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§ 228.1
228.65 Payment for sales.
228.66 Refunds.
228.67 Information collection requirements.
PART 228—MINERALS
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.
228.80 Operations within Misty Fjords and
Admiralty Island National Monuments,
Alaska.
Subpart E—Oil and Gas Resources
228.100
228.101
Scope and applicability.
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.
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
§ 228.1
TYPES AND METHODS OF DISPOSAL
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Subpart D—Miscellaneous Minerals
Provisions
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.
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
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§ 228.2
36 CFR Ch. II (7–1–20 Edition)
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.
§ 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.
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§ 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.
§ 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;
(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
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Forest Service, USDA
§ 228.4
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
§ 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
§ 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 § 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.
(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 § 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
§ 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 § 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.
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§ 228.5
36 CFR Ch. II (7–1–20 Edition)
(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 § 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
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]
§ 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 § 228.4
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Forest Service, USDA
§ 228.7
(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
§ 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 § 228.8.
(c) A supplemental plan or plans of
operations provided for in § 228.4(d) and
a modification of an approved operating plan as provided for in § 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
§ 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.
§ 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
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.
§ 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
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§ 228.8
36 CFR Ch. II (7–1–20 Edition)
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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.
§ 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 stand-
ards 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
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.
§ 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
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Forest Service, USDA
§ 228.13
otherwise identified to protect the public in accordance with Federal and
State laws and regulations.
§ 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.
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§ 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.
§ 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 § 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 lo-
cation 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.
§ 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
§ 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.
(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 § 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 § 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]
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§ 228.14
§ 228.14
36 CFR Ch. II (7–1–20 Edition)
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]
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§ 228.15 Operations within
Forest Wilderness.
National
(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 § 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, tele-
phone 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 § 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
§ 228.10 and restore the surface in accordance with the requirements in
§ 228.8(g).
(e) The title to timber on patented
claims validly established after the
land was included within the National
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
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Forest Service, USDA
§ 228.41
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
§§ 228.20–228.39
[Reserved]
Subpart C—Disposal of Mineral
Materials
SOURCE: 49 FR 29784, July 24, 1984, unless
otherwise noted.
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§ 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).
§ 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
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
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§ 228.41
36 CFR Ch. II (7–1–20 Edition)
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
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
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Forest Service, USDA
§ 228.42
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.
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[49 FR 29784, July 24, 1984, as amended at 55
FR 51706, Dec. 17, 1990]
§ 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 ‘‘socalled ‘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
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]
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§ 228.43
36 CFR Ch. II (7–1–20 Edition)
§ 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 §§ 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]
§ 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.
§ 228.45
Qualifications of applicants.
The authorized officer may require
applicants for prospecting permits, negotiated contracts, or free-use permits
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.
§ 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.
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Forest Service, USDA
§ 228.51
GENERAL PROVISIONS
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§ 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.
§ 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.
§ 228.49
Reappraisal.
If an extension of time is granted as
provided in § 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.
§ 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.
§ 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
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
§ 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.
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§ 228.52
36 CFR Ch. II (7–1–20 Edition)
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(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.
§ 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.
§ 228.53
Term.
(a) Time allowed. Except as provided
in § 228.61(f), § 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.
§ 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.
§ 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
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Forest Service, USDA
§ 228.58
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.
§ 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 § 228.64(b).
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TYPES AND METHODS OF DISPOSAL
§ 228.57 Types of disposal.
Except as provided in § 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
§ 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.
§ 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
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
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§ 228.59
36 CFR Ch. II (7–1–20 Edition)
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
(§ 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
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.
§ 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
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Forest Service, USDA
§ 228.60
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 (§ 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]
§ 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.
(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 § 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
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§ 228.61
36 CFR Ch. II (7–1–20 Edition)
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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.
§ 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 §§ 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,
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 § 228.49.
§ 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 § 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
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Forest Service, USDA
§ 228.64
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
§ 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 (§ 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 quan-
tities 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.
§ 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
§ 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 §§ 228.58, 228.59, or 228.62.
§ 228.64 Community sites and commonuse 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 (§ 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.
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§ 228.65
36 CFR Ch. II (7–1–20 Edition)
§ 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 mate-
rial 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
§ 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]
§ 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
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]
§ 228.67 Information
quirements.
collection
(a) The following sections of this subpart contain information collection requirements as defined in the Paperwork Reduction Act of 1980 (5 CFR part
1320): § 228.45, Qualifications of applicants; § 228.51, Bonding; § 228.52(b)(1),
Requirements of assignee; § 228.53(b),
Extension of time; § 228.56, Operating
plans; § 228.57(c), Conduct of sales;
§ 228.60, Prospecting permits; § 228.61,
Preference right negotiated sales; and
§ 228.62, Free use. These requirements
have been approved by the Office of
Management and Budget and assigned
clearance number 0596–0081.
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Forest Service, USDA
§ 228.100
(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]
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Subpart D—Miscellaneous
Minerals Provisions
§ 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 sec-
tion 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
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.
§ 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
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§ 228.101
36 CFR Ch. II (7–1–20 Edition)
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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.
§ 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
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
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Forest Service, USDA
§ 228.102
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
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§ 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 re-
view 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, NinetySixth 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,
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.
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§ 228.103
36 CFR Ch. II (7–1–20 Edition)
(3) Project the type/amount of postleasing 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 Forestwide 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
§ 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]
§ 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.
§ 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
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
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Forest Service, USDA
§ 228.106
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
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§ 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 doc-
umentation 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,
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]
§ 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.
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§ 228.107
36 CFR Ch. II (7–1–20 Edition)
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(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.
§ 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 § 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:
(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
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Forest Service, USDA
§ 228.108
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 (§ 228.109(a)) if
the authorized Forest officer believes
that additional bonding is required.
(e) Supplemental plans. A supplemental surface use plan of operations
(§ 228.106(d)) shall be reviewed in the
same manner as an initial surface use
plan of operations.
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[55 FR 10444, Mar. 21, 1990, as amended at 72
FR 10328, Mar. 7, 2007; 78 FR 33724, June 5,
2013]
§ 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
(§ 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;
(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
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§ 228.109
36 CFR Ch. II (7–1–20 Edition)
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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.
§ 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.
§ 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.
ADMINISTRATION OF OPERATIONS
§ 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.
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Forest Service, USDA
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§ 228.112
§ 228.113
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 (§ 228.105(a)), an applicable Notice to lessees, transferees,
and operators (§ 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 § 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.
(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.
§ 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;
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§ 228.113
36 CFR Ch. II (7–1–20 Edition)
(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
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
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Forest Service, USDA
§ 228.114
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.
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§ 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 § 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 ex-
tension 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:
(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
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kpayne on VMOFRWIN702 with $$_JOB
§ 228.114
36 CFR Ch. II (7–1–20 Edition)
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 factfinding conference shall be made, unless the operator and the compliance
officer by mutual agreement waive the
requirement for a transcript. The tran-
script 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
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:
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Forest Service, USDA
§ 228.114
(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 § 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 offi-
cer’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.
(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
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§ 228.115
36 CFR Ch. II (7–1–20 Edition)
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.
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§ 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 § 228.104(d) (Notice of
decision) and § 228.107(c) (Notice of decision) of this subpart.
§ 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 § 228.104(a) of this subpart;
(ii) No additional burden hours required to meet the information requirements in § 228.106 (a), (c), and (d)
of this subpart;
(iii) 10 minutes for the information
requirements in § 228.109(c) of this subpart;
(iv) 10 minutes for the information
requirements in § 228.111(a) of this subpart;
(v) 5 minutes for the information requirements in § 228.113(a)(2) of this subpart; and
(vi) 2 hours for the information requirements in § 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.
PART 230—STATE AND PRIVATE
FORESTRY ASSISTANCE
Subpart A—Community Forest and Open
Space Conservation Program
Sec.
230.1 Purpose and scope.
230.2 Definitions.
230.3 Application process.
230.4 Application requirements.
230.5 Ranking criteria and proposal selection.
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| File Type | application/pdf |
| File Modified | 2021-02-19 |
| File Created | 2021-02-20 |