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The Forest Service proposes the revision of its locatable mineral regulations to better reflect the needs of our national defense, economic prosperity, and environmental stewardship. The agency has identified many challenges in the current regulations, and revising the regulations to address these would allow the Forest Service to better implement its mining regulations. Specifically, the Forest Service is considering in this proposed rule to 1) better meet the purpose of the rule, which is to minimize, to the fullest extent practicable, adverse impacts to surface resources which may result from locatable mineral operations; 2) increase efficiency and transparency in the review process for proposed mineral operations; and 3) increase consistency with the Department of the Interior, Bureau of Land Management (BLM) surface management regulations.  This rule will meet the Administration's goals of improving environmental stewardship while also providing more timely response, especially to proposed critical minerals operations.

Statement of Need:

The Forest Service proposes the amendment of its locatable mineral regulations to better reflect the needs of both the Forest Service and mining industry. Despite major changes in the mining industry and many lessons learned through administering minerals activity on National Forest System (NFS) lands, the Forest Service locatable mineral regulations at 36 CFR 228 subpart A (228A) have remained largely unchanged since first published in 1974. Moreover, specific recommendations to revise and update the 228A regulations have been made in two prominent external reports: the 1999 National Research Council publication Hard Rock Mining on Federal Lands and the 2016 Government Accountability Office report Hardrock Mining: BLM and Forest Service Have Taken Some Actions to Expedite the Mine Plan Review Process but Could Do More (GAO-16-165).  By addressing recent issues and remedying existing weakness in current regulations that have been identified, the Forest Service would be consistent with the Biden-Harris Administration Fundamental Principles for Domestic Mining Reform by establishing strong responsible mining standards, increasing efficiency in permitting times, and improving environmental, social, and economic outcomes.

Summary of the Legal Basis:

The Mining Law of 1872, as amended, confers a statutory right to enter upon certain National Forest System lands to search for locatable minerals. The Organic Act of 1897 authorized the Forest Service to make rules to regulate occupancy and use of the land and preserve the forests from destruction. The Forest Service’s existing regulations for administering locatable minerals activity on National Forest System (NFS) lands are found at 36 CFR part 228 subpart A. These rules govern prospecting, exploration, development, mining, and processing operations conducted on National Forest System lands. Under these rules, the Forest Service requires operators proposing to conduct locatable mineral activity which would likely cause significant disturbance of surface resources to obtain prior approval file a plan of operations.

Alternatives:

Proposed Action:  Publish a proposed rule and seek public comment on updates to 228A that will significantly improve and clarify requirements related to processing plans of operation, reclamation, and operator financial assurance in the event of default. These changes would support the following Administration priorities:

• Provide Permitting Certainty: The proposed rule will modernize Forest Service administration of surface use and occupancy of NFS lands for locatable mining operations, provide additional clarity for operators subject to these regulations, continue to minimize adverse impacts to surface resources on NFS lands, and increase alignment with BLM’s mining law regulations which will facilitate coordination for projects that span both agency jurisdictions. Increased detail and clarity in agency regulations will reduce the need for time consuming, back-and-forth information requests to obtain a complete operating plan from proponents. 

• Climate: The proposed rule requires more detail in operating plan submittals to put greater emphasis on up-front planning and subsequent operational monitoring of mining activity to address potential environmental and public safety impacts of more frequent extreme weather events, and decrease the likelihood of catastrophic events, such as tailings impoundment failures. 

• Critical Minerals and American Supply Chains: The demand for minerals produced from federal lands is expected to increase to address green energy and carbon-neutral goals. Many critical minerals are only economic to recover when combined with the recovery of a host mineral. The proposed rule clarifies many aspects of administering locatable mining activity on NFS land which is expected to increase agency efficiency, reduce processing time, and facilitate sustainable exploration and development of all locatable mineral deposits, including those containing critical minerals. 

• Meaningful Consultation with Tribal Nations: The proposed rule’s detailed requirements for operating plan submittals will enhance consultation with Tribal Nations through the availability of more information earlier in the process to better assess potential impacts to sacred sites and treaty rights. 

• Conserving Lands and Waters (30 by 30): The proposed rule expands surface resource protection requirements, agency enforcement options, and financial guarantee provisions to minimize the impact of hardrock mining activity to NFS land and water and will reduce the risk and consequences of legacy pollution. 

• Economy: Hardrock exploration and mining activity generates jobs in many rural communities adjacent to NFS lands. Mining companies pay income and many other taxes to federal and state governments. For every job at a mine, there’s another job in the regional economy that exists because of the mining operation. The locatable mining industry in 2018 supported more than 7,800 direct and indirect jobs. Through more efficient administration of hardrock activity, the Forest Service can better implement federal policy to foster and encourage private enterprise in the sustainable development of domestic resources which would benefit  local economies as well as decrease vulnerability to national supply chains.

 No Action:  A no action alternative would leave the regulations unchanged, thus maintaining the status-quo.

Anticipated Costs and Benefits:

Anticipated costs include increased costs to industry in providing more detail in submitting plans of operation. However, a substantial cost savings for the Forest Service is expected from more modern and efficient agency review and approval of plans of operations. 

Anticipated benefits of the updates to 228A would stem from more modern and efficient agency review and approval of plans of operations. The benefits to industry derive from timelier development of, access to, and use of locatable minerals on National Forest System lands. Expedited access and development of locatable mineral resources is expected to result in an increase in the time value of revenues generated by locatable operations. A potential benefit to the public of facilitating access to National Forest System lands is the increased opportunity to develop domestic sources of strategic and critical minerals which would decrease vulnerability to American supply chains. Most importantly, benefits to the public from the proposed rule are the continued protection, and in some cases, increased assurance about protection of ecosystems and corresponding goods and services from the potential damages of locatable mining activities. 

Risks

Risks:

Not applicable.