Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules 46451 

U.S.C. 4321–4370f), and have made a 

preliminary determination that this 

action is one of a category of actions that 

do not individually or cumulatively 

have a significant effect on the human 

environment. This proposed rule 

involves a safety zone enforced 

intermittently. Normally such actions 

are categorically excluded from further 

review under paragraph L60(a) of 

Appendix A, Table 1 of DHS Instruction 

Manual 023–01–001–01, Rev. 01. A 

preliminary Record of Environmental 

Consideration supporting this 

determination is available in the docket 

where indicated under ADDRESSES. We 

seek any comments or information that 

may lead to the discovery of a 

significant environmental impact from 

this proposed rule. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to contact the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places, or vessels. 

V. Public Participation and Request for 

Comments 

We view public participation as 

essential to effective rulemaking, and 

will consider all comments and material 

received during the comment period. 

Your comment can help shape the 

outcome of this rulemaking. If you 

submit a comment, please include the 

docket number for this rulemaking, 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. 

We encourage you to submit 

comments through the Federal 

eRulemaking Portal at http://

www.regulations.gov. If your material 

cannot be submitted using http://

www.regulations.gov, contact the person 

in the FOR FURTHER INFORMATION

CONTACT section of this document for 

alternate instructions. 

We accept anonymous comments. All 

comments received will be posted 

without change to http://

www.regulations.gov and will include 

any personal information you have 

provided. For more about privacy and 

the docket, visit http://

www.regulations.gov/privacyNotice. 

Documents mentioned in this NPRM 

as being available in the docket, and all 

public comments, will be in our online 

docket at http://www.regulations.gov 

and can be viewed by following that 

website’s instructions. Additionally, if 

you go to the online docket and sign up 

for email alerts, you will be notified 

when comments are posted or a final 

rule is published. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165.931 as follows: 

PART 165: REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Amend § 165.931 by revising 

paragraph (a) to read as follows: 

§ 165.931 Safety Zone, Chicago Harbor, 

Navy Pier Southeast, Chicago, IL. 

(a) Location. The following area is a 

safety zone: The waters of Lake 

Michigan within Chicago Harbor 

bounded by coordinates beginning at 

41°53′23.74′′ N, 087°35′35.70′′ W; then 

south to 41°53′3.95′′ N, 087°35′35.11′′ 

W; then west to 41°53′3.48′′ N, 

087°36′8.52′′ W; then north to 

41°53′23.30′′ N, 087°36′9.08′′ W; then 

east back to the point of origin (NAD 

83). 

* * * * * 

Dated: August 16, 2018. 

Thomas J. Stuhlreyer, 

Captain, U.S. Coast Guard, Captain of the 

Port, Lake Michigan. 

[FR Doc. 2018–19934 Filed 9–12–18; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 228 

RIN 0596–AD32 

Locatable Minerals 

AGENCY: Forest Service, USDA. 

ACTION: Advance notice of proposed 

rulemaking; request for comment. 

SUMMARY: The Forest Service is 

requesting comments from the public 

regarding the need to clarify or to 

otherwise enhance its regulations that 

minimize adverse environmental 

impacts on National Forest System 

surface resources in connection with 

operations authorized by the United 

States mining laws. These rules and 

procedures govern prospecting, 

exploration, development, mining, and 

processing operations conducted on 

National Forest System lands authorized 

by the Mining Law of 1872, as amended, 

subsequent reclamation of the land, and 

any necessary long-term post-closure 

resource management. The goals of the 

regulatory revision are to expedite 

Forest Service review of certain 

proposed mineral operations authorized 

by the United States mining laws, and, 

where applicable, Forest Service 

approval of some of these proposals by 

clarifying the regulations, to increase 

consistency with the United States 

Department of the Interior, Bureau of 

Land Management (BLM) surface 

management regulations governing 

operations authorized by the United 

States mining laws to assist those who 

conduct these operations on lands 

managed by each agency, and to 

increase the Forest Service’s nationwide 

consistency in regulating mineral 

operations authorized by the United 

States mining laws by clarifying its 

regulations . 

DATES: Comments must be received by 

October 15, 2018. 

ADDRESSES: Please submit comments via 

one of the following methods: 

• Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FS–2018–0052, which is the 

docket number for this Advanced Notice 

of Proposed Rulemaking. Then, in the 

Search panel on the left side of the 

screen, under the Document Type 

heading, click on the Notice link to 

locate this document. You may submit 

a comment by clicking on ‘‘Comment 

Now!’’ 

• By hard copy: Submit by U.S. mail 

to: USDA-Forest Service. Attn: 

Director—MGM Staff, 1617 Cole 

Boulevard, Building 17, Lakewood, CO 

80401. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us. 

FOR FURTHER INFORMATION CONTACT: 

Cheryl Nabahe, Minerals and Geology 

Management, 202–205–0800. 

Individuals who use telecommunication 

devices for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at 1–800–877–8339 between 8:00 

a.m. and 8:00 p.m., Eastern Time, 

Monday through Friday. 

SUPPLEMENTARY INFORMATION: This 

advance notice is intended to give the 


daltland on DSKBBV9HB2PROD with PROPOSALS
46452 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules 

public an opportunity to help us 

develop ways to address challenges that 

the Forest Service has encountered in 

regulating such operations on National 

Forest System lands. These comments 

will help the Forest Service draft 

proposed amendments to the agency’s 

regulations in a way that protects 

National Forest System surface 

resources, consistent with applicable 

statutes authorizing such operations on 

National Forest System lands. The 

Office of Management and Budget has 

determined that this advance notice is 

significant under E.O. 12866. 

Background 

The Mining Law authorizes the 

prospecting, exploration, location, 

development, mining, and processing of 

valuable ‘‘locatable’’ mineral deposits 

on National Forest System lands 

reserved from the public domain by 

virtue of the Organic Administration 

Act, 16 U.S.C. 478, 482. ‘‘Locatable’’ 

minerals are base and precious metal 

ores, ferrous metal ores, and certain 

classes of industrial minerals that 

include, but are not limited to, gold, 

silver, platinum, copper, lead, zinc, 

magnesium, nickel, tungsten, bentonite, 

barite, fluorspar, uranium, and 

uncommon varieties of sand, gravel, and 

dimension stone. 

In 1974, under authority granted to 

the Forest Service by the Organic 

Administration Act of 1897, 16 U.S.C. 

478, 482, and 551, the Forest Service 

adopted regulations at 36 Code of 

Federal Regulation (CFR) part 252 (39 

FR 31317, Aug. 28, 1974), which were 

later redesigated as 36 CFR part 228, 

subpart A (46 FR 36142, July 14, 1981), 

to regulate operations conducted on 

certain National Forest System lands 

under the Mining Law of 1872, as 

amended, 30 U.S.C. 22–54 (The Mining 

Law). The regulations at 36 CFR part 

228, subpart A, require that all such 

locatable mineral prospecting, 

exploration, development, mining and 

processing operations, and associated 

means of access, whether occurring 

within or outside the boundaries of a 

mining claim located under the Mining 

Law, shall be conducted in a manner 

that minimizes adverse environmental 

effects on National Forest System 

surface resources. 

The regulations at 36 CFR part 228 

subpart A reflect the fact that the 

Mining Law, as amended, confers the 

authority, by virtue of the Organic 

Administration Act, to enter upon 

certain National Forest System lands to 

search for, locate, and develop valuable 

minerals subject to the Mining Law. 

Thus, the Forest Service may not 

prohibit locatable mineral operations on 

lands subject to the Mining Law that 

otherwise comply with applicable law, 

nor regulate those operations in a 

manner which amounts to a prohibition. 

In 2005, 36 CFR part 228, subpart A, 

was amended to clarify when a plan of 

operations is required (36 CFR 228.4(a), 

70 FR 32731, June 6, 2005). However, 

these regulations have not been 

significantly revised since they took 

effect in 1974. 

Overall, the regulations at 36 CFR part 

228, subpart A, have enabled the Forest 

Service to minimize adverse 

environmental effects on surface 

resources that could result from 

locatable mineral operations on 

National Forest System lands, via such 

methods as timing restrictions, 

reasonable mitigation measures, 

reclamation, and bonding. But since 

these regulations were promulgated in 

1974, several inefficiencies and 

problems associated with them have 

become apparent to operators, members 

of the public, and the agency. Examples 

of such inefficiencies and problems 

include the need to clarify the process 

by which the Forest Service reviews 

certain locatable mineral operation 

proposals, the need to address topics 

such as reasonably incident use and 

occupancy of National Forest System 

lands as defined by the Surface 

Resources Act of 1955, 30 U.S.C. 612, a 

lack of administrative tools to address 

modifications of plans of operations and 

noncompliance issues, and challenges 

involving plans of operations including 

ensuring that proposed plans include 

their component reclamation plans and 

associated reclamation cost estimation. 

Specific recommendations to revise and 

update 36 CFR part 228, subpart A, have 

also been made in two reports: the 1999 

National Research Council (NRC) 

publication ‘‘Hard Rock Mining on 

Federal Lands’’ (National Research 

Council. 1999. Hardrock Mining on 

Federal Lands. Washington, DC: The 

National Academies Press. https://

doi.org/10.17226/9682.); and the 2016 

United States Government 

Accountability Office (GAO) report 

‘‘Hardrock Mining: BLM and Forest 

Service Have Taken Some Actions to 

Expedite the Mine Plan Review Process 

but Could Do More’’ (United States 

Government Accountability Office. 

2016. Report to the Chairman, 

Committee on Natural Resources, House 

of Representatives. Hardrock Mining: 

BLM and Forest Service Have Taken 

Some Action To Expedite the Mine Plan 

Review Process but Could Do More. 

GAO–16–165. Washington, DC: U.S. 

Government Accountability Office. 

https://www.gao.gov/assets/680/ 

674752.pdf). 

Many of the concerns identified by 

the NRC in 1999 are the same concerns 

the Forest Service has about 36 CFR part 

228, subpart A. One example is the 

adequacy of the process set out in 36 

CFR part 228, subpart A, for requiring 

operators to modify plans of operations 

in light of new circumstances or 

information, especially when needed to 

correct problems that have resulted in 

harm or threatened harm to surface 

resources. As examples of such new 

circumstances or information, the NRC’s 

report lists ‘‘unexpected acid drainage, 

problems with water balance, adequacy 

of approved containment structures, or 

discovery of impacts on wells and 

springs.’’ The NRC was critical of the 

fact that 36 CFR part 228, subpart A, 

only allows the Forest Service to require 

a modification to a Plan of Operations 

if ‘‘unforseen significant disturbance of 

surface resources’’ is occurring or 

probable. The NRC noted that this 

criterion entails a retroactive inquiry 

instead of a proactive one allowing the 

Forest Service to correct whatever 

problems have resulted in harm or 

threathen harm. 

The Forest Service also intends to 

consider the NRC’s recommendation 

that the agency should adopt an 

expeditious process for reviewing 

proposed exploration operations 

affecting 5 acres or less of National 

Forest System lands similar to the one 

employed by the BLM with respect to 

the public lands it manages. 

The Forest Service also agrees with 

the 2016 GAO report’s conclusion that 

expeditious review of proposed plans of 

operations is often hindered by the low 

quality of information operators include 

in those plans. The Forest Service 

intends to consider adoption of two 

measures the GAO’s 2016 report 

concludes might improve the quality of 

proposed plans of operations submitted 

for the agency’s review and approval. 

One is to establish a uniform process in 

which the Forest Service encourages 

persons seeking to conduct locatable 

mineral operations that require approval 

of a plan of operations to meet with the 

appropriate local Forest Service official 

prior to submitting the proposed plan. 

This will ensure that the operator is 

familiar with the requirements that a 

proposed plan of operations must meet 

to be found complete. The second is for 

the Forest Service to ensure that all 

proposed plans of operations are 

complete before required environmental 

analysis of those plans begin. 

In addition, the Forest Service is 

considering whether to amend portions 

of 36 CFR part 228, subpart A, to more 

closely correspond to 43 CFR part 3710, 

subpart 3715 (65 FR 37125, July 16, 


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Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules 46453 

1996) and 43 CFR part 3800, subpart 

3809 (65 FR 70112, Nov. 21, 2000), 

which govern locatable mineral 

operations conducted on the public 

lands managed by the BLM, as 

permitted given the Forest Service’s 

different statutory authorities. 

Specifically, the Forest Service 

contemplates increased consistency 

with the BLM’s regulations regarding 

reasonably incident uses and 

occupancy, classification of operations 

(i.e., casual use, notice-level, and plan of 

operations-level), requirements for 

operating on segregated or withdrawn 

lands, special procedures applicable 

when a mineral or material may be 

subject to sale under the Materials Act 

of 1947, 30 U.S.C. 601–04, rather than 

to appropriation under the mining laws, 

and noncompliance and enforcement. 

Increasing the consistency of the 

agencies’ procedures and rules would 

benefit persons who conduct locatable 

mineral operations on the public lands 

managed by the BLM as well as on 

National Forest System lands managed 

by the Forest Service. 

Pursuant to Executive Order 13817, A 

Federal Strategy to Ensure Secure and 

Reliable Supplies of Critical Minerals, 

issued December 20, 2017, the Secretary 

of the Interior published a list of 35 

mineral commodities vital to the 

economic and national security of the 

United States for which the United 

States is heavily reliant on imports (83 

FR 23295, May, 18, 2018). 

Predominantly, the critical commodities 

would be subject 36 CFR part 228, 

subpart A, if they are found on National 

Forest System lands which are subject 

to entry under the mining laws. Portions 

of the Executive Order direct the federal 

government to increase exploration for, 

and mining of, critical minerals (Sec. 

3(b)) and to revise permitting processes 

to expedite exploration for, and 

production of, critical minerals (Sec. 

3(d)) and the revision of 36 CFR part 

228, subpart A, in the manner being 

contemplated and described in this 

advance notice would help achieve 

those ends. For example, the Forest 

Service is seeking to provide a more 

efficient process for approving 

exploration activities for locatable 

minerals, including those that also are 

critical commodities for purposes of 

Executive Order 13817. This change 

should enhance operators’ interest in, 

and willingness to, conduct exploratory 

operations on National Forest System 

lands and ultimately increase the 

production of critical minerals, 

consistent with both of these sections of 

the Executive Order. Further, achieving 

the Forest Service’s objectives of 

clarifying the requirements for 

submitting a proposed plan of 

operations or modifying such a plan and 

clarifying the process the Forest Service 

uses in receiving, reviewing, and 

approving a plan of operations should 

expedite the approval of plans of 

operations and derivatively actual 

extraction of critical minerals on 

National Forest System lands. 

The revision of 36 CFR part 228, 

subpart A, also would facilitate, 

support, and ensure the policy 

objectives of Executive Order 13783, 

Promoting Energy Independence and 

Economic Growth, issued March 28, 

2017, as outlined in its Section 2a. 

Providing a more efficient process for 

approving exploration activities for the 

energy-producing locatable minerals 

uranium and thorium would reduce 

regulatory burdens that unnecessarily 

encumber energy production consistent 

with Sec. 1(b) of the Order as well as 

ultimately expand the means of 

domestic energy production consistent 

with Sec. 1(c) of the Order. Increasing 

the clarity of requirements for 

submitting a proposed plan of 

operations or modifying such a plan 

along with the clarity of the process the 

Forest Service uses in receiving, 

reviewing, and approving a plan of 

operations would benefit and support 

the safe, efficient development of 

uranium, an important potential and 

current domestic energy resource, and 

thorium, a potential domestic energy 

resource, consistent with Sec. 1(b) or the 

Order. 

Revision of the regulations at 36 CFR 

part 228, subpart A, will facilitate, 

support, and ensure the policy 

objectives of Executive Order 13807, 

Establishing Discipline and 

Accountability in the Environmental 

Review and Permitting Process for 

Infrastructure Projects, issued on August 

15, 2017. For example, the USDA Forest 

Service is seeking to provide a more 

efficient process for approving 

exploration activities for the energyproducing locatable minerals uranium 

and thorium where that exploration will 

cause 5 acres or less of surface 

disturbance on National Forest System 

lands for which reclamation has not 

been completed. This would achieve the 

result of the Forest Service being a good 

steward of public funds by avoiding 

wasteful processes consistent with 

Section 2e of the Executive Order. 

Improving the quality of proposed plans 

of operations for uranium or thorium 

operations will allow more timely 

processing of those plans thereby giving 

public and private investors the 

confidence necessary to make funding 

decisions consistent with Section 2f of 

Executive Order 13807. While other 

regulatory changes under consideration 

as detailed in the ‘‘Comments 

Requested’’ portion of this advance 

notice applicable to uranium and 

thorium operations would foster the 

policy objectives set out in Section 2 of 

the Executive Order, particularly those 

objectives in paragraphs d, e, f, and h. 

Comments Requested 

The Forest Service particularly invites 

comment regarding challenges the 

public has experienced with respect to 

the aspects of the agency’s current 

regulations at 36 CFR part 228, subpart 

A, and issues the public foresees with 

respect to potential amendments to 

these regulations, that are are relevant to 

the following topics. 

(1) Classification of locatable mineral 

operations. 

a. Currently, the regulations at 36 CFR 

part 228, subpart A, establish three 

classes of locatable mineral operations: 

Those which do not require an operator 

to provide the Forest Service with 

notice before operating, those requiring 

the operator to submit a notice of intent 

to conduct operations to the Forest 

Service before operating, and those 

requiring an operator to submit and 

obtain Forest Service approval of a 

proposed plan of operations. The 

operations which do not require an 

operator to provide notice before 

operating are idenitifed by 36 CFR 

228.4(a)(1). Those operations include, 

but are not limited to, using certain 

existing roads, performing prospecting 

and sampling which will not cause 

significant surface resource disturbance, 

conducting operations which will not 

cause surface resource disturbance 

substantially different from that caused 

by other users of the National Forest 

System who are not required to obtain 

another type of written authorization, 

and conducting operations which do not 

involve the use of mechanized 

earthmoving equipment or the cutting of 

trees unless these operations might 

otherwise cause a significant 

disturbance of surface resources. The 

operations for which an operator must 

submit a notice of intent to the Forest 

Service before operating are identifed by 

36 CFR 228.4(a) as those which might, 

but are not likely to, cause significant 

disturbance of surface resources. The 

operations for which an operator must 

submit and obtain Forest Service 

approval of a proposed plan of 

operations before operating are 

idenitifed by 36 CFR 228.4(a)(3)–(a)(4) 

as those which will likely cause, or are 

actually causing, a significant 

disturbance of surface resources. 


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b. The BLM’s surface management 

regulations at 43 CFR 3809.10 similarly 

establish three classes of locatable 

minerals operations: Casual use, noticelevel operations, and plan-level 

operations. The operations which 

constitute casual use are identified by 

43 CFR 3809.5 as those which ordinarily 

result in no or negligible disturbance of 

the public lands or resources managed 

by the BLM. Per 43 CFR 3809.10(a) an 

operator is not required to notify the 

BLM before beginning operations 

classified as casual use. Notice-level 

operations are identified by 43 CFR 

3809.21 as exploration causing surface 

disturbance of 5 acres or less of public 

lands on which reclamation has not 

been completed. Generally 43 CFR 

3809.10(b) requires an operator 

proposing to conduct notice-level 

operations to submit a notice to the 

BLM. In accordance with 43 CFR 

3809.311 and 3809.312(d) an operator 

may not begin notice-level operations 

until the BLM determines that the 

operator’s notice is complete and the 

operator has submitted the required 

finacial guarantee. Typically, 43 CFR 

3809.10(a) requires an operator to 

submit a proposed plan of operations for 

all other locatable mineral operations 

and 43 CFR 3809.412 prohibts the 

operator from begining those operations 

until the BLM approves the plan of 

operations and the operator has 

submitted the required financial 

guarantee. 

c. The Forest Service is contemplating 

amending its regulations at 36 CFR part 

228, subpart A, to increase consistency 

with the BLM’s regulations which 

establish three classes of locatable 

mineral operations and specify the 

requirements an operator must satisfy 

before commencing operations in each 

such class, to the extent that the Forest 

Service’s unique statutory authorities 

allow this. Do you agree with this 

approach? 

d. If you do not agree that 36 CFR part 

228, subpart A, should be amended to 

increase consistency with the BLM’s 

regulations which establish three classes 

of locatable mineral operations 

andspecify the requirements which an 

operator must satisfy before 

commencing operations in each such 

class, please identify the classes of 

locatable mineral operations that you 

think the Forest Service should adopt. 

Also please identify all requirements 

that you think an operator should have 

to satisfy before commencing the 

locatable mineral operations that would 

fall in each such class. 

e. If you previously concluded that 36 

CFR part 228, subpart A, did not require 

you to give the Forest Service prior 

notice before you began conducting 

locatable mineral operations on 

National Forest System lands, what 

issues or challenges did you encounter 

once you began operating? 

f. If you previously concluded that 36 

CFR part 228, subpart A, only required 

you to submit a notice of intent before 

you began conducting locatable mineral 

operations on National Forest System 

lands, what issues or challenges did you 

encounter after submitting your notice 

of intent or after you began operating? 

g. Should certain environmental 

concerns, such as threatened or 

endangered species, certain mineral 

operations, such as suction dredging, or 

certain land statuses, such as national 

recreation areas, be determinative of the 

classification of proposed locatable 

mineral operations? If so, please identify 

all circumstances which you think 

should require an opertor to submit a 

notice before operating, and all 

circumstances which you think should 

require an operator to submit and obtain 

Forest Service approval of a proposed 

plan of operations? 

(2) Submitting, Receiving, Reviewing, 

Analyzing, and Approving Plans of 

Operations. 

a. Today, 36 CFR 228.4(a)(3) and (4) 

requires an operator to submit, and 

obtain approval of, a proposed plan of 

operations before conducting locatable 

mineral operations which will likely 

cause, or are actually causing, a 

significant disturbance of National 

Forest System surface resources. 

Unfortunately, as the GAO’s 2016 report 

entitled ‘‘Hardrock Mining: BLM and 

Forest Service Have Taken Some Action 

To Expedite the Mine Plan Review 

Process but Could Do More’’ concludes, 

the quality of the information operators 

include in such plans is frequently low, 

resulting in substantially delayed 

approval of these insufficient proposed 

plans. The Forest Service thinks that 

increasing the clarity of the plan of 

operations content requirements in 36 

CFR part 228, subpart A, would result 

in better proposed plans of operations. 

The Forest Service also thinks that 

clarifying 36 CFR part 228, subpart A, 

to emphasize that proposed plans of 

operation must specify in detail the 

measures that operators intend to take to 

satisfy the requirements for 

environmental protection set out in 36 

CFR 228.8 would result in better 

proposed plans of operation. 

b. Nonetheless, the Forest Service has 

observed that the best proposed plans of 

operations often are submitted by 

operators who met with agency officials 

to discuss the formulation of their 

proposed plans. Thus, the Forest 

Service contemplates amending 36 CFR 

part 228, subpart A, to make operators 

aware that the Forest Service encourages 

them to meet with the appropriate local 

Forest Service official when the operator 

begins formulating a proposed plan to 

ensure that the operator knows and 

understands precisely what information 

a proposed plan of operations must 

contain for the agency to find it 

complete. The Forest Service thinks that 

routinely having such meetings would 

improve the quality of proposed plans 

of operation and consequently speed the 

approval of such plans. 

c. The Forest Service also is 

considering amending 36 CFR part 228, 

subpart A, to require that the 

appropriate agency official ensures that 

an operator’s proposed plan of 

operations is complete before the agency 

begins the National Environmental 

Policy Act (NEPA)-related process of 

analyzing that plan and ensuring that 

the measures an operator intends to take 

to satisfy the requirements for 

environmental protection set out in 36 

CFR 228.8 are appropriate. As the 

GAO’s 2016 report finds, when analysis 

of a proposed plan of operations begins 

before the Forest Service has 

determined that the plan is complete, 

the consequence is likely to be that this 

analysis must be repeated or augmented 

due to subsequently identified gaps in 

the proposed plan. The GAO’s 2016 

report observes, and the Forest Service 

agrees, that the ultimate consequence of 

begining to analyze an incomplete 

proposed plan of operations is delay in 

the plan’s approval. Premature analysis 

of a proposed plan of operations also 

usually results in unnecessary 

expenditures on the part of the Forest 

Service, and sometimes the operator. 

Therefore, the Forest Service is 

considering amending 36 CFR part 228, 

subpart A, to require an appropriate 

Forest Service official to initially review 

all proposed plans of operation for 

completeness. If that official finds a 

proposed plan incomplete, the agency 

would notify the operator, identify the 

additional information the opertor must 

submit, and advise the operator that the 

Forest Service will not begin analyzing 

that plan until it is complete. 

d. Do you think that amending 36 CFR 

part 228, supart A, to provide an 

opportunity for an operator to meet with 

the Forest Service before submitting a 

proposed plan of opertions, or to require 

the Forest Service to determine that a 

proposed plan is complete before 

initiating its NEPA-related analysis of 

the plan will expedite approval of 

proposed plans of operations? Are there 

additional or alternate measures that 

you would recommend to expedite 

approval of proposed plans of operation 


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Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules 46455 

submitted to the Forest Service under 36 

CFR part 228, subpart A? 

e. How should 36 CFR part 228, 

subpart A, be amended so that the 

requirements for submitting a proposed 

plan of operations and the process the 

Forest Service uses in receiving, 

reviewing, analyzing, and approving 

that plan are clear? 

f. What issues or challenges have you 

encountered with respect to preparing a 

proposed plan of operations or 

submitting that plan to the Forest 

Service pursuant to 36 CFR 228.4(c) and 

(d) or 36 CFR 228.4(a)(3) and (4), 

respectively? 

g. What issues or challenges have you 

encountered with respect to the Forest 

Service’s receipt, review, analysis, or 

approval of a proposed plan of 

operations that you submitted under 36 

CFR part 228 subpart A? 

(3) Modifying Approved Plans of 

Operations. 

a. After a plan of operations has been 

approved by the Forest Service under 36 

CFR part 228 subpart A, either the 

operator or the Forest Service may see 

reason why that plan should be 

modified. However, 36 CFR part 228, 

subpart A, does not explicitly recognize 

that an operator may request 

modification of an approved plan or 

provide procedures for such a 

modification. Insofar as the Forest 

Service is concerned, 36 CFR part 228, 

subpart A, permits a Forest Service 

official to ask an operator to submit a 

proposed modification of the approved 

plan for the purpose of minimizing 

unforseen significant disturbance of 

surface resources. However, 36 CFR part 

228, subpart A, provides that the Forest 

Service official cannot require the 

operator to submit such a proposed 

modification unless the official’s 

immediate supervisor makes three 

findings. One of the necessary findings 

is that the Forest Service took all 

reasonable measures to predict the 

environmental impacts of the proposed 

operations prior to approving the plan 

of operations. 

b. The NRC’s 1999 report entitled 

‘‘Hard Rock Mining on Federal Lands’’ 

is strongly critical of these current 36 

CFR part 228, subpart A, limitations 

upon the Forest Service’s ability to 

require an operator to obtain approval of 

a modified plan of operations. The 

NRC’s 1999 report finds that ‘‘. . . 

arguments over what should have been 

‘foreseen’ or whether a . . . Forest 

Service officer took ‘all reasonable 

measures’ in approving the original plan 

makes the modification process 

dependent on looking backward. 

Instead, the process should focus on 

what may be needed in the future to 

correct problems that have resulted in 

harm or threatened harm . . . . 

Modification procedures should look 

forward, rather than backward, and 

reflect advances in predictive capacity, 

technical capacity, and mining 

technology.’’ 

c. Do you agree that 36 CFR part 228, 

subpart A, should be amended to 

explicitly permit an operator to request 

Forest Service approval for a 

modification of an existing plan of 

operations? 

d. Do you agree with the 1999 NRC 

report’s conclusion that the plan of 

operations modification provisions in 

36 CFR part 228, subpart A, should be 

amended to permit the Forest Service to 

require modification of an approved 

plan in order (1) to correct problems 

that have resulted in harm or threatened 

harm to National Forest System surface 

resources and (2) to reflect advances in 

predictive capacity, technical capacity, 

and mining technology? If you do not 

agree with the 1999 NRC report’s 

conclusion that 36 CFR part 228, 

subpart A, should be amended to allow 

the Forest Service to require an operator 

to modify an approved plan of 

operations to achieve these two ends, 

please identify any circumstances in 

addition to those in the current 

regulations which you think should 

permit the Forest Service to require 

modification of an approved plan of 

operations. 

e. Do you think that the regulations at 

36 CFR part 228, subpart A, should be 

amended to set out the procedures 

which govern submission, receipt, 

review, analysis, and approval of a 

proposed modification of an existing 

plan of operations? If so, please describe 

the procedures that you think should be 

added to 36 CFR part 228, subpart A, to 

govern modification of existing plans of 

operations, including any differing 

requirements that should be adopted if 

the modification is being sought by the 

operator rather than the Forest Service. 

(4) Noncompliance and Enforcement. 

a. Currently the noncompliance 

provisions in 36 CFR part 228, subpart 

A, simply require the Forest Service to 

serve a notice of noncompliance upon 

an operator when the operator is not in 

compliance with 36 CFR part 228, 

subpart A, or an approved plan of 

operations and this noncompliance is 

unnecessarily or unreasonably causing 

injury, loss or damage to surface 

resources. The notice of noncompliance 

must describe the noncompliance, 

specify the actions that the operator 

must take to come into compliance, and 

specify the date by which such 

compliance is required. The regulations 

at 36 CFR part 228, subpart A, do not 

specify what further administrative 

actions the Forest Service may take if 

the operator does not meet the 

requirements set out in the notice of 

noncompliance. 

b. There also are judicial remedies 

that the federal government may pursue 

when an operator fails to comply with 

36 CFR part 228, subpart A, or an 

approved plan of operations. A United 

States Attorney may bring a civil action 

in federal court (1) seeking an 

injunction requiring an operator to cease 

acting in a manner which violates 36 

CFR part 228, subpart A, or the 

approved plan, or (2) seeking an order 

requiring the operator to take action 

required by 36 CFR part 228, subpart A, 

or the approved plan of operations and 

to compensate the United States for any 

damages that resulted from the 

operator’s unlawful act. Federal 

criminal prosecution of an operator also 

is possible for violations of the Forest 

Service’s regulations at 36 CFR part 261, 

subpart A, which bar users of the 

National Forest System, including 

locatable mineral operators, from acting 

in a manner prohibited by that Subpart. 

An operator charged with violating 36 

CFR part 261, subpart A, which is a 

misdemeanor, may be prosecuted in 

federal court. If the operator is found 

guilty of violating such a prohibition, 

the court can order the operator to pay 

a fine of not more than $5,000, to be 

imprisoned for not more than 6 months, 

or both. Some operators have challenged 

these criminal prosecutions when the 

Forest Service has not first served them 

a notice of noncompliance. Although 

these challenges have failed, their 

pursuit nonetheless indicates that 

increasing the clarity of the Forest 

Service’s regulations pertaining to the 

enforcement of 36 CFR part 228, subpart 

A, and approved plans of operations is 

desirable. 

c. The BLM has more administrative 

enforcement tools it can employ when 

an operator does not comply with the 

agency’s surface management 

regulations at 43 CFR part 3800, subpart 

3809, a notice, or an approved plan of 

operations. However, the action that the 

BLM takes is dependent upon whether 

a violation is significant. Under the 

BLM’s regulations, a significant 

violation is one that causes or may 

result in environmental or other harm or 

danger, or one that substantially 

deviates from a notice or an approved 

plan of operations. When the BLM 

determines that an operator’s 

noncompliance is significant, the 

agency may issue the operator an 

immediate temporary suspension order. 

If the operator takes the required 

corrective action in accordance with an 


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46456 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules 

immediate temporary suspension order, 

the BLM will lift the suspension. But if 

the operator fails to take the required 

corrective action, then once the BLM 

completes a specified process the 

agency may nullify the operator’s notice 

or revoke the operator’s approved plan 

of operations. 

d. When the BLM determines that an 

operator’s noncompliance is not 

significant, the agency may issue the 

operator a noncompliance order which 

describes the noncompliance, specifies 

the actions the operator must take to 

come into compliance, and specifies the 

date by which such compliance is 

required. If the operator takes the 

required corrective action, the BLM will 

lift the noncompliance order. However, 

if the operator fails to take the required 

corrective action, the BLM again 

assesses the violation’s significance. If 

the BLM determines that the 

noncompliance is still not significant, 

the agency may require the operator to 

obtain approval of a plan of operations 

for current or future notice-level 

activity. But, if the BLM determines that 

the operator’s noncompliance has 

become significant, then once the 

agency completes a specified process 

the BLM may issue the operator a 

suspension order. When the BLM issues 

a suspension order, the agency follows 

the same process applicable to an 

immediate temporary suspension order. 

Thus, the operator’s failure to take 

comply with a suspension order may 

result in the agency nullifying the 

operator’s notice or revoking the 

operator’s approved plan of operations. 

e. There are judicial remedies that the 

federal government may pursue if an 

operator fails to comply with any of the 

BLM’s enforcement orders. The civil 

remedies that a United States Attorney 

can seek are the same as the ones 

available when the noncompliance 

involves lands managed by the Forest 

Service. But if an operator knowingly 

and willfully violates the BLM’s 

regulations at 43 CFR subpart 3809, the 

consequences of the operator’s criminal 

prosecution may be far more severe than 

those operative when an operator 

violates 36 CFR part 261, subpart A. An 

individual operator convicted of 

violating the BLM’s regulations is 

subject to a fine of not more than 

$100,000, imprisonment for not more 

than 12 months, or both, for each 

offense. An organization or corporation 

convicted of violating the BLM’s 

regulations is subject to a fine of not 

more than $200,000. 

f. As the NRC’s 1999 report entitled 

‘‘Hard Rock Mining on Federal Lands’’ 

finds, the Forest Service’s inability to 

issue a notice of noncompliance unless 

the operator fails to comply with 36 CFR 

part 228, subpart A, and that 

noncompliance is unnecessarily or 

unreasonably causing injury, loss or 

damage to National Forest System 

surface resources ‘‘has led to concern 

about the efficacy of the notice of 

noncompliance in preventing harm to 

[those] resources. . . .’’ The fact that 36 

CFR part 228, subpart A, does not 

expressly permit the Forest Service to 

suspend or revoke noncompliant plans 

of operations also poses an unnecessary 

risk that the agency would be 

challenged if it took these actions in 

order to prevent harm to National Forest 

System surface resources. 

g. The Forest Service is contemplating 

amending 36 CFR part 228, subpart A, 

to increase consistency with the BLM’s 

regulations governing the enforcement 

of locatable mineral operations 

conducted upon public lands that the 

BLM manages, to the extent that the 

Forest Service’s unique statutory 

authorities allow this. Do you agree with 

this approach? 

h. If you do not agree that 36 CFR part 

228, subpart A, should be amended to 

increase consistency with the BLM’s 

regulations governing the enforcement 

of locatable mineral operations 

conducted upon public lands that the 

BLM manages, please describe the 

enforcement procedures that you think 

the Forest Service should adopt to 

prevent noncompliance with the 

agency’s requirements governing 

locatable mineral operations from 

harming National Forest System surface 

resources. 

i. Please describe the processes that 

the Forest Service should be mandated 

to follow if 36 CFR part 228, subpart A, 

is amended to permit the Forest Service 

to take the following enforcement 

actions: Ordering the suspension of 

noncompliant operations, in whole or in 

part, requiring noncompliant operators 

to obtain approval of a plan of 

operations for current or future noticelevel operations, and nullifying a 

noncompliant operator’s notice or 

revoking a noncompliant operator’s 

approved plan of operations. 

(5) Reasonably Incident Use and 

Occupancy. 

a. The Surface Resources Act of 1955, 

30 U.S.C. 612(a), aplies to National 

Forest System lands and prohibits the 

use of mining claims for any purpose 

other than prospecting, mining, or 

processing operations and uses 

reasonably incident thereto. But federal 

courts had held that the mining laws 

only entitle persons conducting 

locatable mineral operations to use 

surface resources for prospecting, 

exploration, development, mining, and 

processing purposes, and for reasonably 

incident uses long before 1955. Usually, 

two categories of uses that may be 

reasonably incident to prospecting, 

exploration, development, mining, and 

processing operations uses are 

recognized. One is called ‘‘occupancy,’’ 

or sometimes ‘‘residency,’’ and means 

full or part-time residence on federal 

lands subject to the mining laws along 

with activites or things that promote 

such residence such as the construction 

or maintenance of structures for 

residential purposes and of barriers to 

access. The term ‘‘use’’ generally refers 

to all other activities or things that 

promote prospecting, exploration, 

development, mining, and processing, 

such as the maintenance of equipment 

and the construction or maintenance of 

access facilities. 

b. Unfortunately, the mining laws 

have long been widely abused by 

individuals and entities in an attempt to 

justify unlawful use and occupancy of 

federal lands. As the 1990 United States 

General Accounting Office report 

‘‘Federal Land Management: 

Unathorized Activities Occuring on 

Hardrock Mining Claims:’’ (United 

States General Accounting Office. 1990. 

Report to the Chairman, Subcommittee 

on Mining and Natural Resources, 

Committee on Interior and Insular 

Affairs, House of Representatives. 

Federal Land Management: Unathorized 

Activities Occuring on Hardrock Mining 

Claims. GAO/RCED 90–111. 

Washington, DC: U.S. General 

Accounting Office. https://

www.gao.gov/assets/220/212954.pdf) 

finds, some holders of mining claims 

were using them for unauthorized 

residences, non-mining commercial 

operations, illegal activities, or 

speculative activities not related to 

legitimate mining. The GAO’s 1990 

report also determines that these 

unauthorized activities result in a 

variety of problems, including blocked 

access to public land by fences and 

gates; safety hazards including threats of 

violence; environmental contamination 

caused by the unsafe storage of 

hazardous wastes; investment scams 

that defraud the public; and increased 

costs to reclaim damaged land or 

otherwise acquire land from claim 

holders intent on profiting from holding 

out for monetary compensation from 

parties wishing to use the land for other 

purposes. Accordingly, the GAO’s 1990 

report urges the Forest Service and the 

BLM to revise their regulations to limit 

use or occupancy under the mining laws 

to that which is reasonably incident. 

c. Issues regarding the propriety of 

use and occupancy under the Surface 

Resources Act’s reasonably incident 


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standard have generated, and continue 

to generate, frequent and protracted 

diputes between persons who are 

conducting locatable mineral operations 

and Forest Service personnel 

responsible for preventing unalwful use 

and occupancy of National Forest 

System lands. Moreover, a signifcant 

percentage of the judicial enforcement 

actions the federal government 

commences with regard to locatable 

mineral operations on National Forest 

System lands involve use and 

occuapancy of the lands that is 

questionable or improper under 30 

U.S.C. 612(a). Presently, 36 CFR part 

228, subpart A, lacks express standards 

or procedures for determining whether 

proposed or existing use and 

occuapancy is reasonably incident, 

regulating use and occuapancy per se, 

and terminating use and occupancy 

which is not reasonably incident. 

d. The BLM’s regulations at 43 CFR 

part 3710, subpart 3715, are designed to 

prevent or eliminate uses and 

occupancies of public lands which are 

not reasonably incident to locatable 

mineral prospecting, exploration, 

development, mining, or processing. 

These regulations establish a framework 

for distinguishing between bona fide 

uses and occupancies and those that 

represent abuse of the mining laws for 

non-mining pursuits. Specifically, the 

BLM’s regulations establish procedures 

for beginning occupancy, inspection 

and enforcement, and managing existing 

uses and occupancies as well as 

standards for evaluating whether use or 

occupancy is reasonably incident. 

e. The Forest Service is contemplating 

amending 36 CFR part 228 subpart A, 

which governs all operations conducted 

on National Forest System lands under 

the mining laws, to increase consistency 

with the BLM’s regulations governing 

use and occupancy under the mining 

laws. Do you agree with this approach? 

f. If you do not agree that 36 CFR part 

228, subpart A, should be amended to 

increase consistency with the BLM’s 

regulations governing use and 

occupancy under the mining laws, 

please describe the requirements, 

standards, and procedures that you 

think the Forest Service should adopt to 

prevent unalwful use and occupancy of 

National Forest System surface 

resources that is not reasonably incident 

to prospecting, exploration, 

development, mining, or processing 

operations under the mining laws. 

(6) Financial Guarantees. 

a. Current regulations at 36 CFR part 

228, subpart A, include a section 

entitled ‘‘bonds’’ but there are many 

alternate kinds of financial assurance 

which the regulations recognize as being 

acceptable substitutes. Therefore, the 

Forest Service contemplates changing 

the title of this section to the broader 

terminology ‘‘Financial Guarantees.’’ 

The current regulations provide for the 

Forest Service authorized officer to 

review the adequacy of the estimated 

cost of reclamation and of the financial 

guarantee’s terms in connection with 

the approval of an initial plan of 

operations. But the regulations do not 

specifically provide that the authorized 

officer will subsequently review the cost 

estimate and the finanical guarantee to 

ensure that they remain sufficient for 

final reclamation. The Forest Service is 

considering amending 36 CFR part 228, 

subpart A, to provide for such a 

subsequent review. An issue that the 

agency will consider is whether 36 CFR 

part 228, subpart A, should specifically 

provide that the review will occur at a 

fixed interval. The Forest Service also is 

considering whether to amend 36 CFR 

part 228, subpart A, to specfically 

provide for the establishment of a 

funding mechanism which will provide 

for post-closure obligations such as 

long-term water treatment and 

maintaining long-term infrastructure 

such as tailings impoundments. Another 

concern is what forms of financial 

guarantee should an operator be allowed 

to furnish to assure these long-term 

post-closure obligations. 

b. What circumstances should permit 

the authorized officer to review the cost 

estimate and financial guarantee’s 

adequacy and require the operator to 

furnish an upadated financial guarantee 

for reclamation or post-closure 

management? 

c. How frequently should the 

authorized officer be allowed to initiate 

this reivew and update of the finacial 

guarantees for reclamation or postclosure management? 

(7) Operations on Withdrawn or 

Segregated Lands. 

a. Segregations and withdrawals close 

lands to the operation of the mining 

laws, subject to valid existing rights. 

Generally the purpose of segregation 

and withdrawal is environmental 

resource protection, but sometimes they 

are used in advance of a realty action to 

prevent the location of mining claims 

which might pose an obstacle to the 

contemplated realty action. The Forest 

Service’s regulations at 36 CFR part 228, 

subpart A, do not contain provisions 

governing proposed or existing notices 

of intent to conduct operations and 

proposed or approved plans of 

operations for lands subject to mining 

claims that embrace segregated or 

withdrawn lands. As a matter of policy, 

the Forest Service employs the same 

procedures appplicable to operations on 

segregated or withdrawn lands that are 

set forth in the BLM’s regulations at 43 

CFR 3809.100. However, the absence of 

explicit Forest Service regulations 

governing locatable mineral operations 

on segregated or withdrawn National 

Forest System lands has given rise to 

legal challenges concerning the 

propriety of this Forest Service policy. 

b. Under 43 CFR 3809.100, the BLM 

will not approve a plan of operations or 

allow notice-level operations to proceed 

on lands withdrawn from appropriation 

under the mining laws until the agency 

has prepared a mineral examination 

report to determine whether each of the 

mining claims on which the operations 

would be conducted was valid before 

the withdrawal and remains valid. 

Where lands have been segregated from 

appropriation under the mining laws, 

the BLM may, but is not required to, 

prepare such a mineral examination 

report before the agency approves a plan 

of operations or allows notice-level 

operations to proceed. 

c. If a BLM mineral examination 

report concludes that one or more of the 

mining claims in question are invalid, 

43 CFR 3809.100 prohibits the agency 

from approving a plan of operations or 

allowing notice-level operations to 

occur on all such mining claims. 

Instead, the regulation requires the BLM 

to promptly initiate contest proceedings 

with respect to those mining claims. 

There is one exception to this process: 

Prior to the completion of a required 

mineral examination report and any 

contest proceedings, 43 CFR 3809.100 

permits the BLM to approve a plan of 

operations solely for the purposes of 

sampling to corroborate discovery 

points or complying with assessment 

work requirements. If the U.S. 

Department of the Interior’s final 

decision with respect to a mineral 

contest declares any of the mining 

claims to be null and void, the operator 

must complete required reclamation but 

must cease all other operations on the 

lands formerly subject to all such 

mining claims. 

d. The Forest Service is contemplating 

amending 36 CFR part 228, subpart A, 

to increase consistency with the BLM’s 

regulations governing operations on 

segregated or withdrawn lands. 

However, since the authority to 

determine the validity of mining claims 

lies with the Department of the Interior, 

the amendments would need to direct 

the Forest Service to ask the BLM to 

initiate contest proceedings with respect 

to mining claims whose validity is 

questioned by the Forest Service—a 

process consistent with an existing 

agreement between the Department of 

the Interior and the Department of 


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46458 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules 

Agriculture. Do you agree with this 

approach? Also, please specify whether 

you think that such amendments to 36 

CFR part 228, subpart A, should treat 

locatable mineral operations conducted 

on segregated and withdrawn lands 

identically or differently, and the 

reasons for your belief. 

e. If you do not agree that 36 CFR part 

228, subpart A, should be amended to 

increase consistency with the BLM’s 

regulations governing operations on 

segregated and withdrawn lands, please 

describe the requirements and 

procedures that you think the Forest 

Service should adopt to govern locatable 

mineral operations on National Forest 

System lands segregated or withdrawn 

from appropriation under the mining 

laws? 

(8) Procedures for Minerals or 

Materials that May Be Salable Mineral 

Materials, Not Locatable Minerals. 

a. Effective July 24, 1955 in 

accordance with 30 U.S.C. 601, 611, 

mineral materials, including but not 

limited to common varieties of sand, 

stone, gravel, pumice, pumicite, cinders, 

and clay found on National Forest 

System lands reserved from the public 

domain ceased being locatable under 

the mining laws. Instead, the Forest 

Service normally is required to sell 

these substances, which are collectively 

referred to as mineral materials, to the 

highest qualified bidder after formal 

advertising pursuant to 30 U.S.C. 602 

and Forest Service regulations at 36 CFR 

part 228, subpart C (49 FR 29784, July 

24, 1984, as amended at 55 FR 51706, 

Dec. 17, 1990). However, uncommon 

varieties of sand, stone, gravel, pumice, 

pumicite, cinders, and clay found on 

National Forest System lands reserved 

from the public domain continue to be 

locatable under the mining laws, 30 

U.S.C. 611. 

b. When there is a question as to 

whether one of these minerals or 

materials is a common variety of that 

substance which is salable under the 

Materials Act of 1947, 30 U.S.C. 601–04, 

or an uncommon variety of that 

substance which is subject to 

appropriation under the mining laws, 30 

U.S.C. 611, Forest Service policy calls 

for preparation of a mineral examination 

report to evaluate this issue. Pending 

resolution of the question as to whether 

the mineral or material is subject to 

appropriation under the mining laws, 

the Forest Service encourages an 

operator seeking to remove it in 

accordance with 36 CFR part 228, 

subpart A, to establish an escrow 

account and deposit the appraised value 

of the substance in that account. But if 

the operator refuses to establish and 

make payments to an escrow account, 

36 CFR part 228, subpart A, does not 

expressly permit the Forest Service to 

delay the substance’s removal while the 

Forest Service considers whether the 

substance is a mineral material rather 

than a locatable mineral. 

c. The BLM’s regulations at 43 CFR 

3809.101 establish special procedures 

applicable to substances that may be 

salable mineral materials rather than 

locatable minerals. That section 

generally prohibits anyone from 

initiating operations for the substance 

until the BLM has prepared a mineral 

examination report evaluating this 

question. Prior to completion of the 

report and any resulting contest 

proceedings, the BLM will allow noticelevel operations or approve a plan of 

operations when (1) the operations’ 

purpose is either sampling to confirm or 

corroborate existing mineral exposures 

physically disclosed on the mining 

claim or complying with assessment 

work requirements, or (2) the operator 

establishes an acceptable escrow 

account and deposits the appraised 

value of the substance in that account 

under a payment schedule approved by 

the agency. If the mineral examination 

report concludes that the substance is 

salable rather than locatable, the BLM 

will initiate contest proceedings with 

respect to all mining claims on which 

loctable mineral operations are 

proposed unless the mining claimant 

elects to relinquish those mining claims. 

Upon the relinquishment of all such 

mining claims or the U.S. Department of 

the Interior’s issuance of a final decision 

declaring those mining claims to be null 

and void, the operator must complete 

required reclamation but must cease all 

other operations on the lands formerly 

subject to those mining claims. 

d. The Forest Service is contemplating 

amending 36 CFR part 228, subpart A, 

to increase consistency with the BLM’s 

regulations governing substances that 

may be salable mineral materials rather 

than locatable minerals. However, since 

the authority to determine the validity 

of mining claims lies with the 

Department of the Interior, the 

amendments would need to direct the 

Forest Service to ask the BLM to initiate 

contest proceedings with respect to 

mining claims which the Forest Service 

thinks are based upon an improper 

attempt to appropriate salable mineral 

materials under the mining laws—a 

process consistent with an existing 

agreement between the Department of 

the Interior and the Department of 

Agriculture. Do you agree with this 

approach? 

e. If you do not agree that 36 CFR part 

228, subpart A, should be amended to 

increase consistency with the BLM’s 

regulations governing substances that 

may be salable mineral materials rather 

than locatable minerals, please describe 

the requirements and procedures that 

you think the Forest Service should 

adopt to help ensure that the public 

interest and the Federal treasury are 

protected by preventing mineral 

materials from being given away for free 

contrary to 30 U.S.C. 602 which requires 

payment of their fair market value. 

f. If you submitted a proposed plan of 

operations under 36 CFR part 228, 

subpart A, for what you thought was an 

uncommon variety of sand, stone, 

gravel, pumice, pumicite, cinders, and 

clay, what issues or challenges did you 

encounter in obtaining, or attempting to 

obtain, Forest Service approval of that 

plan? 

National Environmental Policy Act 

This advance notice also serves as the 

USDA Forest Service’s notice of intent 

to prepare an environmental assessment 

or environmental impact statement 

pursuant to the National Environmental 

Policy Act and initiates the scoping 

process for that document. The USDA 

Forest Service requests comments about 

the potential environmental effects of 

the propsective amendments to its 

current regulations at 36 CFR part 228, 

subpart A, described in this advance 

notice. 

Regulatory Findings: This advance 

notice is not a regulatory action under 

Executive Order 13771. 

Dated: August 31, 2018. 

Victoria Christiansen, 

Interim Chief, USDA, Forest Service. 

[FR Doc. 2018–19961 Filed 9–12–18; 8:45 am] 

BILLING CODE 3411–15–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 228 

RIN 0596–AD33 

Oil and Gas Resources 

AGENCY: Forest Service, USDA. 

ACTION: Advance notice of proposed 

rulemaking; request for comment. 

SUMMARY: The United States Department 

of Agriculture (USDA), Forest Service is 

preparing to revise the contents of its 

Oil and Gas Resources regulations. This 

advance notice is intended to give the 

public the opportunity to comment on 

key issues regarding implementation of 

the existing regulations or to bring other 

issues of concern to the USDA Forest 

Service’s attention. Comments will help 


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