pt. 228 36 cfr ch. ii (7–1–12 edition) · 2016-06-12 · pt. 228 36 cfr ch. ii (7–1–12...

176

36 CFR Ch. II (7–1–12 Edition) Pt. 228

at Nationa l F orests or Nationa l Grass-l ands where the funds were col lected until Septem ber 30, 2010, un less the program is extended. (b) F unds deposited in to the specia l

account specified in paragraph (a) of this section sha ll be expended at a Na-tional F orest or National Grassland in an am ount equal to the fees col lected at that un it and shal l be u sed to pay for the costs of: (1) Conducting in ventories of forest

botanical products; (2) Determ in ing, m on itoring, and re-

vising su stainable harvest l evel s for forest botan ical products; (3) Monitoring and assessing the im -

pact of harvest l evel s and m ethods; (4) Conducting restoration activi ties,

i ncl uding vegetation restoration; and (5) Adm inistering the pil ot program ,

including env ironm ental or other anal -y ses.

PART 228—MINERALS

Subpart A—Locatable Minerals

Sec. 228.1 P u rpose. 228.2 Scope. 228.3 Defin i ti ons. 228.4 P lan of operation s—n otice of in tent—

requ i rem en ts. 228.5 P lan of operation s—approva l . 228.6 Av ai labi l ity of inform ati on to the pu b-

l ic. 228.7 In spection , n on com pl i an ce. 228.8 R equ irem en ts for env ironm en ta l pro-

tecti on . 228.9 Ma inten an ce durin g operations, publ ic

safety . 228.10 Cessation of operati ons, rem ov al of

structu res an d equ ipm en t. 228.11 P rev en tion an d con tro l of fire. 228.12 Access. 228.13 B on ds. 228.14 Appeals. 228.15 Operation s w i thin Nati on al F orest

Wil derness.

Subpart B—Leasable Minera ls

228.20–228.39 [R eserv ed]

Subpart C—Disposal of Minera l Materials

228.40 Authority . 228.41 Scope. 228.42 Defin itions. 228.43 P ol icy govern i ng disposal . 228.44 D isposal on existi ng F ederal l eased

areas. 228.45 Qua l ifi cation s of appl ican ts.

228.46 Appl ication of other laws an d regu l a-ti ons.

G ENER AL P ROVISIONS

228.47 G en era l term s an d condi ti on s of con-tracts and perm its.

228.48 Appra isa l an d m easu rem ent. 228.49 R eappraisal . 228.50 P rodu cti on records. 228.51 B on din g. 228.52 Assignm en ts. 228.53 Term . 228.54 Si ng le entry sales or perm its. 228.55 Cancel lation or su spen si on . 228.56 Operatin g plans.

TY P ES AND M ETHODS OF D ISP OSAL

228.57 Types of disposal . 228.58 Com petiti ve sales. 228.59 Negoti ated or non com petitiv e sa les. 228.60 P rospecting perm its. 228.61 P reference right n egoti ated sales. 228.62 F ree u se. 228.63 R em ova l u nder term s of a tim ber sale

or other F orest Serv ice contract. 228.64 Com m un ity sites an d com m on -u se

areas. 228.65 P aym en t for sales. 228.66 R efu nds. 228.67 Inform ation co l lection requ irem en ts.

Subpart D—Miscellaneous Minera ls Provisions

228.80 Operation s w ithin Misty F jords an d Adm iral ty Islan d Nation al Monum en ts, Alask a .

Subpart E—Oil and Gas Resources

228.100 Scope an d appl icabi l ity . 228.101 Defin ition s.

L EASING

228.102 L easi ng ana lyses and decisions. 228.103 Notice of appea ls of decisions. 228.104 Con sideration of requ ests to m odi fy ,

wai ve, or grant exceptions to l ease stipu -lations.

AUTHORIZATION OF OCCUP ANCY WITHIN A L EASEHOLD

228.105 Issuance of on shore orders and n o-ti ces to lessees.

228.106 Operator’ s subm ission of surface use plan of operation s.

228.107 R ev iew of su rface u se p lan of oper-ation s.

228.108 Su rface use requ irem en ts. 228.109 Bonds. 228.110 Indem n ification .

ADMINISTRATION OF OP ER ATIONS

228.111 Tem porary cessati on of operations. 228.112 Com pl ian ce an d in specti on . 228.113 Notice of n on com pl iance.

VerDate Mar<15>2010 16:00 Aug 06, 2012 Jkt 226140 PO 00000 Frm 00186 Fmt 8010 Sfmt 8010 Q:\36\36V2.TXT ofr150 PsN: PC150

177

Forest Service, USDA § 228.4

228.114 Materi al noncom pl ian ce pro-ceedi ngs.

228.115 Additiona l notice of deci sions. 228.116 Inform ation co l lection requ ire-

m en ts.

AUTHOR ITY : 30 Stat. 35 an d 36, as am en ded (16 U .S.C . 478, 551); 41 Stat. 437, as am en ded, sec. 5102(d), 101 Stat. 1330–256 (30 U.S.C . 226); 61 Stat. 681, as am en ded (30 U .S.C . 601); 61 Stat. 914, as am ended (30 U .S.C . 352); 69 Stat. 368, a s am ended (30 U.S.C . 611); and 94 Stat. 2400.

SOUR CE : 39 F R 31317, Aug . 28, 1974, u n less otherw ise noted. R edesign ated at 46 F R 36142, Ju ly 14, 1981.

Subpart A—Loc atable Minera ls

§228.1 P u rpose.

It i s the pu rpose of these regulations to set forth ru les and procedures through which u se of the su rface of Na-tional F orest System l ands in connec-tion w ith operations au thorized by the Un ited States m in ing l aws (30 U.S.C. 21–54), which confer a statu tory right to enter upon the public lands to search for m ineral s, shal l be conducted so as to m in im ize adverse environ-m ental im pacts on National F orest System surface resources. It is not the pu rpose of these regulations to provide for the m anagem ent of m ineral re-sources; the responsibi l ity for m an-aging such resources is i n the Sec-retary of the Interior.

§228.2 Scope.

These regu lations apply to oper-ations hereafter conducted under the Un ited States m in ing l aws of May 10, 1872, as am ended (30 U.S.C. 22 et seq.), as they affect su rface resources on al l National Forest System l ands under the ju risdiction of the Secretary of Ag-ricu lture to which such l aws are appl i-cable: P rovided, however, That any area of National F orest l ands covered by a specia l Act of Congress (16 U.S.C . 482a– 482q) i s subject to the provisions of this part and the provisions of the special act, and in the case of confl ict the pro-visions of the specia l act shal l apply .

§228.3 Defin ition s.

For the pu rposes of this part the fol-l ow ing term s, respectively , sha ll m ean : (a) Operations. Al l functions, work ,

and activi ties in connection w ith

prospecting, exploration , developm ent, m in ing or processing of m ineral re-sources and al l uses reasonably in ci -dent thereto, i n cluding roads and other m eans of access on lands subject to the regu lations in this part, regardless of whether sa id operations tak e pl ace on or off m in ing cla im s. (b) Operator. A person conducting or

proposing to conduct operations. (c) P erson. Any individual , partner-

ship, corporation , association , or other l egal entity . (d) Min ing cla im. Any unpatented

m in ing cl aim or unpatented m i l l si te au thorized by the Un ited States m in -ing l aws of May 10, 1872, as am ended (30 U.S.C . 22 et seq.). (e) Authorized officer. The F orest

Service officer to whom authority to rev iew and approve operating plans has been delegated.

§228.4 P lan of operations—notice of in tent—requ irem ents.

(a) Except as prov ided in paragraph (a)(1) of this section , a notice of in tent to operate i s requ ired from any person proposing to conduct operations which m ight cause sign ificant distu rbance of su rface resources. Such notice of in tent to operate shal l be subm itted to the District R anger hav ing ju risdiction over the area in w hich the operations w i l l be conducted. E ach notice of in -tent to operate shal l prov ide in form a-tion sufficient to identify the area in -volved, the nature of the proposed op-erations, the route of access to the area of operations, and the m ethod of transport. (1) A notice of in tent to operate i s

not requ ired for: (i ) Operations w hich w i l l be l im ited

to the u se of vehicles on existing public roads or roads used and m ain tained for National F orest System purposes; (i i) P rospecting and sam pl ing which

w i l l not cause sign ificant su rface re-source distu rbance and w i l l not invol ve rem oval of m ore than a reasonable am ount of m ineral deposit for ana ly sis and study which general ly m ight in -clude searching for and occasional ly rem oving sm all m ineral sam ples or specim ens, gold pann ing, m etal detect-ing, non -m otorized hand sl u icing, u sing


178

36 CFR Ch. II (7–1–12 Edition) § 228.4

battery operated dry washers, and col -l ecting of m ineral specim ens u sing hand tool s; (i i i ) Mark ing and m onum enting a

m in ing cla im ; (i v) Underground operations which

w i l l not cause sign ificant su rface re-source distu rbance; (v ) Operations, which in their total -

i ty , w il l n ot cause su rface resource dis-tu rbance which i s substantial ly dif-ferent than that caused by other u sers of the Nationa l F orest System who are not requ ired to obtain a F orest Serv ice specia l u se au thorization, contract, or other written au thorization; (v i) Operations which w i l l not invol ve

the u se of m echanized earthm oving equ ipm ent, such as bu lldozers or back -hoes, or the cu tting of trees, u n less those operations otherwise m ight cause a sign ificant distu rbance of su rface re-sources; or (v ii ) Operations for which a proposed

pl an of operations i s subm itted for ap-proval; (2) The District R anger w i l l , w ithin

15 days of receipt of a notice of in tent to operate, notify the operator i f ap-proval of a plan of operations i s re-qu ired before the operations m ay begin . (3) An operator shal l subm it a pro-

posed plan of operations to the District R anger having ju risdiction over the area in which operations w i l l be con -ducted in l ieu of a notice of intent to operate if the proposed operations w i l l l ik ely cause a significant distu rbance of su rface resources. An operator also sha ll subm it a proposed plan of oper-ations, or a proposed supplem ental pl an of operations consistent w ith §228.4(d), to the D istrict R anger having jurisdiction over the area in w hich op-erations are being conducted if those operations are causing a sign ificant disturbance of su rface resources but are not covered by a cu rrent approved pl an of operations. The requ irem ent to subm it a plan of operations shal l not apply to the operations l i sted in para-graphs (a)(1)(i ) through (v ). The re-qu irem ent to subm it a pl an of oper-ations al so shal l n ot apply to oper-ations which w i l l n ot in volve the use of m echan ized earthm ov ing equ ipm ent, such as bu l ldozers or backhoes, or the cu tting of trees, u nless those oper-

ations otherw ise w il l l ik ely cause a sig-n ificant disturbance of su rface re-sources. (4) If the District R anger determ ines

that any operation is causing or w i l l l ik ely cause sign ificant distu rbance of su rface resources, the District R anger sha ll notify the operator that the oper-ator m ust subm it a proposed pl an of operations for approval and that the operations can not be conducted until a pl an of operations is approved. (b) Any person conducting operations

on the effective date of these regu la-tions, who wou ld have been required to subm it a pl an of operations under §228.4(a), m ay continue operations bu t sha ll w ithin 120 days thereafter subm it a plan of operations to the District R anger having ju risdiction over the area w ithin which operations are being conducted: P rovided, however, That upon a showing of good cause the au -thorized officer w il l grant an extension of tim e for subm ission of a pl an of op-erations, not to exceed an additional 6 m onths. Operations m ay continue ac-cording to the subm itted plan during i ts review , u n less the authorized officer determ ines that the operations are un -necessari ly or unreasonably causing ir-reparable dam age to surface resources and advises the operator of those m eas-u res needed to avoid such dam age. Upon approval of a pl an of operations, operations shal l be conducted in ac-cordance w ith the approved pl an . The requ irem ent to subm it a plan of oper-ations shal l not apply : (1) To oper-ations excepted in §228.4(a) or (2) to op-erations concluded prior to the effec-tive date of the regu lations in this part. (c) The plan of operations shal l i n-

cl ude: (1) The nam e and lega l m ail in g ad-

dress of the operators (and cla im ants if they are not the operators) and their l essees, assigns, or designees. (2) A m ap or sk etch show ing in form a-

tion sufficient to l ocate the proposed area of operations on the ground, exist-ing and/or proposed roads or access rou tes to be u sed in connection w ith the operations as set forth in §228.12 and the approxim ate l ocation and size of areas where su rface resources w il l be disturbed.


179


(3) Inform ation sufficient to describe or identify the type of operations pro-posed and how they would be con -ducted, the type and standard of exist-ing and proposed roads or access rou tes, the m eans of transportation u sed or to be u sed as set forth in §228.12, the period during which the proposed activ ity w i l l tak e pl ace, and m easures to be tak en to m eet the re-qu irem ents for environm ental protec-tion in §228.8. (d) The pl an of operations sha ll cover

the requ irem ents set forth in para-graph (c) of this section , as foreseen for the entire operation for the ful l esti-m ated period of activ ity : P rovided, however, That if the developm ent of a pl an for an entire operation i s not pos-sible at the tim e of preparation of a pl an , the operator shal l fi le an in itia l pl an setting forth his proposed oper-ation to the degree reasonably foresee-able at that tim e, and shall thereafter fil e a supplem ental pl an or pl ans when-ever it is proposed to undertak e any sign ificant su rface distu rbance not cov -ered by the in itia l pl an . (e) At any tim e during operations

under an approved pl an of operations, the authorized officer m ay ask the op-erator to fu rn ish a proposed m odifica-tion of the pl an detai l i n g the m eans of m in im izing unforeseen significant dis-tu rbance of su rface resources. If the op-erator does not fu rnish a proposed m odification w ithin a tim e deem ed rea-sonable by the au thorized officer, the au thorized officer m ay recom m end to his im m ediate superior that the oper-ator be requ ired to subm it a proposed m odification of the pl an . The rec-om m endation of the au thorized officer sha ll be accom panied by a statem ent setting forth in detail the supporting facts and reasons for his recom m enda-tions. In acting upon such rec-om m endation , the im m ediate superior of the authorized officer sha ll deter-m ine: (1) Whether al l reasonable m easures

were tak en by the au thorized officer to predict the environm ental im pacts of the proposed operations prior to ap-prov ing the operating plan , (2) Whether the distu rbance is or

probably w i l l becom e of such sign ifi -cance as to requ ire m odification of the operating plan in order to m eet the re-

qu irem ents for environm ental protec-tion specified in §228.8 and (3) Whether the distu rbance can be

m in im ized u sing reasonable m eans. L ack ing such determ ination that un -foreseen sign ificant distu rbance of su r-face resources is occurring or probable and that the distu rbance can be m in i-m ized using reasonable m eans, no oper-ator sha ll be requ ired to subm it a pro-posed m odification of an approved pl an of operations. Operations m ay continue in accordance w ith the approved pl an until a m odified plan i s approved, u n -less the im m ediate superior of the au-thorized officer determ ines that the op-erations are unnecessari l y or u nreason -ably causing i rreparable inju ry , loss or dam age to surface resources and ad-vises the operator of those m easures needed to avoid such dam age. (f) Upon com pletion of an environ-

m ental ana ly sis i n connection w ith each proposed operating pl an , the au -thorized officer w i l l determ ine whether an environm ental statem ent i s re-qu ired. Not every pl an of operations, supplem ental pl an or m odification w i l l i nvol ve the preparation of an environ-m ental statem ent. E nv ironm ental im -pacts w i l l vary substantia l l y depending on whether the nature of operations i s prospecting, exploration , developm ent, or processing, and on the scope of oper-ations (such as size of operations, con -struction required, l ength of operations and equipm ent requ ired), resul ting in vary ing degrees of disturbance to vege-tative resources, soil , water, ai r, or w i ldli fe. The F orest Service w i l l pre-pare any env ironm ental statem ents that m ay be required. (g) The inform ation requ ired to be in -

cluded in a notice of in tent or a plan of operations, or supplem ent or m odifica-tion thereto, has been assigned Office of Managem ent and Budget Control #0596–0022. The public reporting burden for this col lection of in form ation is es-tim ated to v ary from a few m inu tes for an activi ty in volv ing l ittle or no su r-face distu rbance to severa l m onths for activ ities in volv ing heavy capita l i n -vestm ents and significant su rface dis-tu rbance, w ith an average of 2 hours per individual response. This in cludes tim e for review ing in structions, searching existing data sources, gath-ering and m ain ta in ing the data needed,


180

36 CFR Ch. II (7–1–12 Edition) § 228.5

and com pleting and review ing the col -l ection of in form ation . Send com m ents regarding the burden estim ate or any other aspect of this coll ection of infor-m ation, in cl uding suggestions for re-ducing this burden , to Chief (2800), F or-est Service, USDA, P .O. Box 96090, Washington , DC 20090–6090 and to the Office of Inform ation and R egulatory Affairs, Office of Managem ent and Budget, Washington , DC 20503.

[39 F R 31317, Au g. 28, 1974. R edesi gnated at 46 F R 36142, Ju ly 14, 1981, an d am ended at 54 F R 6893, F eb. 15, 1989; 69 F R 41430, Ju l y 9, 2004; 70 F R 32731, Jun e 6, 2005]

§228.5 P lan of operations—approval .

(a) Operations sha ll be conducted in accordance w ith an approved pl an of operations, except as prov ided in para-graph (b) of this section and in §228.4 (a), (b), and (e). A proposed plan of op-eration shal l be subm itted to the Dis-trict R anger, who shal l prom ptly ac-k nowledge receipt thereof to the oper-ator. The au thorized officer shal l , w ith-in thirty (30) days of such receipt, ana-l yze the proposa l, considering the eco-nom ics of the operation a long w ith the other factors in determ in ing the rea-sonableness of the requ irem ents for su rface resource protection , and; (1) Notify the operator that he has

approved the plan of operations; or (2) Notify the operator that the pro-

posed operations are such as not to re-qu ire an operating plan; or (3) Notify the operator of any

changes in , or additions to, the pl an of operations deem ed necessary to m eet the pu rpose of the regu lations in this part; or (4) Notify the operator that the pl an

i s being reviewed, but that m ore tim e, not to exceed an additiona l sixty (60) days, is necessary to com plete such re-view , setting forth the reasons why ad-ditional tim e i s needed: P rovided, how -ever, That days during which the area of operations is i n accessible for in spec-tion shal l n ot be in cluded when com -puting the sixty (60) day period; or (5) Notify the operator that the pl an

cannot be approved unti l a fin al env i-ronm ental statem ent has been pre-pared and fi led w ith the Counci l on En-vironm ental Qual ity as provided in §228.4(f).

(b) P ending fina l approval of the pl an of operations, the au thorized officer w i l l approve such operations as m ay be necessary for tim ely com pliance w ith the requirem ents of F ederal and State l aws, so l ong as such operations are conducted so as to m in im ize environ-m ental im pacts as prescribed by the au thorized officer in accordance w ith the standards contained in §228.8. (c) A supplem ental plan or plans of

operations provided for in §228.4(d) and a m odification of an approved oper-ating pl an as provided for in §228.4(e) sha ll be subject to approval by the au-thorized officer in the sam e m anner as the in i tial plan of operations: P rovided, however, That a m odification of an ap-proved plan of operations under §228.4(e) sha ll be subject to approva l by the im m ediate superior of the author-ized officer in cases where i t has been determ ined that a m odification i s re-qu ired. (d) In the prov isions for review of op-

erating plans, the F orest Service w i l l arrange for consu ltation w ith appro-priate agencies of the Departm ent of the Interior w ith respect to sign ificant techn ical questions concern ing the character of un ique geologic conditions and special exploration and develop-m ent sy stem s, techniques, and equ ip-m ent, and w ith respect to m ineral v al -ues, m inera l resources, and m ineral re-serves. F urther, the operator m ay re-quest the F orest Serv ice to arrange for sim il ar consu ltations w ith appropriate agencies of the U.S. Departm ent of the Interior for a review of operating plans.

§228.6 Availability of in form ation to the public.

Except as provided herein , a l l in for-m ation and data subm itted by an oper-ator pu rsuant to the regu lations in this part sha ll be avai lable for exam ination by the publ ic at the Office of the Dis-trict R anger in accordance w ith the prov isions of 7 CFR 1.1–1.6 and 36 CFR 200.5–200.10. Specifical ly identified in -form ation and data subm itted by the operator as confidential concerning trade secrets or privi leged com m ercia l or fin ancial i nform ation w il l not be avai lable for publ ic exam ination. Infor-m ation and data to be w ithheld from public exam ination m ay in clude, bu t i s not l im ited to, k now n or estim ated


181


outline of the m ineral deposits and their location , attitude, extent, ou tcrops, and content, and the k nown or pl anned location of exploration pits, dril l holes, excavations pertaining to l ocation and entry pu rsuant to the Un ited States m in ing laws, and other com m ercia l in form ation w hich relates to com petitive rights of the operator.

§228.7 Inspection , n oncom p lian ce.

(a) F orest Officers sha ll periodical ly i nspect operations to determ ine if the operator i s com ply ing w ith the regu la-tions in this part and an approved plan of operations. (b) If an operator fai l s to com ply

w ith the regu lations or his approved pl an of operations and the noncom pli -ance i s u nnecessaril y or u nreasonably causing in jury , loss or dam age to su r-face resources the au thorized officer sha ll serve a notice of noncom pliance upon the operator or his agent in per-son or by certified m ai l . Such notice sha ll describe the noncom pl iance and shall specify the action to com ply and the tim e w ithin which such action i s to be com pleted, general ly not to exceed thirty (30) days: P rovided, however, That days during which the area of op-erations is in accessible sha ll not be in-cluded when com puting the num ber of days al lowed for com pl iance.

§228.8 R equ irements for en viron -m en tal protection .

All operations sha ll be conducted so as, w here feasible, to m in im ize adverse environm ental im pacts on Nationa l F orest su rface resources, in cluding the fol low ing requ irem ents: (a) Air Quality. Operator shal l com ply

w ith appl icable F ederal and State air qua li ty standards, i n cluding the re-qu irem ents of the Clean Air Act, as am ended (42 U.S.C . 1857 et seq.). (b) Water Quality. Operator shal l com -

ply w ith applicable Federal and State water qua li ty standards, i n cluding reg-u lations issued pursuant to the F ederal Water P ol lu tion Control Act, as am ended (33 U.S.C . 1151 et seq.). (c) Solid Wastes. Operator shal l com -

ply w ith applicable Federal and State standards for the disposa l and treat-m ent of solid wastes. Al l garbage, refuse, or waste, shal l either be re-m oved from National F orest lands or

disposed of or treated so as to m in i -m ize, so far as is practicable, i ts im -pact on the env ironm ent and the forest su rface resources. Al l tai l i ngs, dum page, deleteriou s m aterial s, or sub-stances and other waste produced by operations sha ll be deployed, arranged, disposed of or treated so as to m in im ize adverse im pact upon the env ironm ent and forest surface resources. (d) Scen ic Values. Operator sha ll , to

the extent practicable, harm onize oper-ations w ith scen ic values through such m easures as the design and l ocation of operating facil ities, i n cluding roads and other m eans of access, vegetative screening of operations, and construc-tion of structures and im provem ents which blend w ith the landscape. (e) F isheries and Wildlife Habitat. In

addition to com pl iance w ith water qua li ty and sol id waste disposal stand-ards requ ired by this section , operator sha ll tak e al l practicable m easures to m ain tain and protect fisheries and w i ldli fe habitat which m ay be affected by the operations. (f) Roads. Operator sha ll construct

and m ain ta in a l l roads so as to assure adequate drainage and to m in im ize or, where practicable, el im inate dam age to soil , water, and other resource values. Un less otherwise approved by the au -thorized officer, roads no l onger needed for operations: (1) Shall be closed to norm al vehic-

u lar traffic, (2) B ridges and cu lverts shal l be re-

m oved, (3) Cross dra in s, dips, or water bars

sha ll be constructed, and (4) The road surface shall be shaped

to as near a natural contour as prac-ticable and be stabi l ized. (g) Reclamation . Upon exhaustion of

the m ineral deposit or at the earl iest practicable tim e during operations, or w ithin 1 year of the conclusion of oper-ations, u nless a l onger tim e is al lowed by the au thorized officer, operator sha ll , where practicable, reclaim the su rface distu rbed in operations by tak -ing such m easures as w i l l prevent or control onsite and off-site dam age to the environm ent and forest su rface re-sources including: (1) Control of erosion and landsl ides; (2) Control of water runoff;


182

36 CFR Ch. II (7–1–12 Edition) § 228.9

(3) Isolation , rem oval or control of toxic m aterial s; (4) R eshaping and revegetation of dis-

tu rbed areas, where reasonably prac-ticable; and (5) R ehabil itation of fisheries and

w i ldli fe habitat. (h) Certification or other approva l

i ssued by State agencies or other F ed-era l agencies of com pliance w ith l aw s and regu lations relating to m in ing op-erations w il l be accepted as com pliance w ith sim il ar or para ll el requ irem ents of these regu lations.

§228.9 Main ten ance du rin g oper-ations, public safety.

During al l operations operator sha ll m ain tain his structures, equ ipm ent, and other facil i ties in a safe, neat and workm an lik e m anner. Hazardous sites or conditions resu l ting from operations sha ll be m ark ed by signs, fenced or otherwise identified to protect the pub-l ic i n accordance w ith Federal and State l aw s and regu lations.

§228.10 C essation of operations, re-m oval of structures and equ ipm ent.

Un less otherwise agreed to by the au -thorized officer, operator shal l rem ove w ithin a reasonable tim e foll ow ing ces-sation of operations al l structures, equ ipm ent and other facil ities and clean up the si te of operations. Other than seasonal ly , where operations have ceased tem poraril y , an operator sha ll fil e a statem ent w ith the D istrict R anger which includes: (a) V erification of in tent to m ain ta in

the structures, equipm ent and other fa-ci l i ties, (b) The expected reopen ing date, and (c) An estim ate of extended duration

of operations. A statem ent shall be fil ed every year in the event operations are not reactivated. Operator shal l m ain tain the operating site, struc-tu res, equ ipm ent and other faci l i ties in a neat and safe condition during nonop-erating periods.

§228.11 P reven tion and control of fire.

Operator shal l com ply w ith al l appl i -cable F ederal and State fire l aws and regu lations and shal l tak e al l reason -able m easures to prevent and suppress fires on the area of operations and

shall requ ire his em ployees, contrac-tors and subcontractors to do l ik ew ise.

§228.12 Access.

An operator i s entitled to access in connection w ith operations, bu t no road, tra il , bridge, landing area for a ir-craft, or the l ik e, sha ll be constructed or im proved, nor shal l any other m eans of access, i ncl uding but not l im ited to off-road vehicles, be u sed until the op-erator has received approval of an oper-ating pl an in w riting from the au thor-ized officer when requ ired by §228.4(a). P roposal s for construction , im prove-m ent or u se of such access as part of a pl an of operations shal l in cl ude a de-scription of the type and standard of the proposed m eans of access, a m ap showing the proposed route of access, and a description of the m eans of transportation to be u sed. Approva l of the m eans of such access as part of a pl an of operations sha ll specify the lo-cation of the access rou te, design standards, m eans of transportation , and other conditions reasonably nec-essary to protect the environm ent and forest su rface resources, i n cluding m easures to protect scen ic v alues and to in su re aga in st erosion and water or ai r poll u tion .

§228.13 Bon ds.

(a) Any operator requ ired to fil e a pl an of operations shal l , w hen requ ired by the au thorized officer, furn ish a bond conditioned upon com pl iance w ith §228.8(g), prior to approva l of such pl an of operations. In l ieu of a bond, the op-erator m ay deposit i n to a F ederal de-pository , as directed by the F orest Service, and m ain tain therein , cash in an am ount equa l to the required dol lar am ount of the bond or negotiable secu -ri ties of the Un ited States hav ing m ar-k et v alue at the tim e of deposit of not l ess than the requ ired doll ar am ount of the bond. A blank et bond covering na-tionw ide or statewide operations m ay be fu rn ished if the term s and condi -tions thereof are sufficient to com ply w ith the regu lations in this part. (b) In determ in ing the am ount of the

bond, consideration w il l be given to the estim ated cost of stabi l izing, rehabil i -tating, and recla im ing the area of oper-ations.


183


(c) In the event that an approved pl an of operations i s m odified in ac-cordance w ith §228.4 (d) and (e), the au-thorized officer w il l review the in itial bond for adequacy and, i f necessary , w i l l adju st the bond to conform to the operations pl an as m odified. (d) When reclam ation has been com -

pleted in accordance w ith §228.8(g), the au thorized officer w i l l n otify the oper-ator that perform ance under the bond has been com pleted: P rovided, however, That when the Forest Service has ac-cepted as com pleted any portion of the reclam ation , the au thorized officer sha ll n otify the operator of such ac-ceptance and reduce proportiona ll y the am ount of bond thereafter to be re-qu ired w ith respect to the rem aining reclam ation .

[39 F R 31317, Aug . 28, 1974; 39 F R 32029, Sept. 4, 1974]

§228.14 Appeals.

Any operator aggrieved by a decision of the au thorized officer in connection w ith the regu lations in this part m ay fil e an appeal u nder the provisions of 36 CFR part 251, subpart C.

[54 F R 3362, Jan . 23, 1989]

§228.15 Operation s w ithin Nationa l Forest Wilderness.

(a) The United States m in ing laws shall extend to each Nationa l F orest Wilderness for the period specified in the Wi lderness Act and subsequent es-tabl ishing l egisl ation to the sam e ex-tent they were appl icable prior to the date the Wilderness was designated by Congress as a part of the National Wi l-derness P reservation System . Subject to v al id existing rights, no person shal l have any right or in terest in or to any m ineral deposits w hich m ay be discov-ered through prospecting or other in -form ation -gathering activi ty after the legal date on w hich the United States m in ing l aws cease to apply to the spe-cific Wi lderness. (b) Holders of unpatented m ining

cl aim s va lidl y establ ished on any Na-tional F orest Wilderness prior to in clu-sion of such un it in the National Wi l-derness P reservation System shall be accorded the rights prov ided by the Un ited States m in ing l aw s as then ap-pl i cable to the Nationa l Forest l and in-

volved. P ersons locating m ining cl aim s in any National F orest Wi lderness on or after the date on which sa id Wi lder-ness was in cluded in the National Wi l -derness P reservation System shall be accorded the rights prov ided by the Un ited States m in ing laws as appl ica-ble to the National F orest l and in -volved and subject to prov isions speci-fied in the establi shing l egisl ation . P ersons conducting operations as de-fined in §228.3 in National F orest Wi l -derness sha ll com ply w ith the regu la-tions in this part. Operations sha ll be conducted so as to protect National F orest su rface resources in accordance w ith the genera l pu rposes of m ain tain -ing the National Wilderness P reserva-tion System un im paired for future u se and en joym ent as w i lderness and to preserve i ts w ilderness character, con-sistent w ith the use of the land for m ineral location , exploration, develop-m ent, dri l l i ng, and production and for transm ission l ines, water l ines, tele-phone l i nes, and processing operations, i ncl uding, where essential , the use of m echan ized transport, ai rcraft or m o-torized equipm ent. (c) P ersons w ith va lid m ining cl aim s

whol l y w ithin National F orest Wilder-ness shal l be perm itted access to such su rrounded cla im s by m eans consistent w ith the preservation of National F or-est Wilderness which have been or are being cu stom aril y u sed w ith respect to other such cl aim s su rrounded by Na-tional Forest Wi lderness. No operator sha ll construct roads across Nationa l F orest Wi lderness un less authorized in writing by the F orest Superv isor in ac-cordance w ith §228.12. (d) On al l m in ing cla im s val idly es-

tabl ished on lands w ithin the Nationa l Wilderness P reservation System , the operator sha ll tak e a l l reasonable m easures to rem ove any structures, equ ipm ent and other facil i ties no l onger needed for m ining pu rposes in accordance w ith the prov isions in §228.10 and restore the su rface in ac-cordance w ith the requirem ents in §228.8(g). (e) The ti tle to tim ber on patented

cl aim s val idl y establi shed after the l and was in cluded w ithin the National Wilderness P reservation System re-m ains in the Un ited States, subject to


184

36 CFR Ch. II (7–1–12 Edition) §§ 228.20–228.39

a right to cu t and u se tim ber for m in -ing pu rposes. So m uch of the m ature tim ber m ay be cu t and used as is need-ed in the extraction , rem oval, and beneficiation of the m ineral deposits, i f needed tim ber i s not otherwise reason -ably ava il able. The cu tting shall com -ply w ith the requ irem ents for sound principles of forest m anagem ent as de-fined by the National F orest rules and regu lations and set forth in stipu la-tions to be in cluded in the pl an of oper-ations, which as a m in im um incor-porate the foll ow ing basic principles of forest m anagem ent: (1) Harvesting operations sha ll be so

conducted as to m in im ize soil m ove-m ent and dam age from water runoff; and (2) Slash shal l be disposed of and

other precautions sha ll be tak en to m in im ize dam age from forest in sects, disease, and fire. (f) The Chief, F orest Serv ice, shal l

al l ow any activ ity, i n cluding prospecting, for the pu rpose of gath-ering in form ation about m inera ls in National Forest Wilderness except that any such activi ty for gathering infor-m ation shal l be carried on in a m anner com patible w ith the preservation of the w i lderness env ironm ent as speci -fied in the plan of operations.

Subpart B—Leasable Minera ls

§§228.20–228.39 [R eserved]

Subpart C—Disposal of Minera l Materia ls

SOUR CE : 49 F R 29784, Ju l y 24, 1984, un less otherw ise noted.

§228.40 Authority.

Authority for the disposal of m ineral m aterial s i s prov ided by the Material s Act of July 31, 1947 (30 U.S.C. 601 et seq.), as am ended by the Acts of August 31, 1950 (30 U.S.C . 603–604), Ju ly 23, 1955 (30 U.S.C. 601, 603), and Septem ber 25, 1962 (30 U.S.C. 602), and by the fol-l ow ing: the Act of June 4, 1897 (16 U.S.C . 477); the Act of March 4, 1917 (16 U.S.C . 520); the Bank head-Jones F arm Tenant Act of Ju ly 22, 1937 (7 U.S.C. 1010); the Act of Septem ber 1, 1949 (sec-tion 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 Septem ber 2, 1958 (16 U.S.C . 521a); the Act of June 11, 1960 (74 Stat. 205); the F ederal Highway Act of August 27, 1958 (23 U.S.C. 101 et seq.); and the Alas-k a National Interest L ands Conserva-tion Act of Decem ber 2, 1980 (section 502) (16 U.S.C. 539a).

§228.41 Scope.

(a) L ands to which this subpart applies. This subpart appl ies to al l Nationa l F orest System lands reserved from the public dom ain of the United States, i n-cl uding publ ic dom ain l ands being ad-m in istered under the Bank head-Jones F arm Tenant Act of July 22, 1937 (7 U.S.C . 1010); to al l Nationa l F orest Sys-tem lands acquired pursuant to the Week s Act of March 1, 1911 (36 Stat. 961); to al l Nationa l F orest System l ands w ith Week s Act status as pro-vided in the Act of Septem ber 2, 1958 (16 U.S.C . 521a); and to public l ands w ithin the Copper R iver addition to the Chugach National Forest (16 U.S.C. 539a). F or ease of reference and conven-ience to the reader, these l ands are re-ferred to, throughout this subpart, as Nationa l Forest lands. (b) Restrictions. Disposal of m inera l

m aterial s from the fol low ing Nationa l F orest lands i s subject to certa in re-strictions as described below: (1) Segregation or w ithdraw als in aid of

other agencies. D isposal of m ineral m a-teria ls from l ands segregated or w ith-drawn in aid of a function of another F ederal agency, State, territory , coun-ty , m un icipal ity, water district, or other governm ental subdiv ision or agency m ay be m ade on ly w ith the written consent of the governm ental entity . (2) Segregated or w ithdrawn National

Forest lands. Minera l m ateria ls m ay not be rem oved from segregated or w ithdrawn lands where rem oval i s spe-cifical ly prohibited by statute or by public l and order. Where not specifi -cal l y prohibited, rem oval of m inera l m aterial s m ay be a l l ow ed if the au-thorized officer determ ines that the re-m oval i s not detrim ental to the va lues for which the segregation or w ith-drawal was m ade, except as provided in paragraph (b)(1) of this section. Where operations have been establ ished prior to the effective date of this Subpart


185


and where not prohibited by statu te, they m ay be perm itted to continue. Nothing in this subparagraph i s i n -tended to prohibit the exercise of va lid existing rights. (3) Unpatented min ing claims. P rov ided

that cla im ants are given prior notice and it has been determ ined that re-m oval w il l neither endanger nor m ate-rial ly in terfere w ith prospecting, m in -ing, or processing operations or uses reasonably in cident thereto on the cl aim s, disposal of m inera l m aterial s m ay be a l l owed from : (i ) Unpatented m ining cla im s l ocated

after Ju ly 23, 1955; and/or (i i) Unpatented m ining cl aim s lo-

cated before Ju ly 23, 1955, and on which the United States has establ ished the right to m anage the vegetative and other su rface resources in accordance w ith the Multiple Use Min ing Act of Ju ly 23, 1955 (30 U.S.C. 601, 603, 611–615). (4) Acqu ired Bankhead-Jones lands.

Mineral m ateria ls on l ands which were acqu ired under the authority of the Bankhead-Jones F arm Tenant Act of Ju ly 22, 1937 (7 U.S.C. 1010–1012), and which l ie ou tside the exterior bound-aries of Nationa l F orests, or on ac-qu ired l ands which are being adm in is-tered under the Act and which a lso l ie ou tside the exterior boundaries of Na-tional F orests, m ay be disposed of under these regulations on ly to publ ic au thorities and agencies, and only on condition that the m ineral m aterial s are u sed for publ ic pu rposes (7 U.S.C. 1011(c)). (c) Mineral materia ls to which this sub-

part applies. This subpart applies to m ineral m aterial s which consist of pet-rified wood and com m on varieties of sand, gravel , stone, pum ice, pum icite, cinders, cl ay , and other sim il ar m ate-rial s. Such m inera l m aterial s i nclude deposits which, al though they have econom ic value, are u sed for agri-cu lture, an im al husbandry , bu ilding, abrasion , construction, l andscaping, and sim i lar uses. This subpart also ap-pl ies to other m ateria ls which m ay not be m ineral s but are produced u sing m in ing m ethods, such as peat. The cat-egories of these m aterial s, i n cluding representative exam ples, are: (1) Agricu ltu ral supply and an imal hus-

bandry materia ls. This category in-cludes, bu t is not l im ited to, m ineral s

and vegetative m ateria ls used as or for: Soil conditioners or am endm ents ap-pl ied to physical ly a lter soi l properties such as direct appl ications to the soil of carbonate rock s, soi l containing ‘ ‘ trace elem ents’ ’ and peat; an im al feed supplem ents; and other an im al care products. (2) Bu ilding materials. Except for m in -

era ls identified as Uncommon Varieties, this category in cludes, but is not l im -ited to, m ineral s u sed as or for: P ain t fil lers or extenders; flagstone, ashlar, rubble, m ortar, brick , ti le, pipe, pot-tery, earthenware, stoneware, terrazzo, and other nonstructural com ponents in floors, wa ll s, roofs, fireplaces, and the l ik e; and sim i l ar bui lding u ses. (3) Abrasive materials. This category

includes, bu t is not l im ited to, m in -era ls u sed for: F i l i n g; scouring; poli shing; sanding; and sandblasting. (4) Construction materia ls. This cat-

egory in cludes, bu t i s not l im ited to, m ineral s such as sand, gravel , cl ay , cru shed rock and cinders used as or for fil l ; borrow; rip-rap; ba ll ast (in cluding al l ba ll ast for rai lroad u se); road base; road surfacing; concrete aggregate; cl ay sealants; and sim i l ar construction u ses. (5) L andscaping materia ls: This cat-

egory in cludes, bu t is not l im ited to m ineral s and peat u sed as or for: Chips, granu les, sand, pebbles, scoria , cinders, cobbles, bou lders, slabs, and other com -ponents in retain ing wal ls, wa lk ways, patios, y ards, gardens, and the l ik e; and sim i lar landscaping u ses. (d) Minerals not covered by this sub-

part. Mineral m aterial s do not include any m inera l u sed in m anufacturing, i n-dustrial processing, or chem ical oper-ations for w hich no other m ineral can be substituted due to un ique properties giv ing the particu lar m inera l a distinct and specia l val ue; nor do they in clude block pum ice which in natu re occurs in pieces having one dim ension of tw o inches or m ore which i s valu able and u sed for som e application that requ ires such dim ensions. Disposal of m ineral s not covered by this subpart i s subject to the term s of the Un ited States Min-ing L aws, as am ended (30 U.S.C . 22 et seq.), on those portions of the Nationa l F orest System where those l aws apply . Such m inera ls m ay in clude:


186

36 CFR Ch. II (7–1–12 Edition) § 228.42

(1) Minera l su itable and u sed as soi l am endm ent because of a constituent elem ent other than calcium or m agne-sium carbonate that chem icall y al ters the soil ; (2) L im estone su itable and u sed,

w ithout substantial adm ixtures, for ce-m ent m anufacture, m etal lu rgy , pro-duction of qu ick lim e, sugar refining, whiting, fil lers, paper m anufacture, and desu lfu rization of stack gases; (3) Sil i ca suitable and u sed for glass

m anufacture, production of m etal l i c si l i con , fl ux, and rock w ool ; (4) Alum ino-sil icates or cl ay s having

exceptional qual ities suitable and used for production of a lum inum , ceram ics, dril l i n g m ud, tacon ite binder, foundry castings, and other pu rposes for which com m on cl ay s cannot be u sed; (5) Gypsum su itable and u sed for

wallboard, plaster, or cem ent. (6) B lock pum ice which occurs in na-

tu re in pieces having one dim ension of tw o in ches or m ore and which i s valu -able and used for som e appl ication that requ ires such dim ensions; and (7) Stone recogn ized through m ar-

k eting factors for its special and dis-tinct properties of strength and dura-bi l ity m ak ing i t su itable for structura l support and u sed for that pu rpose. (e) L imitations on applicability . (1) The

prov isions of paragraphs (c) and (d) of this section sha ll n ot apply to any m in -ing cla im s for which a Minera l E ntry F ina l Certificate was i ssued on or be-fore January 16, 1991. Nor shall these prov isions apply to any m ining claim l ocated on or before Ju ly 23, 1955, which has satisfied the m ark etabi l i ty test for locatable m ineral s from on or before Ju ly 23, 1955, u n ti l the present date. (2) A u se which quali fies a m inera l as

an uncom m on variety under paragraph (d) overrides cl assification of that m in -era l as a com m on variety under para-graph (c) of this section .

[49 F R 29784, Ju l y 24, 1984, as am ended at 55 F R 51706, Dec. 17, 1990]

§228.42 Defin itions.

For the pu rposes of this subject, the fol low ing term s are defined: Acqu ired National Forest lands. Na-

tional F orest System l ands acqu ired under the Week s Act of March 1, 1911 (36 Stat. 961), and Nationa l F orest Sys-

tem l ands w ith Week s Act status as prov ided in the Act of Septem ber 2, 1958 (16 U.S.C. 521a). Authorized officer. Any F orest Serv ice

officer to whom authority for disposal of m ineral m aterial s has been dele-gated. Common-use area . Genera ll y , a broad

geographic area from which nonexclu -sive disposal s of m ineral m aterial s avai lable on the surface m ay be m ade to low volum e and/or noncom m ercial u sers. Commun ity site. A si te noted on ap-

propriate F orest records and posted on the ground from which nonexclu sive disposa ls of m inera l m ateria ls m ay be m ade to low volum e and/or non -com m ercia l u sers. Contract. A signed legal agreem ent

between the Forest Service and a pur-chaser of m inera l m aterial s, which specifies (am ong other things) the con -ditions of a com petitive, negotiated, or preference right sale of m inera l m ate-rial s to the pu rchaser. Mineral materials. A col lective term

used throughout this subpart to de-scribe petrified w ood and com m on vari-eties of sand, gravel , stone, pum ice, pum icite, cinders, cl ay , and other sim i -l ar m ateria ls. Com m on varieties do not include deposits of those m aterial s which are va lu able because of som e property giv ing them distinct and spe-cial va lue, nor do they in clude ‘ ‘ so- cal l ed ‘ bl ock pum ice’ ’ ’ which occurs in nature in pieces having one dim ension of two in ches or m ore and which i s v al -u able and u sed for som e application that requ ires such dim ensions. P ermit. A signed legal docum ent be-

tween the F orest Serv ice and one who i s au thorized to rem ove m ineral m ate-rial s free of charge, which specifies (am ong other things) the conditions of rem oval by the perm ittee. P reference right negotiated sale. A ne-

gotiated sa le w hich m ay be awarded in response to the finding and dem onstra-tion of a su itable deposit of m inera l m aterial on acqu ired Nationa l F orest l ands as the resu lt of exploratory ac-tiv i ty conducted under the au thority of a prospecting perm it. P rospecting permit. A written in stru-

m ent issued by the Forest Serv ice which au thorizes prospecting for a m ineral m aterial deposit on acqu ired


187


National F orest l ands w ithin specific areas, u nder stipulated conditions, and for a specified period of tim e. Single entry source. A source of m in-

era l m aterial s which is expected to be depleted under a single contract or per-m it or which i s reserved for F orest Service use. Unpatented min ing claim. A l ode or

pl acer m in ing cla im or a m i l l si te l o-cated under the Genera l Min ing L aw of 1872, as am ended (30 U.S.C . 21–54), for which a patent under 30 U.S.C . 29 and regu lations of the Departm ent of the Interior has not been i ssued. Withdrawn National Forest lands. Na-

tional F orest System l ands segregated or otherwise w ithheld from settlem ent, sa le, location , or entry under som e or al l of a l l of the genera l l and l aw s (43 U.S.C . 1714).


§228.43 P olicy govern in g disposal .

(a) General. F orest Service pol icy i s to m ake m ineral m aterial s on Nationa l F orest lands ava il able to the public and to local , State, and Federal gov -ernm ent agencies where reasonable protection of, or m itigation of effects on , other resources in assu red, and where rem oval i s not prohibited. (1) A contract or perm it l im its proc-

essing of the m ineral m aterial onsite to the first sal able product. (2) Additiona l onsite processing m ay

be au thorized by a separate perm it (36 CFR 251.50). (3) The authorized officer m ust en-

su re that an env ironm ental analysis i s conducted for a l l pl anned disposal s of m ineral m aterial s. (4) Decisions to au thorize the dis-

posa l of m ineral m aterial s m ust con-form to approved l and and resource m anagem ent pl ans (36 CFR 219.22). (b) P rice. Mineral m ateria ls m ay not

be sold for l ess than the appra ised va lue. The au thorized officer m ay as-sess a fee to cover costs of i ssu ing and adm in istering a contract or perm it. (c) Conservation . Adequate m easures

m ust be tak en to protect, and m in i -m ize dam age to the environm ent. Min-era l m ateria ls m ay be disposed of on ly i f the au thorized officer determ ines that the disposal i s not detrim ental to the public i n terest.

(d) Ownership. Title to the m ineral m aterial s vests in the pu rchaser or per-m ittee im m ediately before excavation, subject to the provisions of §§228.47 through 228.56 and other provisions of the contract or perm it. Title to exca-vated m aterial n ot rem oved w ithin the tim e provided revests in the Un ited States. (e) Decisions. All decisions as to

whether or not to grant disposa ls pro-posed under this subpart shall be m ade in writing by the authorized officer. Such decisions m ust specify their fac-tua l and lega l basis. (f) Option for min ing claimants. All

m in ing cl aim ants holding m ining cl aim s which are l ocated for a m inera l cl assified in accordance w ith this sub-part as a m ineral m aterial have the op-tion of m aintain ing that the m ineral i s l ocatable and fi l in g for patent. All m in ing cl aim ants holding m ining cl aim s l ocated in good fa ith on or be-fore January 16, 1991, for a m ineral cl assified in accordance w ith this sub-part as a m ineral m aterial m ay accept the classification and, i f appropriate, receive a sa le by negotiated contract for that m ineral m aterial u nder 36 CFR 228.57(b)(2) of this subpart.


§228.44 Disposal on existing Federal leased areas.

Minera l m ateria l contracts or per-m its m ay be issued w ithin existing areas leased or u nder perm it under the 1920 Mineral L easing Act, as am ended (30 U.S.C . 181–187); section 402 of R eor-gan ization P l an No. 3 of 1946 (5 U.S.C. Appendix); the 1947 Mineral L easing Act for Acqu ired L ands, as am ended (30 U.S.C . 351 et seq.); and the 1970 Geo-therm al Steam Act (30 U.S.C . 1001– 1025), prov ided that it has been deter-m ined that rem oval w il l neither endan-ger nor unreasonably in terfere w ith l ease operations, and prov ided fu rther that the lease term s do not prohibit disposa l .

§228.45 Qualification s of app lican ts.

The authorized officer m ay requ ire appl icants for prospecting perm its, ne-gotiated contracts, or free-use perm its or bidders for the sa le of m inera l m ate-rial s to fu rnish in form ation necessary


188

36 CFR Ch. II (7–1–12 Edition) § 228.46

to determ ine their abil ity to perform the obligations of the contract or per-m it.

§228.46 App lication of other law s and regu lation s.

All m in ing operations for rem oval of m ineral m aterial s from National F or-est lands m ust m eet or exceed applica-ble F ederal standards for the protec-tion of public safety, hea lth, and the environm ent, and m ust a lso m eet or exceed State and l ocal standards for the protection of public safety , hea lth, and the env ironm ent, to the extent that such standards are not in conflict w ith F ederal pu rposes and functions.

GENERAL P ROVISIONS

§228.47 General term s and conditions of contracts an d perm its.

(a) D isposal of designated mineral mate-rials. On ly those specified m ineral m a-teria ls found w ithin the area des-ignated in the contract or perm it m ay be extracted and rem oved. (b) Unauthorized removal (trespass) of

minera l materials. The rem oval of m in -era l m ateria ls from National F orest l ands, except when au thorized in ac-cordance w ith appl icable law and regu -l ations of the Departm ent of Agri-cu lture, is prohibited (36 CFR 261.9). (c) Conservation . Minera l m aterial

contracts and perm its m ust conta in prov isions to ensure the efficient re-m oval and conservation of the m inera l m aterial . (d) Improvements. Contracts and per-

m its m ust contain prov isions for re-m oval or Governm ent retention of im -provem ents. (e) Use of existing National Forest de-

velopment roads. The au thorized officer m ay require pu rchasers and perm ittees to obta in appropriate road-use perm its, m ak e deposits for or perform their com m ensurate share of road m ain te-nance, and com ply w ith road-use ru les contained in 36 CFR part 212, depending upon their pl anned extent of road u se. (f) Reclamation . R equirem ents for rec-

l am ation of areas distu rbed by m inera l m aterial operations m ust be in cluded in contracts and perm its, except for disposa ls from com m un ity si tes and com m on-use areas.

§228.48 Appraisa l an d m easurem en t.

(a) Appraisa l. All m ineral m aterial s for sale m ust be appra ised to determ ine fair m ark et value. Appraisal s m ust be based on k nowledge of the extent of the deposit, qual ity of m ateria l , and eco-nom ic va lue. A sa le m ust not be m ade at less than the appraised value which m ay be expressed as either price per cubic yard or weight equ iva lent. In a l l cases the units of m easurem ent m ust correspond to the un its u sed in the ap-praisal . The au thorized officer m ust es-tim ate and record the am ount and va lue of m inera ls to be disposed of by free-use perm it. (b) Measurement. The am ount of m in -

era l m ateria l actua ll y rem oved m ay be m easured by volum e, weight, truck ta ll y , by com bination of these m eth-ods, or by such other form of m easure-m ent as the au thorized officer deter-m ines to be appropriate and in the pub-l ic i nterest.

§228.49 R eappraisal.

If an extension of tim e i s granted as prov ided in §228.53(b), the au thorized officer m ust reappraise or reestim ate the m ineral m ateria ls covered by the contract or perm it and which rem ain u nexcavated at the tim e of extension. The reca lcu lated un it v alue becom es the new unit value for the rem aining unexcavated m ateria l; excavated and stock pil ed m aterial i s not subject to reappraisa l .

§228.50 P roduction records.

At l east annual l y , the pu rchaser or perm ittee m ust fu rn ish a record of the volum e extracted, in cubic y ards or weight equ iv alent, to the au thorized officer. The un its of m easurem ent m ust correspond to the un its u sed in the ap-praisal or estim ate.

§228.51 Bon din g.

(a) Bond requirements. Before oper-ations m ay begin u nder any contract or perm it, a bond m ust be fu rnished to the au thorized officer to ensure per-form ance of paym ent (as necessary ), reclam ation , and other conditions of the contract or perm it, except as noted in paragraphs (a) (1) and (3) of this sec-tion , where the au thorized officer m ay waive such bonding. If an extension of


189


tim e i s granted as prov ided in §228.53(b), the bond requ irem ents m ust be reca lcu lated and changed accord-ingly . (1) F or advance payment contracts for

10,000 cubic yards or m ore in volum e (or weight equiva lent), a bond of not l ess than 10 percent of the total con-tract price or the va lue of the esti-m ated annual production (whichever i s l ess), pl u s the reclam ation cost for the area covered by annual m in ing, is re-qu ired. When the total v olum e i s less than 10,000 cubic y ards, bond requ ire-m ents, if any , are at the discretion of the au thorized officer. (2) F or any deferred payment contract,

a bond equa ling the value of the esti -m ated annual production plu s the rec-l am ation cost for the area covered by annual m in ing i s requ ired. (3) F or free u se, the au thorized officer

m ay require a reclam ation bond which m ust be sufficient to cover the cost of reclam ation of the anticipated annual work . (b) Types of bonding. A bond m ust be

one of the foll ow ing: (1) A bond of a corporate su rety

shown on the l atest approved l ist i ssued by the U.S. Treasury Depart-m ent and executed on an approved standard form ; (2) A cash bond; (3) Negotiable securities of the

Un ited States; (4) An irrevocable l etter of credit ac-

ceptable to the F orest Serv ice; (5) A perform ance bond required by

other F orest Serv ice contracts or per-m its, provided the bond covers the per-form ance and reclam ation requ ire-m ents related to the rem oval of m in -era l m aterial from a designated pit or area for u se in the perform ance of the contract or perm it; or (6) Any other types of bond specified

in the F orest Service Manual .

§228.52 Assignments.

(a) L imitations. A purchaser or per-m ittee m ay not assign the contract or perm it, or any in terest therein , w ith-out the written approva l of the author-ized officer. (b) Requ irements of assignee. The au-

thorized officer w i l l n ot approve any proposed assignm ent in volv ing con-

tract or perm it perform ance un less the assignee: (1) Subm its inform ation necessary to

assure the au thorized officer of the as-signee’ s abi l i ty to m eet the sam e re-qu irem ents as the origina l purchaser or perm ittee (assignor); and (2) F urn ishes a bond or obtain s a

com m itm ent from the prev iou s su rety to be bound by the assignm ent when approved. (c) R ights and obligations. Once the

au thorized officer approves an assign -m ent, the assignee is entitled to a l l the rights and i s subject to a l l of the obl i-gations under the contract or perm it, and the origina l purchaser or perm ittee m ay be released from any fu rther responsibli ty u nder the contract or perm it.

§228.53 Term .

(a) Time allowed. Except as prov ided in §228.61(f), §228.62(b), and el sewhere in this paragraph, a contract or perm it m ay not exceed 1 year from the effec-tive date of the contract or perm it u n -less a written extension is obtained. F or those m ineral m aterial s sold under a duration of production contract or u nder a contract for the sa le of al l m in-era l m aterial w ithin a specified area, or under a construction contract where rem oval cannot reasonably tak e pl ace before com pletion of other work under the sam e contract, the au thorized offi -cer w il l establ ish a reasonable tim e pe-riod for rem oval . (b) Extension of time. If i t is shown

that a delay in rem oval was due to causes beyond the control of the pu r-chaser or perm ittee, the au thorized of-ficer m ay grant an extension , not to exceed 1 year, u pon w ritten request. Written requests for extensions of con -tracts m ust be received between 30 and 90 days before the expiration date of the contract. Written requests for ex-tensions of perm its m ust be received between 15 and 90 days before the per-m it expiration date. The au thorized of-ficer m ay grant a total of tw o exten-sions for contracts and perm its.

§228.54 Single en try sa les or perm its.

The purchaser or perm ittee i s re-qu ired to reclaim a single entry source in accordance w ith an approved oper-ating pl an which describes operating


190

36 CFR Ch. II (7–1–12 Edition) § 228.55

procedures and reclam ation m easures, u n less the requ irem ent i s waived by the au thorized officer.

§228.55 C an cellation or su spension .

The au thorized officer m ay cancel or su spend a contract, perm it, or prospecting perm it if the pu rchaser or perm ittee fai ls to com ply w ith its term s and conditions. If the noncom pl i -ance i s u nnecessaril y or u nreasonably causing in ju ry , loss, or dam age to sur-face resources, the au thorized officer m ay cancel or su spend the contract, perm it, or prospecting perm it im m e-diately . In cases where noncom pliance i s of a l ess serious nature, the au thor-ized officer m ay cancel or su spend a contract, perm it, or prospecting perm it i f such noncom pl iance continues for 30 days after service of written notice by the au thorized officer. If the non-com pliance i s not corrected, the au -thorized officer m ay attach the bond to ensure com pl iance w ith the provisions of the contract, perm it, or prospecting perm it.

§228.56 Operating p lans.

Any su rface-distu rbing operation under a contract, perm it, or prospecting perm it is subject to prior approva l by the au thorized officer of an operating pl an and to reasonable condi -tions as m ay be requ ired to ensure proper protection of the env ironm ent and im provem ents, i ncluding tim ely reclam ation of distu rbed l ands. Sign ifi-cant changes to operations requ ire prior approval of an am ended operating pl an . The operating plan m ust in clude, as a m in im um , a m ap and explanation of the nature of the access, an ticipated activ ity, su rface disturbance, and in-tended reclam ation in cluding rem oval or retention of structures and facil i-ties. Operating pl ans m ust be sub-m itted by the pu rchaser, perm ittee, or prospecting perm ittee, except as noted in §228.64(b).

TY P ES AND METHODS OF DISP OSAL

§228.57 Types of disposal .

Except as provided in §228.41(b), dis-posa l of m inera l m aterial s m ay be m ade by : (a) Competitive sa le to the highest

qua li fied bidder after form al adver-

tising and other appropriate publ ic no-tice; (b) Sale by negotiated contract. (1) F or

rem oval of m aterial s to be u sed in con -nection w ith a publ ic work s im prove-m ent program on behalf of a F ederal, State, or l ocal governm ent agency if the publ ic exigency w il l n ot perm it delay s in cident to advertising, or (2) F or the rem oval of m ineral m ate-

rial s for w hich i t is im practicable to obta in com petition; (c) P reference right negotiated sa le to

the holder of a Forest Service-issued prospecting perm it under which a su it-able m ineral m aterial deposit has been dem onstrated on acqu ired Nationa l F orest l ands; (d) Free use when a perm it i s i ssued

to any nonprofit association, corpora-tion , indiv idua l, or others l i sted in §228.62(d), for other than com m ercial pu rposes, resale, or barter, or to any F ederal , State, county , local un it, sub-division , m unicipal i ty , or county road district for u se in publ ic projects; or (e) Forest Service force account or by

contract where the m aterial i s to be u sed to carry ou t various F orest Serv -ice program s in volv ing construction and m ain tenance of physica l im prove-m ents.

§228.58 C om petitive sa les.

(a) Invitation for bid. Sales m ust be conducted as described below after in -vi ting com petitive bids through publ i-cation and posting. The au thorized offi -cer m ay not offer a com petiti ve sa le u n less there is a right-of-way or other access to the sale area which i s avai l -able to anyone qual ified to bid. (b) Advertising—(1) Sales over 25,000

cubic yards. Minera l m aterial sales of-fered by com petitive bidding and which exceed 25,000 cubic y ards m ust be ad-vertised on the sam e day once a week for two consecutive week s in a news-paper of general ci rcu lation in the area where the m aterial is located, and in a trade or industrial newspaper when considered appropriate. Notice of the sa le m ust be posted in a conspicuous pl ace in the office where bids are to be subm itted. In addition , the au thorized officer m ay send the advertisem ent di-rectly to k nown interested persons. B ids m ay be received but not eva lu ated


191


before the end of the advertising pe-riod, which m ay be extended at the dis-cretion of the au thorized officer. (2) Content of advertising. The adver-

tisem ent of sale m ust specify the l oca-tion by l ega l description of the tract or tracts or by any other m eans identify the l ocation of the m inera l m ateria l deposit being offered, the k ind of m ate-rial , estim ated quantities, the unit of m easurem ent, appraised price (which sets the m in im um acceptable bid), tim e and pl ace for receiving and open -ing of bids, m in im um deposit requ ired, m ajor special constrain ts due to envi -ronm ental considerations, avai l able ac-cess, m ain tenance requ ired over hau l rou tes, traffic controls, requ ired u se perm its, required qual ifications of bid-ders, the m ethod of bidding, bonding requ irem ent, notice of the right to re-ject any or al l bids, the office where a copy of the contract and additiona l i n -form ation m ay be obtained, and addi-tional in form ation the au thorized offi -cer deem s necessary . (3) Advertising smaller sa les. Advertise-

m ent of m ineral m ateria ls am ounting to 25,000 cubic y ards in volum e (or weight equiva lent) or l ess m ust be pub-l ished and/or posted. The m ethods of advertisem ent are at the discretion of the au thorized officer. (c) Conduct of sales. (1) B idding at

com petiti ve sales m ay be conducted by the subm ission of written sealed bids, oral bids, or a com bination of both as directed by the au thorized officer. In the event of a tie in high sea led bids, the highest bidder w il l be determ ined by oral auction am ong those tied bid-ders; when no ora l bid i s higher that the sea led bids, the selected bidder w i l l be determ ined by l ot, the pu rchase price being the am ount of the tied bid. F or al l oral auctions, in cl uding those u sed to break sealed-bid ties, the high bidder m ust confirm the bid in writing imm ediately upon being declared the high bidder. The au thorized officer m ust m ai l n otification of the bidding resul ts to al l bidders w ithin 10 days. (2) The authorized officer m ay re-

qu ire bidders to furn ish evidence of qua li fication at the tim e of aw ard or, if such evidence has al ready been fu r-n ished and i s sti l l va lid, m ak e appro-priate reference to the record con-ta in ing it.

(3) When i t i s in the in terest of the Un ited States to do so, the au thorized officer m ay reject any or al l bids. (d) Bid deposits and award of contract.

Sealed bids m ust be accom pan ied by a deposit. F or m inera l m aterial s offered at oral auction , bidders m ust m ak e the deposit before opening of the bidding. (1) Bid deposits m ust be equal to 10

percent of the appra ised value but not l ess than $100.00. (2) B id deposits m ust be in the form

of cash, m oney order, bank drafts, cashier’ s or certified check s m ade pay -able to the F orest Service, or bonds ac-ceptable to the F orest Serv ice (§228.51(b)). (3) Upon conclu sion of the bidding,

the au thorized officer w i l l return the deposits of a l l u nsuccessfu l bidders. The successful bidder’s deposit w il l be appl ied toward the pu rchase price. If the contract i s not awarded to the high bidder due to an in abil ity to perform the obligations of the contract, the de-posit, l ess expenses and dam ages in -cu rred by the Un ited States, m ay be re-tu rned. The return of a deposit does not prejudice any other rights or rem -edies of the United States. The con-tract m ay be offered and awarded to the next successive qual i fied high bid-der, or, at the discretion of the au thor-ized officer, the sa le m ay be either re-advertised or negotiated if it i s deter-m ined that a com petiti ve sale is im -practicable. (4) Within 30 days after receipt of the

contract, the successful bidder m ust sign and return the contract, together w ith any required bond, u n less the au-thorized officer has granted an exten -sion for an additional 30 days. The bid-der m ust apply for the extension in writing w ithin the first 30-day period. If the successful bidder fa il s to return the contract w ithin the first 30-day pe-riod or w ithin an approved extension, the bid deposit, l ess the costs of re-advertising and dam ages, m ay be re-tu rned w ithout prejudice to any other rights or rem edies of the Un ited States. (5) All sa les m ust be processed on

F orest Service-approved contract form s. The au thorized officer m ay add prov isions to the contract to cover con -ditions pecu l iar to the sale area. Such additional prov isions m ust be m ade


192

36 CFR Ch. II (7–1–12 Edition) § 228.59

avai lable for in spection by prospective bidders during the advertising period.

§228.59 Negotiated or n oncom petitive sales.

(a) Volume limitations. When i t is de-term ined by the au thorized officer to be in the publ ic in terest and when it i s im practicable to obtain com petition , m ineral m aterial s not exceeding 100,000 cubic y ards in volum e (or weight equ iv -alent) m ay be sold in any one sa le at not less than the appraised value, w ith-out advertising or cal l i n g for bids, ex-cept as prov ided in paragraphs (b) and (c) of this section . The au thorized offi-cer m ay not approve noncom petiti ve sa les that exceed the total of 200,000 cubic y ards (or weight equiva lent) m ade in any one State for the benefit of any appl icant in any period of 12 consecutive m onths. (b) Government programs. In connec-

tion w ith a publ ic work s im provem ent project on behalf of a F ederal , State, or l ocal governm ental agency , the author-ized officer m ay sel l to an appl icant, at not less than the appraised value, w ith-out advertising or cal l i ng for bids, a volum e of m inera l m ateria ls not to ex-ceed 200,000 cubic y ards (or weight equ iva lent) w hen the publ ic exigency w i l l n ot perm it delay s in cident to ad-vertising (30 U.S.C. 602). (c) Appropriation for highway purposes.

F or in terstate and/or Federal a id high-ways, the Secretary of Transportation m ay appropriate any volum e in accord-ance w ith 23 U.S.C. 107 and 317. (d) Use in development of Federal min -

era l leases. When i t is determ ined to be im practicable to obtain com petition and the m inera l m ateria ls are to be u sed in connection w ith the develop-m ent of m ineral l eases i ssued by the Un ited States (§228.44), the au thorized officer m ay sel l to a leaseholder a vol-um e of m ineral m aterial not to exceed 200,000 cubic y ards (or weight equ iva-lent) in one State in any period of 12 consecutive m onths. No charge w il l be m ade for m aterial s which m ust be m oved in the process of extracting the m ineral u nder lease, as l ong as the m a-teria ls rem ain stock pil ed w ithin the boundaries of the leased area . (e) Exceptions. (1) The Chief of the

F orest Service m ay au thorize the non -com petiti ve sale of m ineral m aterial s

i n excess of the volum e l im itations in paragraphs (a), (b), and (d) of this sec-tion when necessary to: (i ) R espond to an em ergency affect-

ing publ ic heal th, safety or property; (i i) P revent the curtai lm ent of oper-

ations conducted under the Un ited States m in ing laws of May 10, 1872, as am ended (30 U.S.C. 22 et seq.) w hich generate l arge volum es of m ineral m a-teria ls as a by-product; or (i i i ) R espond to a cri tical public need

for the prom pt developm ent of a m in -era l lease issued by the United States or a m ining cla im located under the Un ited States m in ing l aws of May 10, 1872, as am ended (30 U.S.C. 22 et seq.). (2) Any noncom petitive sa le of m in-

era l m aterial s in excess of the volum e l im itations in paragraphs (a), (b), and (d) shal l be subject to such restrictions as the Chief of the F orest Service de-term ines to be in the public in terest. (3) Nothing in this paragraph shal l

otherwise a lter the requ irem ents of paragraphs (a) through (d) of this sec-tion .

[49 F R 29784, Ju l y 24, 1984, as am ended at 52 F R 10565, Apr. 2, 1987; 53 F R 43691, Oct. 28, 1988]

§228.60 P rospecting perm its.

(a) Right conferred. On acquired Na-tional F orest l ands, prospecting per-m its m ay be issued which grant the perm ittee the exclu sive right to ex-plore for and to dem onstrate the exist-ence of a su itable m ineral m ateria l de-posit when existing in form ation i s i n -sufficient. After the dem onstration of a su itable deposit and confirm ation of this by the au thorized officer, the per-m ittee w i l l have a preference right to apply for a negotiated sa le. (b) L imitations. Minera l m ateria l m ay

be rem oved from lands under a prospecting perm it on ly to the extent necessary for testing and analy sis or for the dem onstration of the existence of a su itable deposit. (c) Environmental analysis.

P rospecting perm its w il l be i ssued on ly after subm ission by applicant and ap-proval by the au thorized officer of a de-ta il ed operating pl an . The au thorized officer m ay requ ire a bond in accord-ance w ith §228.51. The authorized offi-cer m ust ensure com pliance w ith the


193


National E nv ironm ental P ol icy Act (42 U.S.C . 4321 et seq.). (d) Acreage and permit limitations. A

prospecting perm it m ay not cover m ore than 640 acres. No individua l or group m ay have an in terest at any one tim e in m ore than three prospecting perm its on Forest Service l ands adm in istered by one F orest Supervisor. (e) Duration and extension of permits.

P rospecting perm its m ay be issued for a period not to exceed 24 m onths, bu t they m ay be extended once for up to an additional 24 m onths if necessary to com plete prospecting. Any application for extension m ust be subm itted no l ater than 30 days before the expiration of the perm it. The appl ication for ex-tension m ust provide evidence of dil i-gence and state the reasons why addi-tional tim e is considered necessary to com plete prospecting work . (f) Refusa l to extend permits. The au-

thorized officer m ay reject appl ications for extension of prospecting perm its for the foll ow ing reasons: (1) Fa ilure to perform. F ai lu re of the

perm ittee to perform prospecting or exploration work w ithout adequate ju s-tification m ay resu l t i n the den ial of an extension ; or (2) Fa ilure to apply. If an appl ication

for extension is not subm itted w ithin the specified period, the perm it m ay expire w ithout notice to the perm ittee. (3) P ublic in terest. If the au thorized

officer determ ines that an extension m ay not be in the public i nterest, the appl ication m ay be rejected.

§228.61 P reference right negotiated sales.

(a) Qualification for sale. When apply -ing for a preference right negotiated sa le, the perm ittee m ust dem onstrate to the satisfaction of the au thorized of-ficer that a su itable deposit of m inera l m aterial has been discovered w ithin the area covered by the prospecting perm it. Inform ation concern ing trade secrets and financial m atters sub-m itted by the perm ittee and identified as confidential w il l n ot be ava il able for public exam ination except as otherwise agreed upon by the perm ittee. (b) Application for sale. The appl ica-

tion m ust be subm itted to the D istrict R anger’ s office on or before the expira-tion date of the prospecting perm it or

i ts extension . The au thorized officer m ay grant 30 additional days for sub-m itting the appl ication if requested in writing by the perm ittee before expira-tion of the prospecting perm it or i ts extension . (c) Terms and conditions of contract.

The term s and conditions w i l l be evalu -ated on an individual case basis. On ly those m inera l m ateria ls specified in the contract m ay be rem oved by the pu rchaser. Before a preference right ne-gotiated contract i s awarded, the au-thorized officer m ust ensure that an environm ental analysis is conducted. Al l contracts are subject to the condi -tions under §§228.47 through 228.56. (d) Acreage limitations. The au thorized

officer w il l determ ine the am ount of acreage in the preference right nego-tiated sale based on a presentation of the perm ittee’ s needs. The m axim um acreage a ll owable to any individual or group m ust not exceed 320 acres on Na-tional F orest lands adm in istered by one Forest Superv isor. The al lowable acreage m ay be in one or m ore un its which are not necessari ly contiguous. (e) Volume limitations. P reference

right negotiated sa les are exem pt from volum e l im itations. (f) Contract time a llowable. A contract

or a renewal m ust not exceed 5 years; however, the pu rchaser m ay have re-newal options at the end of each con -tract or renew al period. The au thorized officer m ay renew a contract if i t is de-term ined that the renewal i s not detri-m ental to the public i n terest and that the pu rchaser has dem onstrated dil i -gence in conducting operations. The au thorized officer m ay cancel the con-tract, or the pu rchaser m ay forfeit the contract, i f no substantial com m ercia l production occurs during any contin -uous 2-year period after the award of the contract or i f the contract term s and conditions are breached. However, i f a delay is caused by conditions be-yond the pu rchaser’ s control, the au -thorized officer m ay grant an extension equa l to the l ost tim e. (g) Contract renew al reappraisa l. At

the tim e of contract renewal, the au -thorized officer w il l reappraise the m ineral m ateria l deposit in accordance w ith §228.49.


194

36 CFR Ch. II (7–1–12 Edition) § 228.62

§228.62 Free u se.

(a) Application . An application for a free-use perm it m ust be m ade w ith the appropriate District R anger’ s office. (b) Term. P erm its m ay be issued for

periods not to exceed 1 year and w il l term inate on the expiration date un -less extended by the authorized officer as in §228.53(b). However, the au thor-ized officer m ay issue perm its to any l ocal , State, F ederal , or Territoria l agency, u nit or subdivision , i ncl uding m un icipal i ties and county road dis-tricts, for periods up to 10 years. (c) Removal by agent. A free-use per-

m ittee m ay extract the m inera l m ate-rial s through a designated agent pro-vided that the conditions of the perm it are not viol ated. No part of the m ate-rial m ay be u sed as paym ent for the services of an agent in obtaining or processing the m aterial . A perm it m ay be i ssued in the nam e of a designated agent for those entities l i sted in §228.62(d)(1), at the discretion of the au thorized officer, provided there i s binding agreem ent in which the entity retains responsibil ity for ensuring com pliance w ith the conditions of the perm it. (d) Conditions. F ree-use perm its m ay

be issued for m inera l m ateria ls to set-tlers, m iners, residents, and pros-pectors for u ses other than com m ercial pu rposes, resa le, or barter (16 U.S.C. 477). F ree-use perm its m ay be i ssued to l ocal , State, F ederal , or Territoria l agencies, u n its, or subdiv isions, i n clud-ing m unicipal ities, or any association or corporation not organ ized for profit, for other than com m ercial or indus-tria l pu rposes or resale (30 U.S.C. 601). F ree-use perm its m ay not be issued when , in the judgm ent of the au thor-ized officer, the appl icant owns or con-trol s an adequate supply of m inera l m aterial in the area of dem and. The free-use perm it, i ssued on a F orest Service-approved form , m ust include the basis for the free-use as wel l as the prov isions governing the selection , re-m oval , and u se of the m ineral m ate-rial s. No m inera l m aterial m ay be re-m oved unti l the perm it i s i ssued. The perm ittee m ust notify the au thorized officer upon com pletion of m inera l m a-teria l rem oval . The perm ittee m ust com plete the reclam ation prescribed in the operating plan (§228.56).

(1) A free-use perm it m ay be issued to any local , State, Federal, or Territoria l agency, un it, or subdivision , i ncluding m un icipal i ties and county road dis-tricts, w ithout l im itation on the num -ber of perm its or on the va lue of the m ineral m aterial s to be extracted or rem oved. (2) A free-use perm it issued to a non -

profit association, corporation , or indi-vidua l m ay not provide for the rem oval of m ineral m aterial s having a volum e exceeding 5,000 cubic y ards (or weight equ iva lent) du ring any period of 12 con-secutive m onths. (e) P etrified w ood. A free-use perm it

m ay be issued to am ateur col lectors and scientists to tak e l im ited quan -ti ties of petrified wood for personal u se. The m aterial tak en m ay not be bartered or sold. F ree-use areas m ay be designated w ithin which a perm it m ay not be requ ired. R em oval of m ateria l from such areas m ust be in accord w ith ru les i ssued by the au thorized officer and posted on the area. Such ru les m ust al so be posted in the District R anger’ s and F orest Supervisor’ s of-fices and be ava il able upon request. The ru les m ay vary by area depending on the quantity , qua li ty , and accessi -bi l ity of the m aterial and the dem and for i t.

§228.63 R em oval u n der term s of a tim -ber sale or other Forest Service con tract.

In carry ing ou t program s such as tim ber sales that in vol ve construction and m ain tenance of v arious physica l im provem ents, the F orest Service m ay specify that m ineral m aterial s be m ined, m anufactured, and/or processed for in corporation in to the im prove-m ent. Where the m ineral m aterial i s l ocated on Nationa l F orest lands and i s designated in the contract ca ll in g for i ts use, no perm it is requ ired as long as an operating pl an as described in §228.56 i s requ ired by the contract pro-visions. Title to any excavated m ate-rial in excess of that needed to ful fil l contract requirem ents revests in the Un ited States w ithout reim bursem ent to the contract holder or to agents or representatives of the contract holder. Such excess m ateria l m ay be disposed of under §§228.58, 228.59, or 228.62.


195


§228.64 C ommun ity sites and comm on- u se areas.

(a) Designation . Nonexclu sive dis-posa ls m ay be m ade from the sam e de-posit or areas designated by the au-thorized officer; the designation of such an area and any reclam ation re-qu irem ents m ust be based on an envi -ronm ental analysis. (b) P it plans. The Forest Service m ust

prepare operating plans (§228.56) for the efficient rem oval of the m ateria l and for appropriate reclam ation of com m u-n ity sites and com m on-use areas. (c) Reclamation . The F orest Serv ice i s

responsible for reclam ation of com m u-n ity sites and com m on-use areas.

§228.65 P aym ent for sa les.

(a) Conditions. Minera l m ateria ls m ay not be rem oved from the sa le area until al l conditions of paym ent in the con-tract have been m et. (b) Advance payment. (1) F or nego-

tiated and com petiti ve sales the fu l l am ount m ay be pa id before rem oval i s begun under the contract or by in stal l-m ent at the discretion of the author-ized officer. Insta llm ent paym ents m ust be based on the estim ated re-m oval rate specified in the operating pl an and m ust be, as a m in im um , the va lue of 1 m onth’ s rem oval. The first instal lm ent m ust be paid before re-m oval operations are begun ; rem aining instal lm ents m ust be pa id in advance of rem oval of the rem ain ing m aterial s as bi l l ed by the au thorized officer. The total am ount of the purchase price m ust be pa id at l east 60 days before the expiration date of the contract. (2) Al l advance paym ent contracts

m ust provide for reappraisal of the m ineral m aterial at the tim e of con-tract renew al or extension . (3) Minim um annual production m ust

be sufficient to return a paym ent to the Un ited States equal to the first in-stal lm ent. In l ieu of m in im um produc-tion , there m ust be an annual paym ent in the am ount of the first in stal lm ent which w i l l n ot be credited to fu ture years’ production . P aym ents for or in l ieu of m in im um annual production m ust be received by the authorized of-ficer on or before the ann iversary of the effective date of the contract. (4) If the purchaser fai ls to m ake pay-

m ents when due, the contract w il l be

considered breached; the au thorized of-ficer w i l l term inate the contract, and al l prev ious paym ents w i l l be forfeited w ithout prejudice to any other rights and rem edies of the Un ited States. F or-feitu re w il l not resu lt when the pu r-chaser i s u nable to m eet the m in im um annual production (volum e or v alue) for reasons beyond the pu rchaser’ s con-trol . (5) In order to determ ine paym ent

am ount, the pu rchaser m ust m ake a re-port of operations. The report m ust in -clude the am ount of m inera l m aterial rem oved, which m ust be verified by the au thorized officer. (c) Deferred payments. The au thorized

officer m ay approve deferred paym ents for sa les. (1) The purchaser m ay m ak e pay -

m ents m onthly or quarterly which m ust be based on the in-pl ace va lue (volum e or w eight equiva lent) of m ate-rial rem oved during the contract pe-riod. The un its of m easurem ent m ust correspond to the un its u sed in the ap-praisal . The purchaser m ust m ake a ll paym ents before contract renewal. (2) The purchaser m ust deli ver a bond

which conform s to the provisions of §228.51(a)(2) to the au thorized officer before operations are begun under the contract.

§228.66 R efunds.

Upon term ination of any contract, paym ents in excess of $10 m ay be re-funded, less the costs in curred by the Un ited States, u nder any of the fol -l ow ing conditions: (a) P ayment in excess of value. If the

total paym ent exceeds the value of the m ineral m aterial rem oved, u n less it i s the m in im um annual paym ent in l ieu of production ; (b) Insufficiency of materia l. If in suffi -

cient m inera l m ateria l existed in the sa le area to provide the quantity of m aterial estim ated to have been avai l-able; (c) Termination . (1) If the contract i s

term inated by the authorized officer for reasons which are beyond the pu r-chaser’ s control ; or (2) If the contract is term inated by

m utual agreem ent. This refund provi -sion i s not a warranty that a specific quantity of m aterial exists in the sale area.


196

36 CFR Ch. II (7–1–12 Edition) § 228.67

§228.67 Inform ation collection re-qu irem ents.

(a) The fol l ow ing sections of this sub-part contain in form ation col lection re-qu irem ents as defined in the P aper-work R eduction Act of 1980 (5 CFR part 1320): §228.45, Qualifications of appl i -cants; §228.51, Bonding; §228.52(b)(1), R equirem ents of assignee; §228.53(b), Extension of tim e; §228.56, Operating pl ans; §228.57(c), Conduct of sales; §228.60, P rospecting perm its; §228.61, P reference right negotiated sales; and §228.62, F ree u se. These requ irem ents have been approved by the Office of Managem ent and Budget and assigned clearance num ber 0596–0081. (b) The public reporting burden for

this coll ection of inform ation i s esti -m ated to vary from a few m inu tes to m any hours per indiv idua l response, w ith an average of 2 hours per indi-vidua l response, i n cluding tim e for re-view ing in structions, searching exist-ing data sources, gathering and m ain-ta in ing the data needed, and com -pleting and rev iew ing the col lection of inform ation . Send com m ents regarding the burden estim ate or any other as-pect of this col lection of inform ation , i ncl uding suggestions for reducing this burden , to Chief (2800), F orest Serv ice, USDA, P .O. Box 96090, Washington , DC 20090–6090 and to the Office of Inform a-tion and R egu latory Affairs, Office of Managem ent and Budget, Washington , DC 20503.

[55 F R 51706, Dec. 17, 1990]

Subpart D—Miscellaneous Minera ls Provisions

§228.80 Operation s w ithin Misty Fjords and Adm iralty Islan d Na-tional Monuments, Alaska.

(a) Mineral activi ties on val id m ining cl aim s in the Misty F jords and Adm i-ra lty Isl and Nationa l Monum ents m ust be conducted in accordance w ith regu -l ations in subpart A of this part and w ith the provisions of this section . (b) P rior to approving a pl an of oper-

ations, the au thorized officer m ust con -sider: (1) The resources of ecologica l, cu l -

tu ra l, geological , historical , pre-historica l, and scientific in terest l ik ely

to be affected by the proposed oper-ations, in cluding access; and (2) The potential adverse im pacts on

the identified resource values resul ting from the proposed operations. (c) A plan of operations w i l l be ap-

proved if, i n the judgm ent of the au -thorized officer, proposed operations are com patible, to the m axim um ex-tent feasible, w ith the protection of the resource va lues identified pu rsuant to paragraph (b)(1) of this section. (1) The authorized officer w il l deem

operations to be com patible i f the pl an of operations includes a l l feasible m easures which are necessary to pre-vent or m in im ize potentia l adverse im -pacts on the resource values identified pu rsuant to paragraph (b)(1) of this sec-tion and if the operations are con -ducted in accordance w ith the plan. (2) In eva lu ating the feasibi l i ty of

m itigating m easures, the au thorized officer shal l , at a m in im um , consider the foll ow ing: (i ) The effectiveness and practica li ty

of m easures u ti l izing the best avai l able technology for preventing or m in i-m izing adverse im pacts on the resource va lues identified pu rsuant to paragraph (b)(1) of this section ; and (i i) The long- and short-term costs to

the operator of u ti l i zing such m easures and the effect of these costs on the l ong- and short-term econom ic viabil -i ty of the operations. (3) The au thorized officer shal l not

requ ire im plem entation of m itigating m easures which would prevent the eva lu ation or developm ent of any va lid cl aim for w hich operations are pro-posed. (d) In accordance w ith the procedures

described in subpart A and paragraphs (c)(1) through (c)(3) of this section , the au thorized officer m ay approve m odi-fications of an existing plan of oper-ations: (1) If, i n the judgm ent of the au thor-

ized officer, environm ental im pacts un-foreseen at the tim e of approva l of the existing pl an m ay resu lt i n the in com -patibi l i ty of the operations w ith the protection of the resource values iden -tified pu rsuant to paragraph (b)(1) of this section ; or


197


(2) Upon request by the operator to u se al ternative technology and equip-m ent capable of achiev ing a level of en-vironm ental protection equ iv alent to that to be achieved under the existing pl an of operations.

[51 F R 20827, Ju ne 9, 1986]

Subpart E—Oil and Gas Resources

SOUR CE : 55 F R 10444, Mar. 21, 1990, un less otherw ise noted.

§228.100 Scope and app licability.

(a) Scope. This subpart sets forth the ru les and procedures by which the F or-est Serv ice of the Un ited States De-partm ent of Agricu l tu re w il l carry ou t i ts statu tory responsibi l i ties in the i ssuance of F ederal oi l and gas l eases and m anagem ent of subsequent oi l and gas operations on Nationa l F orest Sys-tem l ands, for approva l and m odifica-tion of attendant su rface use plans of operations, for m onitoring of su rface disturbing operations on such leases, and for enforcem ent of su rface u se re-qu irem ents and reclam ation standards. (b) Applicability . The rules of this sub-

part apply to leases on National F orest System lands and to operations that are conducted on F ederal oi l and gas l eases on National F orest System lands as of Apri l 20, 1990. (c) Applicability of other ru les. Surface

u ses associated w ith oil and gas prospecting, developm ent, production , and reclam ation activi ties, that are conducted on National F orest System l ands ou tside a leasehold m ust receive prior au thorization from the F orest Service. Such activ ities are subject to the regu lations set forth elsewhere in 36 CFR chapter II, i ncluding but not l im ited to the regu lations set forth in 36 CFR parts 251, subpart B , and 261.

§228.101 Defin itions.

For the pu rposes of this subpart, the term s l isted in this section have the fol low ing m eaning: Authorized Forest officer. The F orest

Service em ployee delegated the au thor-i ty to perform a du ty described in these ru les. Genera ll y , a R egional F or-ester, Forest Supervisor, District R anger, or Minera ls Staff Officer, de-

pending on the scope and level of the duty to be perform ed. Compliance Officer. The Deputy Chief,

or the Associate Deputy Chiefs, Na-tional F orest System or the l i ne officer designated to act in the absence of the Deputy Chief. L easehold. The area described in a

F ederal oil and gas lease, com m un itized, or u n itized area. L essee. A person or entity holding

record title in a l ease i ssued by the Un ited States. Nationa l Forest System. All National

F orest l ands reserved or w ithdrawn from the public dom ain of the Un ited States, al l Nationa l F orest l ands ac-qu ired through purchase, exchange, do-nation , or other m eans, the National Grasslands and l and u til ization projects adm in istered under title III of the Bankhead-Jones F arm Tenant Act (7 U.S.C. 1010 et seq.), and other lands, waters, or in terests therein w hich are adm in istered by the F orest Service or are designated for adm in istration through the F orest Service as a part of the sy stem (16 U.S.C. 1609). Notices to L essees, Transferees, and Op-

erators. A written notice i ssued by the au thorized F orest officer. Notices to L essees, Transferees, and Operators im -plem ent the regu lations in this subpart and serve as in structions on specific i tem (s) of im portance w ithin a F orest Service R egion , National F orest, or R anger District. Onshore Oil and Gas Order. A form al

num bered order i ssued by or signed by the Chief of the F orest Service that im -plem ents and supplem ents the regu la-tions in this subpart. Operating right. The in terest created

ou t of a l ease that authorizes the hold-er of that in terest to enter upon the leased l ands to conduct dril l i n g and re-l ated operations, i ncl uding production of oil and gas from such l ands in ac-cordance w ith the term s of the lease. Operating rights owner. A person hold-

ing operating rights in a lease i ssued by the United States. A leasee a lso m ay be an operating rights owner if the operating rights in a l ease or por-tion thereof have not been conveyed to another person . Operations. Surface distu rbing activi -

ties that are conducted on a l easehold


198

36 CFR Ch. II (7–1–12 Edition) § 228.102

on Nationa l Forest System l ands pur-suant to a cu rrent approved surface u se pl an of operations, in cl uding but not l im ited to, exploration , developm ent, and production of oil and gas resources and reclam ation of su rface resources. Operator. Any person or entity , i n -

cl uding, bu t not l im ited to, the lessee or operating rights owner, who has stated in writing to the au thorized F orest officer that they are responsible u nder the term s and conditions of the lease for the operations conducted on the leased l ands or a portion thereof. P erson . An indiv idua l, partnership,

corporation, association or other l ega l entity . Substantial modification. A change in

l ease term s or a m odification , waiver, or exception of a l ease stipu lation that would requ ire an environm ental assess-m ent or env ironm ental im pact state-m ent be prepared pursuant to the Na-tional E nvironm ental P ol icy Act of 1969. Surface u se plan of operations. A pl an

for surface use, distu rbance, and rec-l am ation. Transfer. Any conveyance of an in ter-

est in a l ease by assignm ent, sublease or otherwise. This defin i tion in cludes the term s: Assignment which m eans a conveyance of al l or a portion of the lessee’ s record title in terest in a lease; and sublease which m eans a conveyance of a non -record in terest in a lease, i .e., a conveyance of operating rights i s norm all y a sublease and a sublease a lso i s a subsidiary arrangem ent between the lessee (sublessor) and the sublessee, bu t a sublease does not in clude a trans-fer of a pu rely financial in terest, such as overriding royal ty in terest or pay -m ent ou t of production, nor does i t af-fect the relationship im posed by a l ease between the lessee(s) and the Un ited States. Transferee. A person to whom an in-

terest in a lease i ssued by the Un ited States has been transferred.

L EASING

§228.102 Leasing ana lyses and deci-sions.

(a) Compliance w ith the National Envi-ronmental P olicy Act of 1969. In ana-l yzing l ands for l easing, the au thorized F orest officer shal l com ply w ith the

National E nvironm ental P ol icy Act of 1969, im plem enting regu lations at 43 CFR parts 1500–1508, and F orest Serv ice im plem enting poli cies and procedures set forth in F orest Service Manual chapter 1950 and F orest Service Hand-book 1909.15. (b) Scheduling ana lysis of ava ilable

lands. Within 6 m onths of Apri l 20, 1990, F orest Supervisors shal l develop, i n co-operation w ith the Bureau of L and Managem ent and w ith public input, a schedule for analyzing l ands under their ju risdiction that have not been al ready ana lyzed for leasing. The F or-est Superv isors sha ll revise or m ake additions to the schedu le at l east annu -al l y . In schedu ling l ands for ana ly sis, the au thorized F orest officer shall identify and exclude from further re-view the foll ow ing lands which are l e-ga ll y unavai lable for leasing: (1) L ands w ithdrawn from m inera l

l easing by an act of Congress or by an order of the Secretary of the Interior; (2) L ands recom m ended for w ilder-

ness al location by the Secretary of Ag-ricu lture; (3) L ands designated by statu te as

w i lderness study areas, u n less oil and gas l easing is specifica ll y al lowed by the statu te designating the study area; and (4) L ands w ithin areas a l l ocated for

w i lderness or further planning in Exec-u tive Com m un ication 1504, Ninety - Sixth Congress (House Docum ent No. 96–119), u nless such lands subsequently have been al l ocated to u ses other than w i lderness by an approved F orest l and and resource m anagem ent pl an or have been released to u ses other than w i l-derness by an act of Congress. (c) L easing analyses. The leasing anal-

y sis shal l be conducted by the au thor-ized F orest officer in accordance w ith the requ irem ents of 36 CFR part 219 (Forest land and resource m anagem ent pl ann ing) and/or, as appropriate, through preparation of NEP A docu-m ents. As part of the ana ly sis, the au -thorized F orest officer sha ll : (1) Identify on m aps those areas that

w i l l be: (i ) Open to developm ent subject to

the term s and conditions of the stand-ard oil and gas l ease form (in cluding an explanation of the typical standards


199


and objectives to be enforced under the standard lease term s); (i i) Open to developm ent but subject

to constra in ts that w i l l require the u se of l ease stipu lations such as those pro-hibiting su rface u se on areas l arger than 40 acres or such other standards as m ay be developed in the pl an for stipulation u se (w ith discussion as to why the constra in ts are necessary and justifiable); and (i i i ) C losed to l easing, distinguishing

between those areas that are being closed through exercise of m anagem ent direction, and those closed by l aw , reg-u lation , etc. (2) Identify al ternatives to the areas

l isted in paragraph (c)(1) of this sec-tion , in cl uding that of not a l l ow ing l easing. (3) P roject the type/am ount of post-

l easing activity that is reasonably foreseeable as a consequence of con -ducting a l easing program consistent w ith that described in the proposal and for each a lternative. (4) Analyze the reasonable foresee-

able im pacts of post-leasing activ ity projected under paragraph (c)(3) of this section. (d) Area or Forest-w ide leasing deci-

sions (lands admin istratively ava ilable for leasing). Upon com pletion of the leasing ana ly sis, the R egional Forest shal l prom ptly notify the Bureau of L and Managem ent as to the area or F orest- w ide leasing decisions that have been m ade, that is, identify lands which have been found adm inistratively avai lable for leasing. (e) L easing decisions for specific lands.

At such tim e as specific lands are being considered for leasing, the R egiona l F orester shal l rev iew the area or F or-est-w ide leasing decision and shal l au -thorize the Bureau of L and Manage-m ent to offer specific lands for lease subject to: (1) V erify ing that oi l and gas l easing

of the specific lands has been ade-quately addressed in a NEP A docu-m ent, and i s consistent w ith the F orest l and and resource m anagem ent pl an . If NEP A has not been adequately ad-dressed, or i f there i s significant new inform ation or circum stances as de-fined by 40 CFR 1502.9 requiring fu rther environm ental analysis, additional en -vironm ent analysis sha ll be done before

a l easing decision for specific l ands w il l be m ade. If there i s i n consistency w ith the F orest land and resource m anage-m ent pl an , no au thorization for l easing sha ll be given un less the plan i s am end-ed or rev ised. (2) E nsuring that conditions of su r-

face occupancy identified in §228.102(c)(1) are properly included as stipulations in resu l ting leases. (3) Determ in ing that operations and

developm ent could be a l l ow ed som e-where on each proposed lease, except where stipu lations w il l prohibit a l l su r-face occupancy.

[55 F R 10444, Mar. 21, 1990, a s am en ded at 56 F R 56157, Nov . 1, 1991]

§228.103 Notice of appeals of deci-sions.

The au thorized F orest officer shal l prom ptly notify the Bureau of L and Managem ent if appeal s of either an area or F orest-w ide leasing decision or a leasing decision for specific l ands are fil ed during the periods provided for under 36 CFR part 217.

§228.104 Consideration of requ ests to m odify, w aive, or grant exceptions to lease stipu lations.

(a) General. An operator subm itting a su rface u se pl an of operations m ay re-quest the au thorized F orest officer to au thorize the Bureau of L and Manage-m ent to m odify (perm anently change), waive (perm anently rem ove), or grant an exception (case-by -case exem ption ) to a stipu lation in cluded in a lease at the direction of the F orest Service. The person m ak ing the request i s encour-aged to subm it any in form ation which m ight assist the au thorized F orest offi -cer in m ak ing a decision . (b) Review . The authorized F orest of-

ficer sha ll rev iew any inform ation sub-m itted in support of the request and any other pertinent in form ation . (1) As part of the rev iew , consistent

w ith 30 U.S.C. 226 (f)–(g), the au thorized F orest officer shal l ensure com pliance w ith the Nationa l E nvironm ental P ol -icy Act of 1969 (42 U.S.C . 4331 et seq.) and any other appl icable l aws, and shall ensure preparation of any appro-priate environm ental docum ents.


200

36 CFR Ch. II (7–1–12 Edition) § 228.105

(2) The au thorized F orest officer m ay au thorize the Bureau of L and Manage-m ent to m odify, w aive, or grant an ex-ception to a stipulation i f: (i ) The action w ou ld be consistent

w ith applicable F ederal laws; (i i) The action w ou ld be consistent

w ith the cu rrent forest l and and re-source m anagem ent plan ; (i i i ) The m anagem ent objectives

which led the F orest Service to requ ire the in clu sion of the stipu lation in the lease can be m et w ithout restricting operations in the m anner prov ided for by the stipulation given the change in the present condition of the su rface re-sources in volved, or given the nature, l ocation, tim ing, or design of the pro-posed operations; and (i v) The action i s acceptable to the

au thorized F orest officer based upon a rev iew of the environm ental con-sequences. (c) Other agency stipu lations. If a stip-

u lation was in cluded in a lease by the F orest Service at the request of an -other agency, the au thorized F orest of-ficer shal l consul t w ith that agency prior to au thorizing m odification , waiver, or exception . (d) Notice of decision. (1) When the re-

view of a stipu lation m odification , waiver, or exception request has been com pleted and the au thorized F orest officer has reached a decision, the au-thorized F orest officer sha ll prom ptly notify the operator and the appropriate Bureau of L and Managem ent office, in writing, of the decision to grant, or grant w ith additional conditions, or deny the request. (2) Any decision to m odify , w aive, or

grant an exception to a l ease stipu la-tion sha ll be subject to adm in istrative appeal on ly in conjunction w ith an ap-peal of a decision on a surface u se pl an of operation or supplem ental su rface u se pl an of operation.

AUTHORIZATION OF OCCUP ANCY WITHIN A L E ASEHOLD

§228.105 Issuance of onshore orders and notices to lessees.

(a) Onshore oil and gas orders. The Chief of the F orest Serv ice m ay i ssue, or cosign w ith the Director, Bureau of L and Managem ent, Onshore Oil and Gas Orders necessary to im plem ent and

supplem ent the regulations of this sub-part. (1) Surface Use P lans of Operations and

Master Development P lans. Operators sha ll subm it Surface Use P l ans of Oper-ations or Master Developm ent P l ans in accordance w ith Onshore Oi l and Gas Order No. 1. Approval of a Master De-velopm ent P lan constitu tes a decision to approve Surface Use P l ans of Oper-ations subm itted as a part of the Mas-ter Developm ent P l an . Subsequently subm itted Surface Use P l ans of Oper-ations sha ll be rev iewed to verify that they are consistent w ith the approved Master Developm ent P l an and whether additional NEP A docum entation or consul tation pu rsuant to the Nationa l Historic P reservation Act or the En -dangered Species Act is requ ired. If the rev iew determ ines that additional doc-um entation is requ ired, the F orest Service w il l review the additional doc-um entation or consu lt as appropriate and m ak e an independent decision re-garding the subsequently subm itted Surface Use P lan of Operations, and notify the BL M and the operator whether the Surface Use P l an of Oper-ations is approved. (2) Adoption of additional onshore oil

and gas orders. Additiona l onshore oil and gas orders sha ll be publi shed in the F EDERAL R EGISTER for publ ic com m ent and codified in the CFR . (3) Applicability of onshore oil and gas

orders. Onshore Oil and Gas Orders i ssued pursuant to this section are binding on al l operations conducted on National F orest System l ands, u n less otherwise provided therein. (b) Notices to lessees, transferees, and

operators. The au thorized F orest officer m ay i ssue, or cosign w ith the au thor-ized officer of the Bureau of L and Man-agem ent, Notices to L essees, Trans-ferees, and Operators necessary to im -plem ent the regu lations of this sub-part. Notices to L essees, Transferees, and Operators are binding on a l l oper-ations conducted on the adm in istrative un it of the Nationa l F orest System (36 CFR 200.2) supervised by the au thorized F orest officer who issued or cosigned such notice.

[55 F R 10444, Mar. 21, 1990, a s am en ded at 72 F R 10328, Mar. 7, 2007]


201


§228.106 Operator’s subm ission of su r-face u se p lan of operations.

(a) General. No perm it to dri l l on a F ederal oi l and gas lease for Nationa l F orest System lands m ay be granted w ithout the analy sis and approva l of a su rface u se plan of operations covering proposed su rface distu rbing activi ties. An operator m ust obtain an approved su rface u se pl an of operations before conducting operations that w i l l cau se su rface distu rbance. The operator shal l subm it a proposed su rface u se pl an of operations as part of an Appl ication for a P erm it to Dri l l to the appropriate Bureau of L and Managem ent office for forw arding to the F orest Serv ice, u n-less otherw ise directed by the Onshore Oil and Gas Order in effect w hen the proposed plan of operations is sub-m itted. (b) P reparation of plan. In preparing a

su rface u se plan of operations, the op-erator i s encouraged to contact the l ocal F orest Service office to m ak e u se of such in form ation as i s avai l able from the F orest Serv ice concerning su rface resources and uses, env iron -m ental considerations, and l oca l rec-l am ation procedures. (c) Content of plan . The type, size, and

intensity of the proposed operations and the sensitiv ity of the su rface re-sources that w i l l be affected by the proposed operations determ ine the level of detai l and the am ount of infor-m ation which the operator in cludes in a proposed pl an of operations. However, any su rface u se plan of operations sub-m itted by an operator sha ll conta in the inform ation specified by the Onshore Oil and Gas Order in effect w hen the su rface u se pl an of operations i s sub-m itted. (d) Supplemental plan. An operator

m ust obta in an approved supplem ental su rface u se pl an of operations before conducting any su rface distu rbing op-erations that are not au thorized by a cu rrent approved surface u se pl an of operations. The operator shal l subm it a proposed supplem ental surface u se pl an of operations to the appropriate Bu-reau of L and Managem ent office for forw arding to the F orest Serv ice, u n-less otherw ise directed by the Onshore Oil and Gas Order in effect w hen the proposed supplem ental pl an of oper-ations i s subm itted. The supplem ental

pl an of operations need on ly address those operations that differ from the operations au thorized by the cu rrent approved su rface use pl an of oper-ations. A supplem ental plan is other-w ise subject to the sam e requ irem ents under this subpart as an in i tia l su rface u se pl an of operations.

§228.107 Review of su rface u se plan of operation s.

(a) Review . The authorized F orest of-ficer sha ll review a su rface u se plan of operations as prom ptly as practicable given the nature and scope of the pro-posed plan . As part of the review , the au thorized F orest officer shal l com ply w ith the Nationa l E nvironm ental P ol -icy Act of 1969, im plem enting regu la-tions at 40 CFR parts 1500–1508, and the F orest Serv ice im plem enting pol icies and procedures set forth in F orest Service Manual Chapter 1950 and F or-est Serv ice Handbook 1909.15 and shal l ensure that: (1) The su rface use pl an of operations

i s consistent w ith the lease, i ncluding the lease stipu lations, and applicable F ederal l aw s; (2) To the extent consistent w ith the

rights conveyed by the lease, the su r-face use plan of operations is con-sistent w ith, or i s m odified to be con -sistent w ith, the applicable current ap-proved forest l and and resource m an-agem ent pl an ; (3) The su rface use pl an of operations

m eets or exceeds the su rface u se re-qu irem ents of §228.108 of this subpart; and (4) The su rface use pl an of operations

i s acceptable, or i s m odified to be ac-ceptable, to the au thorized F orest offi -cer based upon a review of the env iron -m ental consequences of the operations. (b) Decision. The au thorized F orest

officer sha ll m ak e a decision on the ap-proval of a surface u se plan of oper-ations as fol lows: (1) If the au thorized F orest officer

w i l l n ot be able to m ake a decision on the proposed pl an w ithin 3 work ing days after the conclusion of the 30-day notice period provided for by 30 U.S.C. 226(f), the au thorized Forest officer sha ll adv ise the appropriate Bureau of L and Managem ent office and the oper-ator as soon as such delay becom es ap-parent, either in writing or oral ly w ith


202

36 CFR Ch. II (7–1–12 Edition) § 228.108

subsequent written confirm ation , that additional tim e w i l l be needed to proc-ess the pl an . The authorized F orest of-ficer sha ll explain the reason why addi-tional tim e is needed and project the date by which a decision on the pl an w i l l l i k ely be m ade. (2) When the review of a su rface u se

pl an of operations has been com pleted, the au thorized F orest officer shall prom ptly notify the operator and the appropriate Bureau of L and Manage-m ent office, in writing, that: (i ) The plan i s approved as subm itted: (i i) The pl an is approved subject to

specified conditions; or, (i i i ) The pl an i s disapproved for the

reasons stated. (c) P ublic notice. The au thorized F or-

est Service officer w i l l give publ ic no-tice of the decision regarding a su rface u se pl an of operations and in clude in that notice whether the decision i s ap-pealable u nder the appl icable F orest Service appeal procedures. (d) Transmitta l of decision . The au-

thorized Forest officer sha ll im m e-diately forward a decision on a su rface u se pl an of operations to the appro-priate Bureau of L and Managem ent of-fice and the operator. This transm itta l sha ll i ncl ude the estim ated cost of rec-l am ation and restoration (§228.109(a)) if the au thorized F orest officer bel ieves that additional bonding is requ ired. (e) Supplemental plans. A supple-

m ental su rface use pl an of operations (§228.106(d)) sha ll be reviewed in the sam e m anner as an in itial surface u se pl an of operations.

[55 F R 10444, Mar. 21, 1990, a s am en ded at 72 F R 10328, Mar. 7, 2007]

§228.108 Su rface u se requ irements.

(a) General. The operator shal l con -duct operations on a leasehold on Na-tional F orest System l ands in a m an -ner that m in im izes effects on su rface resources, prevents unnecessary or u n -reasonable surface resource distu rb-ance, and that i s in com pl iance w ith the other requ irem ents of this section. (b) Notice of operations. The operator

m ust notify the au thorized F orest offi -cer 48 hours prior to com mencing oper-ations or resum ing operations fol-l ow ing their tem porary cessation (§228.111).

(c) Access facilities. The operator sha ll construct and m ain tain access facil i-ties to assure adequate dra inage and to m in im ize or prevent dam age to su rface resources. (d) Cu ltu ral and historica l resources.

The operator shal l report findings of cu ltural and historica l resources to the au thorized F orest officer im m ediately and, except as otherwise au thorized in an approved su rface u se pl an of oper-ations, protect such resources. (e) F ire prevention and control. To the

extent practicable, the operator shall tak e m easures to prevent uncontrol l ed fires on the area of operation and to suppress uncontrol led fires resul ting from the operations. (f) Fisheries, w ildlife and plan t habitat.

The operator sha ll com ply w ith the re-qu irem ents of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and its im plem enting regu lations (50 CFR chapter IV ), and, except as otherwise prov ided in an approved su rface u se pl an of operations, conduct operations in such a m anner as to m aintain and protect fisheries, w ildl ife, and pl an t habitat. (g) Reclamation . (1) Un less otherwise

prov ided in an approved su rface u se pl an of operations, the operator shal l conduct reclam ation concurrently w ith other operations. (2) Within 1 year of com pletion of op-

erations on a portion of the area of op-eration , the operator m ust recla im that portion, un less a different period of tim e i s approved in writing by the au thorized F orest officer. (3) The operator m ust: (i ) Control soil erosion and land-

sl ides; (i i) Control water runoff; (i i i ) R em ove, or control, sol id wastes,

toxic substances, and hazardous sub-stances; (i v) R eshape and revegetate distu rbed

areas; (v ) R em ove structures, im prove-

m ents, facil i ties and equ ipm ent, u n less otherwise au thorized; and (v i) Tak e such other reclam ation

m easures as specified in the approved su rface u se plan of operations. (h) Safety measures. (1) The operator

m ust m ain tain structures, faci l i ties, im provem ents, and equipm ent l ocated on the area of operation in a safe and


203


neat m anner and in accordance w ith an approved su rface use pl an of oper-ations. (2) The operator m ust tak e appro-

priate m easures in accordance w ith ap-pl i cable F ederal and State laws and regu lations to protect the publ ic from hazardous sites or conditions resu lting from the operations. Such m easures m ay in clude, but are not l im ited to, posting signs, bu ilding fences, or other-w ise identify ing the hazardous si te or condition . (i ) Wastes. The operator m ust ei ther

rem ove garbage, refuse, and sewage from Nationa l F orest System lands or treat and dispose of that m aterial in such a m anner as to m in im ize or pre-vent adverse im pacts on su rface re-sources. The operator sha ll treat or dispose of produced w ater, dril l i n g flu id, and other waste generated by the operations in such a m anner as to m in -im ize or prevent adverse im pacts on su rface resources. (j) Watershed protection . (1) Except as

otherwise prov ided in the approved sur-face use plan of operations, the oper-ator shal l n ot conduct operations in areas subject to m ass soil m ovem ent, riparian areas and wetlands. (2) The operator shal l tak e m easures

to m in im ize or prevent erosion and sedim ent production . Such m easures include, bu t are not l im ited to, siting structures, facil ities, and other im -provem ents to avoid steep sl opes and excessive clearing of land.

§228.109 Bonds.

(a) Genera l. As part of the review of a proposed su rface u se pl an of oper-ations, the au thorized Forest officer sha ll consider the estim ated cost to the F orest Service to reclaim those areas that wou ld be distu rbed by operations and to restore any l ands or su rface wa-ters adversely affected by the lease op-erations after the abandonm ent or ces-sation of operations on the lease. If at any tim e prior to or during the conduct of operations, the au thorized Forest of-ficer determ ines the financial i n stru -m ent held by the Bureau of L and Man-agem ent is not adequate to ensure com plete and tim ely reclam ation and restoration , the au thorized F orest offi-cer shal l gi ve the operator the option of ei ther in creasing the financial i n-

strum ent held by the Bureau of L and Managem ent or fi l i n g a separate in -strum ent w ith the F orest Service in the am ount deem ed adequate by the au thorized F orest officer to ensure rec-l am ation and restoration . (b) Standards for estimating reclama-

tion costs. The au thorized Forest officer sha ll consider the costs of the opera-tor’ s proposed reclam ation program and the need for additional m easures to be tak en when estim ating the cost to the F orest Service to reclaim the dis-tu rbed area. (c) Release of reclamation liability . An

operator m ay request the au thorized F orest officer to notify the Bureau of L and Managem ent of reduced reclam a-tion l iabi l i ty at any tim e after rec-l am ation has com m enced. The au thor-ized F orest officer shal l , i f appropriate, notify the Bureau of L and Managem ent as to the am ount to which the l iabi l i ty has been reduced.

§228.110 In dem n ification .

The operator and, i f the operator does not hold al l of the in terest in the appl icable l ease, a l l lessees and trans-ferees are jointly and several ly l i able in accordance w ith F ederal and State l aws for indem n ify ing the Un ited States for: (a) In ju ry, l oss or dam age, i ncluding

fire suppression costs, which the Un ited States incu rs as a resul t of the operations; and (b) P aym ents m ade by the Un ited

States in satisfaction of cla im s, de-m ands or judgm ents for an in jury, loss or dam age, i ncluding fi re suppression costs, which resul t from the oper-ations.

ADMINISTR ATION OF OP ERATIONS

§228.11 1 Tem porary cessation of oper-ations.

(a) Genera l. As soon as it becom es ap-parent that there w il l be a tem porary cessation of operations for a period of 45 days or m ore, the operator m ust ver-ball y notify and subsequently fil e a statem ent w ith the au thorized F orest officer verify ing the operator’ s i n tent to m ain tain structures, faci l ities, im -provem ents, and equ ipm ent that w il l rem ain on the area of operation during


204

36 CFR Ch. II (7–1–12 Edition) § 228.112

the cessation of operations, and speci-fying the expected date by which oper-ations w il l be resum ed. (b) Seasonal shutdowns. The operator

need not fil e the statem ent requ ired by paragraph (a) of this section if the ces-sation of operations resul ts from sea-sonall y adverse weather conditions and the operator w il l resum e operations prom ptly upon the conclu sion of those adverse weather conditions. (c) Interim measures. The au thorized

F orest officer m ay requ ire the operator to tak e reasonable in terim reclam ation or erosion control m easures to protect su rface resources during tem porary cessations of operations, i ncluding dur-ing cessations of operations resul ting from seasonall y adverse w eather condi-tions.

§228.112 Comp liance an d in spection .

(a) Genera l. Operations m ust be con -ducted in accordance w ith the lease, i n -cluding stipu lations m ade part of the lease at the direction of the F orest Service, an approved su rface u se pl an of operations, the appl icable Onshore Oil and G as Order (§228.105(a)), an ap-pl i cable Notice to l essees, transferees, and operators (§228.105(b)), and regula-tions of this subpart. (b) Completion of reclamation. The au-

thorized Forest officer shal l gi ve prom pt written notice to an operator whenever reclam ation of a portion of the area affected by su rface operations has been satisfactoril y com pleted in accordance w ith the approved su rface u se pl an of operations and §228.108 of this subpart. The notice shal l describe the portion of the area on w hich the reclam ation has been satisfactori ly com pleted. (c) Compliance w ith other statu tes and

regu lations. Nothing in this subpart sha ll be construed to relieve an oper-ator from com ply ing w ith applicable F ederal and State l aws or regu lations, i ncl uding, bu t not l im ited to: (1) F ederal and State air qua li ty

standards, i n cluding the requ irem ents of the Clean Air Act, as am ended (42 U.S.C . 1857 et seq.); (2) F ederal and State water qua li ty

standards, i n cluding the requ irem ents of the F ederal Water P ol lu tion Control Act, as am ended (33 U.S.C . 1151 et seq.);

(3) F ederal and State standards for the u se or generation of sol id wastes, toxic substances and hazardous sub-stances, i n cluding the requirem ents of the Com prehensive Environm ental R e-sponse, Com pensation and L iabi l i ty Act, as am ended, 42 U.S.C. 9601 et seq., and i ts im plem enting regulations, 40 CFR chapter I, subchapter J, and the R esource Conservation and R ecovery Act, 42 U.S.C. 6901 et seq., and its im ple-m enting regulations, 40 CFR chapter I, subchapter I; (4) The Endangered Species Act of

1973, 16 U.S.C. 1531 et seq., and i ts im ple-m enting regulations, 50 CFR chapter IV ; (5) The Archeological R esources P ro-

tection Act of 1979, as am ended (16 U.S.C . 470aa et seq.) and its im ple-m enting regu lations 36 CFR part 296; (6) The Mineral L easing Act of 1920,

30 U.S.C . 1981 et seq., the Mineral L eas-ing Act of Acqu ired L ands of 1947, 30 U.S.C . 351 et seq., the F ederal Oi l and Gas R oyal ty Managem ent Act of 1982, 30 U.S.C . 1701 et seq., and their im ple-m enting regulations, 43 CFR chapter II, group 3100; and (7) Appl icable Onshore Oi l and Gas

Orders and Notices to L essees and Op-erators (NTL ’s) i ssued by the Un ited States Departm ent of the Interior, Bu -reau of L and Managem ent pu rsuant to 43 CFR chapter II, part 3160, subpart 3164. (d) P ena lties. If surface distu rbing op-

erations are being conducted that are not au thorized by an approved su rface u se plan of operations or that viol ate a term or operating condition of an ap-proved su rface u se plan of operations, the person conducting those operations i s subject to the prohibitions and at-tendant penal ties of 36 CFR part 261. (e) Inspection . F orest Service officers

sha ll periodical ly i n spect the area of operations to determ ine and docum ent whether operations are being con -ducted in com pl iance w ith the regu la-tions in this subpart, the stipu lations included in the lease at the direction of the F orest Serv ice, the approved su r-face u se plan of operations, the appl i -cable Onshore Oi l and Gas Order, and appl icable Notices to L essees, Trans-ferees, and Operators.


205


§228.113 Notice of non com pliance.

(a) Issuance. When an au thorized F or-est officer finds that the operator i s not in com pl iance w ith a reclam ation or other standard, a stipu lation in-cluded in a lease at the direction of the F orest Serv ice, an approved su rface u se pl an of operation , the regu lations in this subpart, the appl icable onshore oil and gas order, or an applicable notice to l essees, transferees, and operators, the au thorized F orest officer shall i ssue a notice of noncom pl iance. (1) Content. The notice of noncom pli -

ance shall i n clude the fol low ing: (i ) Identification of the reclam ation

requ irem ents or other standard(s) w ith which the operator i s not in com pl i-ance; (i i) Description of the m easures

which are required to correct the non-com pliance; (i i i ) Specification of a reasonable pe-

riod of tim e w ithin which the non -com pliance m ust be corrected; (i v) If the noncom pliance appears to

be m aterial , identification of the pos-sible consequences of continued non -com pliance of the requ irem ent(s) or standard(s) as described in 30 U.S.C. 226(g); (v ) If the noncom pl iance appears to

be in v iol ation of the prohibitions set forth in 36 CFR part 261, identification of the possible consequences of contin -ued noncom pl iance of the requ ire-m ent(s) or standard(s) as described in 36 CFR 261.1b; and (v i) Notification that the au thorized

F orest officer rem ains w i l l i n g and de-sirous of work ing cooperatively w ith the operator to resol ve or rem edy the noncom pliance. (2) Extension of deadlines. The oper-

ator m ay request an extension of a deadl ine specified in a notice of non -com pliance if the operator is unable to com e in to com pliance w ith the applica-ble requirem ent(s) or standard(s) iden -tified in the notice of noncom pliance by the deadline because of conditions beyond the operator’ s control . The au -thorized F orest officer shal l not extend a deadl ine specified in a notice of non -com pliance un less the operator re-quested an extension and the au thor-ized F orest officer finds that there was a condition beyond the operator’ s con -trol , that such condition prevented the

operator from com ply ing w ith the no-tice of noncom pl iance by the specified deadl ine, and that the extension w i l l n ot adversely affect the in terests of the Un ited States. Conditions w hich m ay be beyond the operator’ s control i n-cl ude, but are not l im ited to, cl osure of an area in accordance w ith 36 CFR part 261, subparts B or C , or in accessibi l i ty of an area of operations due to such conditions as fi re, fl ooding, or snowpack . (3) Manner of service. The au thorized

F orest officer sha ll serve a notice of noncom pliance or a decision on a re-quest for extension of a deadl ine speci -fied in a notice upon the operator in person , by certified m ai l or by tele-phone. However, if notice is in i tial ly prov ided in person or by telephone, the au thorized F orest officer sha ll send the operator written confirm ation of the notice or decision by certified m ai l . (b) Failu re to come in to compliance. If

the operator fai ls to com e in to com pl i-ance w ith the appl icable requ ire-m ent(s) or standard(s) identified in a notice of noncom pliance by the dead-l ine specified in the notice, or an ap-proved extension , the au thorized F or-est officer sha ll decide whether: The noncom pliance appears to be m ateria l gi ven the reclam ation requ irem ents and other standards applicable to the lease establ ished by 30 U.S.C . 226(g), the regu lations in this subpart, the stipulations included in a l ease at the direction of the F orest Service, an ap-proved su rface u se plan of operations, the applicable Onshore Oi l and Gas Order, or an appl icable Notice to les-sees, transferees, and operators; the noncom pliance is l i k ely to resu l t in danger to public heal th or safety or ir-reparable resource dam age; and the noncom pliance is resu lting in an em er-gency . (1) Referra l to compliance officer. When

the operations appear to be in m aterial n oncom pliance, the au thorized F orest officer shal l prom ptly refer the m atter to the com pliance officer. The referra l sha ll be accom pan ied by a com plete statem ent of the facts supported by ap-propriate exhibits. Apparent m ateria l n oncom pliance includes, bu t i s not l im -ited to, operating w ithout an approved


206

36 CFR Ch. II (7–1–12 Edition) § 228.114

surface u se plan of operations, con-ducting operations that have been su s-pended, fa il ure to tim ely com plete rec-l am ation in accordance w ith an ap-proved su rface u se plan of operations, fai lu re to m ain ta in an additional bond in the am ount required by the au thor-ized Forest officer during the period of operation , fai l ure to tim ely reim burse the F orest Service for the cost of abat-ing an em ergency , and fa il in g to com -ply w ith any term included in a lease, stipulation, or approved su rface u se pl an of operations, the appl icable on -shore oi l and gas order, or an appl ica-ble Notice to l essees, transferees, and operators, relating to the protection of a threatened or endangered species. (2) Suspension of operations. When the

noncom pliance is l i k ely to resu l t in danger to publ ic hea lth or safety or in i rreparable resource dam age, the au -thorized Forest officer sha ll su spend the operations, in whole or in part. (i ) A su spension of operations sha ll

rem ain in effect unti l the au thorized F orest officer determ ines that the op-erations are in com pliance w ith the ap-pl i cable requ irem ent(s) or standard(s) identified in the notice of noncom pli -ance. (i i) The authorized Forest officer

sha ll serve decisions su spending oper-ations upon the operator in person , by certified m ai l , or by telephone. If no-tice i s in i tial ly prov ided in person or by telephone, the au thorized Forest of-ficer shal l send the operator w ritten confirm ation of the decision by cer-tified m ail . (i i i ) The au thorized F orest officer

sha ll im m ediately notify the appro-priate Bureau of L and Managem ent of-fice when an operator has been given notice to su spend operations. (3) Abatement of emergencies. When the

noncom pliance is resu lting in an em er-gency , the au thorized F orest officer m ay tak e action as necessary to abate the em ergency. The total cost to the F orest Service of tak ing actions to abate an em ergency becom es an obliga-tion of the operator. (i ) Em ergency si tuations in clude, bu t

are not l im ited to, imm inent dangers to public heal th or safety or irrep-arable resource dam age. (i i) The authorized Forest officer

sha ll prom ptly serve a bil l for such

costs upon the operator by certified m ai l .

§228.114 Materia l n oncom pliance pro-ceedin gs.

(a) Evalu ation of referra l. The com pli -ance officer shal l prom ptly evalu ate a referral m ade by the au thorized F orest officer pursuant to §228.113(b)(1) of this subpart. (b) Dismissa l of referral. The com pl i -

ance officer shal l dism iss the referral if the com pl iance officer determ ines that there is not adequate evidence to sup-port a reasonable bel ief that: (1) The operator was not in com pl i -

ance w ith the appl icable requ ire-m ent(s) or standard(s) identified in a notice of noncom pliance by the dead-l ine specified in the notice, or an ex-tension approved by the au thorized F orest officer; or (2) The noncom pl iance w ith the ap-

pl i cable requ irem ent(s) or standard(s) identified in the notice of noncom pli -ance m ay be m aterial . (c) In itiation of proceedings. The com -

pl iance officer shal l in i tiate a m aterial n oncom pliance proceeding if the com -pl iance officer agrees that there is ade-quate ev idence to support a reasonable bel ief that an operator has fa il ed to com e in to com pliance w ith the applica-ble requirem ent(s) or standard(s) iden -tified in a notice of noncom pliance by the deadl ine specified in the notice, or extension approved by the au thorized F orest officer, and that the noncom pli -ance m ay be m aterial . (1) Notice of proceedings. The com pl i-

ance officer sha ll in form the lessee and operator of the m ateria l noncom pl i-ance proceedings by certified m ai l , re-tu rn receipt requested. (2) Content of notice. The notice of the

m aterial n oncom pliance proceeding sha ll i n clude the fol low ing: (i ) The specific reclam ation requ ire-

m ent(s) or other standard(s) of which the operator m ay be in m aterial n on-com pliance; (i i) A description of the m easures

that are required to correct the v iola-tion ; (i i i ) A statem ent that if the com pl i-

ance officer finds that the operator i s


207


i n m ateria l n oncom pliance w ith a rec-l am ation requ irem ent or other stand-ard appl icable to the lease, the Sec-retary of the Interior w i l l not be able to issue new leases or approve new transfers of l eases to the operator, any subsidiary or affi l i ate of the operator, or any person controll ed by or under com m on control w ith the operator until the com pl iance officer finds that the operator has com e into com pliance w ith such requirem ent or standard; and (i v) A recitation of the specific proce-

dures governing the m ateria l n on-com pliance proceeding set forth in paragraphs (d) through (g) of this sec-tion . (d) Answer. Within 30 calendar days

after receiving the notice of the pro-ceeding, the operator m ay subm it, in person , i n writing, or through a rep-resentative, an answer containing in -form ation and argum ent in opposition to the proposed m aterial noncom pl i-ance finding, i n cluding inform ation that raises a genuine dispu te over the m aterial facts. In that subm ission , the operator a lso m ay : (1) R equest an in form al hearing w ith

the com pliance officer; and (2) Identify pending adm inistrative or

judicial appeal(s) which are relevant to the proposed m ateria l n oncom pliance finding and provide in form ation which shows the relevance of such appeal (s). (e) Informal hearing. If the operator

requests an in form al hearing, i t shall be held w ithin 20 ca lendar days from the date that the com pliance officer re-ceives the operator’ s request. (1) The com pliance officer m ay post-

pone the date of the inform al hearing if the operator requests a postponem ent in writing. (2) At the hearing, the operator, ap-

pearing personall y or through an attor-ney or another authorized representa-tive, m ay inform al ly present and ex-plain evidence and argum ent in opposi -tion to the proposed m ateria l non -com pliance finding. (3) A transcript of the in form al hear-

ing shal l n ot be requ ired. (f) Additional procedures as to dispu ted

facts. If the com pliance officer finds that the answer raises a genu ine dis-pu te over facts essential to the pro-posed m ateria l n oncom pliance finding, the com pliance officer shal l so in form

the operator by certified m ai l , retu rn receipt requested. Within 10 days of re-ceiving this notice, the operator m ay request a fact-finding conference on those dispu ted facts. (1) The fact-finding conference shall

be scheduled w ithin 20 calendar days from the date the com pliance officer receives the operator’ s request, u n less the operator and com pliance officer agree otherwise. (2) At the fact-finding conference, the

operator shal l have the opportun ity to appear w ith counsel, subm it docum en-tary evidence, present w itnesses, and confront the person(s) the F orest Serv-ice presents. (3) A transcribed record of the fact-

finding conference shal l be m ade, u n -less the operator and the com pliance officer by m utual agreem ent waive the requ irem ent for a transcript. The tran-script w i l l be m ade avai lable to the op-erator at cost upon request. (4) The com pl iance officer m ay pre-

side over the fact-finding conference or designate another authorized F orest of-ficer to preside over the fact-finding conference. (5) F oll ow ing the fact-finding con-

ference, the au thorized F orest officer who presided over the conference shal l prom ptly prepare written findings of fact based upon the preponderance of the evidence. The com pliance officer m ay reject findings of fact prepared by another au thorized F orest officer, in whole or in part, i f the com pliance offi -cer specifica ll y determ ines that such findings are arbitrary and capriciou s or clearly erroneous. (g) Dismissal of proceedings. The com -

pl iance officer sha ll dism iss the m ate-rial n oncom pliance proceeding if, be-fore the com pliance officer renders a decision pursuant to paragraph (h) of this section , the au thorized F orest offi -cer w ho m ade the referral finds that the operator has com e into com pliance w ith the applicable requ irem ents or standards identified in the notice of proceeding. (h) Compliance officer’ s decision . The

com pliance officer shal l base the deci-sion on the entire record, which shal l consist of the au thorized F orest offi -cer’ s referra l and i ts accom panying


208

36 CFR Ch. II (7–1–12 Edition) § 228.114

statem ent of facts and exhibits, i nfor-m ation and argum ent that the oper-ator provided in an answer, any infor-m ation and argum ent that the oper-ator provided in an inform al hearing if one was held, and the findings of fact i f a fact-finding conference was held. (1) Content. The com pl iance officer’ s

decision shal l state whether the oper-ator has v iolated the requ irem ent(s) or standard(s) identified in the notice of proceeding and, i f so, whether that noncom pliance is m ateria l gi ven the requ irem ents of 30 U.S.C. 226(g), the stipulations included in the lease at the direction of the F orest Service, the regu lations in this subpart or an ap-proved su rface u se plan of operations, the applicable onshore oil and gas order, or an appl icable notice to les-sees, transferees, and operators. If the com pliance officer finds that the oper-ator i s in m aterial n oncom pl iance, the decision al so shall : (i ) Describe the m easures that are re-

qu ired to correct the viol ation; (i i) Apprise the operator that the

Secretary of the Interior is being noti -fied that the operator has been found to be in m aterial n oncom pliance w ith a reclam ation requirem ent or other standard appl icable to the lease; and (i i i ) State that the decision i s the

final adm in istrative determ ination of the Departm ent of Agricu ltu re. (2) Service. The com pl iance officer

sha ll serve the decision upon the oper-ator by certified m ai l , return receipt requested. If the operator is found to be in m aterial n oncom pl iance, the com pl i -ance officer a lso sha ll im m ediately send a copy of the decision to the ap-propriate Bureau of L and Managem ent office and to the Secretary of the Inte-rior. (i ) P etition for w ithdrawal of finding. If

an operator who has been found to be in m aterial n oncom pl iance under the prov isions of this section believes that the operations have subsequently com e into com pliance w ith the applicable re-qu irem ent(s) or standard(s) identified in the com pl iance officer’ s decision , the operator m ay subm it a written pe-ti tion requesting that the m aterial n oncom pliance finding be w ithdrawn . The petition shal l be subm itted to the au thorized F orest officer w ho issued the operator the notice of noncom pl i -

ance under §228.113(a) of this subpart and shal l in cl ude in form ation or exhib-i ts which shows that the operator has com e in to com pliance w ith the require-m ent(s) or standard(s) identified in the com pliance officer’ s decision. (1) Response to petition . Within 30 cal -

endar days after receiving the opera-tor’ s petition for w ithdrawal, the au-thorized Forest officer shal l subm it a written statem ent to the com pliance officer as to whether the au thorized F orest officer agrees that the operator has com e in to com pliance w ith the re-qu irem ent(s) or standard(s) identified in the com pl iance officer’ s decision . If the au thorized Forest officer disagrees w ith the operator, the written state-m ent shall be accom pan ied by a com -plete statem ent of the facts supported by appropriate exhibits. (2) Additiona l procedures as to dispu ted

materia l facts. If the com pl iance officer finds that the au thorized F orest offi -cer’ s response ra ises a genuine dispu te over facts m ateria l to the decision as to w hether the operator has com e in to com pliance w ith the requ irem ent(s) or standard(s) identified in the com pl i-ance officer’ s decision , the com pliance officer shal l so notify the operator and au thorized F orest officer by certified m ai l , retu rn receipt requested. The no-tice shal l a lso advise the operator that the fact finding procedures specified in paragraph (f) of this section apply to the com pliance officer’s decision on the petition for w ithdraw al . (3) Compliance officer’ s decision . The

com pliance officer shal l base the deci-sion on the petition on the entire record, which shal l consist of the oper-ator’ s petition for w ithdrawal and its accom pany ing exhibits, the au thorized F orest officer’ s response to the petition and, i f appl icable, i ts accom pany ing statem ent of facts and exhibits, and if a fact-finding conference w as held, the findings of fact. The com pl iance officer sha ll serve the decision on the operator by certified m ail . (i ) If the com pliance officer finds

that the operator rem ains in v iol ation of requ irem ent(s) or standard(s) identi -fied in the decision finding that the op-erator was in m aterial n oncom pliance, the decision on the petition for w ith-drawal shall identify such requ ire-m ent(s) or standard(s) and describe the


209


m easures that are requ ired to correct the viol ation(s). (i i) If the com pliance officer finds

that the operator has subsequently com e in to com pliance w ith the require-m ent(s) or standard(s) identified in the com pliance officer’ s decision finding that the operator was in m ateria l n on -com pliance, the com pl iance officer a lso sha ll im m ediately send a copy of the decision on the petition for w ithdrawal to the appropriate Bureau of L and Managem ent office and notify the Sec-retary of the Interior that the operator has com e in to com pl iance. (j) L ist of operators found to be in mate-

rial n oncompliance. The Deputy Chief, National F orest System , sha ll com pile and m ain tain a l i st of operators who have been found to be in m ateria l n on-com pliance w ith reclam ation requ ire-m ents and other standards as prov ided in 30 U.S.C . 226(g), the regulations in this subpart, a stipu lation in cluded in a l ease at the direction of the F orest Service, or an approved su rface u se pl an of operations, the appl icable on -shore oi l and gas order, or an appl ica-ble notice to lessees, transferees, and operators, for a l ease on Nationa l F or-est System l ands to which such stand-ards apply . This l ist sha ll be m ade avai lable to R egiona l F oresters, F orest Supervisors, and upon request, m em -bers of the publ ic.

§228.115 Additional notice of deci-sions.

(a) The au thorized F orest officer sha ll prom ptly post notices provided by the Bureau of L and Managem ent of: (1) Com petiti ve l ease sa les which the

Bureau pl ans to conduct that include National F orest System l ands; (2) Substantial m odifications in the

term s of a l ease which the Bureau pro-poses to m ake for leases on Nationa l F orest System lands; and (3) Appl ications for perm its to dri l l

which the Bureau has received for l easeholds l ocated on Nationa l F orest System lands. (b) The notice sha ll be posted at the

offices of the affected Forest Super-visor and District R anger in a prom i-nent location readil y accessible to the public. (c) The authorized F orest officer

sha ll k eep a record of the date(s) the

notice was posted in the offices of the affected Forest Superv isor and District R anger. (d) The posting of notices requ ired by

this section are in addition to the re-qu irem ents for public notice of deci -sions provided in §228.104(d) (Notice of decision ) and §228.107(c) (Notice of deci-sion ) of this subpart.

§228.116 In form ation collection re-qu irem ents.

(a) Sections conta ining in formation re-qu irements. The fol low ing sections of this subpart conta in in form ation re-qu irem ents as defined in 5 CFR part 1320 and have been approved for u se by the Office of Managem ent and Budget: (1) Section 228.104(a) R equests to

Modify , Waive, or Grant Exceptions to L easing Stipu lations; (2) Section 228.106 (a), (c), and (d)

Subm ission of Surface Use P l an of Op-erations; (3) Section 228.109(c) R equest for R e-

duction in R eclam ation L iabil ity after R eclam ation ; (4) Section 228.111(a) Notice of Tem -

porary Cessation of Operations; (5) Section 228.113(a)(2) Extension of

Deadl ine in Notice of Noncom pliance; and (6) Section 228.114 (c) through (i) Ma-

teria l Noncom pl iance P roceedings. (b) OMB control n umber. The in form a-

tion requ irem ents l i sted 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 estim ated to be: (i ) 5 m inu tes for the in form ation re-

qu irem ents in §228.104(a) of this sub-part; (i i) No additional bu rden hours re-

qu ired to m eet the inform ation re-qu irem ents in §228.106 (a), (c), and (d) of this subpart; (i i i ) 10 m inutes for the inform ation

requ irem ents in §228.109(c) of this sub-part; (i v) 10 m inutes for the inform ation

requ irem ents in §228.111(a) of this sub-part; (v ) 5 m inu tes for the inform ation re-

qu irem ents in §228.113(a)(2) of this sub-part; and


210

36 CFR Ch. II (7–1–12 Edition) Pt. 230

(v i) 2 hours for the in form ation re-qu irem ents in §228.114 (c) through (i ) of this subpart. (2) Send com m ents regarding the bur-

den estim ate or any other aspect of this col lection of in form ation , i n clud-ing suggestions for reducing this bur-den , to Chief (2800), F orest Serv ice, USDA, P .O. Box 96090, Washington , DC 20090–6090 and to the Office of Inform a-tion and R egu latory Affairs, Office of Managem ent and Budget, Washington , DC 20503.

PART 230—STATE AND PRIVATE FORESTRY ASSISTANCE

Subpart A—Community Forest and Open Space Conservation Program

Sec. 230.1 P u rpose and scope. 230.2 Defin i ti ons. 230.3 Appl ication process. 230.4 Appl ication requ irem ents. 230.5 R ank in g criteria an d proposal sel ec-

ti on . 230.6 P roject costs and cost share requ ire-

m en ts. 230.7 Gran t requ irem ents. 230.8 Acqu isition requ irem en ts. 230.9 Own ership and u se requ irem ents. 230.10 Techn ica l assi stan ce fu nds.

Subpart B—Urban and Community Forestry Assistance Program

230.20 Scope an d au thority . 230.21 Im plem entation of the program .

Subpart C—Forest Land Enhancement Program

230.30 P urpose an d scope. 230.31 Defin itions. 230.32 Nation al program adm in i stration . 230.33 R espon sible officia l program adm i n is-

tration . 230.34 State program adm in istrati on . 230.35 F L EP elem en ts. 230.36 State priority p lan—purpose an d

scope. 230.37 State pri ority pl an—edu cationa l as-

si stan ce com ponen t. 230.38 State priority p lan—techn i cal assi st-

an ce. 230.39 State priority pl an—fin an cial assi st-

an ce com pon en t. 230.40 E l igi ble practices for cost-share as-

si stan ce. 230.41 E l igi bi l ity requ irem ents for cost-

share assi stan ce. 230.42 Cost-share assi stan ce—appl ication

an d paym ent procedures.

230.43 Cost-share assistan ce—prohibited practices.

230.44 Cost-share assistance—reportin g re-qu irem en t.

230.45 R ecaptu re of cost-share assistance. 230.46 Inform ation co l lection requ irem en ts.

AUTHOR ITY : 16 U.S.C . 2103(d) & 2109(e).

SOUR CE : 56 F R 63585, Dec. 4, 1991, u n less otherw ise noted.

Subpart A—Community Forest and Open Space Conserva-tion Program

SOUR CE : 76 F R 65130, Oct. 20, 2011, un less otherw ise noted.

§230.1 P u rpose an d scope.

(a) The regulations of this subpart govern the rules and procedures for the Com m un ity F orest and Open Space Conservation P rogram (CF P ), estab-l ished under Section 7A of the Coopera-tive F orestry Assistance Act of 1978 (16 U.S.C . 2103d). Under the CF P , the Sec-retary of Agricu l tu re, acting through the Chief of the F orest Service, awards grants to l ocal governm ents, Indian tribes, and qual ified nonprofit organ i -zations to establi sh com m un ity forests for com m unity benefits by acquiring and protecting private forestlands. (b) The CF P appl ies to el igible enti -

ties w ithin any of the 50 States, the District of Colum bia , the Com m on-wealth of P uerto R ico, the V irgin Is-l ands of the Un ited States, the Com -m onwealth of the Northern Mariana Is-l ands, the F ederated States of Micro-nesia, the R epubl ic of the Marshall Is-l ands, the R epubl ic of P alau , and the territories and possessions of the Un ited States.

§230.2 Defin ition s.

The term s used in this subpart are defined as fol lows: Borrowed funds. F unds used for the

pu rpose of cost share which would en -cum ber the subject property , i n whole or in part, to another party . Commun ity benefits. One or m ore of

the foll ow ing: (1) E conom ic benefits such as tim ber

and non-tim ber products resul ting from sustainable forest m anagem ent and tourism ;


pt. 228 36 cfr ch. ii (7–1–12 edition) · 2016-06-12 · pt. 228 36 cfr ch. ii (7–1–12...

Documents