PART 228_MINERALS--Table of Contents
Subpart A_Locatable Minerals
Sec.
228.1 Purpose.
228.2 Scope.
228.3 Definitions.
228.4 Plan of operations--notice of intent--requirements.
228.5 Plan of operations--approval.
228.6 Availability of information to the public.
228.7 Inspection, noncompliance.
228.8 Requirements for environmental protection.
228.9 Maintenance during operations, public safety.
228.10 Cessation of operations, removal of structures and equipment.
228.11 Prevention and control of fire.
228.12 Access.
228.13 Bonds.
228.14 Appeals.
228.15 Operations within National Forest Wilderness.
Subpart B_Leasable Minerals
228.20-228.39 [Reserved]
Subpart C_Disposal of Mineral Materials
228.40 Authority.
228.41 Scope.
228.42 Definitions.
228.43 Policy governing disposal.
228.44 Disposal on existing Federal leased areas.
228.45 Qualifications of applicants.
228.46 Application of other laws and regulations.
General Provisions
228.47 General terms and conditions of contracts and permits.
228.48 Appraisal and measurement.
228.49 Reappraisal.
228.50 Production records.
228.51 Bonding.
228.52 Assignments.
228.53 Term.
228.54 Single entry sales or permits.
228.55 Cancellation or suspension.
228.56 Operating plans.
Types and Methods of Disposal
228.57 Types of disposal.
228.58 Competitive sales.
228.59 Negotiated or noncompetitive sales.
228.60 Prospecting permits.
228.61 Preference right negotiated sales.
228.62 Free use.
228.63 Removal under terms of a timber sale or other Forest Service
contract.
228.64 Community sites and common-use areas.
228.65 Payment for sales.
228.66 Refunds.
228.67 Information collection requirements.
Subpart D_Miscellaneous Minerals Provisions
228.80 Operations within Misty Fjords and Admiralty Island National
Monuments, Alaska.
Subpart E_Oil and Gas Resources
228.100 Scope and applicability.
228.101 Definitions.
Leasing
228.102 Leasing analyses and decisions.
228.103 Notice of appeals of decisions.
228.104 Consideration of requests to modify, waive, or grant exceptions
to lease stipulations.
[[Page 187]]
Authorization of Occupancy Within a Leasehold
228.105 Issuance of onshore orders and notices to lessees.
228.106 Operator's submission of surface use plan of operations.
228.107 Review of surface use plan of operations.
228.108 Surface use requirements.
228.109 Bonds.
228.110 Indemnification.
Administration of Operations
228.111 Temporary cessation of operations.
228.112 Compliance and inspection.
228.113 Notice of noncompliance.
228.114 Material noncompliance proceedings.
228.115 Additional notice of decisions.
228.116 Information collection requirements.
Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94
Stat. 2400.
Source: 39 FR 31317, Aug. 28, 1974, unless otherwise noted.
Redesignated at 46 FR 36142, July 14, 1981.
Subpart A_Locatable Minerals
Sec. 228.1 Purpose.
It is the purpose of these regulations to set forth rules and
procedures through which use of the surface of National Forest System
lands in connection with operations authorized by the United States
mining laws (30 U.S.C. 21-54), which confer a statutory right to enter
upon the public lands to search for minerals, shall be conducted so as
to minimize adverse environmental impacts on National Forest System
surface resources. It is not the purpose of these regulations to provide
for the management of mineral resources; the responsibility for managing
such resources is in the Secretary of the Interior.
Sec. 228.2 Scope.
These regulations apply to operations hereafter conducted under the
United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et
seq.), as they affect surface resources on all National Forest System
lands under the jurisdiction of the Secretary of Agriculture to which
such laws are applicable: Provided, however, That any area of National
Forest lands covered by a special Act of Congress (16 U.S.C. 482a-482q)
is subject to the provisions of this part and the provisions of the
special act, and in the case of conflict the provisions of the special
act shall apply.
Sec. 228.3 Definitions.
For the purposes of this part the following terms, respectively,
shall mean:
(a) Operations. All functions, work, and activities in connection
with prospecting, exploration, development, mining or processing of
mineral resources and all uses reasonably incident thereto, including
roads and other means of access on lands subject to the regulations in
this part, regardless of whether said operations take place on or off
mining claims.
(b) Operator. A person conducting or proposing to conduct
operations.
(c) Person. Any individual, partnership, corporation, association,
or other legal entity.
(d) Mining claim. Any unpatented mining claim or unpatented millsite
authorized by the United States mining laws of May 10, 1872, as amended
(30 U.S.C. 22 et seq.).
(e) Authorized officer. The Forest Service officer to whom authority
to review and approve operating plans has been delegated.
Sec. 228.4 Plan of operations--notice of intent--requirements.
(a) Except as provided in paragraph (a)(1) of this section, a notice
of intent to operate is required from any person proposing to conduct
operations which might cause significant disturbance of surface
resources. Such notice of intent to operate shall be submitted to the
District Ranger having jurisdiction over the area in which the
operations will be conducted. Each notice of intent to operate shall
provide information sufficient to identify the area involved, the nature
of the proposed operations, the route of access to the area of
operations, and the method of transport.
(1) A notice of intent to operate is not required for:
(i) Operations which will be limited to the use of vehicles on
existing public roads or roads used and maintained for National Forest
System purposes;
[[Page 188]]
(ii) Prospecting and sampling which will not cause significant
surface resource disturbance and will not involve removal of more than a
reasonable amount of mineral deposit for analysis and study which
generally might include searching for and occasionally removing small
mineral samples or specimens, gold panning, metal detecting, non-
motorized hand sluicing, using battery operated dry washers, and
collecting of mineral specimens using hand tools;
(iii) Marking and monumenting a mining claim;
(iv) Underground operations which will not cause significant surface
resource disturbance;
(v) Operations, which in their totality, will not cause surface
resource disturbance which is substantially different than that caused
by other users of the National Forest System who are not required to
obtain a Forest Service special use authorization, contract, or other
written authorization;
(vi) Operations which will not involve the use of mechanized
earthmoving equipment, such as bulldozers or backhoes, or the cutting of
trees, unless those operations otherwise might cause a significant
disturbance of surface resources; or
(vii) Operations for which a proposed plan of operations is
submitted for approval;
(2) The District Ranger will, within 15 days of receipt of a notice
of intent to operate, notify the operator if approval of a plan of
operations is required before the operations may begin.
(3) An operator shall submit a proposed plan of operations to the
District Ranger having jurisdiction over the area in which operations
will be conducted in lieu of a notice of intent to operate if the
proposed operations will likely cause a significant disturbance of
surface resources. An operator also shall submit a proposed plan of
operations, or a proposed supplemental plan of operations consistent
with Sec. 228.4(d), to the District Ranger having jurisdiction over the
area in which operations are being conducted if those operations are
causing a significant disturbance of surface resources but are not
covered by a current approved plan of operations. The requirement to
submit a plan of operations shall not apply to the operations listed in
paragraphs (a)(1)(i) through (v). The requirement to submit a plan of
operations also shall not apply to operations which will not involve the
use of mechanized earthmoving equipment, such as bulldozers or backhoes,
or the cutting of trees, unless those operations otherwise will likely
cause a significant disturbance of surface resources.
(4) If the District Ranger determines that any operation is causing
or will likely cause significant disturbance of surface resources, the
District Ranger shall notify the operator that the operator must submit
a proposed plan of operations for approval and that the operations can
not be conducted until a plan of operations is approved.
(b) Any person conducting operations on the effective date of these
regulations, who would have been required to submit a plan of operations
under Sec. 228.4(a), may continue operations but shall within 120 days
thereafter submit a plan of operations to the District Ranger having
jurisdiction over the area within which operations are being conducted:
Provided, however, That upon a showing of good cause the authorized
officer will grant an extension of time for submission of a plan of
operations, not to exceed an additional 6 months. Operations may
continue according to the submitted plan during its review, unless the
authorized officer determines that the operations are unnecessarily or
unreasonably causing irreparable damage to surface resources and advises
the operator of those measures needed to avoid such damage. Upon
approval of a plan of operations, operations shall be conducted in
accordance with the approved plan. The requirement to submit a plan of
operations shall not apply: (1) To operations excepted in Sec. 228.4(a)
or (2) to operations concluded prior to the effective date of the
regulations in this part.
(c) The plan of operations shall include:
(1) The name and legal mailing address of the operators (and
claimants if they are not the operators) and their lessees, assigns, or
designees.
[[Page 189]]
(2) A map or sketch showing information sufficient to locate the
proposed area of operations on the ground, existing and/or proposed
roads or access routes to be used in connection with the operations as
set forth in Sec. 228.12 and the approximate location and size of areas
where surface resources will be disturbed.
(3) Information sufficient to describe or identify the type of
operations proposed and how they would be conducted, the type and
standard of existing and proposed roads or access routes, the means of
transportation used or to be used as set forth in Sec. 228.12, the
period during which the proposed activity will take place, and measures
to be taken to meet the requirements for environmental protection in
Sec. 228.8.
(d) The plan of operations shall cover the requirements set forth in
paragraph (c) of this section, as foreseen for the entire operation for
the full estimated period of activity: Provided, however, That if the
development of a plan for an entire operation is not possible at the
time of preparation of a plan, the operator shall file an initial plan
setting forth his proposed operation to the degree reasonably
foreseeable at that time, and shall thereafter file a supplemental plan
or plans whenever it is proposed to undertake any significant surface
disturbance not covered by the initial plan.
(e) At any time during operations under an approved plan of
operations, the authorized officer may ask the operator to furnish a
proposed modification of the plan detailing the means of minimizing
unforeseen significant disturbance of surface resources. If the operator
does not furnish a proposed modification within a time deemed reasonable
by the authorized officer, the authorized officer may recommend to his
immediate superior that the operator be required to submit a proposed
modification of the plan. The recommendation of the authorized officer
shall be accompanied by a statement setting forth in detail the
supporting facts and reasons for his recommendations. In acting upon
such recommendation, the immediate superior of the authorized officer
shall determine:
(1) Whether all reasonable measures were taken by the authorized
officer to predict the environmental impacts of the proposed operations
prior to approving the operating plan,
(2) Whether the disturbance is or probably will become of such
significance as to require modification of the operating plan in order
to meet the requirements for environmental protection specified in
Sec. 228.8 and
(3) Whether the disturbance can be minimized using reasonable means.
Lacking such determination that unforeseen significant disturbance of
surface resources is occurring or probable and that the disturbance can
be minimized using reasonable means, no operator shall be required to
submit a proposed modification of an approved plan of operations.
Operations may continue in accordance with the approved plan until a
modified plan is approved, unless the immediate superior of the
authorized officer determines that the operations are unnecessarily or
unreasonably causing irreparable injury, loss or damage to surface
resources and advises the operator of those measures needed to avoid
such damage.
(f) Upon completion of an environmental analysis in connection with
each proposed operating plan, the authorized officer will determine
whether an environmental statement is required. Not every plan of
operations, supplemental plan or modification will involve the
preparation of an environmental statement. Environmental impacts will
vary substantially depending on whether the nature of operations is
prospecting, exploration, development, or processing, and on the scope
of operations (such as size of operations, construction required, length
of operations and equipment required), resulting in varying degrees of
disturbance to vegetative resources, soil, water, air, or wildlife. The
Forest Service will prepare any environmental statements that may be
required.
(g) The information required to be included in a notice of intent or
a plan of operations, or supplement or modification thereto, has been
assigned Office of Management and Budget Control #0596-0022. The public
reporting burden for this collection of information is estimated to vary
from a few minutes for
[[Page 190]]
an activity involving little or no surface disturbance to several months
for activities involving heavy capital investments and significant
surface disturbance, with an average of 2 hours per individual response.
This includes time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. Send comments regarding the
burden estimate or any other aspect of this collection of information,
including suggestions for reducing this burden, to Chief (2800), Forest
Service, USDA, P.O. Box 96090, Washington, DC 20090-6090 and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503.
[39 FR 31317, Aug. 28, 1974. Redesignated at 46 FR 36142, July 14, 1981,
and amended at 54 FR 6893, Feb. 15, 1989; 69 FR 41430, July 9, 2004; 70
FR 32731, June 6, 2005]
Sec. 228.5 Plan of operations--approval.
(a) Operations shall be conducted in accordance with an approved
plan of operations, except as provided in paragraph (b) of this section
and in Sec. 228.4 (a), (b), and (e). A proposed plan of operation shall
be submitted to the District Ranger, who shall promptly acknowledge
receipt thereof to the operator. The authorized officer shall, within
thirty (30) days of such receipt, analyze the proposal, considering the
economics of the operation along with the other factors in determining
the reasonableness of the requirements for surface resource protection,
and;
(1) Notify the operator that he has approved the plan of operations;
or
(2) Notify the operator that the proposed operations are such as not
to require an operating plan; or
(3) Notify the operator of any changes in, or additions to, the plan
of operations deemed necessary to meet the purpose of the regulations in
this part; or
(4) Notify the operator that the plan is being reviewed, but that
more time, not to exceed an additional sixty (60) days, is necessary to
complete such review, setting forth the reasons why additional time is
needed: Provided, however, That days during which the area of operations
is inaccessible for inspection shall not be included when computing the
sixty (60) day period; or
(5) Notify the operator that the plan cannot be approved until a
final environmental statement has been prepared and filed with the
Council on Environmental Quality as provided in Sec. 228.4(f).
(b) Pending final approval of the plan of operations, the authorized
officer will approve such operations as may be necessary for timely
compliance with the requirements of Federal and State laws, so long as
such operations are conducted so as to minimize environmental impacts as
prescribed by the authorized officer in accordance with the standards
contained in Sec. 228.8.
(c) A supplemental plan or plans of operations provided for in
Sec. 228.4(d) and a modification of an approved operating plan as
provided for in Sec. 228.4(e) shall be subject to approval by the
authorized officer in the same manner as the initial plan of operations:
Provided, however, That a modification of an approved plan of operations
under Sec. 228.4(e) shall be subject to approval by the immediate
superior of the authorized officer in cases where it has been determined
that a modification is required.
(d) In the provisions for review of operating plans, the Forest
Service will arrange for consultation with appropriate agencies of the
Department of the Interior with respect to significant technical
questions concerning the character of unique geologic conditions and
special exploration and development systems, techniques, and equipment,
and with respect to mineral values, mineral resources, and mineral
reserves. Further, the operator may request the Forest Service to
arrange for similar consultations with appropriate agencies of the U.S.
Department of the Interior for a review of operating plans.
Sec. 228.6 Availability of information to the public.
Except as provided herein, all information and data submitted by an
operator pursuant to the regulations in this part shall be available for
examination by the public at the Office of the District Ranger in
accordance with the provisions of 7 CFR 1.1-1.6 and 36 CFR
[[Page 191]]
200.5-200.10. Specifically identified information and data submitted by
the operator as confidential concerning trade secrets or privileged
commercial or financial information will not be available for public
examination. Information and data to be withheld from public examination
may include, but is not limited to, known or estimated outline of the
mineral deposits and their location, attitude, extent, outcrops, and
content, and the known or planned location of exploration pits, drill
holes, excavations pertaining to location and entry pursuant to the
United States mining laws, and other commercial information which
relates to competitive rights of the operator.
Sec. 228.7 Inspection, noncompliance.
(a) Forest Officers shall periodically inspect operations to
determine if the operator is complying with the regulations in this part
and an approved plan of operations.
(b) If an operator fails to comply with the regulations or his
approved plan of operations and the noncompliance is unnecessarily or
unreasonably causing injury, loss or damage to surface resources the
authorized officer shall serve a notice of noncompliance upon the
operator or his agent in person or by certified mail. Such notice shall
describe the noncompliance and shall specify the action to comply and
the time within which such action is to be completed, generally not to
exceed thirty (30) days: Provided, however, That days during which the
area of operations is inaccessible shall not be included when computing
the number of days allowed for compliance.
Sec. 228.8 Requirements for environmental protection.
All operations shall be conducted so as, where feasible, to minimize
adverse environmental impacts on National Forest surface resources,
including the following requirements:
(a) Air Quality. Operator shall comply with applicable Federal and
State air quality standards, including the requirements of the Clean Air
Act, as amended (42 U.S.C. 1857 et seq.).
(b) Water Quality. Operator shall comply with applicable Federal and
State water quality standards, including regulations issued pursuant to
the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et
seq.).
(c) Solid Wastes. Operator shall comply with applicable Federal and
State standards for the disposal and treatment of solid wastes. All
garbage, refuse, or waste, shall either be removed from National Forest
lands or disposed of or treated so as to minimize, so far as is
practicable, its impact on the environment and the forest surface
resources. All tailings, dumpage, deleterious materials, or substances
and other waste produced by operations shall be deployed, arranged,
disposed of or treated so as to minimize adverse impact upon the
environment and forest surface resources.
(d) Scenic Values. Operator shall, to the extent practicable,
harmonize operations with scenic values through such measures as the
design and location of operating facilities, including roads and other
means of access, vegetative screening of operations, and construction of
structures and improvements which blend with the landscape.
(e) Fisheries and Wildlife Habitat. In addition to compliance with
water quality and solid waste disposal standards required by this
section, operator shall take all practicable measures to maintain and
protect fisheries and wildlife habitat which may be affected by the
operations.
(f) Roads. Operator shall construct and maintain all roads so as to
assure adequate drainage and to minimize or, where practicable,
eliminate damage to soil, water, and other resource values. Unless
otherwise approved by the authorized officer, roads no longer needed for
operations:
(1) Shall be closed to normal vehicular traffic,
(2) Bridges and culverts shall be removed,
(3) Cross drains, dips, or water bars shall be constructed, and
(4) The road surface shall be shaped to as near a natural contour as
practicable and be stabilized.
(g) Reclamation. Upon exhaustion of the mineral deposit or at the
earliest practicable time during operations, or within 1 year of the
conclusion of operations, unless a longer time is allowed by the
authorized officer, operator
[[Page 192]]
shall, where practicable, reclaim the surface disturbed in operations by
taking such measures as will prevent or control onsite and off-site
damage to the environment and forest surface resources including:
(1) Control of erosion and landslides;
(2) Control of water runoff;
(3) Isolation, removal or control of toxic materials;
(4) Reshaping and revegetation of disturbed areas, where reasonably
practicable; and
(5) Rehabilitation of fisheries and wildlife habitat.
(h) Certification or other approval issued by State agencies or
other Federal agencies of compliance with laws and regulations relating
to mining operations will be accepted as compliance with similar or
parallel requirements of these regulations.
Sec. 228.9 Maintenance during operations, public safety.
During all operations operator shall maintain his structures,
equipment, and other facilities in a safe, neat and workmanlike manner.
Hazardous sites or conditions resulting from operations shall be marked
by signs, fenced or otherwise identified to protect the public in
accordance with Federal and State laws and regulations.
Sec. 228.10 Cessation of operations, removal of structures and equipment.
Unless otherwise agreed to by the authorized officer, operator shall
remove within a reasonable time following cessation of operations all
structures, equipment and other facilities and clean up the site of
operations. Other than seasonally, where operations have ceased
temporarily, an operator shall file a statement with the District Ranger
which includes:
(a) Verification of intent to maintain the structures, equipment and
other facilities,
(b) The expected reopening date, and
(c) An estimate of extended duration of operations. A statement
shall be filed every year in the event operations are not reactivated.
Operator shall maintain the operating site, structures, equipment and
other facilities in a neat and safe condition during nonoperating
periods.
Sec. 228.11 Prevention and control of fire.
Operator shall comply with all applicable Federal and State fire
laws and regulations and shall take all reasonable measures to prevent
and suppress fires on the area of operations and shall require his
employees, contractors and subcontractors to do likewise.
Sec. 228.12 Access.
An operator is entitled to access in connection with operations, but
no road, trail, bridge, landing area for aircraft, or the like, shall be
constructed or improved, nor shall any other means of access, including
but not limited to off-road vehicles, be used until the operator has
received approval of an operating plan in writing from the authorized
officer when required by Sec. 228.4(a). Proposals for construction,
improvement or use of such access as part of a plan of operations shall
include a description of the type and standard of the proposed means of
access, a map showing the proposed route of access, and a description of
the means of transportation to be used. Approval of the means of such
access as part of a plan of operations shall specify the location of the
access route, design standards, means of transportation, and other
conditions reasonably necessary to protect the environment and forest
surface resources, including measures to protect scenic values and to
insure against erosion and water or air pollution.
Sec. 228.13 Bonds.
(a) Any operator required to file a plan of operations shall, when
required by the authorized officer, furnish a bond conditioned upon
compliance with Sec. 228.8(g), prior to approval of such plan of
operations. In lieu of a bond, the operator may deposit into a Federal
depository, as directed by the Forest Service, and maintain therein,
cash in an amount equal to the required dollar amount of the bond or
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.
A blanket bond covering nationwide or statewide operations may be
furnished if the terms and conditions thereof are sufficient to comply
with the regulations in this part.
[[Page 193]]
(b) In determining the amount of the bond, consideration will be
given to 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 Sec. 228.4 (d) and (e), the authorized officer will
review the initial bond for adequacy and, if necessary, will adjust the
bond to conform to the operations plan as modified.
(d) When reclamation has been completed in accordance with
Sec. 228.8(g), the authorized officer will notify the operator that
performance under the bond has been completed: Provided, however, That
when the Forest Service has accepted as completed any portion of the
reclamation, the authorized officer shall notify the operator of such
acceptance and reduce proportionally the amount of bond thereafter to be
required with respect to the remaining reclamation.
[39 FR 31317, Aug. 28, 1974; 39 FR 32029, Sept. 4, 1974]
Sec. 228.14 Appeals.
Appeal of decisions of an authorized officer made pursuant to this
subpart is governed by 36 CFR part 214 or 215.
[78 FR 33724, June 5, 2013]
Sec. 228.15 Operations within National Forest Wilderness.
(a) The United States mining laws shall extend to each National
Forest Wilderness for the period specified in the Wilderness Act and
subsequent establishing legislation to the same extent they were
applicable prior to the date the Wilderness was designated by Congress
as a part of the National Wilderness Preservation System. Subject to
valid existing rights, no person shall have any right or interest in or
to any mineral deposits which may be discovered through prospecting or
other information-gathering activity after the legal date on which the
United States mining laws cease to apply to the specific Wilderness.
(b) Holders of unpatented mining claims validly established on any
National Forest Wilderness prior to inclusion of such unit in the
National Wilderness Preservation System shall be accorded the rights
provided by the United States mining laws as then applicable to the
National Forest land involved. Persons locating mining claims in any
National Forest Wilderness on or after the date on which said Wilderness
was included in the National Wilderness Preservation System shall be
accorded the rights provided by the United States mining laws as
applicable to the National Forest land involved and subject to
provisions specified in the establishing legislation. Persons conducting
operations as defined in Sec. 228.3 in National Forest Wilderness shall
comply with the regulations in this part. Operations shall be conducted
so as to protect National Forest surface resources in accordance with
the general purposes of maintaining the National Wilderness Preservation
System unimpaired for future use and enjoyment as wilderness and to
preserve its wilderness character, consistent with the use of the land
for mineral location, exploration, development, drilling, and production
and for transmission lines, water lines, telephone lines, and processing
operations, including, where essential, the use of mechanized transport,
aircraft or motorized equipment.
(c) Persons with valid mining claims wholly within National Forest
Wilderness shall be permitted access to such surrounded claims by means
consistent with the preservation of National Forest Wilderness which
have been or are being customarily used with respect to other such
claims surrounded by National Forest Wilderness. No operator shall
construct roads across National Forest Wilderness unless authorized in
writing by the Forest Supervisor in accordance with Sec. 228.12.
(d) On all mining claims validly established on lands within the
National Wilderness Preservation System, the operator shall take all
reasonable measures to remove any structures, equipment and other
facilities no longer needed for mining purposes in accordance with the
provisions in Sec. 228.10 and restore the surface in accordance with the
requirements in Sec. 228.8(g).
(e) The title to timber on patented claims validly established after
the land was included within the National
[[Page 194]]
Wilderness Preservation System remains in the United States, subject to
a right to cut and use timber for mining purposes. So much of the mature
timber may be cut and used as is needed in the extraction, removal, and
beneficiation of the mineral deposits, if needed timber is not otherwise
reasonably available. The cutting shall comply with the requirements for
sound principles of forest management as defined by the National Forest
rules and regulations and set forth in stipulations to be included in
the plan of operations, which as a minimum incorporate the following
basic principles of forest management:
(1) Harvesting operations shall be so conducted as to minimize soil
movement and damage from water runoff; and
(2) Slash shall be disposed of and other precautions shall be taken
to minimize damage from forest insects, disease, and fire.
(f) The Chief, Forest Service, shall allow any activity, including
prospecting, for the purpose of gathering information about minerals in
National Forest Wilderness except that any such activity for gathering
information shall be carried on in a manner compatible with the
preservation of the wilderness environment as specified in the plan of
operations.
Subpart B_Leasable Minerals
Secs. 228.20-228.39 [Reserved]
Subpart C_Disposal of Mineral Materials
Source: 49 FR 29784, July 24, 1984, unless otherwise noted.
Sec. 228.40 Authority.
Authority for the disposal of mineral materials is provided by the
Materials Act of July 31, 1947 (30 U.S.C. 601 et seq.), as amended by
the Acts of August 31, 1950 (30 U.S.C. 603-604), July 23, 1955 (30
U.S.C. 601, 603), and September 25, 1962 (30 U.S.C. 602), and by the
following: the Act of June 4, 1897 (16 U.S.C. 477); the Act of March 4,
1917 (16 U.S.C. 520); the Bankhead-Jones Farm Tenant Act of July 22,
1937 (7 U.S.C. 1010); the Act of September 1, 1949 (section 3) (30
U.S.C. 192c); the Act of June 30, 1950 (16 U.S.C. 508b); the Act of June
28, 1952 (section 3) (66 Stat. 285); the Act of September 2, 1958 (16
U.S.C. 521a); the Act of June 11, 1960 (74 Stat. 205); the Federal
Highway Act of August 27, 1958 (23 U.S.C. 101 et seq.); and the Alaska
National Interest Lands Conservation Act of December 2, 1980 (section
502) (16 U.S.C. 539a).
Sec. 228.41 Scope.
(a) Lands to which this subpart applies. This subpart applies to all
National Forest System lands reserved from the public domain of the
United States, including public domain lands being administered under
the Bankhead-Jones Farm Tenant Act of July 22, 1937 (7 U.S.C. 1010); to
all National Forest System lands acquired pursuant to the Weeks Act of
March 1, 1911 (36 Stat. 961); to all National Forest System lands with
Weeks Act status as provided in the Act of September 2, 1958 (16 U.S.C.
521a); and to public lands within the Copper River addition to the
Chugach National Forest (16 U.S.C. 539a). For ease of reference and
convenience to the reader, these lands are referred to, throughout this
subpart, as National Forest lands.
(b) Restrictions. Disposal of mineral materials from the following
National Forest lands is subject to certain restrictions as described
below:
(1) Segregation or withdrawals in aid of other agencies. Disposal of
mineral materials from lands segregated or withdrawn in aid of a
function of another Federal agency, State, territory, county,
municipality, water district, or other governmental subdivision or
agency may be made only with the written consent of the governmental
entity.
(2) Segregated or withdrawn National Forest lands. Mineral materials
may not be removed from segregated or withdrawn lands where removal is
specifically prohibited by statute or by public land order. Where not
specifically prohibited, removal of mineral materials may be allowed if
the authorized officer determines that the removal is not detrimental to
the values for which the segregation or withdrawal was made, except as
provided in paragraph (b)(1) of this section. Where
[[Page 195]]
operations have been established prior to the effective date of this
Subpart and where not prohibited by statute, they may be permitted to
continue. Nothing in this subparagraph is intended to prohibit the
exercise of valid existing rights.
(3) Unpatented mining claims. Provided that claimants are given
prior notice and it has been determined that removal will neither
endanger nor materially interfere with prospecting, mining, or
processing operations or uses reasonably incident thereto on the claims,
disposal of mineral materials may be allowed from:
(i) Unpatented mining claims located after July 23, 1955; and/or
(ii) Unpatented mining claims located before July 23, 1955, and on
which the United States has established the right to manage the
vegetative and other surface resources in accordance with the Multiple
Use Mining Act of July 23, 1955 (30 U.S.C. 601, 603, 611-615).
(4) Acquired Bankhead-Jones lands. Mineral materials on lands which
were acquired under the authority of the Bankhead-Jones Farm Tenant Act
of July 22, 1937 (7 U.S.C. 1010-1012), and which lie outside the
exterior boundaries of National Forests, or on acquired lands which are
being administered under the Act and which also lie outside the exterior
boundaries of National Forests, may be disposed of under these
regulations only to public authorities and agencies, and only on
condition that the mineral materials are used for public purposes (7
U.S.C. 1011(c)).
(c) Mineral materials to which this subpart applies. This subpart
applies to mineral materials which consist of petrified wood and common
varieties of sand, gravel, stone, pumice, pumicite, cinders, clay, and
other similar materials. Such mineral materials include deposits which,
although they have economic value, are used for agriculture, animal
husbandry, building, abrasion, construction, landscaping, and similar
uses. This subpart also applies to other materials which may not be
minerals but are produced using mining methods, such as peat. The
categories of these materials, including representative examples, are:
(1) Agricultural supply and animal husbandry materials. This
category includes, but is not limited to, minerals and vegetative
materials used as or for: Soil conditioners or amendments applied to
physically alter soil properties such as direct applications to the soil
of carbonate rocks, soil containing ``trace elements'' and peat; animal
feed supplements; and other animal care products.
(2) Building materials. Except for minerals identified as Uncommon
Varieties, this category includes, but is not limited to, minerals used
as or for: Paint fillers or extenders; flagstone, ashlar, rubble,
mortar, brick, tile, pipe, pottery, earthenware, stoneware, terrazzo,
and other nonstructural components in floors, walls, roofs, fireplaces,
and the like; and similar building uses.
(3) Abrasive materials. This category includes, but is not limited
to, minerals used for: Filing; scouring; polishing; sanding; and
sandblasting.
(4) Construction materials. This category includes, but is not
limited to, minerals such as sand, gravel, clay, crushed rock and
cinders used as or for fill; borrow; rip-rap; ballast (including all
ballast for railroad use); road base; road surfacing; concrete
aggregate; clay sealants; and similar construction uses.
(5) Landscaping materials: This category includes, but is not
limited to minerals and peat used as or for: Chips, granules, sand,
pebbles, scoria, cinders, cobbles, boulders, slabs, and other components
in retaining walls, walkways, patios, yards, gardens, and the like; and
similar landscaping uses.
(d) Minerals not covered by this subpart. Mineral materials do not
include any mineral used in manufacturing, industrial processing, or
chemical operations for which no other mineral can be substituted due to
unique properties giving the particular mineral a distinct and special
value; nor do they include block pumice which in nature occurs in pieces
having one dimension of two inches or more which is valuable and used
for some application that requires such dimensions. Disposal of minerals
not covered by this subpart is subject to the terms of the United States
Mining Laws, as amended (30 U.S.C. 22 et seq.), on those portions of the
National
[[Page 196]]
Forest System where those laws apply. Such minerals may include:
(1) Mineral suitable and used as soil amendment because of a
constituent element other than calcium or magnesium carbonate that
chemically alters the soil;
(2) Limestone suitable and used, without substantial admixtures, for
cement manufacture, metallurgy, production of quicklime, sugar refining,
whiting, fillers, paper manufacture, and desulfurization of stack gases;
(3) Silica suitable and used for glass manufacture, production of
metallic silicon, flux, and rock wool;
(4) Alumino-silicates or clays having exceptional qualities suitable
and used for production of aluminum, ceramics, drilling mud, taconite
binder, foundry castings, and other purposes for which common clays
cannot be used;
(5) Gypsum suitable and used for wallboard, plaster, or cement.
(6) Block pumice which occurs in nature in pieces having one
dimension of two inches or more and which is valuable and used for some
application that requires such dimensions; and
(7) Stone recognized through marketing factors for its special and
distinct properties of strength and durability making it suitable for
structural support and used for that purpose.
(e) Limitations on applicability. (1) The provisions of paragraphs
(c) and (d) of this section shall not apply to any mining claims for
which a Mineral Entry Final Certificate was issued on or before January
16, 1991. Nor shall these provisions apply to any mining claim located
on or before July 23, 1955, which has satisfied the marketability test
for locatable minerals from on or before July 23, 1955, until the
present date.
(2) A use which qualifies a mineral as an uncommon variety under
paragraph (d) overrides classification of that mineral as a common
variety under paragraph (c) of this section.
[49 FR 29784, July 24, 1984, as amended at 55 FR 51706, Dec. 17, 1990]
Sec. 228.42 Definitions.
For the purposes of this subject, the following terms are defined:
Acquired National Forest lands. National Forest System lands
acquired under the Weeks Act of March 1, 1911 (36 Stat. 961), and
National Forest System lands with Weeks Act status as provided in the
Act of September 2, 1958 (16 U.S.C. 521a).
Authorized officer. Any Forest Service officer to whom authority for
disposal of mineral materials has been delegated.
Common-use area. Generally, a broad geographic area from which
nonexclusive disposals of mineral materials available on the surface may
be made to low volume and/or noncommercial users.
Community site. A site noted on appropriate Forest records and
posted on the ground from which nonexclusive disposals of mineral
materials may be made to low volume and/or noncommercial users.
Contract. A signed legal agreement between the Forest Service and a
purchaser of mineral materials, which specifies (among other things) the
conditions of a competitive, negotiated, or preference right sale of
mineral materials to the purchaser.
Mineral materials. A collective term used throughout this subpart to
describe petrified wood and common varieties of sand, gravel, stone,
pumice, pumicite, cinders, clay, and other similar materials. Common
varieties do not include deposits of those materials which are valuable
because of some property giving them distinct and special value, nor do
they include ``so-called `block pumice' '' which occurs in nature in
pieces having one dimension of two inches or more and which is valuable
and used for some application that requires such dimensions.
Permit. A signed legal document between the Forest Service and one
who is authorized to remove mineral materials free of charge, which
specifies (among other things) the conditions of removal by the
permittee.
Preference right negotiated sale. A negotiated sale which may be
awarded in response to the finding and demonstration of a suitable
deposit of mineral material on acquired National Forest lands as the
result of exploratory activity conducted under the authority of a
prospecting permit.
Prospecting permit. A written instrument issued by the Forest
Service
[[Page 197]]
which authorizes prospecting for a mineral material deposit on acquired
National Forest lands within specific areas, under stipulated
conditions, and for a specified period of time.
Single entry source. A source of mineral materials which is expected
to be depleted under a single contract or permit or which is reserved
for Forest Service use.
Unpatented mining claim. A lode or placer mining claim or a millsite
located under the General Mining Law of 1872, as amended (30 U.S.C. 21-
54), for which a patent under 30 U.S.C. 29 and regulations of the
Department of the Interior has not been issued.
Withdrawn National Forest lands. National Forest System lands
segregated or otherwise withheld from settlement, sale, location, or
entry under some or all of all of the general land laws (43 U.S.C.
1714).
[49 FR 29784, July 24, 1984, as amended at 55 FR 51706, Dec. 17, 1990]
Sec. 228.43 Policy governing disposal.
(a) General. Forest Service policy is to make mineral materials on
National Forest lands available to the public and to local, State, and
Federal government agencies where reasonable protection of, or
mitigation of effects on, other resources in assured, and where removal
is not prohibited.
(1) A contract or permit limits processing of the mineral material
onsite to the first salable product.
(2) Additional onsite processing may be authorized by a separate
permit (36 CFR 251.50).
(3) The authorized officer must ensure that an environmental
analysis is conducted for all planned disposals of mineral materials.
(4) Decisions to authorize the disposal of mineral materials must
conform to approved land and resource management plans (36 CFR 219.22).
(b) Price. Mineral materials may not be sold for less than the
appraised value. The authorized officer may assess a fee to cover costs
of issuing and administering a contract or permit.
(c) Conservation. Adequate measures must be taken to protect, and
minimize damage to the environment. Mineral materials may be disposed of
only if the authorized officer determines that the disposal is not
detrimental to the public interest.
(d) Ownership. Title to the mineral materials vests in the purchaser
or permittee immediately before excavation, subject to the provisions of
Secs. 228.47 through 228.56 and other provisions of the contract or
permit. Title to excavated material not removed within the time provided
revests in the United States.
(e) Decisions. All decisions as to whether or not to grant disposals
proposed under this subpart shall be made in writing by the authorized
officer. Such decisions must specify their factual and legal basis.
(f) Option for mining claimants. All mining claimants holding mining
claims which are located for a mineral classified in accordance with
this subpart as a mineral material have the option of maintaining that
the mineral is locatable and filing for patent. All mining claimants
holding mining claims located in good faith on or before January 16,
1991, for a mineral classified in accordance with this subpart as a
mineral material may accept the classification and, if appropriate,
receive a sale by negotiated contract for that mineral material under 36
CFR 228.57(b)(2) of this subpart.
[49 FR 29784, July 24, 1984, as amended at 55 FR 51706, Dec. 17, 1990]
Sec. 228.44 Disposal on existing Federal leased areas.
Mineral material contracts or permits may be issued within existing
areas leased or under permit under the 1920 Mineral Leasing Act, as
amended (30 U.S.C. 181-187); section 402 of Reorganization Plan No. 3 of
1946 (5 U.S.C. Appendix); the 1947 Mineral Leasing Act for Acquired
Lands, as amended (30 U.S.C. 351 et seq.); and the 1970 Geothermal Steam
Act (30 U.S.C. 1001-1025), provided that it has been determined that
removal will neither endanger nor unreasonably interfere with lease
operations, and provided further that the lease terms do not prohibit
disposal.
Sec. 228.45 Qualifications of applicants.
The authorized officer may require applicants for prospecting
permits, negotiated contracts, or free-use permits
[[Page 198]]
or bidders for the sale of mineral materials to furnish information
necessary to determine their ability to perform the obligations of the
contract or permit.
Sec. 228.46 Application of other laws and regulations.
All mining operations for removal of mineral materials from National
Forest lands must meet or exceed applicable Federal standards for the
protection of public safety, health, and the environment, and must also
meet or exceed State and local standards for the protection of public
safety, health, and the environment, to the extent that such standards
are not in conflict with Federal purposes and functions.
General Provisions
Sec. 228.47 General terms and conditions of contracts and permits.
(a) Disposal of designated mineral materials. Only those specified
mineral materials found within the area designated in the contract or
permit may be extracted and removed.
(b) Unauthorized removal (trespass) of mineral materials. The
removal of mineral materials from National Forest lands, except when
authorized in accordance with applicable law and regulations of the
Department of Agriculture, is prohibited (36 CFR 261.9).
(c) Conservation. Mineral material contracts and permits must
contain provisions to ensure the efficient removal and conservation of
the mineral material.
(d) Improvements. Contracts and permits must contain provisions for
removal or Government retention of improvements.
(e) Use of existing National Forest development roads. The
authorized officer may require purchasers and permittees to obtain
appropriate road-use permits, make deposits for or perform their
commensurate share of road maintenance, and comply with road-use rules
contained in 36 CFR part 212, depending upon their planned extent of
road use.
(f) Reclamation. Requirements for reclamation of areas disturbed by
mineral material operations must be included in contracts and permits,
except for disposals from community sites and common-use areas.
Sec. 228.48 Appraisal and measurement.
(a) Appraisal. All mineral materials for sale must be appraised to
determine fair market value. Appraisals must be based on knowledge of
the extent of the deposit, quality of material, and economic value. A
sale must not be made at less than the appraised value which may be
expressed as either price per cubic yard or weight equivalent. In all
cases the units of measurement must correspond to the units used in the
appraisal. The authorized officer must estimate and record the amount
and value of minerals to be disposed of by free-use permit.
(b) Measurement. The amount of mineral material actually removed may
be measured by volume, weight, truck tally, by combination of these
methods, or by such other form of measurement as the authorized officer
determines to be appropriate and in the public interest.
Sec. 228.49 Reappraisal.
If an extension of time is granted as provided in Sec. 228.53(b),
the authorized officer must reappraise or reestimate the mineral
materials covered by the contract or permit and which remain unexcavated
at the time of extension. The recalculated unit value becomes the new
unit value for the remaining unexcavated material; excavated and
stockpiled material is not subject to reappraisal.
Sec. 228.50 Production records.
At least annually, the purchaser or permittee must furnish a record
of the volume extracted, in cubic yards or weight equivalent, to the
authorized officer. The units of measurement must correspond to the
units used in the appraisal or estimate.
Sec. 228.51 Bonding.
(a) Bond requirements. Before operations may begin under any
contract or permit, a bond must be furnished to the authorized officer
to ensure performance of payment (as necessary), reclamation, and other
conditions of the contract or permit, except as noted
[[Page 199]]
in paragraphs (a) (1) and (3) of this section, where the authorized
officer may waive such bonding. If an extension of time is granted as
provided in Sec. 228.53(b), the bond requirements must be recalculated
and changed accordingly.
(1) For advance payment contracts for 10,000 cubic yards or more in
volume (or weight equivalent), a bond of not less than 10 percent of the
total contract price or the value of the estimated annual production
(whichever is less), plus the reclamation cost for the area covered by
annual mining, is required. When the total volume is less than 10,000
cubic yards, bond requirements, if any, are at the discretion of the
authorized officer.
(2) For any deferred payment contract, a bond equaling the value of
the estimated annual production plus the reclamation cost for the area
covered by annual mining is required.
(3) For free use, the authorized officer may require a reclamation
bond which must be sufficient to cover the cost of reclamation of the
anticipated annual work.
(b) Types of bonding. A bond must be one of the following:
(1) A bond of a corporate surety shown on the latest approved list
issued by the U.S. Treasury Department and executed on an approved
standard form;
(2) A cash bond;
(3) Negotiable securities of the United States;
(4) An irrevocable letter of credit acceptable to the Forest
Service;
(5) A performance bond required by other Forest Service contracts or
permits, provided the bond covers the performance and reclamation
requirements related to the removal of mineral material from a
designated pit or area for use in the performance of the contract or
permit; or
(6) Any other types of bond specified in the Forest Service Manual.
Sec. 228.52 Assignments.
(a) Limitations. A purchaser or permittee may not assign the
contract or permit, or any interest therein, without the written
approval of the authorized officer.
(b) Requirements of assignee. The authorized officer will not
approve any proposed assignment involving contract or permit performance
unless the assignee:
(1) Submits information necessary to assure the authorized officer
of the assignee's ability to meet the same requirements as the original
purchaser or permittee (assignor); and
(2) Furnishes a bond or obtains a commitment from the previous
surety to be bound by the assignment when approved.
(c) Rights and obligations. Once the authorized officer approves an
assignment, the assignee is entitled to all the rights and is subject to
all of the obligations under the contract or permit, and the original
purchaser or permittee may be released from any further responsiblity
under the contract or permit.
Sec. 228.53 Term.
(a) Time allowed. Except as provided in Sec. 228.61(f),
Sec. 228.62(b), and elsewhere in this paragraph, a contract or permit
may not exceed 1 year from the effective date of the contract or permit
unless a written extension is obtained. For those mineral materials sold
under a duration of production contract or under a contract for the sale
of all mineral material within a specified area, or under a construction
contract where removal cannot reasonably take place before completion of
other work under the same contract, the authorized officer will
establish a reasonable time period for removal.
(b) Extension of time. If it is shown that a delay in removal was
due to causes beyond the control of the purchaser or permittee, the
authorized officer may grant an extension, not to exceed 1 year, upon
written request. Written requests for extensions of contracts must be
received between 30 and 90 days before the expiration date of the
contract. Written requests for extensions of permits must be received
between 15 and 90 days before the permit expiration date. The authorized
officer may grant a total of two extensions for contracts and permits.
[[Page 200]]
Sec. 228.54 Single entry sales or permits.
The purchaser or permittee is required to reclaim a single entry
source in accordance with an approved operating plan which describes
operating procedures and reclamation measures, unless the requirement is
waived by the authorized officer.
Sec. 228.55 Cancellation or suspension.
The authorized officer may cancel or suspend a contract, permit, or
prospecting permit if the purchaser or permittee fails to comply with
its terms and conditions. If the noncompliance is unnecessarily or
unreasonably causing injury, loss, or damage to surface resources, the
authorized officer may cancel or suspend the contract, permit, or
prospecting permit immediately. In cases where noncompliance is of a
less serious nature, the authorized officer may cancel or suspend a
contract, permit, or prospecting permit if such noncompliance continues
for 30 days after service of written notice by the authorized officer.
If the noncompliance is not corrected, the authorized officer may attach
the bond to ensure compliance with the provisions of the contract,
permit, or prospecting permit.
Sec. 228.56 Operating plans.
Any surface-disturbing operation under a contract, permit, or
prospecting permit is subject to prior approval by the authorized
officer of an operating plan and to reasonable conditions as may be
required to ensure proper protection of the environment and
improvements, including timely reclamation of disturbed lands.
Significant changes to operations require prior approval of an amended
operating plan. The operating plan must include, as a minimum, a map and
explanation of the nature of the access, anticipated activity, surface
disturbance, and intended reclamation including removal or retention of
structures and facilities. Operating plans must be submitted by the
purchaser, permittee, or prospecting permittee, except as noted in
Sec. 228.64(b).
Types and Methods of Disposal
Sec. 228.57 Types of disposal.
Except as provided in Sec. 228.41(b), disposal of mineral materials
may be made by:
(a) Competitive sale to the highest qualified bidder after formal
advertising and other appropriate public notice;
(b) Sale by negotiated contract. (1) For removal of materials to be
used in connection with a public works improvement program on behalf of
a Federal, State, or local government agency if the public exigency will
not permit delays incident to advertising, or
(2) For the removal of mineral materials for which it is
impracticable to obtain competition;
(c) Preference right negotiated sale to the holder of a Forest
Service-issued prospecting permit under which a suitable mineral
material deposit has been demonstrated on acquired National Forest
lands;
(d) Free use when a permit is issued to any nonprofit association,
corporation, individual, or others listed in Sec. 228.62(d), for other
than commercial purposes, resale, or barter, or to any Federal, State,
county, local unit, subdivision, municipality, or county road district
for use in public projects; or
(e) Forest Service force account or by contract where the material
is to be used to carry out various Forest Service programs involving
construction and maintenance of physical improvements.
Sec. 228.58 Competitive sales.
(a) Invitation for bid. Sales must be conducted as described below
after inviting competitive bids through publication and posting. The
authorized officer may not offer a competitive sale unless there is a
right-of-way or other access to the sale area which is available to
anyone qualified to bid.
(b) Advertising--(1) Sales over 25,000 cubic yards. Mineral material
sales offered by competitive bidding and which exceed 25,000 cubic yards
must be advertised on the same day once a week for two consecutive weeks
in a newspaper of general circulation in the area where the material is
located, and in a trade or industrial newspaper when
[[Page 201]]
considered appropriate. Notice of the sale must be posted in a
conspicuous place in the office where bids are to be submitted. In
addition, the authorized officer may send the advertisement directly to
known interested persons. Bids may be received but not evaluated before
the end of the advertising period, which may be extended at the
discretion of the authorized officer.
(2) Content of advertising. The advertisement of sale must specify
the location by legal description of the tract or tracts or by any other
means identify the location of the mineral material deposit being
offered, the kind of material, estimated quantities, the unit of
measurement, appraised price (which sets the minimum acceptable bid),
time and place for receiving and opening of bids, minimum deposit
required, major special constraints due to environmental considerations,
available access, maintenance required over haul routes, traffic
controls, required use permits, required qualifications of bidders, the
method of bidding, bonding requirement, notice of the right to reject
any or all bids, the office where a copy of the contract and additional
information may be obtained, and additional information the authorized
officer deems necessary.
(3) Advertising smaller sales. Advertisement of mineral materials
amounting to 25,000 cubic yards in volume (or weight equivalent) or less
must be published and/or posted. The methods of advertisement are at the
discretion of the authorized officer.
(c) Conduct of sales. (1) Bidding at competitive sales may be
conducted by the submission of written sealed bids, oral bids, or a
combination of both as directed by the authorized officer. In the event
of a tie in high sealed bids, the highest bidder will be determined by
oral auction among those tied bidders; when no oral bid is higher that
the sealed bids, the selected bidder will be determined by lot, the
purchase price being the amount of the tied bid. For all oral auctions,
including those used to break sealed-bid ties, the high bidder must
confirm the bid in writing immediately upon being declared the high
bidder. The authorized officer must mail notification of the bidding
results to all bidders within 10 days.
(2) The authorized officer may require bidders to furnish evidence
of qualification at the time of award or, if such evidence has already
been furnished and is still valid, make appropriate reference to the
record containing it.
(3) When it is in the interest of the United States to do so, the
authorized officer may reject any or all bids.
(d) Bid deposits and award of contract. Sealed bids must be
accompanied by a deposit. For mineral materials offered at oral auction,
bidders must make the deposit before opening of the bidding.
(1) Bid deposits must be equal to 10 percent of the appraised value
but not less than $100.00.
(2) Bid deposits must be in the form of cash, money order, bank
drafts, cashier's or certified checks made payable to the Forest
Service, or bonds acceptable to the Forest Service (Sec. 228.51(b)).
(3) Upon conclusion of the bidding, the authorized officer will
return the deposits of all unsuccessful bidders. The successful bidder's
deposit will be applied toward the purchase price. If the contract is
not awarded to the high bidder due to an inability to perform the
obligations of the contract, the deposit, less expenses and damages
incurred by the United States, may be returned. The return of a deposit
does not prejudice any other rights or remedies of the United States.
The contract may be offered and awarded to the next successive qualified
high bidder, or, at the discretion of the authorized officer, the sale
may be either readvertised or negotiated if it is determined that a
competitive sale is impracticable.
(4) Within 30 days after receipt of the contract, the successful
bidder must sign and return the contract, together with any required
bond, unless the authorized officer has granted an extension for an
additional 30 days. The bidder must apply for the extension in writing
within the first 30-day period. If the successful bidder fails to return
the contract within the first 30-day period or within an approved
extension, the bid deposit, less the costs of readvertising and damages,
may be returned without prejudice to any other
[[Page 202]]
rights or remedies of the United States.
(5) All sales must be processed on Forest Service-approved contract
forms. The authorized officer may add provisions to the contract to
cover conditions peculiar to the sale area. Such additional provisions
must be made available for inspection by prospective bidders during the
advertising period.
Sec. 228.59 Negotiated or noncompetitive sales.
(a) Volume limitations. When it is determined by the authorized
officer to be in the public interest and when it is impracticable to
obtain competition, mineral materials not exceeding 100,000 cubic yards
in volume (or weight equivalent) may be sold in any one sale at not less
than the appraised value, without advertising or calling for bids,
except as provided in paragraphs (b) and (c) of this section. The
authorized officer may not approve noncompetitive sales that exceed the
total of 200,000 cubic yards (or weight equivalent) made in any one
State for the benefit of any applicant in any period of 12 consecutive
months.
(b) Government programs. In connection with a public works
improvement project on behalf of a Federal, State, or local governmental
agency, the authorized officer may sell to an applicant, at not less
than the appraised value, without advertising or calling for bids, a
volume of mineral materials not to exceed 200,000 cubic yards (or weight
equivalent) when the public exigency will not permit delays incident to
advertising (30 U.S.C. 602).
(c) Appropriation for highway purposes. For interstate and/or
Federal aid highways, the Secretary of Transportation may appropriate
any volume in accordance with 23 U.S.C. 107 and 317.
(d) Use in development of Federal mineral leases. When it is
determined to be impracticable to obtain competition and the mineral
materials are to be used in connection with the development of mineral
leases issued by the United States (Sec. 228.44), the authorized officer
may sell to a leaseholder a volume of mineral material not to exceed
200,000 cubic yards (or weight equivalent) in one State in any period of
12 consecutive months. No charge will be made for materials which must
be moved in the process of extracting the mineral under lease, as long
as the materials remain stockpiled within the boundaries of the leased
area.
(e) Exceptions. (1) The Chief of the Forest Service may authorize
the noncompetitive sale of mineral materials in excess of the volume
limitations in paragraphs (a), (b), and (d) of this section when
necessary to:
(i) Respond to an emergency affecting public health, safety or
property;
(ii) Prevent the curtailment of operations conducted under the
United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et
seq.) which generate large volumes of mineral materials as a by-product;
or
(iii) Respond to a critical public need for the prompt development
of a mineral lease issued by the United States or a mining claim located
under the United States mining laws of May 10, 1872, as amended (30
U.S.C. 22 et seq.).
(2) Any noncompetitive sale of mineral materials in excess of the
volume limitations in paragraphs (a), (b), and (d) shall be subject to
such restrictions as the Chief of the Forest Service determines to be in
the public interest.
(3) Nothing in this paragraph shall otherwise alter the requirements
of paragraphs (a) through (d) of this section.
[49 FR 29784, July 24, 1984, as amended at 52 FR 10565, Apr. 2, 1987; 53
FR 43691, Oct. 28, 1988]
Sec. 228.60 Prospecting permits.
(a) Right conferred. On acquired National Forest lands, prospecting
permits may be issued which grant the permittee the exclusive right to
explore for and to demonstrate the existence of a suitable mineral
material deposit when existing information is insufficient. After the
demonstration of a suitable deposit and confirmation of this by the
authorized officer, the permittee will have a preference right to apply
for a negotiated sale.
(b) Limitations. Mineral material may be removed from lands under a
prospecting permit only to the extent necessary for testing and analysis
or for the demonstration of the existence of a suitable deposit.
[[Page 203]]
(c) Environmental analysis. Prospecting permits will be issued only
after submission by applicant and approval by the authorized officer of
a detailed operating plan. The authorized officer may require a bond in
accordance with Sec. 228.51. The authorized officer must ensure
compliance with the National Environmental Policy Act (42 U.S.C. 4321 et
seq.).
(d) Acreage and permit limitations. A prospecting permit may not
cover more than 640 acres. No individual or group may have an interest
at any one time in more than three prospecting permits on Forest Service
lands administered by one Forest Supervisor.
(e) Duration and extension of permits. Prospecting permits may be
issued for a period not to exceed 24 months, but they may be extended
once for up to an additional 24 months if necessary to complete
prospecting. Any application for extension must be submitted no later
than 30 days before the expiration of the permit. The application for
extension must provide evidence of diligence and state the reasons why
additional time is considered necessary to complete prospecting work.
(f) Refusal to extend permits. The authorized officer may reject
applications for extension of prospecting permits for the following
reasons:
(1) Failure to perform. Failure of the permittee to perform
prospecting or exploration work without adequate justification may
result in the denial of an extension; or
(2) Failure to apply. If an application for extension is not
submitted within the specified period, the permit may expire without
notice to the permittee.
(3) Public interest. If the authorized officer determines that an
extension may not be in the public interest, the application may be
rejected.
Sec. 228.61 Preference right negotiated sales.
(a) Qualification for sale. When applying for a preference right
negotiated sale, the permittee must demonstrate to the satisfaction of
the authorized officer that a suitable deposit of mineral material has
been discovered within the area covered by the prospecting permit.
Information concerning trade secrets and financial matters submitted by
the permittee and identified as confidential will not be available for
public examination except as otherwise agreed upon by the permittee.
(b) Application for sale. The application must be submitted to the
District Ranger's office on or before the expiration date of the
prospecting permit or its extension. The authorized officer may grant 30
additional days for submitting the application if requested in writing
by the permittee before expiration of the prospecting permit or its
extension.
(c) Terms and conditions of contract. The terms and conditions will
be evaluated on an individual case basis. Only those mineral materials
specified in the contract may be removed by the purchaser. Before a
preference right negotiated contract is awarded, the authorized officer
must ensure that an environmental analysis is conducted. All contracts
are subject to the conditions under Secs. 228.47 through 228.56.
(d) Acreage limitations. The authorized officer will determine the
amount of acreage in the preference right negotiated sale based on a
presentation of the permittee's needs. The maximum acreage allowable to
any individual or group must not exceed 320 acres on National Forest
lands administered by one Forest Supervisor. The allowable acreage may
be in one or more units which are not necessarily contiguous.
(e) Volume limitations. Preference right negotiated sales are exempt
from volume limitations.
(f) Contract time allowable. A contract or a renewal must not exceed
5 years; however, the purchaser may have renewal options at the end of
each contract or renewal period. The authorized officer may renew a
contract if it is determined that the renewal is not detrimental to the
public interest and that the purchaser has demonstrated diligence in
conducting operations. The authorized officer may cancel the contract,
or the purchaser may forfeit the contract, if no substantial commercial
production occurs during any continuous 2-year period after the award of
the contract or if the contract terms and conditions are breached.
However,
[[Page 204]]
if a delay is caused by conditions beyond the purchaser's control, the
authorized officer may grant an extension equal to the lost time.
(g) Contract renewal reappraisal. At the time of contract renewal,
the authorized officer will reappraise the mineral material deposit in
accordance with Sec. 228.49.
Sec. 228.62 Free use.
(a) Application. An application for a free-use permit must be made
with the appropriate District Ranger's office.
(b) Term. Permits may be issued for periods not to exceed 1 year and
will terminate on the expiration date unless extended by the authorized
officer as in Sec. 228.53(b). However, the authorized officer may issue
permits to any local, State, Federal, or Territorial agency, unit or
subdivision, including municipalities and county road districts, for
periods up to 10 years.
(c) Removal by agent. A free-use permittee may extract the mineral
materials through a designated agent provided that the conditions of the
permit are not violated. No part of the material may be used as payment
for the services of an agent in obtaining or processing the material. A
permit may be issued in the name of a designated agent for those
entities listed in Sec. 228.62(d)(1), at the discretion of the
authorized officer, provided there is binding agreement in which the
entity retains responsibility for ensuring compliance with the
conditions of the permit.
(d) Conditions. Free-use permits may be issued for mineral materials
to settlers, miners, residents, and prospectors for uses other than
commercial purposes, resale, or barter (16 U.S.C. 477). Free-use permits
may be issued to local, State, Federal, or Territorial agencies, units,
or subdivisions, including municipalities, or any association or
corporation not organized for profit, for other than commercial or
industrial purposes or resale (30 U.S.C. 601). Free-use permits may not
be issued when, in the judgment of the authorized officer, the applicant
owns or controls an adequate supply of mineral material in the area of
demand. The free-use permit, issued on a Forest Service-approved form,
must include the basis for the free-use as well as the provisions
governing the selection, removal, and use of the mineral materials. No
mineral material may be removed until the permit is issued. The
permittee must notify the authorized officer upon completion of mineral
material removal. The permittee must complete the reclamation prescribed
in the operating plan (Sec. 228.56).
(1) A free-use permit may be issued to any local, State, Federal, or
Territorial agency, unit, or subdivision, including municipalities and
county road districts, without limitation on the number of permits or on
the value of the mineral materials to be extracted or removed.
(2) A free-use permit issued to a nonprofit association,
corporation, or individual may not provide for the removal of mineral
materials having a volume exceeding 5,000 cubic yards (or weight
equivalent) during any period of 12 consecutive months.
(e) Petrified wood. A free-use permit may be issued to amateur
collectors and scientists to take limited quantities of petrified wood
for personal use. The material taken may not be bartered or sold. Free-
use areas may be designated within which a permit may not be required.
Removal of material from such areas must be in accord with rules issued
by the authorized officer and posted on the area. Such rules must also
be posted in the District Ranger's and Forest Supervisor's offices and
be available upon request. The rules may vary by area depending on the
quantity, quality, and accessibility of the material and the demand for
it.
Sec. 228.63 Removal under terms of a timber sale or other
Forest Service contract.
In carrying out programs such as timber sales that involve
construction and maintenance of various physical improvements, the
Forest Service may specify that mineral materials be mined,
manufactured, and/or processed for incorporation into the improvement.
Where the mineral material is located on National Forest lands and is
designated in the contract calling for its use, no permit is required as
long as an operating plan as described in
[[Page 205]]
Sec. 228.56 is required by the contract provisions. Title to any
excavated material in excess of that needed to fulfill contract
requirements revests in the United States without reimbursement to the
contract holder or to agents or representatives of the contract holder.
Such excess material may be disposed of under Secs. 228.58, 228.59, or
228.62.
Sec. 228.64 Community sites and common-use areas.
(a) Designation. Nonexclusive disposals may be made from the same
deposit or areas designated by the authorized officer; the designation
of such an area and any reclamation requirements must be based on an
environmental analysis.
(b) Pit plans. The Forest Service must prepare operating plans
(Sec. 228.56) for the efficient removal of the material and for
appropriate reclamation of community sites and common-use areas.
(c) Reclamation. The Forest Service is responsible for reclamation
of community sites and common-use areas.
Sec. 228.65 Payment for sales.
(a) Conditions. Mineral materials may not be removed from the sale
area until all conditions of payment in the contract have been met.
(b) Advance payment. (1) For negotiated and competitive sales the
full amount may be paid before removal is begun under the contract or by
installment at the discretion of the authorized officer. Installment
payments must be based on the estimated removal rate specified in the
operating plan and must be, as a minimum, the value of 1 month's
removal. The first installment must be paid before removal operations
are begun; remaining installments must be paid in advance of removal of
the remaining materials as billed by the authorized officer. The total
amount of the purchase price must be paid at least 60 days before the
expiration date of the contract.
(2) All advance payment contracts must provide for reappraisal of
the mineral material at the time of contract renewal or extension.
(3) Minimum annual production must be sufficient to return a payment
to the United States equal to the first installment. In lieu of minimum
production, there must be an annual payment in the amount of the first
installment which will not be credited to future years' production.
Payments for or in lieu of minimum annual production must be received by
the authorized officer on or before the anniversary of the effective
date of the contract.
(4) If the purchaser fails to make payments when due, the contract
will be considered breached, the authorized officer will cancel the
contract, and all previous payments will be forfeited without prejudice
to any other rights and remedies of the United States.
(5) In order to determine payment amount, the purchaser must make a
report of operations. The report must include the amount of mineral
material removed, which must be verified by the authorized officer.
(c) Deferred payments. The authorized officer may approve deferred
payments for sales.
(1) The purchaser may make payments monthly or quarterly which must
be based on the in-place value (volume or weight equivalent) of material
removed during the contract period. The units of measurement must
correspond to the units used in the appraisal. The purchaser must make
all payments before contract renewal.
(2) The purchaser must deliver a bond which conforms to the
provisions of Sec. 228.51(a)(2) to the authorized officer before
operations are begun under the contract.
[49 FR 29784, July 24, 1984, as amended at 78 FR 33724, June 5, 2013]
Sec. 228.66 Refunds.
Upon termination of any contract, payments in excess of $10 may be
refunded, less the costs incurred by the United States, under any of the
following conditions:
(a) Payment in excess of value. If the total payment exceeds the
value of the mineral material removed, unless it is the minimum annual
payment in lieu of production;
(b) Insufficiency of material. If insufficient mineral material
existed in the sale area to provide the quantity of material estimated
to have been available;
(c) Cancellation. (1) If the contract is cancelled by the authorized
officer for
[[Page 206]]
reasons which are beyond the purchaser's control; or
(2) If the contract is cancelled by mutual agreement. This refund
provision is not a warranty that a specific quantity of material exists
in the sale area.
[49 FR 29784, July 24, 1984, as amended at 78 FR 33724, June 5, 2013]
Sec. 228.67 Information collection requirements.
(a) The following sections of this subpart contain information
collection requirements as defined in the Paperwork Reduction Act of
1980 (5 CFR part 1320): Sec. 228.45, Qualifications of applicants;
Sec. 228.51, Bonding; Sec. 228.52(b)(1), Requirements of assignee;
Sec. 228.53(b), Extension of time; Sec. 228.56, Operating plans;
Sec. 228.57(c), Conduct of sales; Sec. 228.60, Prospecting permits;
Sec. 228.61, Preference right negotiated sales; and Sec. 228.62, Free
use. These requirements have been approved by the Office of Management
and Budget and assigned clearance number 0596-0081.
(b) The public reporting burden for this collection of information
is estimated to vary from a few minutes to many hours per individual
response, with an average of 2 hours per individual response, including
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding the burden
estimate or any other aspect of this collection of information,
including suggestions for reducing this burden, to Chief (2800), Forest
Service, USDA, P.O. Box 96090, Washington, DC 20090-6090 and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503.
[55 FR 51706, Dec. 17, 1990]
Subpart D_Miscellaneous Minerals Provisions
Sec. 228.80 Operations within Misty Fjords and Admiralty Island
National Monuments, Alaska.
(a) Mineral activities on valid mining claims in the Misty Fjords
and Admiralty Island National Monuments must be conducted in accordance
with regulations in subpart A of this part and with the provisions of
this section.
(b) Prior to approving a plan of operations, the authorized officer
must consider:
(1) The resources of ecological, cultural, geological, historical,
prehistorical, and scientific interest likely to be affected by the
proposed operations, including access; and
(2) The potential adverse impacts on the identified resource values
resulting from the proposed operations.
(c) A plan of operations will be approved if, in the judgment of the
authorized officer, proposed operations are compatible, to the maximum
extent feasible, with the protection of the resource values identified
pursuant to paragraph (b)(1) of this section.
(1) The authorized officer will deem operations to be compatible if
the plan of operations includes all feasible measures which are
necessary to prevent or minimize potential adverse impacts on the
resource values identified pursuant to paragraph (b)(1) of this section
and if the operations are conducted in accordance with the plan.
(2) In evaluating the feasibility of mitigating measures, the
authorized officer shall, at a minimum, consider the following:
(i) The effectiveness and practicality of measures utilizing the
best available technology for preventing or minimizing adverse impacts
on the resource values identified pursuant to paragraph (b)(1) of this
section; and
(ii) The long- and short-term costs to the operator of utilizing
such measures and the effect of these costs on the long- and short-term
economic viability of the operations.
(3) The authorized officer shall not require implementation of
mitigating measures which would prevent the evaluation or development of
any valid claim for which operations are proposed.
(d) In accordance with the procedures described in subpart A and
paragraphs (c)(1) through (c)(3) of this section, the authorized officer
may approve modifications of an existing plan of operations:
(1) If, in the judgment of the authorized officer, environmental
impacts unforeseen at the time of approval of the
[[Page 207]]
existing plan may result in the incompatibility of the operations with
the protection of the resource values identified pursuant to paragraph
(b)(1) of this section; or
(2) Upon request by the operator to use alternative technology and
equipment capable of achieving a level of environmental protection
equivalent to that to be achieved under the existing plan of operations.
[51 FR 20827, June 9, 1986]
Subpart E_Oil and Gas Resources
Source: 55 FR 10444, Mar. 21, 1990, unless otherwise noted.
Sec. 228.100 Scope and applicability.
(a) Scope. This subpart sets forth the rules and procedures by which
the Forest Service of the United States Department of Agriculture will
carry out its statutory responsibilities in the issuance of Federal oil
and gas leases and management of subsequent oil and gas operations on
National Forest System lands, for approval and modification of attendant
surface use plans of operations, for monitoring of surface disturbing
operations on such leases, and for enforcement of surface use
requirements and reclamation standards.
(b) Applicability. The rules of this subpart apply to leases on
National Forest System lands and to operations that are conducted on
Federal oil and gas leases on National Forest System lands as of April
20, 1990.
(c) Applicability of other rules. Surface uses associated with oil
and gas prospecting, development, production, and reclamation
activities, that are conducted on National Forest System lands outside a
leasehold must receive prior authorization from the Forest Service. Such
activities are subject to the regulations set forth elsewhere in 36 CFR
chapter II, including but not limited to the regulations set forth in 36
CFR parts 251, subpart B, and 261.
Sec. 228.101 Definitions.
For the purposes of this subpart, the terms listed in this section
have the following meaning:
Authorized Forest officer. The Forest Service employee delegated the
authority to perform a duty described in these rules. Generally, a
Regional Forester, Forest Supervisor, District Ranger, or Minerals Staff
Officer, depending on the scope and level of the duty to be performed.
Compliance Officer. The Deputy Chief, or the Associate Deputy
Chiefs, National Forest System or the line officer designated to act in
the absence of the Deputy Chief.
Leasehold. The area described in a Federal oil and gas lease,
communitized, or unitized area.
Lessee. A person or entity holding record title in a lease issued by
the United States.
National Forest System. All National Forest lands reserved or
withdrawn from the public domain of the United States, all National
Forest lands acquired through purchase, exchange, donation, or other
means, the National Grasslands and land utilization projects
administered under title III of the Bankhead-Jones Farm Tenant Act (7
U.S.C. 1010 et seq.), and other lands, waters, or interests therein
which are administered by the Forest Service or are designated for
administration through the Forest Service as a part of the system (16
U.S.C. 1609).
Notices to Lessees, Transferees, and Operators. A written notice
issued by the authorized Forest officer. Notices to Lessees,
Transferees, and Operators implement the regulations in this subpart and
serve as instructions on specific item(s) of importance within a Forest
Service Region, National Forest, or Ranger District.
Onshore Oil and Gas Order. A formal numbered order issued by or
signed by the Chief of the Forest Service that implements and
supplements the regulations in this subpart.
Operating right. The interest created out of a lease that authorizes
the holder of that interest to enter upon the leased lands to conduct
drilling and related operations, including production of oil and gas
from such lands in accordance with the terms of the lease.
Operating rights owner. A person holding operating rights in a lease
issued by the United States. A leasee also may be an operating rights
owner if
[[Page 208]]
the operating rights in a lease or portion thereof have not been
conveyed to another person.
Operations. Surface disturbing activities that are conducted on a
leasehold on National Forest System lands pursuant to a current approved
surface use plan of operations, including but not limited to,
exploration, development, and production of oil and gas resources and
reclamation of surface resources.
Operator. Any person or entity, including, but not limited to, the
lessee or operating rights owner, who has stated in writing to the
authorized Forest officer that they are responsible under the terms and
conditions of the lease for the operations conducted on the leased lands
or a portion thereof.
Person. An individual, partnership, corporation, association or
other legal entity.
Substantial modification. A change in lease terms or a modification,
waiver, or exception of a lease stipulation that would require an
environmental assessment or environmental impact statement be prepared
pursuant to the National Environmental Policy Act of 1969.
Surface use plan of operations. A plan for surface use, disturbance,
and reclamation.
Transfer. Any conveyance of an interest in a lease by assignment,
sublease or otherwise. This definition includes the terms: Assignment
which means a conveyance of all or a portion of the lessee's record
title interest in a lease; and sublease which means a conveyance of a
non-record interest in a lease, i.e., a conveyance of operating rights
is normally a sublease and a sublease also is a subsidiary arrangement
between the lessee (sublessor) and the sublessee, but a sublease does
not include a transfer of a purely financial interest, such as
overriding royalty interest or payment out of production, nor does it
affect the relationship imposed by a lease between the lessee(s) and the
United States.
Transferee. A person to whom an interest in a lease issued by the
United States has been transferred.
Leasing
Sec. 228.102 Leasing analyses and decisions.
(a) Compliance with the National Environmental Policy Act of 1969.
In analyzing lands for leasing, the authorized Forest officer shall
comply with the National Environmental Policy Act of 1969, implementing
regulations at 43 CFR parts 1500-1508, and Forest Service implementing
policies and procedures set forth in Forest Service Manual chapter 1950
and Forest Service Handbook 1909.15.
(b) Scheduling analysis of available lands. Within 6 months of April
20, 1990, Forest Supervisors shall develop, in cooperation with the
Bureau of Land Management and with public input, a schedule for
analyzing lands under their jurisdiction that have not been already
analyzed for leasing. The Forest Supervisors shall revise or make
additions to the schedule at least annually. In scheduling lands for
analysis, the authorized Forest officer shall identify and exclude from
further review the following lands which are legally unavailable for
leasing:
(1) Lands withdrawn from mineral leasing by an act of Congress or by
an order of the Secretary of the Interior;
(2) Lands recommended for wilderness allocation by the Secretary of
Agriculture;
(3) Lands designated by statute as wilderness study areas, unless
oil and gas leasing is specifically allowed by the statute designating
the study area; and
(4) Lands within areas allocated for wilderness or further planning
in Executive Communication 1504, Ninety-Sixth Congress (House Document
No. 96-119), unless such lands subsequently have been allocated to uses
other than wilderness by an approved Forest land and resource management
plan or have been released to uses other than wilderness by an act of
Congress.
(c) Leasing analyses. The leasing analysis shall be conducted by the
authorized Forest officer in accordance with the requirements of 36 CFR
part 219 (Forest land and resource management planning) and/or, as
appropriate,
[[Page 209]]
through preparation of NEPA documents. As part of the analysis, the
authorized Forest officer shall:
(1) Identify on maps those areas that will be:
(i) Open to development subject to the terms and conditions of the
standard oil and gas lease form (including an explanation of the typical
standards and objectives to be enforced under the standard lease terms);
(ii) Open to development but subject to constraints that will
require the use of lease stipulations such as those prohibiting surface
use on areas larger than 40 acres or such other standards as may be
developed in the plan for stipulation use (with discussion as to why the
constraints are necessary and justifiable); and
(iii) Closed to leasing, distinguishing between those areas that are
being closed through exercise of management direction, and those closed
by law, regulation, etc.
(2) Identify alternatives to the areas listed in paragraph (c)(1) of
this section, including that of not allowing leasing.
(3) Project the type/amount of post-leasing activity that is
reasonably foreseeable as a consequence of conducting a leasing program
consistent with that described in the proposal and for each alternative.
(4) Analyze the reasonable foreseeable impacts of post-leasing
activity projected under paragraph (c)(3) of this section.
(d) Area or Forest-wide leasing decisions (lands administratively
available for leasing). Upon completion of the leasing analysis, the
Regional Forest shall promptly notify the Bureau of Land Management as
to the area or Forest-wide leasing decisions that have been made, that
is, identify lands which have been found administratively available for
leasing.
(e) Leasing decisions for specific lands. At such time as specific
lands are being considered for leasing, the Regional Forester shall
review the area or Forest-wide leasing decision and shall authorize the
Bureau of Land Management to offer specific lands for lease subject to:
(1) Verifying that oil and gas leasing of the specific lands has
been adequately addressed in a NEPA document, and is consistent with the
Forest land and resource management plan. If NEPA has not been
adequately addressed, or if there is significant new information or
circumstances as defined by 40 CFR 1502.9 requiring further
environmental analysis, additional environment analysis shall be done
before a leasing decision for specific lands will be made. If there is
inconsistency with the Forest land and resource management plan, no
authorization for leasing shall be given unless the plan is amended or
revised.
(2) Ensuring that conditions of surface occupancy identified in
Sec. 228.102(c)(1) are properly included as stipulations in resulting
leases.
(3) Determining that operations and development could be allowed
somewhere on each proposed lease, except where stipulations will
prohibit all surface occupancy.
[55 FR 10444, Mar. 21, 1990, as amended at 56 FR 56157, Nov. 1, 1991]
Sec. 228.103 Notice of appeals of decisions.
The authorized Forest officer shall promptly notify the Bureau of
Land Management if appeals of either an area or Forest-wide leasing
decision or a leasing decision for specific lands are filed during the
periods provided for under 36 CFR part 217.
Sec. 228.104 Consideration of requests to modify, waive, or grant
exceptions to lease stipulations.
(a) General. An operator submitting a surface use plan of operations
may request the authorized Forest officer to authorize the Bureau of
Land Management to modify (permanently change), waive (permanently
remove), or grant an exception (case-by-case exemption) to a stipulation
included in a lease at the direction of the Forest Service. The person
making the request is encouraged to submit any information which might
assist the authorized Forest officer in making a decision.
(b) Review. The authorized Forest officer shall review any
information submitted in support of the request and any other pertinent
information.
(1) As part of the review, consistent with 30 U.S.C. 226 (f)-(g),
the authorized
[[Page 210]]
Forest officer shall ensure compliance with the National Environmental
Policy Act of 1969 (42 U.S.C. 4331 et seq.) and any other applicable
laws, and shall ensure preparation of any appropriate environmental
documents.
(2) The authorized Forest officer may authorize the Bureau of Land
Management to modify, waive, or grant an exception to a stipulation if:
(i) The action would be consistent with applicable Federal laws;
(ii) The action would be consistent with the current forest land and
resource management plan;
(iii) The management objectives which led the Forest Service to
require the inclusion of the stipulation in the lease can be met without
restricting operations in the manner provided for by the stipulation
given the change in the present condition of the surface resources
involved, or given the nature, location, timing, or design of the
proposed operations; and
(iv) The action is acceptable to the authorized Forest officer based
upon a review of the environmental consequences.
(c) Other agency stipulations. If a stipulation was included in a
lease by the Forest Service at the request of another agency, the
authorized Forest officer shall consult with that agency prior to
authorizing modification, waiver, or exception.
(d) Notice of decision. (1) When the review of a stipulation
modification, waiver, or exception request has been completed and the
authorized Forest officer has reached a decision, the authorized Forest
officer shall promptly notify the operator and the appropriate Bureau of
Land Management office, in writing, of the decision to grant, or grant
with additional conditions, or deny the request.
(2) Any decision to modify, waive, or grant an exception to a lease
stipulation shall be subject to administrative appeal only in
conjunction with an appeal of a decision on a surface use plan of
operation or supplemental surface use plan of operation.
Authorization of Occupancy Within a Leasehold
Sec. 228.105 Issuance of onshore orders and notices to lessees.
(a) Onshore oil and gas orders. The Chief of the Forest Service may
issue, or cosign with the Director, Bureau of Land Management, Onshore
Oil and Gas Orders necessary to implement and supplement the regulations
of this subpart.
(1) Surface Use Plans of Operations and Master Development Plans.
Operators shall submit Surface Use Plans of Operations or Master
Development Plans in accordance with Onshore Oil and Gas Order No. 1.
Approval of a Master Development Plan constitutes a decision to approve
Surface Use Plans of Operations submitted as a part of the Master
Development Plan. Subsequently submitted Surface Use Plans of Operations
shall be reviewed to verify that they are consistent with the approved
Master Development Plan and whether additional NEPA documentation or
consultation pursuant to the National Historic Preservation Act or the
Endangered Species Act is required. If the review determines that
additional documentation is required, the Forest Service will review the
additional documentation or consult as appropriate and make an
independent decision regarding the subsequently submitted Surface Use
Plan of Operations, and notify the BLM and the operator whether the
Surface Use Plan of Operations is approved.
(2) Adoption of additional onshore oil and gas orders. Additional
onshore oil and gas orders shall be published in the Federal Register
for public comment and codified in the CFR.
(3) Applicability of onshore oil and gas orders. Onshore Oil and Gas
Orders issued pursuant to this section are binding on all operations
conducted on National Forest System lands, unless otherwise provided
therein.
(b) Notices to lessees, transferees, and operators. The authorized
Forest officer may issue, or cosign with the authorized officer of the
Bureau of Land Management, Notices to Lessees, Transferees, and
Operators necessary to implement the regulations of this subpart.
Notices to Lessees, Transferees,
[[Page 211]]
and Operators are binding on all operations conducted on the
administrative unit of the National Forest System (36 CFR 200.2)
supervised by the authorized Forest officer who issued or cosigned such
notice.
[55 FR 10444, Mar. 21, 1990, as amended at 72 FR 10328, Mar. 7, 2007]
Sec. 228.106 Operator's submission of surface use plan of operations.
(a) General. No permit to drill on a Federal oil and gas lease for
National Forest System lands may be granted without the analysis and
approval of a surface use plan of operations covering proposed surface
disturbing activities. An operator must obtain an approved surface use
plan of operations before conducting operations that will cause surface
disturbance. The operator shall submit a proposed surface use plan of
operations as part of an Application for a Permit to Drill to the
appropriate Bureau of Land Management office for forwarding to the
Forest Service, unless otherwise directed by the Onshore Oil and Gas
Order in effect when the proposed plan of operations is submitted.
(b) Preparation of plan. In preparing a surface use plan of
operations, the operator is encouraged to contact the local Forest
Service office to make use of such information as is available from the
Forest Service concerning surface resources and uses, environmental
considerations, and local reclamation procedures.
(c) Content of plan. The type, size, and intensity of the proposed
operations and the sensitivity of the surface resources that will be
affected by the proposed operations determine the level of detail and
the amount of information which the operator includes in a proposed plan
of operations. However, any surface use plan of operations submitted by
an operator shall contain the information specified by the Onshore Oil
and Gas Order in effect when the surface use plan of operations is
submitted.
(d) Supplemental plan. An operator must obtain an approved
supplemental surface use plan of operations before conducting any
surface disturbing operations that are not authorized by a current
approved surface use plan of operations. The operator shall submit a
proposed supplemental surface use plan of operations to the appropriate
Bureau of Land Management office for forwarding to the Forest Service,
unless otherwise directed by the Onshore Oil and Gas Order in effect
when the proposed supplemental plan of operations is submitted. The
supplemental plan of operations need only address those operations that
differ from the operations authorized by the current approved surface
use plan of operations. A supplemental plan is otherwise subject to the
same requirements under this subpart as an initial surface use plan of
operations.
Sec. 228.107 Review of surface use plan of operations.
(a) Review. The authorized Forest officer shall review a surface use
plan of operations as promptly as practicable given the nature and scope
of the proposed plan. As part of the review, the authorized Forest
officer shall comply with the National Environmental Policy Act of 1969,
implementing regulations at 40 CFR parts 1500-1508, and the Forest
Service implementing policies and procedures set forth in Forest Service
Manual Chapter 1950 and Forest Service Handbook 1909.15 and shall ensure
that:
(1) The surface use plan of operations is consistent with the lease,
including the lease stipulations, and applicable Federal laws;
(2) To the extent consistent with the rights conveyed by the lease,
the surface use plan of operations is consistent with, or is modified to
be consistent with, the applicable current approved forest land and
resource management plan;
(3) The surface use plan of operations meets or exceeds the surface
use requirements of Sec. 228.108 of this subpart; and
(4) The surface use plan of operations is acceptable, or is modified
to be acceptable, to the authorized Forest officer based upon a review
of the environmental consequences of the operations.
(b) Decision. The authorized Forest officer shall make a decision on
the approval of a surface use plan of operations as follows:
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(1) If the authorized Forest officer will not be able to make a
decision on the proposed plan within 3 working days after the conclusion
of the 30-day notice period provided for by 30 U.S.C. 226(f), the
authorized Forest officer shall advise the appropriate Bureau of Land
Management office and the operator as soon as such delay becomes
apparent, either in writing or orally with subsequent written
confirmation, that additional time will be needed to process the plan.
The authorized Forest officer shall explain the reason why additional
time is needed and project the date by which a decision on the plan will
likely be made.
(2) When the review of a surface use plan of operations has been
completed, the authorized Forest officer shall promptly notify the
operator and the appropriate Bureau of Land Management office, in
writing, that:
(i) The plan is approved as submitted:
(ii) The plan is approved subject to specified conditions; or,
(iii) The plan is disapproved for the reasons stated.
(c) Notice of decision. The authorized Forest officer shall give
public notice of the decision on a surface use plan of operations and
include in the notice that the decision is subject to appeal under 36
CFR part 214 or 215.
(d) Transmittal of decision. The authorized Forest officer shall
immediately forward a decision on a surface use plan of operations to
the appropriate Bureau of Land Management office and the operator. This
transmittal shall include the estimated cost of reclamation and
restoration (Sec. 228.109(a)) if the authorized Forest officer believes
that additional bonding is required.
(e) Supplemental plans. A supplemental surface use plan of
operations (Sec. 228.106(d)) shall be reviewed in the same manner as an
initial surface use plan of operations.
[55 FR 10444, Mar. 21, 1990, as amended at 72 FR 10328, Mar. 7, 2007; 78
FR 33724, June 5, 2013]
Sec. 228.108 Surface use requirements.
(a) General. The operator shall conduct operations on a leasehold on
National Forest System lands in a manner that minimizes effects on
surface resources, prevents unnecessary or unreasonable surface resource
disturbance, and that is in compliance with the other requirements of
this section.
(b) Notice of operations. The operator must notify the authorized
Forest officer 48 hours prior to commencing operations or resuming
operations following their temporary cessation (Sec. 228.111).
(c) Access facilities. The operator shall construct and maintain
access facilities to assure adequate drainage and to minimize or prevent
damage to surface resources.
(d) Cultural and historical resources. The operator shall report
findings of cultural and historical resources to the authorized Forest
officer immediately and, except as otherwise authorized in an approved
surface use plan of operations, protect such resources.
(e) Fire prevention and control. To the extent practicable, the
operator shall take measures to prevent uncontrolled fires on the area
of operation and to suppress uncontrolled fires resulting from the
operations.
(f) Fisheries, wildlife and plant habitat. The operator shall comply
with the requirements of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) and its implementing regulations (50 CFR chapter IV), and,
except as otherwise provided in an approved surface use plan of
operations, conduct operations in such a manner as to maintain and
protect fisheries, wildlife, and plant habitat.
(g) Reclamation. (1) Unless otherwise provided in an approved
surface use plan of operations, the operator shall conduct reclamation
concurrently with other operations.
(2) Within 1 year of completion of operations on a portion of the
area of operation, the operator must reclaim that portion, unless a
different period of time is approved in writing by the authorized Forest
officer.
(3) The operator must:
(i) Control soil erosion and landslides;
(ii) Control water runoff;
(iii) Remove, or control, solid wastes, toxic substances, and
hazardous substances;
(iv) Reshape and revegetate disturbed areas;
[[Page 213]]
(v) Remove structures, improvements, facilities and equipment,
unless otherwise authorized; and
(vi) Take such other reclamation measures as specified in the
approved surface use plan of operations.
(h) Safety measures. (1) The operator must maintain structures,
facilities, improvements, and equipment located on the area of operation
in a safe and neat manner and in accordance with an approved surface use
plan of operations.
(2) The operator must take appropriate measures in accordance with
applicable Federal and State laws and regulations to protect the public
from hazardous sites or conditions resulting from the operations. Such
measures may include, but are not limited to, posting signs, building
fences, or otherwise identifying the hazardous site or condition.
(i) Wastes. The operator must either remove garbage, refuse, and
sewage from National Forest System lands or treat and dispose of that
material in such a manner as to minimize or prevent adverse impacts on
surface resources. The operator shall treat or dispose of produced
water, drilling fluid, and other waste generated by the operations in
such a manner as to minimize or prevent adverse impacts on surface
resources.
(j) Watershed protection. (1) Except as otherwise provided in the
approved surface use plan of operations, the operator shall not conduct
operations in areas subject to mass soil movement, riparian areas and
wetlands.
(2) The operator shall take measures to minimize or prevent erosion
and sediment production. Such measures include, but are not limited to,
siting structures, facilities, and other improvements to avoid steep
slopes and excessive clearing of land.
Sec. 228.109 Bonds.
(a) General. As part of the review of a proposed surface use plan of
operations, the authorized Forest officer shall consider the estimated
cost to the Forest Service to reclaim those areas that would be
disturbed by operations and to restore any lands or surface waters
adversely affected by the lease operations after the abandonment or
cessation of operations on the lease. If at any time prior to or during
the conduct of operations, the authorized Forest officer determines the
financial instrument held by the Bureau of Land Management is not
adequate to ensure complete and timely reclamation and restoration, the
authorized Forest officer shall give the operator the option of either
increasing the financial instrument held by the Bureau of Land
Management or filing a separate instrument with the Forest Service in
the amount deemed adequate by the authorized Forest officer to ensure
reclamation and restoration.
(b) Standards for estimating reclamation costs. The authorized
Forest officer shall consider the costs of the operator's proposed
reclamation program and the need for additional measures to be taken
when estimating the cost to the Forest Service to reclaim the disturbed
area.
(c) Release of reclamation liability. An operator may request the
authorized Forest officer to notify the Bureau of Land Management of
reduced reclamation liability at any time after reclamation has
commenced. The authorized Forest officer shall, if appropriate, notify
the Bureau of Land Management as to the amount to which the liability
has been reduced.
Sec. 228.110 Indemnification.
The operator and, if the operator does not hold all of the interest
in the applicable lease, all lessees and transferees are jointly and
severally liable in accordance with Federal and State laws for
indemnifying the United States for:
(a) Injury, loss or damage, including fire suppression costs, which
the United States incurs as a result of the operations; and
(b) Payments made by the United States in satisfaction of claims,
demands or judgments for an injury, loss or damage, including fire
suppression costs, which result from the operations.
[[Page 214]]
Administration of Operations
Sec. 228.111 Temporary cessation of operations.
(a) General. As soon as it becomes apparent that there will be a
temporary cessation of operations for a period of 45 days or more, the
operator must verbally notify and subsequently file a statement with the
authorized Forest officer verifying the operator's intent to maintain
structures, facilities, improvements, and equipment that will remain on
the area of operation during the cessation of operations, and specifying
the expected date by which operations will be resumed.
(b) Seasonal shutdowns. The operator need not file the statement
required by paragraph (a) of this section if the cessation of operations
results from seasonally adverse weather conditions and the operator will
resume operations promptly upon the conclusion of those adverse weather
conditions.
(c) Interim measures. The authorized Forest officer may require the
operator to take reasonable interim reclamation or erosion control
measures to protect surface resources during temporary cessations of
operations, including during cessations of operations resulting from
seasonally adverse weather conditions.
Sec. 228.112 Compliance and inspection.
(a) General. Operations must be conducted in accordance with the
lease, including stipulations made part of the lease at the direction of
the Forest Service, an approved surface use plan of operations, the
applicable Onshore Oil and Gas Order (Sec. 228.105(a)), an applicable
Notice to lessees, transferees, and operators (Sec. 228.105(b)), and
regulations of this subpart.
(b) Completion of reclamation. The authorized Forest officer shall
give prompt written notice to an operator whenever reclamation of a
portion of the area affected by surface operations has been
satisfactorily completed in accordance with the approved surface use
plan of operations and Sec. 228.108 of this subpart. The notice shall
describe the portion of the area on which the reclamation has been
satisfactorily completed.
(c) Compliance with other statutes and regulations. Nothing in this
subpart shall be construed to relieve an operator from complying with
applicable Federal and State laws or regulations, including, but not
limited to:
(1) Federal and State air quality standards, including the
requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.);
(2) Federal and State water quality standards, including the
requirements of the Federal Water Pollution Control Act, as amended (33
U.S.C. 1151 et seq.);
(3) Federal and State standards for the use or generation of solid
wastes, toxic substances and hazardous substances, including the
requirements of the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, 42 U.S.C. 9601 et seq., and its
implementing regulations, 40 CFR chapter I, subchapter J, and the
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., and its
implementing regulations, 40 CFR chapter I, subchapter I;
(4) The Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., and
its implementing regulations, 50 CFR chapter IV;
(5) The Archeological Resources Protection Act of 1979, as amended
(16 U.S.C. 470aa et seq.) and its implementing regulations 36 CFR part
296;
(6) The Mineral Leasing Act of 1920, 30 U.S.C. 1981 et seq., the
Mineral Leasing Act of Acquired Lands of 1947, 30 U.S.C. 351 et seq.,
the Federal Oil and Gas Royalty Management Act of 1982, 30 U.S.C. 1701
et seq., and their implementing regulations, 43 CFR chapter II, group
3100; and
(7) Applicable Onshore Oil and Gas Orders and Notices to Lessees and
Operators (NTL's) issued by the United States Department of the
Interior, Bureau of Land Management pursuant to 43 CFR chapter II, part
3160, subpart 3164.
(d) Penalties. If surface disturbing operations are being conducted
that are not authorized by an approved surface use plan of operations or
that violate a term or operating condition of an approved surface use
plan of operations, the person conducting those operations is subject to
the prohibitions and attendant penalties of 36 CFR part 261.
[[Page 215]]
(e) Inspection. Forest Service officers shall periodically inspect
the area of operations to determine and document whether operations are
being conducted in compliance with the regulations in this subpart, the
stipulations included in the lease at the direction of the Forest
Service, the approved surface use plan of operations, the applicable
Onshore Oil and Gas Order, and applicable Notices to Lessees,
Transferees, and Operators.
Sec. 228.113 Notice of noncompliance.
(a) Issuance. When an authorized Forest officer finds that the
operator is not in compliance with a reclamation or other standard, a
stipulation included in a lease at the direction of the Forest Service,
an approved surface use plan of operation, the regulations in this
subpart, the applicable onshore oil and gas order, or an applicable
notice to lessees, transferees, and operators, the authorized Forest
officer shall issue a notice of noncompliance.
(1) Content. The notice of noncompliance shall include the
following:
(i) Identification of the reclamation requirements or other
standard(s) with which the operator is not in compliance;
(ii) Description of the measures which are required to correct the
noncompliance;
(iii) Specification of a reasonable period of time within which the
noncompliance must be corrected;
(iv) If the noncompliance appears to be material, identification of
the possible consequences of continued noncompliance of the
requirement(s) or standard(s) as described in 30 U.S.C. 226(g);
(v) If the noncompliance appears to be in violation of the
prohibitions set forth in 36 CFR part 261, identification of the
possible consequences of continued noncompliance of the requirement(s)
or standard(s) as described in 36 CFR 261.1b; and
(vi) Notification that the authorized Forest officer remains willing
and desirous of working cooperatively with the operator to resolve or
remedy the noncompliance.
(2) Extension of deadlines. The operator may request an extension of
a deadline specified in a notice of noncompliance if the operator is
unable to come into compliance with the applicable requirement(s) or
standard(s) identified in the notice of noncompliance by the deadline
because of conditions beyond the operator's control. The authorized
Forest officer shall not extend a deadline specified in a notice of
noncompliance unless the operator requested an extension and the
authorized Forest officer finds that there was a condition beyond the
operator's control, that such condition prevented the operator from
complying with the notice of noncompliance by the specified deadline,
and that the extension will not adversely affect the interests of the
United States. Conditions which may be beyond the operator's control
include, but are not limited to, closure of an area in accordance with
36 CFR part 261, subparts B or C, or inaccessibility of an area of
operations due to such conditions as fire, flooding, or snowpack.
(3) Manner of service. The authorized Forest officer shall serve a
notice of noncompliance or a decision on a request for extension of a
deadline specified in a notice upon the operator in person, by certified
mail or by telephone. However, if notice is initially provided in person
or by telephone, the authorized Forest officer shall send the operator
written confirmation of the notice or decision by certified mail.
(b) Failure to come into compliance. If the operator fails to come
into compliance with the applicable requirement(s) or standard(s)
identified in a notice of noncompliance by the deadline specified in the
notice, or an approved extension, the authorized Forest officer shall
decide whether: The noncompliance appears to be material given the
reclamation requirements and other standards applicable to the lease
established by 30 U.S.C. 226(g), the regulations in this subpart, the
stipulations included in a lease at the direction of the Forest Service,
an approved surface use plan of operations, the applicable Onshore Oil
and Gas Order, or an applicable Notice to lessees, transferees, and
operators; the noncompliance is likely to result in danger to public
health or safety or irreparable resource damage; and the
[[Page 216]]
noncompliance is resulting in an emergency.
(1) Referral to compliance officer. When the operations appear to be
in material noncompliance, the authorized Forest officer shall promptly
refer the matter to the compliance officer. The referral shall be
accompanied by a complete statement of the facts supported by
appropriate exhibits. Apparent material noncompliance includes, but is
not limited to, operating without an approved surface use plan of
operations, conducting operations that have been suspended, failure to
timely complete reclamation in accordance with an approved surface use
plan of operations, failure to maintain an additional bond in the amount
required by the authorized Forest officer during the period of
operation, failure to timely reimburse the Forest Service for the cost
of abating an emergency, and failing to comply with any term included in
a lease, stipulation, or approved surface use plan of operations, the
applicable onshore oil and gas order, or an applicable Notice to
lessees, transferees, and operators, relating to the protection of a
threatened or endangered species.
(2) Suspension of operations. When the noncompliance is likely to
result in danger to public health or safety or in irreparable resource
damage, the authorized Forest officer shall suspend the operations, in
whole or in part.
(i) A suspension of operations shall remain in effect until the
authorized Forest officer determines that the operations are in
compliance with the applicable requirement(s) or standard(s) identified
in the notice of noncompliance.
(ii) The authorized Forest officer shall serve decisions suspending
operations upon the operator in person, by certified mail, or by
telephone. If notice is initially provided in person or by telephone,
the authorized Forest officer shall send the operator written
confirmation of the decision by certified mail.
(iii) The authorized Forest officer shall immediately notify the
appropriate Bureau of Land Management office when an operator has been
given notice to suspend operations.
(3) Abatement of emergencies. When the noncompliance is resulting in
an emergency, the authorized Forest officer may take action as necessary
to abate the emergency. The total cost to the Forest Service of taking
actions to abate an emergency becomes an obligation of the operator.
(i) Emergency situations include, but are not limited to, imminent
dangers to public health or safety or irreparable resource damage.
(ii) The authorized Forest officer shall promptly serve a bill for
such costs upon the operator by certified mail.
Sec. 228.114 Material noncompliance proceedings.
(a) Evaluation of referral. The compliance officer shall promptly
evaluate a referral made by the authorized Forest officer pursuant to
Sec. 228.113(b)(1) of this subpart.
(b) Dismissal of referral. The compliance officer shall dismiss the
referral if the compliance officer determines that there is not adequate
evidence to support a reasonable belief that:
(1) The operator was not in compliance with the applicable
requirement(s) or standard(s) identified in a notice of noncompliance by
the deadline specified in the notice, or an extension approved by the
authorized Forest officer; or
(2) The noncompliance with the applicable requirement(s) or
standard(s) identified in the notice of noncompliance may be material.
(c) Initiation of proceedings. The compliance officer shall initiate
a material noncompliance proceeding if the compliance officer agrees
that there is adequate evidence to support a reasonable belief that an
operator has failed to come into compliance with the applicable
requirement(s) or standard(s) identified in a notice of noncompliance by
the deadline specified in the notice, or extension approved by the
authorized Forest officer, and that the noncompliance may be material.
(1) Notice of proceedings. The compliance officer shall inform the
lessee and operator of the material noncompliance proceedings by
certified mail, return receipt requested.
(2) Content of notice. The notice of the material noncompliance
proceeding shall include the following:
[[Page 217]]
(i) The specific reclamation requirement(s) or other standard(s) of
which the operator may be in material noncompliance;
(ii) A description of the measures that are required to correct the
violation;
(iii) A statement that if the compliance officer finds that the
operator is in material noncompliance with a reclamation requirement or
other standard applicable to the lease, the Secretary of the Interior
will not be able to issue new leases or approve new transfers of leases
to the operator, any subsidiary or affiliate of the operator, or any
person controlled by or under common control with the operator until the
compliance officer finds that the operator has come into compliance with
such requirement or standard; and
(iv) A recitation of the specific procedures governing the material
noncompliance proceeding set forth in paragraphs (d) through (g) of this
section.
(d) Answer. Within 30 calendar days after receiving the notice of
the proceeding, the operator may submit, in person, in writing, or
through a representative, an answer containing information and argument
in opposition to the proposed material noncompliance finding, including
information that raises a genuine dispute over the material facts. In
that submission, the operator also may:
(1) Request an informal hearing with the compliance officer; and
(2) Identify pending administrative or judicial appeal(s) which are
relevant to the proposed material noncompliance finding and provide
information which shows the relevance of such appeal(s).
(e) Informal hearing. If the operator requests an informal hearing,
it shall be held within 20 calendar days from the date that the
compliance officer receives the operator's request.
(1) The compliance officer may postpone the date of the informal
hearing if the operator requests a postponement in writing.
(2) At the hearing, the operator, appearing personally or through an
attorney or another authorized representative, may informally present
and explain evidence and argument in opposition to the proposed material
noncompliance finding.
(3) A transcript of the informal hearing shall not be required.
(f) Additional procedures as to disputed facts. If the compliance
officer finds that the answer raises a genuine dispute over facts
essential to the proposed material noncompliance finding, the compliance
officer shall so inform the operator by certified mail, return receipt
requested. Within 10 days of receiving this notice, the operator may
request a fact-finding conference on those disputed facts.
(1) The fact-finding conference shall be scheduled within 20
calendar days from the date the compliance officer receives the
operator's request, unless the operator and compliance officer agree
otherwise.
(2) At the fact-finding conference, the operator shall have the
opportunity to appear with counsel, submit documentary evidence, present
witnesses, and confront the person(s) the Forest Service presents.
(3) A transcribed record of the fact-finding conference shall be
made, unless the operator and the compliance officer by mutual agreement
waive the requirement for a transcript. The transcript will be made
available to the operator at cost upon request.
(4) The compliance officer may preside over the fact-finding
conference or designate another authorized Forest officer to preside
over the fact-finding conference.
(5) Following the fact-finding conference, the authorized Forest
officer who presided over the conference shall promptly prepare written
findings of fact based upon the preponderance of the evidence. The
compliance officer may reject findings of fact prepared by another
authorized Forest officer, in whole or in part, if the compliance
officer specifically determines that such findings are arbitrary and
capricious or clearly erroneous.
(g) Dismissal of proceedings. The compliance officer shall dismiss
the material noncompliance proceeding if, before the compliance officer
renders a decision pursuant to paragraph (h) of this section, the
authorized Forest officer who made the referral finds that the operator
has come into compliance
[[Page 218]]
with the applicable requirements or standards identified in the notice
of proceeding.
(h) Compliance officer's decision. The compliance officer shall base
the decision on the entire record, which shall consist of the authorized
Forest officer's referral and its accompanying statement of facts and
exhibits, information and argument that the operator provided in an
answer, any information and argument that the operator provided in an
informal hearing if one was held, and the findings of fact if a fact-
finding conference was held.
(1) Content. The compliance officer's decision shall state whether
the operator has violated the requirement(s) or standard(s) identified
in the notice of proceeding and, if so, whether that noncompliance is
material given the requirements of 30 U.S.C. 226(g), the stipulations
included in the lease at the direction of the Forest Service, the
regulations in this subpart or an approved surface use plan of
operations, the applicable onshore oil and gas order, or an applicable
notice to lessees, transferees, and operators. If the compliance officer
finds that the operator is in material noncompliance, the decision also
shall:
(i) Describe the measures that are required to correct the
violation;
(ii) Apprise the operator that the Secretary of the Interior is
being notified that the operator has been found to be in material
noncompliance with a reclamation requirement or other standard
applicable to the lease; and
(iii) State that the decision is the final administrative
determination of the Department of Agriculture.
(2) Service. The compliance officer shall serve the decision upon
the operator by certified mail, return receipt requested. If the
operator is found to be in material noncompliance, the compliance
officer also shall immediately send a copy of the decision to the
appropriate Bureau of Land Management office and to the Secretary of the
Interior.
(i) Petition for withdrawal of finding. If an operator who has been
found to be in material noncompliance under the provisions of this
section believes that the operations have subsequently come into
compliance with the applicable requirement(s) or standard(s) identified
in the compliance officer's decision, the operator may submit a written
petition requesting that the material noncompliance finding be
withdrawn. The petition shall be submitted to the authorized Forest
officer who issued the operator the notice of noncompliance under
Sec. 228.113(a) of this subpart and shall include information or
exhibits which shows that the operator has come into compliance with the
requirement(s) or standard(s) identified in the compliance officer's
decision.
(1) Response to petition. Within 30 calendar days after receiving
the operator's petition for withdrawal, the authorized Forest officer
shall submit a written statement to the compliance officer as to whether
the authorized Forest officer agrees that the operator has come into
compliance with the requirement(s) or standard(s) identified in the
compliance officer's decision. If the authorized Forest officer
disagrees with the operator, the written statement shall be accompanied
by a complete statement of the facts supported by appropriate exhibits.
(2) Additional procedures as to disputed material facts. If the
compliance officer finds that the authorized Forest officer's response
raises a genuine dispute over facts material to the decision as to
whether the operator has come into compliance with the requirement(s) or
standard(s) identified in the compliance officer's decision, the
compliance officer shall so notify the operator and authorized Forest
officer by certified mail, return receipt requested. The notice shall
also advise the operator that the fact finding procedures specified in
paragraph (f) of this section apply to the compliance officer's decision
on the petition for withdrawal.
(3) Compliance officer's decision. The compliance officer shall base
the decision on the petition on the entire record, which shall consist
of the operator's petition for withdrawal and its accompanying exhibits,
the authorized Forest officer's response to the petition and, if
applicable, its accompanying statement of facts and exhibits, and if a
fact-finding conference was held, the findings of fact. The compliance
officer shall serve the decision on the operator by certified mail.
[[Page 219]]
(i) If the compliance officer finds that the operator remains in
violation of requirement(s) or standard(s) identified in the decision
finding that the operator was in material noncompliance, the decision on
the petition for withdrawal shall identify such requirement(s) or
standard(s) and describe the measures that are required to correct the
violation(s).
(ii) If the compliance officer finds that the operator has
subsequently come into compliance with the requirement(s) or standard(s)
identified in the compliance officer's decision finding that the
operator was in material noncompliance, the compliance officer also
shall immediately send a copy of the decision on the petition for
withdrawal to the appropriate Bureau of Land Management office and
notify the Secretary of the Interior that the operator has come into
compliance.
(j) List of operators found to be in material noncompliance. The
Deputy Chief, National Forest System, shall compile and maintain a list
of operators who have been found to be in material noncompliance with
reclamation requirements and other standards as provided in 30 U.S.C.
226(g), the regulations in this subpart, a stipulation included in a
lease at the direction of the Forest Service, or an approved surface use
plan of operations, the applicable onshore oil and gas order, or an
applicable notice to lessees, transferees, and operators, for a lease on
National Forest System lands to which such standards apply. This list
shall be made available to Regional Foresters, Forest Supervisors, and
upon request, members of the public.
Sec. 228.115 Additional notice of decisions.
(a) The authorized Forest officer shall promptly post notices
provided by the Bureau of Land Management of:
(1) Competitive lease sales which the Bureau plans to conduct that
include National Forest System lands;
(2) Substantial modifications in the terms of a lease which the
Bureau proposes to make for leases on National Forest System lands; and
(3) Applications for permits to drill which the Bureau has received
for leaseholds located on National Forest System lands.
(b) The notice shall be posted at the offices of the affected Forest
Supervisor and District Ranger in a prominent location readily
accessible to the public.
(c) The authorized Forest officer shall keep a record of the date(s)
the notice was posted in the offices of the affected Forest Supervisor
and District Ranger.
(d) The posting of notices required by this section are in addition
to the requirements for public notice of decisions provided in
Sec. 228.104(d) (Notice of decision) and Sec. 228.107(c) (Notice of
decision) of this subpart.
Sec. 228.116 Information collection requirements.
(a) Sections containing information requirements. The following
sections of this subpart contain information requirements as defined in
5 CFR part 1320 and have been approved for use by the Office of
Management and Budget:
(1) Section 228.104(a) Requests to Modify, Waive, or Grant
Exceptions to Leasing Stipulations;
(2) Section 228.106 (a), (c), and (d) Submission of Surface Use Plan
of Operations;
(3) Section 228.109(c) Request for Reduction in Reclamation
Liability after Reclamation;
(4) Section 228.111(a) Notice of Temporary Cessation of Operations;
(5) Section 228.113(a)(2) Extension of Deadline in Notice of
Noncompliance; and
(6) Section 228.114 (c) through (i) Material Noncompliance
Proceedings.
(b) OMB control number. The information requirements listed in
paragraph (a) of this section have been assigned OMB Control No. 0596-
0101.
(c) Average estimated burden hours. (1) The average burden hours per
response are estimated to be:
(i) 5 minutes for the information requirements in Sec. 228.104(a) of
this subpart;
(ii) No additional burden hours required to meet the information
requirements in Sec. 228.106 (a), (c), and (d) of this subpart;
[[Page 220]]
(iii) 10 minutes for the information requirements in Sec. 228.109(c)
of this subpart;
(iv) 10 minutes for the information requirements in Sec. 228.111(a)
of this subpart;
(v) 5 minutes for the information requirements in Sec. 228.113(a)(2)
of this subpart; and
(vi) 2 hours for the information requirements in Sec. 228.114 (c)
through (i) of this subpart.
(2) Send comments regarding the burden estimate or any other aspect
of this collection of information, including suggestions for reducing
this burden, to Chief (2800), Forest Service, USDA, P.O. Box 96090,
Washington, DC 20090-6090 and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503.
File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
Author | Sonneman, Jean E |
File Modified | 0000-00-00 |
File Created | 2021-08-20 |