Forest Service 228.4a, COMMENT NOW! New proposed rule! Options

[CP]

ATTENTION! ANY AND ALL PROSPECTORS, DETECTORISTS AND OUTDOOR ENTHUSIASTS!
YOU NEED TO COMMENT NOW!
THIS IS (Y)OUR LAND!

I just received this from Mark at the Resources Coalition yesterday. Thank you Mark.

The new rule is posted here in it's entirety, but if you would like to print one out for yourself, here is the link. New Interim Rule Proposal

Gold_tutor also forwarded me a side by side comparision of the exsisting 228.4a and new proposal which will follow directly. Thank you Gold_tutor.

PLEASE, PLEASE TAKE THE TIME TO READ THIS OVER AND SEND IN YOUR COMMENTS BY SEPTEMBER 7, 2004.

[Federal Register: July 9, 2004 (Volume 69, Number 131)]
[Rules and Regulations]             
[Page 41428-41431]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy04-27]                       

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 228

RIN 0596-AC17


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

AGENCY: Forest Service, USDA.

ACTION: Interim rule; request for comments.

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

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

ADDRESSES: Send written comments to Forest Service, USDA, Attn:
Director, Minerals and Geology Management (MGM) Staff, (2810), Mail
Stop 1126, Washington, DC 20250-1125; by electronic mail to
36cfr228a@fs.fed.us; by fax to (703) 605-1575; or by the electronic

process available at Federal eRulemaking portal at http://www.regulations.gov.
If comments are sent by electronic mail or by fax,

the public is requested not to send duplicate written comments via
regular mail. Please confine written comments to issues pertinent to
the interim rule; explain the reasons for any recommended changes; and,
where possible, reference the specific wording being addressed. All
comments, including names and addresses when provided, will be placed
in the record and will be available for public inspection and copying.
The public may inspect comments received on this interim rule in the
Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza Central,
1601 North Kent Street, Arlington, Virginia, on business days between
the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are
encouraged to call ahead at (703) 605-4646 to facilitate entry into the
building.

FOR FURTHER INFORMATION CONTACT: Sam Hotchkiss, Minerals and Geology
Management Staff, (703) 605-4852.

SUPPLEMENTARY INFORMATION:

Public Notification and Request for Comments

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

Background and Need for Interim Rule

    Since 1974, the Forest Service has applied the regulations at 36
CFR part 228, subpart A, to minimize adverse environmental impacts from
mineral operations by requiring mineral operators to file proposed
plans of operations for mineral operations which the District Ranger
determines will likely cause significant surface disturbance to
National Forest System (NFS) lands. These regulated operations may
include the construction of storage facilities, mills, and mill
buildings; placement of trailers or other personal equipment;
residential occupancy and use; storage of vehicles and equipment;

[[Page 41429]]

excavation of holes, trenches, and pits by non-mechanized procedures;
diversion of water; use of sluice boxes and portable devices for
separating gold from sediments; off highway vehicle use; road and
bridge construction; handling and disposal of mine and other wastes;
and signing and fencing to restrict public use of the National Forest
area affected by mining. The Forest Service and the courts have
consistently required locatable mineral operators to obtain approval of
a plan of operations whenever such operations would likely cause a
significant surface disturbance whether or not those operations would
always involve mechanized earth moving equipment or the cutting of
trees. However, last year a District Court departed from this
consistent interpretation and ruled that 36 CFR 228.4 (a)(2)(iii)
allows a mining operation to occur on NFS lands without prior
notification to the Forest Service or Forest Service approval when the
operation, irrespective of the impact of its surface disturbing
activities, does not involve mechanized earthmoving equipment or the

cutting of trees. This unprecedented ruling severely restricts the
ability of the Forest Service to regulate miners engaged in surface
disturbing operations which have serious environmental impacts although
they do not involve mechanized earth moving equipment or the cutting of
trees. Moreover, this new interpretation of 36 CFR 228.4 (a)(2)(iii),
if left unclarified, will result in significant and unnecessary impacts
to NFS lands and resources, including impacts to water quality, visual
quality, natural features, species listed under the Endangered Species
Act, and conflicts with other National Forest users.
    The technical changes contained in this interim rule, for which
prior notice and opportunity for public comment is not legally
required, are designed to prevent confusion as to the proper
interpretation of the regulations. Specifically, the technical
amendments clarify the long-standing requirement that a notice of
intent and/or plan of operations is mandatory whenever the District
Ranger determines that there may be significant surface disturbance to
NFS lands and resources, whether or not the operation involves the
cutting of trees or use of mechanized earth moving equipment.

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

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

Exemption From Notice and Comment

    Prior notice and opportunity for public comment is not required to
promulgate technical amendments to a regulation. Moreover, even if the
changes to 36 CFR 228.4(a) adopted herein were not technical amendments
to that provision, the Administrative Procedure Act (the ``APA'')
allows agencies to promulgate rules without notice and comment when an
agency, for good cause, finds that notice and public comment are
``impracticable, unnecessary, or contrary to the public interest.'' (5
U.S.C. 553(B)(3)(B)). Furthermore, the APA exempts certain rulemakings
from its notice and comment requirements, including rulemakings
involving ``public property'' (5 U.S.C. 553(a)(2)).
    In 1971, Secretary of Agriculture Hardin announced a voluntary
partial waiver from the APA notice and comment rulemaking exemptions.
(July 24, 1971; 36 FR 13804). Thus, USDA agencies proposing rules
generally provide notice and an opportunity for public comment on
proposed rules. However, the Hardin policy permits agencies to publish
final rules without prior notice and opportunity for public comment
when an agency finds for good cause that notice and comment procedures
would be impracticable, unnecessary, or contrary to the public
interest. The courts have recognized this good cause exception of the
Hardin policy and have indicated that since the publication requirement
was adopted voluntarily, the Secretary should be afforded ``more
latitude'' in making a good cause determination. See Alcaraz v. Block,
746 F.2d 593, 612 (9th Cir. 1984).
    To the extent that 5 U.S.C. 553 applies to this interim rule, good
cause exists to exempt this rulemaking from advance notice and comment.
(5 U.S.C. 553(B)(B) and 553(d)(3)). There has been widespread
dissemination of the district court decision among groups of small
miners who have long objected to obtaining prior approval for their
mining operations, and who frequently believe that mining operations
invariably justify residential occupancy of NFS lands. This, coupled
with the fact that the season for locatable mineral operations has
already begun in many areas of the country due to favorable weather
conditions, including unusually low snow pack levels in much of the
west, has resulted in the initiation of many mining operations on NFS
lands for which a notice of intent to operate or a plan of operations
has always been required without the submission of a notice of intent
to operate or the approval of a plan of operations. Consequently, many
operations are already ongoing and a much larger number are imminent
which will unnecessarily and unjustifiably adversely impact NFS lands
and resources, including water quality, visual quality, natural
features and species listed under the Endangered Species Act. The only
means by which such significant adverse environmental effects can be
avoided during this field season for locatable mineral operations is to
promulgate the amended rule immediately. Under these circumstances, the
Department has determined that prior notice and opportunity for public
comment are not practicable and are contrary to the public interest.
    Comments received on this interim rule will be considered in
adoption of a final rule, notice of which will be published in the
Federal Register. The final rule will include a response to comments
received and identify any revisions made to the rule as a result of the
comments.

Regulatory Impact

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

[[Page 41430]]

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

Environmental Impacts

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

Energy Effects

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

Controlling Paperwork Burdens on the Public

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

Federalism

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

Consultation and Coordination With Indian Tribal Governments

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

No Takings Implications

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

Civil Justice Reform

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

Unfunded Mandates

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

List of Subjects in 36 CFR Part 228

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

0
Therefore, for the reasons set forth in the preamble, amend part 228 of
title 36 of the Code of Federal Regulations as follows:

PART 228--MINERALS

Subpart A--Locatable Minerals

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

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


0
2. Revise Sec.  228.4(a) to read as follows:


Sec.  228.4  Plan of operations--notice of intent--requirements.

    (a) If the District Ranger determines that any operation is causing
or will likely cause significant disturbance of surface resources, the
operator shall submit a proposed plan of operations to the District
Ranger.
    (1) Unless the District Ranger determines that an operation is
causing or will likely cause a significant disturbance of surface
resources, the requirements to submit a plan of operations shall not
apply:
    (i) To operations which will be limited to the use of vehicles on
existing public roads or roads used and maintained for National Forest
purposes;
    (ii) To individuals desiring to search for and occasionally remove
small mineral samples or specimens;
    (iii) To prospecting and sampling which will not involve removal of
more than a reasonable amount of mineral deposit for analysis and
study;
    (iv) To marking and monumenting a mining claim; or
    (v) To subsurface operations.
    (2) Except as provided in this paragraph, a notice of intent to
operate is required from any person proposing to conduct operations
which might cause disturbance of surface resources. Such notice of
intent shall be submitted to the District Ranger having jurisdiction
over the area in which the operations will be conducted. Each notice of
intent to operate shall provide information sufficient to identify the
area involved, the nature of the proposed operations, the route of
access to the area of operations, and the method of transport. If a
notice of intent is filed, the District Ranger will, within 15 days of
receipt thereof, notify the operator whether a plan of operations is
required. A notice of intent need not be filed:
    (i) Where a plan of operations is submitted for approval in lieu
thereof;
    (ii) For operations excepted in paragraph (a)(1) of this section
from the requirement to file a plan of operations; or

[[Page 41431]]

    (iii) For operations which will not involve the use of mechanized
earthmoving equipment such as bulldozers or backhoes or the cutting of
trees, unless those operations otherwise might cause a disturbance of
surface resources.
* * * * *

    Dated: June 30, 2004.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. 04-15483 Filed 7-8-04; 8:45 am]

BILLING CODE 3410-11-P

K now the side by side comparision....

Attached File(s)

 FS_new_228.4a_interim_rule_proposal.doc ( 31K ) Number of downloads: 361

 

[russau]

dan id like to add that the comments that we send in should point to a fact of law! not just a,"i dont like the way you do things!" kind of comment. while over on www.plp2.org they have a sample of a letter that you can and should use to cut and paste your comments from.. jerry hobbs and friends go through the laws and pick out various points that need to be addressed. these points need to be in our comments to be a valid point of contention in order to be brought up in a law suit. dan could you dig up this letter and post it here? jerry suggested that this be done on all web sites for people to referance from when making comments. ill look for the exact posting location and post it here.if these points of law arent addressed in your comments, then your comments dont mean anything and are thrown away! just a fact that i just found out! all of my old comments must have been thrown away cause id givem he-l!!!!!