interim rule have been 
redesignated at Sec.  228.4(a)(3) in the final rule.

Section 228.4(a)(1)(i)

    No specific comments were submitted regarding Sec.  228.4(a)(1)(i) 
of the interim rule.
    Except for redesignation of this provision to paragraph (a)(1)(i) 
by reference in paragraph (a)(3), no significant changes were made in 
the final rule

Section 228.4(a)(1)(ii)

    Comment: A number of respondents said that Sec.  228.4(a)(1)(ii) of 
the interim rule, which exempts individuals searching for and 
occasionally removing small mineral samples or specimens from the 
requirement for prior submission and approval of a plan of operations, 
unfairly places those who use gold pans, non-motorized sluices, and 
metal detectors and who do not cause a significant disturbance of NFS 
resource in the same category as those who operate heavy earth-moving 
equipment causing significant disturbance of NFS resources. These 
respondents stated they should be treated the same as those exempted in 
228.4(a)(1)(ii).
    Response: The Department believes that a number of operations, such 
as gold panning and non-motorized hand sluicing, are within the scope 
of Sec.  228.4(a)(1)(ii) of the interim rule. Nonetheless, to eliminate 
any question about this concern, the Department is including gold 
panning, non-motorized hand sluicing, and the use of battery operated 
dry washers to the exempted category of operations described in Sec.  
228.4(a)(1)(ii) of the interim rule.
    Metal detecting is another example that is being added to the 
category of operations which Sec.  228.4(a)(1)(ii) of the interim rule 
exempts from the requirement for prior submission and approval of a 
proposed plan of operations. However, the type of metal detecting that 
is permissible under 36 CFR part 228, subpart A, is metal detecting 
associated with locating gold or other locatable mineral deposits 
subject to the United States mining laws. This subpart does not 
authorize metal detecting for other purposes, such as metal detecting 
to locate treasure trove, historic or prehistoric artifacts, lost 
coins, or jewelry.
    The Department also notes that comments on Sec.  228.4(a)(1)(iii) 
of the interim rule, which exempts closely related operations from the 
requirement for prior submission and approval of a plan of operations, 
suggest that a virtually identical listing of examples be included in 
that section. Given the similarity and overlapping nature of paragraphs 
(a)(1)(ii) and (iii) of the interim rule, these paragraphs are being 
combined in Sec.  228.4(a)(1)(ii) the final rule, which by virtue of 
Sec.  228.4(a)(3) of the final rule will exempt specified operations 
from the requirement for prior submission and approval of a plan of 
operations.
    Comment: One respondent commented that Sec.  228.4(a)(1)(ii) of the 
interim rule should define the phrase ``small mineral samples or 
specimens.''
    Response: Section 228.4(a)(1)(ii) of the interim rule, which is an 
exemption to the requirement for prior submission and approval of a 
plan of operations, applies ``[to individuals desiring to search for 
and occasionally remove small mineral samples or specimens.'' There are 
commonly accepted standards for sampling mineral deposits which can 
vary depending upon surface conditions or the matrix in which the 
deposit is found. The United States Bureau of Mines' publication 
``Standard Procedures for Sampling,'' states that the recommended 
sample size for a stream sediment sample would be about ``* * * 200 
grams collected in streambeds, or pools, or accumulations of fine 
grained material beneath boulders.'' That publication also recommends a 
procedure for taking a soil sample: ``a shovel or hoe is usually used 
with horizons as deep as 2 feet. * * * [A] 50 gram sample is usually 
sufficient.'' Similarly, in discussing stream sediment sampling, a 
widely accepted mining industry textbook, ``Exploration and Mining 
Geology'' by William Peters, states that ``in detailed stream sediment 
surveys, samples may be taken every 50 to 100 meters along a stream. 
About 50 to 100 grams of 80 mesh material is taken for each sample. * * 
*'' With respect to rock sampling, that textbook states that ``a 500 
gram sample is commonly taken in fine-grained rocks; up to 2 kilograms 
are taken in very coarse grained rock.''
    Further, the examples in Sec.  228.4(a)(1)(ii) of the final rule 
will give context to the outer limits of what permissibly can be 
construed as the removal of ``small mineral samples or specimens.'' 
Those examples generally include ``gold panning, metal detecting, non-
motorized hand sluicing, using battery operated dry washers, and 
collecting of mineral specimens using hand tools.''
    For these reasons, the Department believes that the phrase ``small 
mineral samples or specimens'' should be defined with reference to 
generally accepted practices appropriate for the operations involved 
and that it is not necessary to include a definition of this phrase in 
the final rule. Therefore, no change has been made in the final rule as 
a result of this comment.
    The provisions in Sec.  228.4(a)(1)(ii) in the interim rule have 
been redesignated in the final rule at Sec.  228.4(a)(1)(ii) by 
reference in Sec.  228.4(a)(3).

Section 228.4(a)(1)(iii)

    Comment: One respondent stated that Sec.  228.4(a)(1)(iii) of the 
interim rule, which exempts certain prospecting and sampling from the 
requirement for prior submission and approval of a plan of operations, 
should define the phrase ``a reasonable amount of mineral deposit for 
analysis and study.''
    Response: Section 228.4(a)(1)(iii) of the interim rule applies ``to 
prospecting and sampling which will not involve removal of more than a 
reasonable amount of mineral deposit for analysis and study.'' As 
discussed in response to the previous comment, there are commonly 
accepted standards for sampling mineral deposits. Further, the examples 
in Sec.  228.4(a)(1)(ii) of the final rule will give context to the 
outer limits of what permissibly can be construed as the removal of ``a 
reasonable amount of mineral deposit for analysis and study.'' For 
these reasons, the Department believes that the phrase ``a reasonable 
amount of mineral deposit for analysis and study'' should be defined 
with reference to generally accepted practices appropriate for the 
operations involved and that it is not necessary to include a 
definition of this phrase in the final rule. Consequently, no change 
has been made in the final rule as a result of these comments.
    Comment: One respondent recommended that Sec.  228.4(a)(1)(iii) of 
the interim rule be revised in the final rule to apply ``to prospecting 
and sampling which will not involve removal of more than a reasonable 
amount of mineral deposit for analysis and study, including but not 
limited to gold panning, metal detecting, hand slushing, dry washers, 
and the collecting of mineral specimens using hand tools so long as the 
excavation of the material is by hand and not by mechanized 
equipment.'' Another respondent recommended that Sec.  228.4(a)(1)(iii) 
of the interim rule be revised in the final rule to apply ``to 
prospecting and sampling which will not involve removal of more than a 
reasonable amount of mineral deposit for analysis and study, including 
but not limited to gold panning, metal

[[Page 32727]]

detecting, non-motorized hand slushing, battery operated dry washers, 
and the collecting of mineral specimens using hand tools.'' Each 
respondent explained that the suggested revision would help clarify, 
for both mining operators and Forest Service employees, the level of 
work, functions, or activities which do not require prior submission 
and approval of a plan of operations. Each respondent also 
characterized the proposed examples of operations which it recommends 
be listed in this exemption as being similar to the casual use 
exemptions contained in BLM's regulations at 43 CFR part 3800, subpart 
3809.
    Response: The Department agrees that the changes suggested by the 
respondents will provide better guidance to mining operators and Forest 
Service personnel on the character of mineral operations which do not 
constitute a significant disturbance of NFS resources and which 
consequently do not require prior submission and approval of a plan of 
operations. This change will also improve the consistency of the 
description of the exempted operations in Sec.  228.4(a)(1)(ii) of the 
final rule and the ``casual use'' exemption set forth in BLM's 
regulations at 43 CFR part 3800, subpart 3809.
    For these reasons, paragraph (a)(1)(ii) of the final rule will 
provide an exemption to the requirement for prior submission and 
approval of a plan of operations, through reference in Sec.  
228.4(a)(3), and apply to ``prospecting and sampling which will not 
cause significant surface resource disturbance and will not involve 
removal of more than a reasonable amount of mineral deposit for 
analysis and study which generally might include searching for and 
occasionally removing small mineral samples or specimens, gold panning, 
metal detecting, non-motorized hand sluicing, using battery operated 
dry washers, and collecting of mineral specimens using hand tools.''
    The provisions in Sec.  228.4(a)(1)(iii) in the interim rule have 
been redesignated in the final rule at Sec.  228.4(a)(1)(ii) by 
reference in Sec.  228.4(a)(3).

Section 228.4(a)(1)(iv)

    Comment: Numerous respondents commented that the interim rule 
unfairly treats prospectors or miners differently than other users of 
the NFS, such as campers, backpackers, and all terrain vehicle users 
who cause similar disturbance of NFS resources but are not required to 
submit and obtain approval of a document comparable to a plan of 
operations prior to causing such disturbance.
    Two respondents recommended the addition of virtually identical 
language to the final rule to address this discrepancy. One suggested 
that Sec.  228.4(a)(1)(iv) of the interim rule, which exempts certain 
operations from the requirement for prior submission and approval of a 
plan of operations, be revised in the final rule to apply to marking 
and monumenting a mining claim, or to any mining-related activities and 
disturbances that are substantially the same as those of other users of 
the National Forests and which do not require a Forest Service permit 
or approval.
    Response: The Department agrees that it is inappropriate to require 
prior approval of the disturbance of NFS resources caused by one 
category of user but not another category of user causing identical 
surface disturbance. For this reason, the Department agrees that an 
exemption to the requirement for prior submission and approval of a 
plan of operations should be included in the final rule to insure that 
prospectors and miners are not required to obtain approval of 
operations which will have no effect on the NFS beyond that which other 
users can permissibly cause without prior approval of that use. 
However, this exemption should set forth in a separate paragraph, 
rather than being added to a dissimilar paragraph, such as paragraph 
4(a)(1)(iv) of the interim rule.
    Therefore, a new paragraph (a)(1)(v) is being added to the final 
rule. This paragraph, incorporated by reference in Sec.  228.4(a)(3), 
is an exemption to the requirement for prior submission and approval of 
a plan of operations involving operations which, in their totality, 
will not cause surface resource disturbance which is substantially 
different than that caused by other users of the NFS who are not 
required to obtain a Forest Service special use authorization, 
contract, or other written authorization.
    The provisions in Sec.  228.4(a)(1)(iv) in the interim rule have 
been redesignated in the final rule at Sec.  228.4(a)(1)(iii) by 
reference in Sec.  228.4(a)(3).

Section 228.4(a)(1)(v)

    Comment: Several respondents said that Sec.  228.4(a)(1)(v) of the 
interim rule, which exempts ``subsurface operations'' from the 
requirement for prior submission and approval of a plan of operations, 
applies to the use of suction dredges because suction dredge mining 
operations occur below the water's surface and consequently are 
``subsurface'' operations. One respondent also stated that if the term 
``subsurface operations'' means underground operations, Sec.  
228.4(a)(1)(v) should be revised to say precisely that.
    Response: As previously discussed, fisheries habitat is a NFS 
surface resource, and for purposes of 36 CFR part 228, subpart A, 
water, streambeds, or other submerged lands generally should be 
construed as a NFS surface resource. Only where adjudication has 
established that watercourses were navigable at the time that a State 
was admitted to the Union are those resources solely subject to State 
regulation. Thus, Sec.  228.4(a)(1)(v) of the interim rule does not to 
strip the Forest Service of the clear authority which the agency 
generally has to regulate the effects which locatable mineral 
operations have on water, streambeds, or other submerged lands, whether 
or not those operations are taking place wholly or partially in waters 
themselves.
    Nevertheless, the Department agrees with the suggestion that for 
purposes of clarity the term ``underground operations'' be substituted 
for the term ``subsurface operations'' in the exemption to the 
requirement for prior submission and approval of a plan of operations 
in Sec.  228.4(a)(1)(iv) of the final rule.
    The provisions in Sec.  228.4(a)(1)(v) in the interim rule have 
been redesignated in the final rule at Sec.  228.4(a)(1)(iv) by 
reference in Sec.  228.4(a)(3).

Section 228.4(a)(2)

    Comment: A number of respondents said that the interim rule did not 
resolve widespread confusion about the level of activity which requires 
the submission of a notice of intent to operate before proposed mining 
operations can be conducted.
    Response: The interim rule did not change the requirement initially 
adopted in 1974 that a notice of intent to operate ``is required from 
any person proposing to conduct operations which might cause 
disturbance of surface resources,'' although the interim rule moved 
that requirement from the prefatory language of 36 CFR 228.4(a) to 
paragraph 4(a)(2) of the interim rule for clarity.
    The requirement for a notice of intent to operate was added to the 
final rule adopted in 1974 in response to comments on that proposed 
rule. A June 20, 1974, letter from Congressman John Melcher to Forest 
Service Chief John McGuire explains why the Forest Service was urged to 
provide for the submission of notices of intent to operate in the 1974 
final rule.

    The National Wildlife Federation * * *, the American Mining 
Congress * * *, and the Idaho Mining Association * * * all seem

[[Page 32728]]

to agree that prior notification of proposed operations is a 
reasonable requirement. The Subcommittee therefore recommends that 
the Forest Service provide a simple notification procedure in any 
regulations it may issue. The objective in so doing would be to 
assist prospectors in determining whether their operations would or 
would not require the filing of an operating plan. Needless 
uncertainties and expense in time and money in filing unnecessary 
operating plans could be avoided thereby.

    Questions and answers developed by the Forest Service when the 1974 
rule was adopted explain the purpose of a notice of intent to operate 
in similar terms. In response to the question ``What should an operator 
do if the operator isn't sure that the proposed operations will be 
significant enough to require a plan of operations?'' the document 
states:

[y]ou should file a ``notice of intent[] to operate'' with the 
District Ranger. It should describe briefly what you intend to do, 
where and when it is to be done, and how you intend to get yourself 
and your equipment to the site. The District Ranger will analyze 
your proposal and will, within 15 days, notify you as to whether or 
not an operating plan will be necessary. In this way, you can avoid 
advance preparation of an operating plan until you know that it is 
necessary to do so and have some information as to what must be 
included.

    This record makes it clear that a notice of intent to operate was 
not intended to be a regulatory instrument; it simply was meant to be a 
notice given to the Forest Service by an operator which describes the 
operator's plan to conduct operations on NFS lands. Further, this 
record demonstrates that the intended trigger for a notice of intent to 
operate is reasonable uncertainty on the part of the operator as to the 
significance of the potential effects of the proposed operations. In 
such a circumstance, the early alert provided by a notice of intent to 
operate would advance the interests of both the Forest Service and the 
operator by facilitating resolution of the question, ``Is submission 
and approval of a plan of operations required before the operator can 
commence proposed operations?''
    Given the intended function of a notice of intent to operate, there 
can be no definitive answer to the question of what level of activity 
requires the submission of a notice of intent to conduct operations. As 
previously mentioned in the discussion on Sec.  228.4(a), that given 
the variability of the lands within the NFS subject to the United 
States mining laws, identical operations could have vastly different 
effects depending upon the condition of the lands and other surface 
resources which would be affected by those mining operations. Thus, 
while it is possible to identify some categories of operations which 
will never require the prior submission of a notice of intent to 
operate, in many cases the need for the submission of a notice of 
intent to operate must be determined based upon a case-by-case 
evaluation of the proposed operations and the kinds of lands and other 
surface resources involved.
    However, the Department notes that it is likely that some operators 
will not have the same perception or understanding of the impacts which 
their proposed operations may have on NFS resources that trained Forest 
Service specialists will have. Indeed, Congress recognized this in 
Congressman John Melcher's June 20, 1974, letter to Forest Service 
Chief John McGuire:

    It is unreasonable, in the judgment of the Subcommittee, to 
expect operators--particularly for small prospectors and miners--to 
describe * * * the effects their operations are having or may have 
upon the environment and surface resources. Most operators do not 
have the knowledge to do so and many cannot afford to hire 
environmental consultants to do it for them.

    Accordingly, in Sec.  228.4(a)(4) of the final rule, the District 
Ranger shall retain final authority to decide whether prior submission 
and approval of a plan of operations is required and can make this 
determination at any time, whether or not the operator first submits a 
notice of intent to operate.
    For these reasons, no change was made in the final rule in response 
to these comments.
    Comment: Numerous respondents commented on the requirement in Sec.  
228.4(a)(2) of the interim rule that ``a notice of intent to operate is 
required from any person proposing to conduct operations which might 
cause disturbance of surface resources'' stating that the test ``might 
cause disturbance of surface resources'' was far too broad. Some 
respondents noted that wading in a stream or rolling over a rock would 
require a notice of intent to operate if a District Ranger interpreted 
the term ``disturbance'' as it is commonly understood to mean ``any 
change from the existing condition.'' Many of these respondents 
suggested that the requirement be revised to read: ``a notice of intent 
to operate is required from any person proposing to conduct operations 
which might cause significant disturbance of surface resources.'' Some 
respondents reasoned that this change would rationalize Sec.  228.4(a) 
of the interim rule by bringing to the attention of the Forest Service, 
by means of the submission of a notice of intent to operate, only those 
operations which an operator thinks might cause a significant 
disturbance of NFS surface resources. This act would give the District 
Ranger the opportunity to evaluate the likelihood that the operations 
would result in such significant disturbance and require prior 
submission and approval of a proposed plan of operations, if 
appropriate.
    Response: As discussed in the response to the previous comment, the 
interim rule did not change the requirement initially adopted in 1974 
that a notice of intent to operate ``is required from any person 
proposing to conduct operations which might cause disturbance of 
surface resources,'' although the interim rule moved that requirement 
within Sec.  228.4(a) for purposes of clarity. However, the Department 
examined the record for the 1974 rulemaking to see what light it sheds 
on the question of the appropriate test for assessing the need for the 
submission of a notice of intent to operate before an operator conducts 
proposed operations. That record reveals that the Department never 
intended to require an operator to submit a notice of intent to operate 
whenever there is a possibility that the proposed operations would 
cause even the most inconsequential disturbance of NFS resources. 
Indeed, the Questions and Answers pamphlet developed by the Forest 
Service when the 1974 rule was adopted leaves no doubt that it was the 
Department's intent that the test for the submission of a notice of 
intent to operate should be whether the proposed operations might cause 
significant disturbance of NFS surface resources. This issue was 
further explained in the following question and answer in the 1974 
pamphlet:

    Question:
    I'm a rockhound or mineral collector. How are my activities 
covered by requirements for [plans of operations] or notices of 
intent[ ] to operate?
    Answer:
    Your activities do not generally require either an operating 
plan or a notice of intent[ ] to operate. However, if you have any 
doubt about whether or not your activities will cause significant 
surface resource disturbance, you should file a notice of intent[ ].

    The Department's intent that the test for the submission of a 
notice of intent to operate should be whether the proposed operations 
might cause significant disturbance of NFS surface resources also is 
reflected by a second question in the 1974 pamphlet which states: 
``What should an operator do if the operator isn't sure that the 
proposed

[[Page 32729]]

operations will be significant enough to require a plan of 
operations?''
    After considering this issue again, the Department agrees that an 
operator only should be required to submit a notice of intent to 
operate for those operations which might cause significant disturbance 
of NFS resources and, therefore, conceivably might require prior 
submission and approval of a proposed plan of operations. Requiring the 
submission of a notice of intent to operate for operations which will 
cause insignificant disturbance of NFS surface resources places an 
unjustified burden upon persons exercising the rights granted by the 
United States mining laws. Requiring Forest Service professionals to 
review notices of intent to operate submitted for operations which have 
no potential to significantly disturb NFS resources also diverts those 
specialists from the important task of regulating those operations 
which are likely to significantly disturb those resources.
    Therefore, section 228.4(a) of the final rule will require the 
operator's prior submission of a notice of intent to operate for 
``operations which might cause significant disturbance of surface 
resources.'' This means that the trigger for the submission of a notice 
of intent to operate is the operator's reasonable uncertainty as to the 
significance of the disturbance which the proposed operations will 
cause on NFS resources. If the operator reasonably concludes that the 
proposed operations will not cause significant disturbance of NFS 
resources, the operator is not required to submit a notice of intent to 
operate (or a proposed plan of operations). If the operator reasonably 
concludes that the proposed operations more probably than not will 
cause a significant disturbance of NFS resources, the operator should 
submit a proposed plan of operations to the District Ranger. However, 
if the operator reasonably concludes that the proposed operations 
might, but probably will not, cause significant disturbance of NFS 
resources, the operator should submit a notice of intent to operate to 
the District Ranger.
    Once a notice of intent to operate is filed, the Forest Service has 
an opportunity to determine whether the agency agrees with the 
operator's assessment that the operations are not likely to cause 
significant disturbance of NFS resources such that the Forest Service 
will not exercise its discretion to regulate those operations. If the 
District Ranger, based on past experience, direct evidence, or sound 
scientific projection, disagrees with the operator's assessment and 
determines that the proposed operations, more probably than not, would 
cause significant disturbance of NFS resources, the District Ranger 
shall require the operator to submit and obtain approval of a proposed 
plan of operations before commencing those operations. By means of the 
approved plan of operations, the District Ranger shall obtain the 
operator's agreement to perform specific reclamation, post a 
reclamation performance bond, avoid unnecessary or unreasonable impacts 
on NFS resources, and implement other mitigation measures, as 
appropriate.
    However, as noted in the response to the previous comment, it is 
likely that some operators will not have the same perception or 
understanding of the impacts which their proposed operations may have 
on NFS resources that trained Forest Service specialists will have. 
Therefore, in Sec.  228.4(a)(4) of the final rule the District Ranger 
retains final authority to decide whether prior submission and approval 
of a plan of operations is required and can make this determination at 
any time, whether or not the operator first submits a notice of intent 
to operate.
    Comment: Numerous respondents said that the interim rule treats 
prospectors or miners unfairly compared to other users of the NFS, such 
as hikers, fishermen, hunters, and rock climbers, who cause similar 
limited disturbance of NFS resources but are not required to submit a 
document comparable to a notice of intent to operate prior to causing 
this disturbance.
    Response: The Department agrees that it is inappropriate to require 
prior notice of the disturbance of NFS resources caused by one category 
of user but not other categories of users of the NFS causing identical 
surface disturbance. Therefore, for the reasons discussed in the 
response to the comment on paragraph 4(a)(1)(iv) of the interim rule, a 
new paragraph 4(a)(1)(v) is included in the final rule which provides 
that a notice of intent to operate is not required for ``operations, 
which in their totality, will not cause surface resource disturbance 
which is substantially different than that caused by other users of the 
National Forest System who are not required to obtain a Forest Service 
special use authorization, contract, or other written authorization.''
    Comment: A number of respondents stated that the Forest Service 
should add more specific examples of operations which do not require 
prior submission of a notice of intent to operate to the exemptions 
listed in Sec.  228.4(a)(1)(i) through (v) of the interim rule. Several 
other respondents said that the interim rule should contain a well-
defined description of operations that do not require the submission of 
a notice of intent to operate.
    Response: For the reasons cited in the response to the first 
comment on Sec.  228.4(a)(2) of the interim rule, the need in many 
situations for the submission of a notice of intent to operate must be 
determined through a case-by-case evaluation of the proposed operations 
and the kinds of lands and other surface resources which those 
operations will effect. However, it is possible to identify some 
categories of operations which will never require the prior submission 
of a notice of intent to operate and the Department agrees that the 
final rule should identify those categories with more specificity as 
suggested by the respondents.
    Therefore, the Department is adding to Sec.  228.4(a)(1) of the 
final rule another category of operations which can be conducted 
without prior submission of a notice of intent to operate. This 
category will include ``operations, which in their totality, will not 
cause surface resource disturbance which is substantially different 
than that caused by other users of the National Forest System who are 
not required to obtain a Forest Service special use authorization, 
contract, or other written authorization.'' In addition, the final rule 
also adds more specificity to two categories of operations exempted 
from the requirement for prior submission of a notice of intent to 
operate which are included in the interim rule at Sec.  228.4(a)(1)(ii) 
and (iii) but combined into one category in the final rule at Sec.  
228.4(a)(1)(ii).
    These changes to the final rule better delineate the level of work, 
functions, or activities which clearly do not constitute a significant 
disturbance of NFS resources and, therefore, do require the submission 
of a notice of intent to operate before proposed mining operations can 
be initiated.
    Comment: One respondent said that Sec.  228.4(a)(2) of the interim 
rule, which requires a District Ranger to advise the operator, within 
15 days of the Ranger's receipt of a notice of intent to operate, 
whether approval of a plan of operations is required before the 
proposed operations commence fails to give the miner any recourse if 
the District Ranger does not respond within that period.
    Response: The respondent's characterization of Sec.  228.4(a)(2) of 
the interim rule is accurate. However, this does not mean that the 
operator lacks a remedy for a District Ranger's failure to comply with 
the requirement to respond within 15 days of receipt of a notice of 
intent to operate. Indeed, as the respondent observed, the operator 
could

[[Page 32730]]

consider filing an administrative appeal or a civil lawsuit challenging 
the District Ranger's noncompliance with this requirement. These are 
same remedies which an operator has with respect to any other duty 
which the operator believes a District Ranger has not fulfilled. The 
Department sees no reason to provide a unique remedy for a District 
Ranger's failure to comply with this particular paragraph of the 
interim rule.
    For these reasons, no change has been made in the final rule as a 
consequence of this comment.
    The provisions of Sec.  228.4(a)(2) of the interim rule have been 
redesignated as follows: provisions for filing a notice of intent 
redesignated to Sec.  228.4(a); the 15-day requirement redesignated at 
Sec.  228. 4(a)(2); and exceptions for filing a notice of intent at 
Sec.  228.4(a)(1)(i)-(vii).

Section 228.4(a)(2)(i)

    No specific comments were submitted on Sec.  228.4(a)(2)(i) of the 
interim rule. Except for redesignation of this provision to paragraph 
(a)(1)(vii) in the final rule, no changes were made in the final rule.

Section 228.4(a)(2)(ii)

    No specific comments were submitted on Sec.  228.4(a)(2)(ii) of the 
interim rule. Except for redesignation of this provision to paragraphs 
(a)(1)(i)-(iv) in the final rule, no changes were made in the final 
rule.

Section 228.4(a)(2)(iii)

    Comment: With respect to the phrase ``[u]nless those operations 
otherwise might cause a disturbance of surface resources'' found in 
Sec.  228.4(a)(2)(iii) of the interim rule, and which qualifies an 
exemption to the requirement that an operator must submit a notice of 
intent to operate, numerous respondents commented that this phrase 
gives too much discretion to District Rangers. Those respondents stated 
that the test ``might cause a disturbance of surface resources'' was 
far too broad and would permit a District Ranger to require a notice of 
intent to operate for any virtually any surface disturbance. Many of 
those respondents also suggested that the exemption to the requirement 
for prior submission of a notice of intent to operate in Sec.  
228.4(a)(2)(iii) of the interim rule be revised to apply to: 
``operations which will not involve the use of mechanized earthmoving 
equipment such as bulldozers or backhoes or the cutting of trees, 
unless those operations otherwise might cause a significant disturbance 
of surface resources.''
    Response: As previously discussed, the Department agrees that an 
operator should only be required to submit a notice of intent to 
operate for those operations which might cause significant disturbance 
of NFS resources and conceivably might require prior submission and 
approval of a proposed plan of operations. Accordingly, Sec.  
228.4(a)(1)(vi) of the final rule, which corresponds to Sec.  
228.4(a)(2)(iii) of the interim rule, has been revised to apply to 
``operations which will not involve the use of mechanized earthmoving 
equipment, such as bulldozers or backhoes, or the cutting of trees, 
unless those operations otherwise might cause a significant disturbance 
of surface resources.''
    Comment: Several respondents said that an exception to the 
requirement for prior submission of a notice of intent to operate in 36 
CFR Sec.  228.4(a)(2)(iii) should be broadened.
    Response: 36 CFR 228.4(a)(2) provided that ``[a] notice of intent 
need not be filed * * * (iii) [f]or operations which will not involve 
the use of mechanized earthmoving equipment such as bulldozers or 
backhoes and will not involve the cutting of trees.''
    As previously discussed, identical operations could have vastly 
different effects depending upon the condition of the lands and other 
surface resources which would be affected by those mining operations. 
In fact, identical operations might cause significant disturbance of 
NFS resources in one situation and insignificant disturbance of those 
resources in another. Thus, determining whether operations might cause 
a significant disturbance of NFS resources necessarily depends upon a 
case-by-case evaluation of a proposed operation and the kinds of lands 
and other NFS surface resources involved. Consequently, the Department 
does not believe that it is possible to develop exemptions to the 
requirement to submit a notice of intent to operate in addition to 
those in paragraphs 4(a)(1)(i) through (vii) of the final rule which 
would be universally appropriate.
    For these reasons, no change has been made in the final rule in 
response to these comments.
    The provisions in Sec.  228.4(a)(2)(iii) in the interim rule have 
been redesignated at Sec.  228.4(a)(1)(vi) in the final rule.

Regulatory Certifications

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive E.O. 12866 of September 30, 1993, ``Regulatory Planning and 
Review.'' This final rule 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 final rule will not interfere with an action 
taken or planned by another agency nor raise new legal or policy 
issues. Finally, this final rule will not alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients of such programs. Therefore, it has been 
determined that this final rule is not an economically significant 
regulatory action.
    This final rule also has been considered in light of the Regulatory 
Flexibility Act, as amended, (5 U.S.C. 601 et seq.). In promulgating 
this final rule, publication of a general notice of proposed rulemaking 
was not required by law. Further, it has been determined that this 
final rule will not have a significant economic impact on a substantial 
number of small business entities as defined by that Act. Therefore, it 
has been determined that preparation of a final regulatory flexibility 
analysis is not required for this final rule.

Environmental Impacts

    This final rule clarifies the criteria for determining when a 
notice of intent to operate or a plan of operations should be submitted 
by a mining operator. Section 31.1b of Forest Service Handbook 1909.15 
(57 FR 43168; Sept. 18, 1992) excludes from documentation in an 
environmental assessment or environmental impact statement ``rules, 
regulations, or policies to establish Service-wide administrative 
procedures, program processes, or instruction.'' This final rule 
clearly falls within this category of actions and the Department has 
determined that no extraordinary circumstances exist which would 
require preparation of an environmental assessment or an environmental 
impact statement. Moreover, this rule itself has no impact on the human 
environment. Rather, in the context of 36 CFR part 228, subpart A, of 
which this final rule will be a part, the action which the agency takes 
which might have an impact on the human environment is approving a 
proposed plan of operations. Therefore, it has been determined that 
preparation of an environmental assessment or an environmental impact 
statement is not required in promulgating this final rule.

Energy Effects

    This final rule has been reviewed under E.O. 13211 of May 18, 2001, 
``Actions Concerning Regulations That

[[Page 32731]]

Significantly Affect Energy Supply, Distribution, or Use.'' This final 
rule will not have a significant adverse effect on the supply, 
distribution, or use of energy. Nor has the Office of Management and 
Budget designated this rule as a significant energy action. Therefore, 
it has been determined that this final rule does not constitute a 
significant energy action requiring the preparation of a Statement of 
Energy Effects.

Controlling Paperwork Burdens on the Public

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or reporting requirements for 
notices of intent to operate and plans of operation contained in this 
final rule were previously approved by the Office of Management and 
Budget and assigned control number 0596-0022, expiring on July 31, 
2005. This final rule does not contain any new recordkeeping or 
reporting requirements or other information collection requirements as 
defined by the Act or its implementing regulations (5 CFR part 1320) 
that are not already required by law or not already approved for use. 
Accordingly, it has been determined that the review provisions of the 
Paperwork Reduction Act of 1995 and its implementing regulations do not 
apply to this final rule.

Federalism

    This final rule has been considered under the requirements of E.O. 
13132 of August 9, 1999, ``Federalism.'' This final rule conforms with 
the Federalism principles set out in this E.O.; 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. Therefore, it 
has been determined that this final rule does not have federalism 
implications.

Consultation With Indian Tribal Governments

    This final rule has been reviewed under E.O. 13175 of November 6, 
2000, ``Consultation and Coordination With Indian Tribal Governments.'' 
This final rule does not have substantial direct effects on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes. Nor does this final 
rule impose substantial direct compliance costs on Indian tribal 
governments or preempt tribal law. Therefore, it has been determined 
that this final rule does not have tribal implications requiring 
advance consultation with Indian tribes.

No Takings Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in E.O. 12630 of March 15, 1988, ``Governmental 
Actions and Interference With Constitutionally Protected Property 
Rights.'' It is well established that a rule, such as the final rule, 
which in certain circumstances requires a miner to obtain Federal 
approval before conducting mineral operations on Federal lands, does 
not deprive the miner of any property right. Therefore, it has been 
determined that the final rule does not pose the risk of a taking of 
Constitutionally protected private property.

Civil Justice Reform

    This final rule has been reviewed under E.O. 12988 of February 7, 
1996, ``Civil Justice Reform.'' The Department has not identified any 
State or local laws or regulations that are in conflict with this 
regulation or that would impede full implementation of this final rule. 
Nevertheless, in the event that such a conflict was to be identified, 
this final rule would preempt State or local laws and regulations found 
to be in conflict with this final rule or that impede its full 
implementation. However, in that case, (1) no retroactive effect would 
be given to this final rule; and (2) this final rule does not require 
use of 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), the effects of this final rule on State, local, and 
tribal governments and the private sector have been assessed. This 
final rule does not compel the expenditure of $100 million or more by 
any State, local, or tribal government or anyone in the private sector. 
Nor, in promulgating this final rule, was the publication of a general 
notice of proposed rulemaking required by law. Therefore, it has been 
determined that a statement under section 202 of the Act is not 
required for this final rule.

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

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

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


0
2. Amend Sec.  228.4 to revise paragraph (a) to read as follows:


Sec.  228.4  Notice of intent--plan of operations--requirements.

    (a) Except as provided in paragraph (a)(1) of this section, a 
notice of intent to operate is required from any person proposing to 
conduct operations which might cause significant disturbance of surface 
resources. Such notice of intent to operate shall be submitted to the 
District Ranger having jurisdiction over the area in which the 
operations will be conducted. Each notice of intent to operate shall 
provide information sufficient to identify the area involved, the 
nature of the proposed operations, the route of access to the area of 
operations, and the method of transport.
    (1) A notice of intent to operate is not required for:
    (i) Operations which will be limited to the use of vehicles on 
existing public roads or roads used and maintained for National Forest 
System purposes;
    (ii) Prospecting and sampling which will not cause significant 
surface resource disturbance and will not involve removal of more than 
a reasonable amount of mineral deposit for analysis and study which 
generally might include searching for and occasionally removing small 
mineral samples or specimens, gold panning, metal detecting, non-
motorized hand sluicing, using battery operated dry washers, and 
collecting of mineral specimens using hand tools;
    (iii) Marking and monumenting a mining claim;
    (iv) Underground operations which will not cause significant 
surface resource disturbance;
    (v) Operations, which in their totality, will not cause surface 
resource disturbance which is substantially different than that caused 
by other users

[[Page 32732]]

of the National Forest System who are not required to obtain a Forest 
Service special use authorization, contract, or other written 
authorization;
    (vi) Operations which will not involve the use of mechanized 
earthmoving equipment, such as bulldozers or backhoes, or the cutting 
of trees, unless those operations otherwise might cause a significant 
disturbance of surface resources; or
    (vii) Operations for which a proposed plan of operations is 
submitted for approval;
    (2) The District Ranger will, within 15 days of receipt of a notice 
of intent to operate, notify the operator if approval of a plan of 
operations is required before the operations may begin.
    (3) An operator shall submit a proposed plan of operations to the 
District Ranger having jurisdiction over the area in which operations 
will be conducted in lieu of a notice of intent to operate if the 
proposed operations will likely cause a significant disturbance of 
surface resources. An operator also shall submit a proposed plan of 
operations, or a proposed supplemental plan of operations consistent 
with Sec.  228.4(d), to the District Ranger having jurisdiction over 
the area in which operations are being conducted if those operations 
are causing a significant disturbance of surface resources but are not 
covered by a current approved plan of operations. The requirement to 
submit a plan of operations shall not apply to the operations listed in 
paragraphs (a)(1)(i) through (v). The requirement to submit a plan of 
operations also shall not apply to operations which will not involve 
the use of mechanized earthmoving equipment, such as bulldozers or 
backhoes, or the cutting of trees, unless those operations otherwise 
will likely cause a significant disturbance of surface resources.
    (4) If the District Ranger determines that any operation is causing 
or will likely cause significant disturbance of surface resources, the 
District Ranger shall notify the operator that the operator must submit 
a proposed plan of operations for approval and that the operations can 
not be conducted until a plan of operations is approved.
* * * * *

    Dated: May 31, 2005.
David P. Tenny,
Deputy Under Secretary, NRE.
[FR Doc. 05-11138 Filed 6-3-05; 8:45 am]
BILLING CODE 3410-11-P