Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Rules and Regulations 74045 

90See Updating Reguls. for Eng’rg & Design 

Materials for Liquefied Nat. Gas Facilities Related 

to Potential Impacts Caused by Nat. Hazards, 185 

FERC ¶ 61,050 (2023) (Final Rule). 

91See Center for LNG & API January 27, 2023 

Comments at 2. 

92See Final Rule, 185 FERC ¶ 61,050 at P 39 

(‘‘Because the Commission’s authority is to ensure 

public safety and reliability of proposed LNG 

facilities not only during siting of the facilities but 

also during construction and operations of those 

facilities, the final rule revises existing 

§ 380.12(o)(12) so that Resource Report 13 would 

now include identification of codes and standards 

for the design, construction, testing, monitoring, 

operation, and maintenance of the LNG facility in 

addition to identification of codes and standards for 

siting.’’) (footnote omitted); see also id. P 15 (‘‘The 

current rulemaking clarifies and updates the 

informational requirements in the Commission’s 

regulations by codifying the current practice for 

processing NGA section 3 and [section] 7 

applications. . . . The environmental document 

includes Commission staff’s recommendations 

related to the construction and operation of the 

project, including measures to mitigate adverse 

effects. If the Commission approves the application, 

the Commission’s oversight of the project continues 

through final design, construction, commissioning, 

and operation of the project to ensure that the 

project has complied with the terms and conditions 

of the Commission’s authorization order.’’) (citing 

15 U.S.C. 717b(a), 717b(e)(3)(A), 717f(e) 

(authorizing the Commission to include terms and 

conditions to our authorization orders)) (internal 

citations omitted) (footnotes omitted). 

93 15 U.S.C. 717b, 717f. 

94See EcoEle ́ctrica, L.P., 184 FERC ¶ 61,114 

(2023) (Danly, Comm’r, concurring at P 3); 

EcoEle ́ctrica, L.P., 180 FERC ¶ 61,054 (2022) (Danly, 

Comm’r, concurring at P 3); EcoEle ́ctrica, L.P., 179 

FERC ¶ 61,038 (2022) (Danly, Comm’r, concurring); 

EcoEle ́ctrica, L.P., 177 FERC ¶ 61,164 (2021) (Danly, 

Comm’r, concurring); EcoEle ́ctrica, L.P., 176 FERC 

¶ 61,192 (2021) (Danly, Comm’r, concurring). 

Scale at the site and associated wind 

speeds. 

(4) A discussion of tornado loads 

determination and design procedure. 

(5) A comparison of impact between 

wind loads and tornado loads for the 

site. 

(F) Rain, ice, snow, and related 

precipitation information. Provide a 

discussion of rain, ice, snow, and 

related precipitation design criteria and 

hazards that includes: 

(1) The rain, ice, and snow design 

basis and criteria that are, at a 

minimum, in accordance with all 

applicable Federal requirements, and 

applicable codes, standards, and 

specifications used as basis of design. 

(2) The identification of stormwater 

flows, outfalls, and stormwater 

management systems for all surfaces, 

including spill containment system with 

sump pumps or other water removal 

systems. 

(3) The comparison of rain, ice, and 

snow design loads with rainfall rates, 

snow loads, and ice loads corresponding 

to return periods of 10,000-year, 5,000- 

year, 1,000-year, 500-year, and 100-year 

for all structures, systems, and 

components. 

(4) A discussion of historic ice and 

blizzard events and frequencies and 

other ice and snow events at the site and 

associated loads. 

(G) Landslides, wildfires, volcanic 

activity, and geomagnetism information. 

Provide a discussion of landslides, 

wildfires, volcanic activity, and 

geomagnetism design criteria and 

hazards that includes: 

(1) The landslides, wildfires, volcanic 

activity, and geomagnetism design basis 

and criteria that are, at a minimum, in 

accordance with all applicable Federal 

requirements, and applicable codes, 

standards, and specifications used as 

basis of design. 

(2) A discussion of historic landslide, 

wildfire, volcano activity, and 

geomagnetic disturbance risks and 

intensities at the site. 

(3) A description of capable 

volcanoes, volcanic characteristics of 

the region, and a discussion of 

potentially hazardous volcanic 

phenomena considerations. 

■ 6. Amend appendix A to part 380 in 

the section entitled ‘‘Resource Report 

6—Geological Resources’’ by: 

■ a. Removing paragraph 4; 

■ b. Redesignating paragraph 5 as 

paragraph 4; and 

■ c. Revising newly redesignated 

paragraph 4. 

The revision reads as follows: 

Appendix A to Part 380—Minimum 

Filing Requirements for Environmental 

Reports Under the Natural Gas Act 

* * * * * 

Resource Report 6—Geological Resources 

* * * * * 

4. For underground storage facilities, how 

drilling activity by others within or adjacent 

to the facilities would be monitored, and how 

old wells would be located and monitored 

within the facility boundaries. 

(§ 380.12(h)(5)) 

* * * * * 

Note: The following appendix will not 

appear in the Code of Federal Regulations. 

Appendix A—Commissioner Danly’s 

Statement 

United States of America Federal Energy 

Regulatory Commission 

Updating Regulations for Engineering and 

Design Materials for Liquefied Natural Gas 

Facilities Related to Potential Impacts 

Caused by Natural Hazards 

Docket No. RM22–8–000 

(Issued October 23, 2023) 

DANLY, Commissioner, concurring: 

1. I agree that several changes to the 

Commission’s regulations will be helpful to 

ensure that the Commission has adequate 

information to examine the design, 

engineering and safety of liquefied natural 

gas (LNG) facilities when authorizing the 

siting of such facilities under the 

Commission’s jurisdiction. I write separately 

to express two misgivings about the final 

rule.90

2. First, in their joint comments on the 

proposed rule, the Center for LNG and the 

American Petroleum Institute (API) 

identified potential sources of confusion 

throughout the proposed rule regarding the 

requirements that project sponsors identify 

and comply with all ‘‘applicable codes and 

standards.’’ 91 The final rule does not 

sufficiently address these well-articulated 

concerns. 

3. Second, language in the final rule 

suggests that the Commission has perpetual 

jurisdiction over LNG facilities 92 under 

Natural Gas Act sections 3 and 7.93 I continue 

to harbor misgivings that the Commission 

may not, in fact, have ongoing jurisdiction to 

oversee the safety of LNG facilities once 

permitted.94

For these reasons, I respectfully concur. 

James P. Danly, 

Commissioner. 

[FR Doc. 2023–23791 Filed 10–27–23; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 228 

RIN 0596–AD58 

Long-Term Financial Assurance for 

Mining 

AGENCY: Forest Service, Agriculture. 

ACTION: Interim final rule; request for 

public comment. 

SUMMARY: The Forest Service is 

amending its locatable minerals rules to 

provide mine operators with a broader 

array of options for securing financial 

assurance for funding reclamation work. 

Locatable mineral operations on 

National Forest System lands must be 

conducted to minimize adverse 

environmental impacts on National 

Forest surface resources, which often 

includes reclamation at the conclusion 

of operations. Current regulations 

provide that the Forest Service may 

require the operator to furnish a ‘‘bond’’ 

to fund reclamation work. However, the 

financial assurance mechanisms are 

limited to surety bonds, cash, and 

negotiable securities. This rule will 

expand those options. It does not 

change requirements for surface 

resource and environmental protection. 

Rather, it provides additional options 

for obtaining the financial assurance 


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74046 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Rules and Regulations 

necessary to be sure that those 

requirements will be met. 

DATES: This rule is effective November 

29, 2023. Comments concerning this 

rule must be received by December 29, 

2023. 

ADDRESSES: Comments, identified by 

RIN 0596–AD58, should be sent via one 

of the following methods: 

1. Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for sending comments; 

2. Mail: Director, Lands, Minerals and 

Geology Management, 201 14th Street 

SW, Washington, DC 20250–1124; or 

3. Hand Delivery/Courier: Director, 

Lands, Minerals and Geology 

Management, 1st Floor South East, 201 

14th Street SW, Washington, DC 20250– 

1124. 

Please confine written comments to 

issues pertinent to the interim rule; 

explain the reasons for any 

recommended changes; and, where 

possible, reference the specific wording 

being addressed. All comments, 

including names and addresses when 

provided, will be placed in the record 

and will be available for public 

inspection and copying. The public may 

inspect comments received on this 

proposed rule at the Office of the 

Director, Lands, Minerals and Geology 

Management, 201 14th Street SW, 1st 

Floor Southeast, Sidney R. Yates 

Federal Building, Washington, DC, on 

business days between 8:30 a.m. and 4 

p.m. Visitors are encouraged to call 

ahead at 202–205–1680 to facilitate 

entry into the building. Comments may 

also be viewed on the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Searchbox, 

enter ‘‘RIN 0596–AD58’’ and click the 

‘‘Search’’ button. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Shoemaker, Geologist at 907–586– 

7886 or sarah.shoemaker@usda.gov. 

Individuals who use telecommunication 

devices for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339 between 8 a.m. 

and 8 p.m., Eastern Daylight Time, 

Monday through Friday. 

SUPPLEMENTARY INFORMATION: 

Background and Need for Rule 

Locatable mineral operations on 

National Forest System (NFS) lands 

have been regulated under the rules 

currently codified at 36 CFR part 228, 

subpart A, since 1974, including 

provisions for requiring financial 

assurance for completion of 

reclamation. Under 36 CFR 228.5 and 

228.7, an operator is required to conduct 

operations in accordance with an 

approved plan of operations when one 

is required under 36 CFR 228.4, and 

with the regulations at 36 CFR 228 

Subpart A. Under 36 CFR 228.8, all 

operations must be conducted to 

minimize adverse environmental 

impacts on National Forest surface 

resources as specified in the regulation, 

including the requirements to complete 

reclamation at the conclusion of 

operations. 36 CFR 228.8(g). Under 

228.8(g), reclamation may include 

continuation of actions required to 

mitigate or stabilize elements that might 

otherwise adversely impact surface 

resources long after exhaustion of the 

mineral deposit and cessation of mining 

operations for as long as necessary to 

accomplish the specified requirements 

of the regulations to minimize the 

adverse environmental impacts on 

National Forest surface resources to the 

extent feasible. 

Current regulations at § 228.13 

provide that the authorized officer of the 

Forest Service may require the operator 

to furnish a ‘‘bond,’’ conditioned upon 

compliance with the reclamation 

requirements in current 228.8(g), prior 

to approval of a plan of operations. The 

regulations further provide that, if a 

bond is required by the authorized 

officer, the operator may elect to furnish 

cash or negotiable securities of the 

United States in the amount of the bond 

in lieu of the bond required by the 

authorized officer. All operations 

conducted by the operator can have 

implications for the ability to 

successfully complete reclamation. 

Therefore, the bond, cash, or securities 

provided by the operator under 36 CFR 

228.13 provide financial assurance by 

securing compliance with and 

completion of all obligations for 

environmental protection created by the 

plan of operations and the regulations. 

However, the financial assurance 

mechanisms expressly contemplated by 

the regulations are limited to surety 

bonds, cash, and negotiable securities. 

While the current regulation does not 

preclude the use of other mechanisms 

for financial assurance, it does not allow 

the authorized officer to unilaterally 

require any form of financial assurance 

other than a surety bond or provide the 

operator with the entitlement to use a 

form of financial assurance other than 

cash or negotiable securities in lieu of 

the bond. Where other forms of financial 

assurance may be more cost effective, or 

provide greater assurance for long-term 

obligations, the authorized officer and 

the operator may negotiate an 

alternative, but there currently are no 

regulatory standards for when such 

alternatives may be required by the 

authorized officer, must be accepted by 

the authorized officer in lieu of a bond, 

or for the acceptable terms of such 

instruments. In particular, the forms of 

financial assurance contemplated by the 

current regulation do not provide for 

sufficient income generation, which, 

given the time value of money, can be 

critically important for long-term 

financial assurance (LTFA) of the 

obligations of mine operators to meet 

the requirements of their plan of 

operations and the regulations many 

years into the future. The upfront cost 

of financial assurance for long-term 

obligations can be cost-prohibitive when 

there is no mechanism allowing for 

income generation on financial 

assurance funds. 

Current Policy at Forest Service 

Manual (FSM) 6561.5 requires the use of 

trusts to provide LTFA in lieu of the 

instruments expressly contemplated in 

36 CFR 228.13, when agreed to by the 

authorized officer and the operator. 

However, FSM 6561.5 limits the 

investment of trust funds to U.S. 

Treasury and other negotiable securities 

of the U.S. Government and certain 

bank deposits. These investment 

options offer such low potential rates of 

return as to be of little benefit in 

reducing the upfront cost of funding 

requirements for LTFA or long-term 

viability of trust funding. While FSM 

6560.5 acknowledges that trust assets 

must adequately protect the 

Government from loss, and that 

allowable trust investments must 

therefore have limited risk of loss, the 

current limitations limit the investments 

in a way that makes it more difficult to 

adequately fund reclamation 

obligations. 

The ability of the Forest Service to 

require other forms of financial 

assurance, or the right of operators to 

offer other forms of financial assurance 

in lieu of bonding for long-term 

obligations that will continue once an 

operation ceases production will allow 

for greater financial assurance for the 

protection of surface resources and 

reduction of costs to operators. 

Allowing for a reasonable rate of 

investment return on LTFA funds will 

provide greater assurance of the 

availability of funds in the long-term 

and reduce the cost of upfront funding. 

The interim final rule at 36 CFR 

228.13 will allow the authorized officer 

to require the operator to provide 

alternative LTFA when necessary to 

prevent or control damage after 

operations have ceased. This provision 

of the regulations will codify the 

options allowed by FSM 6561.5. 

Further, the regulation will allow for a 

broader range of investment options to 

realize the advantages and benefits of 


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Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Rules and Regulations 74047 

the use of income-earning accounts. 

This interim rule does not change 

requirements for surface resource and 

environmental protection in the current 

rule. Rather, it provides additional 

options for obtaining the financial 

assurance necessary to be sure that 

those requirements will be met. The 

generation of reasonable income streams 

on financial assurance accounts will 

provide greater assurance that long-term 

obligations will be met and will be more 

cost-effective for operators. 

The interim final rule allows trust 

funds to be comprised of a mix of 

government bonds and public stocks, 

consistent with Bureau of Land 

Management (BLM) regulations at 43 

CFR 3809.555 and practices. Future 

Forest Service Manual direction 

(manual or handbook) will supply 

guidance for allowable investment 

portfolio composition, similar to BLM 

Handbook Direction at H–3809–1 

(2012). Forest Service direction will be 

adopted after implementation of the 

proposed rule. 

The Forest Service believes this 

change is needed immediately to clarify 

options and alternatives for LTFA for 

mining operations, both to protect the 

public interest in assuring that longterm obligations for environmental and 

surface resource protection are met, and 

to reduce unnecessary, and sometimes 

cost-prohibitive, financial burdens on 

operators. The regulation clarifies when 

alternative forms of financial assurance 

for long-term operations may be 

required by the authorized officer or 

must be accepted by the authorized 

officer if offered by the operator. 

Further, the interim final rule sets 

standards for when such alternative 

LTFA is acceptable, including the range 

of allowable investments for income 

generation. 

The current number of operations 

requiring LTFA and operations 

approved after adoption of the proposed 

rule is expected to be small. In 2018, the 

Forest Service reported 140 mining 

operations on National Forest system 

land that are approved for ‘‘production 

phase’’ development, which are the type 

of operations most likely to require 

financial assurance for long-term 

operations and final closure. Of the 140 

approved operations, approximately 

nine, or 6%, are large-scale operations 

with plans of operation that have a 

potential to result in the need for postclosure maintenance and may require 

LTFA to ensure funding for post-closure 

reclamation. Of the nine approved plans 

of operations, four have currently 

identified the need for long-term postclosure water treatment or other 

maintenance operations (3% of total 

approved operations; 44% of approved 

large-scale operations). These four 

operations carry approximately 49% of 

the total financial assurance held by the 

Forest Service (approximately $196M of 

$400M, as of June 2023). Traditional 

third-party surety bond financial 

assurances are in place for the four 

operations, but lack a sustainable 

income-generating component, and 

therefore may not be adequate for 

assuring long-term post-reclamation 

needs. The interim final rule, by 

clarifying requirements and expanding 

investment options, will increase the 

array of available options for financial 

assurance that can provide greater LTFA 

to protect the interests of the United 

States and the public, and reduce 

unnecessary financial burdens on 

operators. 

While the Forest Service views these 

changes as critically important for the 

administration of mining operations on 

the national forests, their impact will be 

limited primarily to the small number of 

large locatable mineral operations on 

National Forest System lands where the 

needs for funding long-term postreclamation activities is the greatest. 

Allowing for an expanded range of 

investment options with potentially 

higher rates of return is expected to 

reduce the risk of public funds being 

needed to complete reclamation or other 

long-term obligations in the event of 

operator default and reduce the upfront 

cost to operators to provide financial 

assurance. While the investment options 

allowed may have greater risk of shortterm volatility, appropriate management 

of trust funds through diversification of 

investment over the long-term is 

projected to generate higher rates of 

return. 

The interim final rule also clarifies 

language in 36 CFR 228.13 regarding the 

types of financial assurances the agency 

may require, may accept, and under 

what circumstances. Currently, 36 CFR 

228.13 refers only to bonds and limited 

instruments that must be accepted by 

the authorized officer in lieu of bonds 

which can be interpreted as implying 

that bonds are required, or at least the 

preferred, instrument for financial 

assurances. The interim final rule 

instead refers to financial assurances, 

and lists every acceptable mechanism, 

including instruments that the agency 

currently accepts in policy (FSM 

6561.4) but are not listed in the current 

regulation, such as irrevocable letters of 

credit. The agency believes this change 

to be administrative and clarifying in 

nature, which will not result in any 

changes in practice or policy. 

Regulatory Certifications 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs in the Office of Management and 

Budget will determine whether a 

regulatory action is significant and will 

review significant regulatory actions. 

The Office of Information and 

Regulatory Affairs has determined that 

this interim final rule is not significant. 

Executive Order 13563 reaffirms the 

principles of Executive Order 12866 

while calling for improvements in the 

nation’s regulatory system to promote 

predictability; to reduce uncertainty; 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The Agency 

has developed this rule consistent with 

Executive Order 13563. 

Congressional Review Act 

Pursuant to subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (known as the 

Congressional Review Act) (5 U.S.C. 801 

et seq.), the Office of Information and 

Regulatory Affairs has designated this 

interim final rule as not a major rule as 

defined by 5 U.S.C. 804(2). 

National Environmental Policy Act 

This interim final rule will amend the 

Agency’s locatable minerals regulations 

to allow mine operators to secure 

financial assurance for funding 

reclamation work through the use a 

broader range of investment options. 

Forest Service regulations at 36 CFR 

220.6(d)(2) exclude from documentation 

in an environmental assessment or 

environmental impact statement ‘‘rules, 

regulations, or policies to establish 

service wide administrative procedures, 

program processes, or instructions.’’ The 

Agency’s preliminary assessment is that 

this rule falls within this category of 

actions and that no extraordinary 

circumstances exist which would 

require preparation of an environmental 

assessment or environmental impact 

statement. A final determination will be 

made upon adoption of the final rule. 

Regulatory Flexibility Act 

The Agency considered the impacts of 

the interim final rule on small entities 

consistent with requirements of the 

Regulatory Flexibility Act (RFA), as 

amended by the Small Business 

Regulatory Flexibility Enforcement 

Fairness Act of 1996 (SBREFA), and 

Executive Orders 13272 (Proper 

Consideration of Small Entities in 

Agency Rulemaking). The provisions of 

the rule are not expected to have 


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74048 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Rules and Regulations 

economic effects on small entities, and 

no separate threshold regulatory 

flexibility analysis was prepared for this 

rule. 

Small entities potentially affected by 

the interim rule include small 

businesses (firms) involved in precious 

and heavy metal mining (e.g., North 

American Industry Classification 

System (NAICS) 2122, iron, gold, silver 

copper, nickel, lead, zinc, uranium, and 

other metals), limestone and clay 

mining and quarrying (NAICS 2123, 

crushed/broken limestone, kaolin and 

ball clay, ceramic and refractory 

minerals, other chemical/fertilizer 

minerals, and other nonmetallic 

minerals); and geophysical surveying 

and mapping (NAICS 541360). A 

majority (75% to 80%) of existing 

locatable operations on National Forest 

System lands fall within the precious 

and heavy metal sectors, and within the 

gold ore sector specifically. The interim 

final rule would apply to the fraction of 

businesses that engage in locatable 

mineral development or operations on 

National Forest System lands that are 

projected to involve levels of closure 

and post-closure activities that require 

operators to provide financial 

assurances to cover closure or postclosure obligations (costs). 

The interim final rule clarifies the 

types of financial assurance instruments 

that can be used by operators, and 

explicitly lists instruments (e.g., 

irrevocable letters of credit, trust funds) 

that are omitted in current regulation, 

though allowed in current policy. The 

interim final rule allows stocks to be 

used in the mix of investments forming 

a trust fund, whereas current regulations 

limit those investments to United States 

securities. Allowances for stocks is 

consistent with current Department of 

Interior regulations and policy for the 

Bureau of Land Management (43 CFR 

3809.555 and handbook direction at H– 

3809–1) and Office of Surface Mining 

Reclamation and Enforcement (30 CFR 

942.800). Interest bearing accounts are 

necessary for providing financial 

assurances for long-term (e.g., into 

perpetuity) post-reclamation 

obligations, and trust funds are likely to 

be the only viable instrument that the 

Agency finds acceptable for those 

situations under the current regulations 

as well as the interim final rule. 

However, allowances for stocks can 

provide operators with access to an 

expanded range of rates of return for 

trust fund investments, offering 

opportunities to establish trust funds 

with lower initial investment than 

would be possible under current 

regulations. 

These interim final rule provisions are 

likely to clarify and expand 

opportunities for small business 

operators to establish financial 

assurances for mine closure and postclosure actions and not expected to 

result in direct or adverse economic 

effects to small businesses. The small 

business operators with substantial 

closure or post-closure obligations will 

be a subset of small businesses 

operating on National Forest System 

lands. Additional policy for monitoring 

the performance of trust funds, 

composition of investment mixes (e.g., 

types of stocks, investment composition 

over time), as well as requiring 

contributions or allowing withdrawals 

from trust funds in response to trust 

fund performance, will be addressed 

through Agency policy direction. 

The Agency certifies that the interim 

final rule will not have a significant 

impact on a substantial number of small 

entities. 

Federalism 

The Agency has considered this 

interim final rule under the 

requirements of Executive Order 13132, 

Federalism. The Agency has determined 

that the rule conforms with the 

federalism principles set out in this 

executive order; would not impose any 

compliance costs on the States; and 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. Therefore, 

the Agency has concluded that the rule 

does not have federalism implications. 

Consultation and Coordination With 

Indian Tribal Governments 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires Federal agencies 

to consult and coordinate with Tribes 

on a government-to-government basis on 

policies that have Tribal implications. 

This includes regulations, legislative 

comments or proposed legislation, and 

other policy statements or actions that 

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. 

This interim final rule will amend the 

Agency’s locatable minerals regulations 

to allow mine operators to secure 

financial assurance for funding 

reclamation work through the use a 

broader range of investment options. 

The Agency has reviewed this rule in 

accordance with the requirements of 

Executive Order 13175 and has 

determined that this proposed rule 

would not have substantial direct effects 

on 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. 

Therefore, consultation and 

coordination with Indian Tribal 

governments is not required for this 

rule. 

No Takings Implications 

The Agency has analyzed this interim 

final rule in accordance with the 

principles and criteria in Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. The Agency 

has determined that the proposed rule 

would not pose the risk of a taking of 

private property. 

Energy Effects 

The Agency has reviewed this interim 

final rule under Executive Order 13211, 

Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. The Agency has 

determined that the proposed rule 

would not constitute a significant 

energy action as defined in Executive 

Order 13211. The rule is administrative 

in nature and does not impact Agency 

decisions about leasing and subsequent 

development of energy resources on 

NFS lands. 

Civil Justice Reform 

The Forest Service has analyzed this 

interim final rule in accordance with the 

principles and criteria in Executive 

Order 12988, Civil Justice Reform. After 

adoption of the rule, (1) all State and 

local laws and regulations that conflict 

with the proposed rule or that impede 

its full implementation would be 

preempted; (2) no retroactive effect 

would be given to the proposed rule; 

and (3) it would not require 

administrative proceedings before 

parties may file suit in court challenging 

its provisions. 

Unfunded Mandates 

Pursuant to title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), the Agency has assessed 

the effects of this interim final rule on 

State, local, and Tribal Governments 

and the private sector. The rule will not 

compel the expenditure of $100 million 

or more by any State, local, or Tribal 

Government or anyone in the private 

sector. Therefore, a statement under 

section 202 of the Act is not required. 


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Controlling Paperwork Burdens on the 

Public 

This interim final rule does not 

contain recordkeeping or reporting 

requirements or other information 

collection requirements as defined in 5 

CFR part 1320 that are not already 

required by law or not already approved 

for use. Accordingly, the review 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.) and 

its implementing regulations at 5 CFR 

part 1320 do not apply. 

Administrative Procedure Act 

Section 553(b)(3)(B) of the 

Administrative Procedures Act (APA) (5 

U.S.C. 551 et seq.) authorizes agencies 

to dispense with notice and comment 

procedures for rules when the agency, 

for ‘‘good cause,’’ finds that those 

procedures are ‘‘impracticable, 

unnecessary, or contrary to the public 

interest.’’ Under this section, an agency, 

upon finding good cause, may issue a 

final rule without providing notice and 

seeking comment prior to issuance. The 

Forest Service is promulgating this rule 

on an interim final basis because the 

agency has found that notice and public 

comment procedures are unnecessary 

and contrary to the public interest. 

The agency finds that requiring public 

notice and comment before this IFR is 

implemented would be contrary to the 

public interest because the IFR is 

expected to help streamline Forest 

Service review and approval of future 

critical mineral project proposals. The 

Infrastructure Investment and Jobs Act 

(Pub. L. 117–58), E.O. 14017 ‘‘America’s 

Supply Chains,’’ and E.O. 13593 

‘‘Addressing the Threat to the Domestic 

Supply Chain From Reliance on Critical 

Minerals From Foreign Adversaries and 

Supporting the Domestic Mining and 

Processing Industries,’’ all direct the 

agency to process critical minerals 

approvals timely and efficiently. The 

changes proposed in this IFR will 

improve the Forest Service’s ability to 

develop adequate funding for long-term 

post-closure reclamation activities. 

In some cases, the Forest Service has 

found that arriving at an acceptable 

funding vehicle has slowed the 

processing of mineral operations 

approvals because of the limited 

number of investment options available 

under current authorities. This results 

in slower approval times and increased 

risk for the agency. The agency has at 

times experienced challenges in 

obtaining adequate LTFA because the 

current investment limitations are a 

practical barrier to operators: the fixedincome investments do not generate 

sufficient growth at reasonable initial 

fund rates, while traditional third-party 

surety bond financial assurances lack a 

sustainable income-generating 

component, and therefore may not be 

adequate for assuring long-term postreclamation needs. 

The agency has also experienced 

challenges in getting LTFA because the 

lack of clarity in the current regulations 

regarding trust funds creates confusion, 

which creates a procedural barrier to 

operators: delays while basic questions 

and concepts are repeatedly tested. Over 

time the agency has experienced that 

many of these mines have increased 

awareness of long-term operational 

needs, such as in the case of ongoing 

operations approved prior to 

consideration of LTFA as common 

agency practice. In addition to existing 

operations that are not able to capitalize 

a trust fund at fixed income U.S. 

securities rates, the current rule has 

significantly slowed approval and 

processing of new proposals, including 

for critical minerals such as the nation’s 

only domestic source of cobalt. This 

revision to 36 CFR 228.13 will help 

ensure that those projects can achieve 

adequate LTFA, resulting in more 

effective and efficient processing of not 

just critical minerals proposals, but of 

all mineral operations. 

The IFR’s additional flexibility will 

also allow the agency to better assure 

available funds for continued 

environmental mitigation and 

protection, thus removing this potential 

burden from the taxpayers. 

Presenting this revision as a proposed 

rule and collecting public comment 

prior to implementation is contrary to 

public interest because time is of the 

essence to critical minerals and other 

mineral proposals struggling to 

complete the process to obtain adequate 

LTFA, which delays the production of 

critical minerals. The interim final rule, 

by clarifying requirements and 

expanding investment options, will 

increase the array of available options 

for financial assurance that can provide 

greater long-term financial assurance to 

protect the interest of the United States 

and the public, and reduce unnecessary 

financial burdens on operators. 

The agency also believes it is 

unnecessary to request public comment 

prior to implementation of this revision 

to 36 CFR 228.13 because the changes 

are ministerial in nature and not likely 

to be controversial. The revised § 228.13 

clarifies that trusts can be accepted and 

removes unnecessary restrictions to 

investment options. While this revision 

will greatly increase the agency’s ability 

to better administer the Long-Term 

Financial Assurance program internally, 

it does not fundamentally change 

agency operations. This revision to 

investment options also brings the 

Forest Service in line with BLM 

regulation and policy, successfully in 

operation since 2001. Because these 

changes are bringing the Forest Service 

in line with longstanding BLM practice 

in this area, and the IFR is simply 

broadening the array of arrangements 

that can satisfy the requirements of 

LTFA, public comment before 

publication of the rule is unnecessary 

under the APA. 

As noted above, the Forest Service is 

concurrently accepting comments on 

this IFR. The Forest Service will 

consider all comment received in 

response to this IFR in publishing the 

final rule. 

List of Subjects in 36 CFR Part 228 

Bonding, National forests, Public 

lands-mineral resources. 

Therefore, for the reasons set forth in 

the preamble, the Forest Service amends 

36 CFR part 228 as follows: 

PART 228—MINERALS 

■ 1. The authority citation for part 228 

continues to read: 

Authority: 16 U.S.C. 478, 551; 30 U.S.C. 

226, 352, 601, 611; 94 Stat. 2400. 

■ 2. Amend § 228.13 by: 

■ a. revising the section heading; 

■ b. revising paragraphs (a), (b), (c) and 

(d); and 

■ c. adding new paragraph (e). 

The addition and revisions read as 

follows: 

§ 228.13 Financial Assurance. 

(a) Any operator required to file a 

plan of operations shall, when required 

by the authorized officer, furnish 

financial assurance for completion of 

the obligations set forth in these 

regulations and the approved plan of 

operations in the amount determined by 

the authorized officer to be required to 

provide reasonable financial assurance 

of such obligations prior to approval of 

such plan of operations, or by providing 

blanket assurance for multiple defined 

operations conducted by the operator 

such as within a particular State or 

nation-wide. The operator may elect to 

provide such financial assurance in the 

form of any of the following instruments 

that are acceptable to the authorized 

officer, singly or in combination: 

(1) cash in an amount equal to the 

required dollar amount of the 

reclamation cost estimate and the 

estimated cost of stabilizing, 

rehabilitating, and reclaiming the area of 

operations deposited into a Federal 

depository, as directed by the Forest 

Service, and maintained therein; 


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74050 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Rules and Regulations 

(2) negotiable securities of the United 

States having market value at the time 

of deposit of not less than the required 

dollar amount of the bond; 

(3) a surety bond provided by a third 

party that is certified by the Department 

of the Treasury and listed in Treasury 

Circular 570 as financial assurance for 

the obligations for specific operations, 

or providing blanket assurance for 

multiple defined operations conducted 

by the operator such as within a 

particular State or nation-wide, and/or; 

(4) an irrevocable letter of credit 

provided by an institution acceptable to 

the authorized officer. 

(b) In determining the amount of the 

required financial assurance, the 

authorized officer shall give 

consideration to the reclamation cost 

estimate which shall be submitted by 

the operator prior to the approval of the 

final plan of operations, and the 

estimated cost of stabilizing, 

rehabilitating, and reclaiming the area of 

operations. 

(c) In the event that an approved plan 

of operations is modified in accordance 

with § 228.4 (d) and (e), the authorized 

officer will review the financial 

assurance for adequacy and, if 

necessary, will adjust the financial 

assurance amount to conform to the 

operations plan as modified. 

(d) When reclamation has been 

completed in accordance with 

§ 228.8(g), the authorized officer will 

notify the operator that obligations 

covered by the financial assurance have 

been met: Provided, however, that when 

the Forest Service has accepted any 

portion of the reclamation as completed, 

the authorized officer shall notify the 

operator of such acceptance and 

proportionally reduce the required 

financial assurance amount thereafter to 

be required for the remaining 

obligations of the operator. 

(e) When an operator is required to 

continue to operate or maintain certain 

aspects of the operation after the mine 

has closed, the authorized officer may 

require the operator to establish a trust 

fund to ensure that adequate funds are 

available for long-term post-closure 

reclamation activities required by the 

regulations or the approved plan of 

operations following mine closure. The 

authorized officer shall determine 

which activities may be secured through 

a trust fund, and which activities may 

be secured through another form of 

financial assurance. Establishing a trust 

fund does not relieve the operator of the 

responsibility to provide long-term 

management, maintenance, and 

reclamation of the site. A trust fund for 

long-term post closure obligations shall 

be comprised of financial instruments 

limited to negotiable securities of the 

United States Government; State and 

Municipal securities or bonds; money 

market funds; certificates of deposits; 

investment-grade securities; and stock 

equity shares listed on a national 

exchange. 

Andrea Delgado Fink, 

Chief of Staff, Natural Resources and 

Environment. 

[FR Doc. 2023–23526 Filed 10–27–23; 8:45 am] 

BILLING CODE 3411–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 32 

[Docket No. FWS–HQ–NWRS–2023–0038; 

FXRS12610900000–234–FF09R20000] 

RIN 1018–BG71 

National Wildlife Refuge System; 2023– 

2024 Station-Specific Hunting and 

Sport Fishing Regulations 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), expand 

hunting opportunities on three National 

Wildlife Refuges (NWRs). We also make 

changes to existing station-specific 

regulations in order to reduce the 

regulatory burden on the public, 

increase access for hunters and anglers 

on Service lands and waters, and 

comply with a Presidential mandate for 

plain language standards. Finally, the 

best available science, analyzed as part 

of this rulemaking, indicates that lead 

ammunition and tackle have negative 

impacts on both wildlife and human 

health. In this rule, Blackwater, 

Chincoteague, Eastern Neck, Erie, Great 

Thicket, Patuxent Research Refuge, 

Rachel Carson, and Wallops Island 

NWRs each adopt a non-lead 

requirement, which will take effect on 

September 1, 2026. While the Service 

continues to evaluate the future of lead 

use in hunting and fishing on Service 

lands and waters, this rulemaking does 

not include any opportunities 

increasing or authorizing the new use of 

lead beyond fall 2026. 

DATES: This rule is effective October 27, 

2023, except for the amendments to 50 

CFR 32.38 (amendatory instruction 5), 

32.39 (amendatory instruction 6), 32.57 

(amendatory instruction 11), and 32.65 

(amendatory instruction 15), which are 

effective September 1, 2026. 

FOR FURTHER INFORMATION CONTACT: Kate 

Harrigan, (703) 358–2440. Individuals in 

the United States who are deaf, 

deafblind, hard of hearing, or have a 

speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Background 

The National Wildlife Refuge System 

Administration Act of 1966 (16 U.S.C. 

668dd–668ee), as amended 

(Administration Act), closes NWRs in 

all States except Alaska to all uses until 

opened. The Secretary of the Interior 

(Secretary) may open refuge areas to any 

use, including hunting and/or sport 

fishing, upon a determination that the 

use is compatible with the purposes of 

the refuge and National Wildlife Refuge 

System (Refuge System) mission. The 

action also must be in accordance with 

provisions of all laws applicable to the 

areas, developed in coordination with 

the appropriate State fish and wildlife 

agency(ies), consistent with the 

principles of sound fish and wildlife 

management and administration, and 

otherwise in the public interest. These 

requirements ensure that we maintain 

the biological integrity, diversity, and 

environmental health of the Refuge 

System for the benefit of present and 

future generations of Americans. 

We annually review hunting and 

sport fishing programs to determine 

whether to include additional stations 

or whether individual station 

regulations governing existing programs 

need modifications. Changing 

environmental conditions, State and 

Federal regulations, and other factors 

affecting fish and wildlife populations 

and habitat may warrant modifications 

to station-specific regulations to ensure 

the continued compatibility of hunting 

and sport fishing programs and to 

ensure that these programs will not 

materially interfere with or detract from 

the fulfillment of station purposes or the 

Service’s mission. 

Provisions governing hunting and 

sport fishing on refuges are in title 50 of 

the Code of Federal Regulations at part 

32 (50 CFR part 32), and on hatcheries 

at part 71 (50 CFR part 71). We regulate 

hunting and sport fishing to: 

• Ensure compatibility with refuge 

and hatchery purpose(s); 

• Properly manage fish and wildlife 

resource(s); 

• Protect other values; 

• Ensure visitor safety; and 

• Provide opportunities for fish- and 

wildlife-dependent recreation. 


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