[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14714]
[[Page Unknown]]
[Federal Register: June 17, 1994]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 261 and 290
RIN 0596-AA02
Cave Resources Management
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule establishes procedures for nominating,
evaluating, and designating significant caves on lands administered as
part of the National Forest System. The rule also establishes
procedures for releasing information about the location of caves and
establishes general prohibitions to protect cave resources from abuse
and degradation. The intended effect is to fully implement the Federal
Cave Resources Protection Act of 1988 on National Forest System lands
and to ensure that National Forest System lands are managed in a manner
to protect and maintain, to the extent practicable, significant caves.
These regulations have been developed in close consultation with the
Department of the Interior to ensure uniformity and consistency in
approach to the extent that statutory authority permits.
EFFECTIVE DATE: This rule is effective June 17, 1994.
FOR FURTHER INFORMATION CONTACT:
Brent Botts, Recreation, Cultural Resources and Wilderness Management
Staff, Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-6090,
(202) 205-1313.
SUPPLEMENTARY INFORMATION:
Background
The Federal Cave Resources Protection Act of 1988 (16 U.S.C. 4301-
4309; 102 Stat. 4546), hereafter referred to as the ``Act'', seeks to
secure, protect, and preserve significant caves on Federal lands for
the perpetual use, enjoyment, and benefit of all people. The Act also
seeks to foster increased cooperation and exchange of information
between governmental authorities and those who utilize caves located on
Federal lands for scientific, educational, or recreational purposes.
The Act requires the Secretary of Agriculture to issue such regulations
as he deems necessary to achieve the purposes of the Act on National
Forest System lands. The regulations are required to include, but need
not be limited to, criteria for the identification of significant
caves.
On March 3, 1989, the Forest Service published an advance notice of
proposed rulemaking in the Federal Register inviting comments on what
should be included in a proposed rule, and particularly requesting
suggestions as to criteria for identifying a significant cave. A total
of nine comments were received in response to that notice: 4 from
agencies of State government, 2 from business entities, 2 from
individuals, and 1 from a Federal agency.
Subsequently, a proposed rule was published on December 23, 1991
(56 FR 66388). The proposed rule described the process the Forest
Service would use in designating significant caves, provided for public
nomination of caves, specified six criteria by which a cave would be
evaluated to determine whether it is significant, and identified the
authorized officer as the authority for designating and documenting a
significant cave. The proposed rule also specified how cave information
and locations would be released. Lastly, the proposed rule revised
certain prohibitions specific to caves and cave resources. Seventy-six
letters were received during the 90-day comment period in response to
the proposed rule: 30 from individuals, 18 from cave-related
organizations, 16 from Federal agencies, 5 from natural resource
organizations, 4 from business entities, and 3 from State agencies.
All comments received are available for review in the Office of the
Director, Recreation, Cultural Resources, and Wilderness Management
Staff, Auditors Building, 4th Floor, 201 14th Street, S.W. at
Independence Ave., SW., Washington, DC, during regular business hours
(8 a.m. to 5 p.m.) Monday through Friday.
Analysis of Public Comment
Overall, almost all respondents were pleased that the Forest
Service was promulgating regulations. Many offered valuable suggestions
for improving or clarifying specific sections. Some of these
suggestions were group efforts, using similar or identical language to
identify and describe their interests, concerns, and recommended
modifications to the proposed rule. A few letters endorsed other
respondents' statements.
The majority of comments centered on four major issues in the
proposed 261 and 290 rules: scope of the rule, including the definition
and manner of determining the significance of a cave; confidentiality
of cave information; public participation; and differences with the
proposed rule (57 FR 1344) published by Department of the Interior on
January 13, 1992.
Several comments also referred to information contained in a
document entitled ``Proposed Procedure for Listing Significant Caves,''
which was circulated at the same time as the proposed rule but was not
intended for codification in the regulations. This document described a
proposed implementation process in greater detail. These comments also
were considered as part of the rulemaking record to the extent that
they were relevant to the provisions of the rulemaking.
General Comments on 36 CFR Part 290
Under the proposed rule, cave protection regulations would be set
out in title 36, part 290, of the Code of Federal Regulations. The
following summarizes general comments received on the proposed rule and
the Department's response to them.
1. Cooperation and Consultation With the Department of Interior
Many respondents noted disparities between the Forest Service
proposed rule and the proposed rule issued at the same time by the U.S.
Department of the Interior (USDI). Most respondents recommended that
the final rule of both agencies be as similar as possible.
Response. Throughout the rulemaking process, the Forest Service and
USDI land managing agencies have been participating in an interagency
committee to agree on cave resource standards and procedures. The goal
has been to adopt rules as similar as possible. However, each agency
has a different statutory background and mission which result in some
procedural differences such as in integrating cave resource protection
into planning processes, delegations of authority, and information
requirements. In these instances, the language may differ to reflect
the specific authorities of the agencies involved.
2. Public Participation
The majority of respondents felt the proposed rule completely
ignored Section 2(b)(2) of the Act which states that one purpose of the
Act is ``to foster increased cooperation and exchange of information
between governmental authorities and those who utilize caves for
scientific, education, or recreational purposes.'' Respondents believed
the proposed rule denied the caving community access to cave
information thus discouraging the exchange of information. Many
respondents recommended that public interaction occur through
establishment of an advisory committee and the development of volunteer
agreements. Some respondents felt that these two actions were required
by the Act in Sections 4(b)(3) and 4(b)(4).
Response. Under Sec. 290.3 of the proposed rule, the agency
intended that the public be given the opportunity to nominate
significant caves. Additionally, proposed Sec. 290.4 provided a process
by which information on caves and their location could be disclosed to
bona fide educational or research organizations although not to the
general cave recreationing community. Additionally, under the proposed
rule, the agency envisioned addressing cave resource protection
standards in forest plans pursuant to National Forest Management Act
and implementing regulations. Forest plans are developed with full
public participation; however, in response to comments on the proposed
rule, the final rule does strengthen and encourage greater cooperation
and exchange of information in the nomination and evaluation process as
well as in a new provision permitting the disclosure of cave
information to groups who assist the Federal land managing agencies
with cave management. These changes are discussed in the section-by-
section discussion of comments which follows.
The suggestion to form an advisory committee has not been adopted.
It is not at all clear that such advisory groups are needed either
nationally or locally. Whether local advisory groups are needed is a
decision best left to the local land manager. Should the Forest
Supervisor determine that an advisory committee would be helpful in
achieving the purposes of the Cave Resources Protection Act, the
Department has ample authority and procedures in place to establish
such advisory committees.
3. Scope and Detail of the Regulations
Many respondents felt that the proposed rule should have provided
more details on how to manage and protect significant caves. Most of
these respondents understood that significant caves would be managed
``to the extent practical'' using current management plans, but wanted
the final rule to incorporate or further clarify portions of the
proposed rule. Respondents asked questions such as: how will
significant cave listings and significant cave management concerns be
integrated into forest plans; how will specific management concerns
about significant caves be identified; how will ecosystem
considerations, including protection of karst features and hydrological
recharge areas, be made; and how will the Forest Service address
proposed projects that potentially impact caves.
Another respondent requested that goals and standards for cave
resource protection and management be described in the rule and that
language be added emphasizing that land management decisions should
balance consideration of cave resource protection with consideration of
human activity.
Response. Through section 4(c)(1) of the Act, Congress made clear
that caves should be managed through the agency's land and resource
management planning process, and not through the significant cave
designation process. Section 4(c)(1) states that significant caves are
to be ``. . . considered in the preparation of any land management plan
if the preparation or revision of the plan began after the enactment of
this Act.'' Forest land and resource management planning is a
continuous, dynamic process which is dependent on monitoring and
evaluation of actions taken under the plan. The agency keeps plans
current and updated through amendment or revision and maintains ongoing
and meaningful communication with the public and other government
entities. New data such as an inventory of significant caves is new
information that Forest Supervisors consider as forest plans are
implemented to determine if forest plan direction needs to be changed.
Designating caves as significant will not automatically trigger the
need to amend or revise forest plans. Upon development of the initial
listing of significant caves on National Forest System lands, the
Forest Supervisor will review the forest plan and determine if it is
adequate to ensure protection of significant cave resources. If not,
the Supervisor would initiate amendment or revision of the plan to
address the protection of significant cave resources on the forest. The
public must be involved in amendment or revision. Thus, any special
management concerns for significant caves, including connected
ecosystem considerations, can and should be identified by the public so
that the comments can be analyzed and considered through the forest
planning process. The forest planning process is already adequately
regulated by the provisions of 36 CFR part 219; therefore, no
additional change to this rule was made.
Where a proposed project might impact a significant cave or cave
yet to be evaluated for significance, the effects of the project would
be analyzed in compliance with the National Environmental Policy Act
(NEPA) implementing regulations. Public input is solicited to identify
environmental issues relevant to a proposed action (project).
Agency policy and procedures under the NEPA in Forest Service
Handbook 1909.15 require that decision documents (Decision Memo,
Decision Notice, Record of Decision) contain ``Findings required by
other laws.'' If a decision affects a significant cave, a finding will
be disclosed describing how the decision considered this cave.
Section-by-Section Comments on 36 CFR Part 290
Section 290.1 Purpose and Scope
In considering the general comments on the scope and detail of the
regulations addressed in the preceding section of this preamble, the
Department concludes that the proposed rule was confusing in specifying
that the initial determination of significant caves would be made by a
special process and that subsequent significant cave determinations
would be made through the forest plan amendment or revision process.
The final rule clarifies this concern by: (1) stating that significant
cave resources will be managed pursuant to direction contained in
individual forest plans and in accordance with the policies contained
in the Forest Service Directive System and (2) by eliminating any
reference to forest planning in the initial and subsequent listings.
This change acknowledges that forest plans provide direction to manage
significant caves but do not contain a list of these caves.
Section 290.2 Definitions
Authorized Officer
Several respondents expressed concern over the range of potentially
designated authorized officers listed in the proposed rule. One
respondent felt that the authorizing officer should be the Regional
Forester while another felt this authority should not be delegated
below the Forest Supervisor level. Another felt the final decision for
determining significant caves should be at a senior management level.
Further, some respondents indicated that the authorized officer should
have qualifications and duties related to caves and/or cave resources.
The comments received on this definition reflect a lack of
understanding of how authority is delegated through the Forest Service.
Authority flows from the Chief through Regional Foresters to Forest
Supervisors and District Rangers. These line officers have
responsibility for managing all resources, including caves, and will be
legally responsible for complying with this rule and the Act. The
agency will delegate that responsibility through the issuance of
internal agency directives and the delegation of authority will vary
depending on the significance of the action being assigned. In general,
the authorized officer will refer to the Forest Supervisor who must
carry out the evaluations and documentations required by the rule in
the context of forest planning. To avoid confusion, the definition in
the final rule does not include the list of all potential authorized
officers.
Cave
The agency received a range of opinions on this definition. Some
respondents felt the definition was too narrow; others believed it was
too broad. Some respondents, stating that a vug is one resource the Act
is intended to protect, were concerned with the exclusion of vugs from
the definition. Individual respondents suggested modifying the
definition to include qualifiers such as: a dark zone; a minimum
horizontal or vertical length; absence or presence of an entrance at
any specific time period, and a naturally formed subterranean open
area. A couple of respondents were concerned about the requirement that
an individual be able to enter. One felt this precluded passages
accessible for small cave biota. Another felt this requirement may
allow for enlarging small openings to make them accessible as caves.
One respondent was concerned that the definition would not protect the
``unnatural'' portion of caves from destruction or restrict the
location of such from the general public.
The Department has concluded that the definition in the proposed
rule was confusing because it described both the components of a cave
and the features that do not comprise a cave. Accordingly, in the final
rule, this definition has been revised to focus on what a cave is,
rather than what it is not. ``Feature'' was replaced with ``opening''
since it was felt the intent is to include small air passages that
extend from the cave itself and that are integral parts of the cave.
This definition encompasses any entranceways, including excavated
passage; therefore, the location and passage associated with the
excavated portion is considered under purposes of this Act. While the
suggested qualifiers further define features associated with caves,
they were not added because they extend beyond the scope of the cave
definition listed in the Act.
Cave Resources
Some respondents suggested that historical resources be separated
from the rest of the resources listed as naturally occurring. A few
respondents noted that speleogens and speleothems should be defined
since these terms are not commonly found in dictionaries.
The term ``naturally'' was removed as suggested since cultural
materials do not occur naturally in caves. Speleogens and speleothems
are not included in the definition in the final rule since they are but
a couple of the features that comprise geologic and mineralogic
materials or substances.
National Forest System Lands
Several respondents were confused over which lands the Act applied
to: non-federal lands on which the agency has planned projects, private
lands with caves affected by agency projects on Federal lands, lands
owned in fee title, and/or National Forest System lands.
A definition for ``National Forest System lands'' has been added.
This rule applies only to lands managed by and under the legal
jurisdiction of the Forest Service. The Act contains no language
extending agency authority to private property.
Significant Cave
Several respondents noted that this definition should correspond to
the criteria listed in proposed section 290.3(b).
This definition was revised to include the criteria now in
Sec. 290.3 (c) and (d).
Vug
Respondents overlapped their comments on ``vug'' with the ``cave''
definition. A couple of respondents suggested clarifications to the
definition including: Add a size definition other than ``small'' and
make clear that a vug is only a stand-alone cavity presumable
intersected by a man-made passage.
Since the only reference to a vug was in the definition of a cave
and this reference has now been removed, the separate definition of a
vug is no longer necessary.
Section 290.3 Determining Significant Caves
Comments are presented by major paragraph of this section of the
proposed rule.
Paragraph (a) Nominations for Initial and Subsequent Listings
Proposed paragraph (a) provided that the Secretary of Agriculture
shall cooperate and consult with the Secretary of Interior to devise a
similar nomination process for initial listing of significant caves and
give public notice of the nomination process. In addition, subsequent
determinations of significant caves would be made through the forest
planning process. Many respondents felt that the review of nominations
and the determination by the authorized officer should be conducted in
consultation and cooperation with an advisory committee, team,
acknowledged experts in the field of speleology, or appropriate private
sector interests, including cavers. A few respondents felt an appeal
process was needed for those caves determined not to be significant.
This paragraph was revised to focus more narrowly on the nomination
process, and a new paragraph (b) was added to describe the evaluation
process. The reference in the proposed rule to subsequent determination
of significant caves through the forest planning process has been
removed. Determination of significant caves can be made at any time by
the authorized officer. Reference to consultation between the
Secretaries of Agriculture and Interior was removed since this
coordination has occurred in the writing of the entire rule and through
a separate effort to develop a Proposed Procedure for Listing
Significant Caves. Both paragraphs emphasize public and agency input
and consultation. Notice of the nomination procedures for the initial
listing must be published in the Federal Register. Notice of future
listings is not required as the rule provides that the public and
government agencies are to submit such nominations to the Forest
Supervisor where the cave is located.
Paragraph (c) Criteria for Significant Caves
Many respondents stated that the criteria were too broad; others
felt the criteria were too restrictive. Those respondents who felt the
criteria are too broad suggested that criteria be developed at the
State-level, be eliminated, or be modified with a strong emphasis on
the cave having an important value. The majority of respondents felt
that these criteria would eliminate the majority of caves from listing
as significant. Most requested that criteria be based only on a cave
processing ``one or more of the following features, characteristics, or
values.'' Some recommended that the criteria focus on identifying
insignificant caves; thus, managing all others as significant.
Individual respondents identified the need to add new criteria
categories for caves of undetermined status, caves with abnormal
dangers, caves with other values, and caves within a special management
area which was designated wholly or in part due to the cave resources
found there.
Additionally, two business entities felt that the criteria for
selection of significant caves are too broad and that the proposed rule
neglected to consider the impacts that such a designation would have on
oil and gas production. They felt that the designation of significant
caves needed to be based on caves having an ``important value'',
especially when considering other uses of the land. They recommended
that significant cave values be weighed against the economic values of
mineral development.
The Act in section 4(a) requires that the Secretary issue criteria
for the identification of significant caves in regulations. Thus,
criteria focusing on insignificant caves or criteria developed at the
State level do not address the Act's mandate. To focus the criteria on
an inventory procedure that can be interpreted and more consistently
applied across the agency, the qualifier ``* * * which are deemed by
the authorized officer to be unusual, significant, or otherwise
meriting special management'' has not been adopted on the final rule.
This phrase confused respondents since it added another level of
evaluation and review to the six stated criteria. There is nothing in
the Act or its legislative history that indicates that a cave has to
have a value more important than, or be weighed against, other uses of
public lands before being designated significant. The criteria for
designating significant caves are identical to those adopted in the
Department of the Interior's final rule.
(1) Biota. All respondents commenting on this paragraph requested
modifications to make the criteria less restrictive. They recommended
the removal of qualifiers such as ``cave dependent,'' ``that occur in
large numbers or variety,'' and ``disturbance.''
``Cave dependent'' was replaced with ``seasonal or yearlong'' to
better describe the conditions under which biota use a cave. The
qualifier ``* * * occur in large numbers or variety * * *'' was removed
because caves typically contain small populations and variety of flora
and fauna by the very nature of the cave environment.
(2) Cultural. All respondents commenting on this paragraph felt the
criterion was too restrictive to include potentially eligible sites,
religious sites for native Americans, caves mined for saltpeter, and
sites with ethnographic or historic associations with events or persons
considered important to local communities or social groups. A few
suggested eliminating the requirement that the site be eligible for or
listed on the National Register or Historic Places.
This paragraph was clarified to address and refer to the terms
``historic or prehistoric'' that are already defined through other laws
and regulations. These terms encompass ``cultural'' resources better
than historical properties and archaeological resources. The paragraph
also was expanded to better describe the types of resources that could
be included or eligible for inclusion on the National Register of
Historic Places based on the cave itself or the contents contained
within. The paragraph as revised encompasses religious sites for native
Americans, caves mined for saltpeter, and other sites with ethnographic
or historic associations. Allowing for a site to be eligible for or
listed on the National Register of Historic Places consistently ties to
the agency management of cultural resources.
(3) Geologic/Mineralogic/Paleontologic. Respondents felt that the
terms ``outstanding'' and ``important'' were too restrictive. Most
recommended that ``outstanding'' be replaced with ``other interesting''
or that it and ``important'' be deleted completely. Several respondents
felt these criteria would allow every cave to be determined
significant. One recommended that this paragraph be completely
eliminated; another recommended tying the criteria to only ``fragile or
outstanding'' examples.
In the final rule the qualifiers ``outstanding'', ``useful'' and
``important'' have been eliminated and replaced with more tangible
terms. However, while some restrictive qualifiers have been expanded,
there are still qualifiers that could appropriately eliminate caves
from listing under this criteria.
(4) Hydrologic. One respondent felt this criterion should be
limited to waters that are necessary to maintain municipal water
supplies and maintain scientifically important biota or cave features.
The Department disagrees. This criterion is adopted without change
from the proposed rule since it addresses hydrological resources
associated with caves and cave resources.
(5) Recreational. Most respondents requested that ``challenge'' be
replaced and values such as wilderness, sporting, natural, aesthetic,
exploration, educational, and scientific be substituted. One respondent
felt that this section should be completely removed. Another noted that
scenic values and challenge must have an important value.
This criterion responds to the Act which recognizes caves for their
perpetual use, enjoyment, and benefit for all people and further notes
that people utilize caves for recreational purposes. The qualifier ``by
virtue of challenge'' has been eliminated since it does not describe a
type of recreational opportunity that can be measured. In the final
rule, this paragraph is written broadly enough to incorporate the
suggested values of wilderness, sporting, aesthetic, and exploration if
they tie to recreational and scenic opportunities.
(6) Educational or scientific. One respondent noted that any new
cave discoveries would automatically qualify as significant under this
proposed criterion. Several other respondents felt that qualifiers
should be deleted to make the criteria less restrictive. One suggested
adding wilderness and uniqueness to this category. Other felt that
these criteria must either note an important value or it should be
removed.
Changes to this paragraph in the final rule are minor.
``Contemporary'' is inserted before ``human disturbance'' to ensure
that cultural resources are considered rather than recent acts of
vandalism. New cave discoveries could be designated significant if they
lack evidence of contemporary human disturbance or impact. This
acknowledges that a pristine cave offers potential values from a
scientific, educational, and recreational standpoint.
A new paragraph (d), Specially designated areas, has been added to
recognize that some management decisions have already been made wholly
or in part due to caves. Where special management designations are
already associated with protecting caves, it is efficient to designate
them as significant without re-evaluating them under the requirements
of paragraph (c).
Paragraph (e) Designation and Documentation
Several respondents felt clarification was needed for the
authorized officer's designation of significant caves. They felt that
designation should be tied to the authorized officer confirming that a
cave met one of the criteria rather than evaluating the criteria
itself. Another respondent requested that the rule be specific as to
what information must be provided.
The wording of this paragraph in the final rule clarifies that the
authorized officer will confirm whether or not a cave meets one of the
criteria listed in Sec. 290.3(c). This clearly defines the role of
authorized officer as a decisionmaker not a reviewer of the criteria.
The paragraph also specifies the minimum documentation to be retained
for each cave designated as significant.
A new paragraph (f), Undiscovered passages, has been added to
clearly recognize that once a cave has been listed, the designation
applies to the entire cave on federal land, regardless of agency
jurisdiction or extent of exploration.
A decision to place a cave on the significant cave list is an
inventory type decision, and as such, is not appropriately subject to
administrative appeal. Accordingly, new paragraph (g), Decision final,
has been added to clearly state that this determination is not subject
to appeal. However, paragraph (a) of this section of the final rule
contains a new sentence that makes explicit that a nomination may be
resubmitted for listing, thus acknowledging that a decision not to list
a cave may be changed when better or new information accompanies the
nomination.
Section 290.4 Confidentiality of Cave Information
The majority of respondents focused on three concerns:
(1) That the confidentiality language of the proposed rule went
beyond the intent of the Act. They specifically noted that the
provisions were to apply only to cave locations, not other cave
information. Further, they felt that these provisions would inhibit
exchange of information between the caving community and the Federal
agencies.
(2) That caves not designated significant have their locations
protected under confidentiality provisions. Otherwise, all information
about that cave would become public.
(3) That denial of cave location information be subject to appeal.
A couple of respondents noted that the requirements for requesting
information differed between the FS proposed rule and the USDI proposed
rule. Two others expressed the concern that without knowing the exact
location of a cave, it is impossible for a mineral lessee to know
whether the cave will affect his lease.
Paragraph (a) has been revised to indicate that only location
information will be held confidential, but other specific information
could be withheld if, in the judgment of the authorized officer, it
would reveal the location of a cave. Locational information for all
caves will be protected until the designation decision is made. This
protection will continue for caves listed as significant. The
information submitted for caves that are not listed will be returned to
the person or organization submitting the nomination. Consequently, the
responsibility for maintaining the confidentiality of unlisted caves
will rest with the originator of the information and not with the
agency.
Paragraph (b) of this section has procedures to request
confidential information, and has been rewritten to be identical to the
language adopted by the USDI in its final rule for uniformity.
Paragraph (c), which states the decision regarding access to
information is not appealable, has been retained. The Act provides
specific exemption from the requirements of the Freedom of Information
Act. It is the Department's determination that the appeal process would
not further public interest in protecting cave information. A procedure
exists to permit the release of cave locations. The authorized officer
will release cave location information based on a written request and a
determination that the request would further the purposes of the Act
and would not create a substantial risk of harm, theft, or destruction
of such cave.
General Comments on 36 CFR Part 261
Implementation of Proposed Prohibitions
One respondent was confused by the prohibitions. Concern was
expressed that some additional action must occur for the prohibition to
take effect.
Prohibitions applying to National Forest System lands are separated
into three Subparts: General Prohibitions; Prohibitions in Areas
Designated by Order; and Prohibitions in Regions. General Prohibitions
are enforced on all National Forest System lands and do not require any
formal posting. Prohibitions in Areas Designated by Order require an
additional action to inform a forest visitor. The order must be posted
in accordance with 261.51 of this chapter.
Criminal and Civil Penalties
Several respondents noted that existing penalties do not correspond
to the penalties described in Sections 7 and 8 of the Act.
The primary purpose of the current rulemaking was to establish the
criteria for significant caves. Where it was expedient to make minor
adjustments to existing prohibitions in order to help protect
significant cave resources, this was also done. If experience with
administering significant cave resources shows additional regulations
and penalties are needed, subsequent rulemaking specific to those
management concerns will be undertaken.
Collection and Removal From Federal Caves
Several respondents noted that the rule is unclear on how
collecting permits will be issued or regulated.
The Forest Service has an established procedure for issuing special
use permits, which is regulated through rules of subpart B of part 251,
title 36. All permits for significant caves must be in accordance with
this regulation.
Section-by-Section Comments on 36 CFR Part 261
Section 261.2 Definitions
All respondents commenting on definitions of caves and cave
resources under 290.2, repeated their comments here. Several
respondents noted that these definitions should be identical to those
defined in section 290.2.
This suggestion was adopted and identical definitions are provided
in Secs. 290.2 and 261.2.
Section 261.8 Fish and Wildlife
Respondents were concerned that this prohibition would not allow a
gate to be installed if it was needed to protect a species, including
those listed as threatened or endangered.
The paragraph was modified to address this concern by adding ``. .
. except as authorized to protect a cave resource.'' A gate was not
specifically cited since there may be other types of installations that
could curtail the movement of cave life to protect a cave resource.
Section 261.9(j) Property
Two respondents were confused by the intent of this paragraph. One
asked whether enlarging a naturally occurring cave passage or entrance
would require a special use authorization. Another requested
clarification stating that a special use authorization cannot permit
damage to, or excavation of, a significant cave. One respondent
suggested adding a new prohibition to address section 7(a)(2) of the
Act dealing with possessing, consuming, selling, bartering, or
exchanging any cave resource without authorization.
Section 7(a)(1) of the Act states that activities that may lead to
destroying altering, or removing of cave resources or interfering with
free movement of plant or animal life may only be permitted with prior
authorization. Thus, any excavation of a cave passage or entrance would
have to be approved by a special use authorization. A special use
authorization permitting excavation in a cave is site-specific, thus,
this provision does not encourage nor allow blanket approval for this
type of activity for all caves on a given forest. A clause has been
added prohibiting the removal of any cave resource for commercial
purposes.
Section 261.10(d) Occupancy and Use
One respondent requested the wording in this section include the
cave entrance area. Another requested that the discharge of fireworks
be prohibited.
The proposed wording has been retained. The cave entrance area is
protected by the existing wording in paragraphs (d)(1) and (d)(2).
A new paragraph (n) was added to specifically address the discharge
of fireworks. No existing prohibition addressed this human safety
concern.
Section 261.58(ee) Occupancy and Use
Most respondents requested that ``litter'' be incorporated into
this clause. A couple of respondents felt that additional wording was
needed to allow cavers to bring and remove their own receptacles.
Another respondent recommended that fluid wastes be considered on a
cave by cave basis.
Paragraph 11(b) of this section already prohibits ``Possessing or
leaving . . . litter in an exposed or unsanitary condition.'' Current
wording does not specify who must provide the receptacles; therefore,
it can be interpreted that cavers may bring in and remove their own
receptacles. Since this prohibition is applicable to a specific area
designated through an order by the Forest Supervisor, there is the
flexibility to add an exception for a particular cave to only prohibit
solid wastes.
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This rule will not have
an annual effect of $100 million or more on the economy nor adversely
affect productivity, competition, jobs, the environment, public health
or safety, nor State or local governments. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. Finally, this action will not alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients of such programs.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that Act. To
the extent that small entities engaged in resource extraction
activities may have to site operations to protect significant caves,
these requirements are the minimum necessary to protect the public
interest, and are well within the capability of small entities to
perform.
Environmental Impact
Based on both experience and environmental analysis, this final
rule (or final policy) will have no significant effect on the human
environment, individually or cumulatively. Therefore, it is
categorically excluded from documentation in an environmental
assessment or an environmental impact statement (40 CFR 1508.4).
Controlling Paperwork Burdens on the Public
The information required by this rule constitutes new information
collection requirements as defined in 5 CFR part 1320, Controlling
Paperwork Burdens on the Public. In accordance with those rules and the
Paperwork Reduction Act of 1980 (44 U.S.C. 3507), the Forest Service
received approval from the Office of Management and Budget to collect
cave nomination information and confidential cave information. The
agency estimates that each person will spend an average of three hours
per response for a cave nomination and one-half hour per response for
the confidential cave information request.
No Taking Implications
This rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12630, and it has been determined
that the rule does not pose the risk of a taking of Constitutionally-
protected private property.
List of Subjects
36 CFR Part 261
Prohibitions, National forests.
36 CFR Part 290
Cave resources management, National forests.
Therefore, for the reasons set out in the preamble, title 36 of the
Code of Federal Regulations is amended by amending part 261 and adding
a new part 290 as set forth below.
PART 261--PROHIBITIONS
1. Revise the authority citation for part 261 to read as follows:
Authority: 16 U.S.C. 551; 16 U.S.C. 472; 7 U.S.C. 1011(f); 16
U.S.C. 1246(i); 16 U.S.C. 1133(c)-(d)(1); 16 U.S.C. 4306, 4307.
Subpart A--General Prohibitions
2. Amend Sec. 261.2 by adding definitions for the terms ``cave''
and ``cave resources'' in alphabetical order to read as follows:
Sec. 261.2 Definitions.
* * * * *
Cave means any naturally occurring void, cavity, recess, or system
of interconnected passages beneath the surface of the earth or within a
cliff or ledge and which is large enough to permit a person to enter,
whether the entrance is excavated or naturally formed. Such term shall
include any natural pit, sinkhole, or other opening which is an
extensive of a cave entrance or which is an integral part of the cave.
Cave resources mean any materials or substances occurring in caves
including, but not limited to, biotic, cultural, mineralogic,
paleontologic, geologic, and hydrologic resources.
* * * * *
3. Amend Sec. 261.8 by adding a new paragraph (e) to read as
follows:
Sec. 261.8 Fish and wildlife.
* * * * *
(e) Curtail the free movement of any animal or plant life into or
out of a cave, except as authorized to protect a cave resource.
4. Amend Sec. 261.9 by adding a new paragraph (j) to read as
follows:
Sec. 261.9 Property.
* * * * *
(j) Excavating, damaging, or removing any cave resource from a cave
without a special use authorization, or removing any cave resource for
commercial purposes.
5. Amend Sec. 261.10 by revising paragraph (d) introductory text
and adding new paragraphs (d)(3) and (n) to read as follows:
Sec. 261.10 Occupancy and use.
* * * * *
(d) Discharging a firearm or any other implement capable of taking
human life, causing injury, or damaging property as follows:
(1) * * *
(2) * * *
(3) into or within any cave.
* * * * *
(n) Discharging or igniting a firecracker, rocket or other
firework, or explosive into or within any cave.
Subpart B--Prohibitions in Areas Designated by Order
6. Amend Sec. 261.58 by adding a new paragraph (ee) to read as
follows:
Sec. 261.58 Occupancy and use.
* * * * *
(ee) Depositing any body waste in caves except into receptacles
provided for that purpose.
7. Add a new part 290 to read as follows:
PART 290--CAVE RESOURCES MANAGEMENT
Sec.
290.1 Purpose and scope.
290.2 Definitions.
290.3 Nomination, evaluation, and designation of significant caves.
290.4 Confidentiality of cave location information.
290.5 Collection of information.
Authority: 16 U.S.C. 4301-4309; 102 Stat. 4546.
Sec. 290.1 Purpose and scope.
The rules of this part implement the requirements of the Federal
Cave Resources Protection Act (16 U.S.C. 4301-4309), hereafter referred
to as the ``Act''. The rules apply to cave management on National
Forest System lands. These rules, in conjunction with rules in part 261
of this chapter, provide the basis for identifying and managing
significant caves on National Forest System lands in accordance with
the Act. National Forest System lands will be managed in a manner
which, to the extent practical, protects and maintains significant cave
resources in accordance with the policies outlined in the Forest
Service Directive System and the management direction contained in the
individual forest plans.
Sec. 290.2 Definitions.
For the purposes of this part, the terms listed in this section
have the following meaning:
Authorized officer means the Forest Service employee delegated the
authority to perform the duties described in this part.
Cave means any naturally occurring void, cavity, recess, or system
of interconnected passages beneath the surface of the earth or within a
cliff or ledge and which is large enough to permit a person to enter,
whether the entrance is excavated or naturally formed. Such term shall
include any natural pit, sinkhole, or other opening which is an
extension of a cave entrance or which is an integral part of the cave.
Cave resources mean any materials or substances occurring in caves
including, but not limited to, biotic, cultural, mineralogic,
paleontologic, geologic, and hydrologic resources.
National Forest System lands means all national forest lands
reserved or withdrawn from the public domain, acquired through
purchase, exchange, or donation, national grasslands and land
utilization projects, and other lands, waters, or interests
administered by the Forest Service.
Secretary means the Secretary of Agriculture.
Significant cave means a cave located on National Forest System
lands that has been determined to meet the criteria in Sec. 290.3 (c)
or (d) and has been designated in accordance with Sec. 290.3(e).
Sec. 290.3 Nomination, evaluation, and designation of significant
caves.
(a) Nominations for initial and subsequent listings. The authorized
officer will give governmental agencies and the public, including those
who utilize caves for scientific, educational, or recreational
purposes, the opportunity to nominate caves. The authorized officer
shall give public notice, including a notice published in the Federal
Register, calling for nominations for the initial listing and setting
forth the procedures for preparing and submitting the nominations.
Nominations for subsequent listings will be accepted from governmental
agencies and the public by the Forest Supervisor where the cave is
located as new cave discoveries are made. Caves nominated but not
approved for designation may be renominated as additional documentation
or new information becomes available.
(b) Evaluation for initial and subsequent listings. The evaluation
of the nominations for significant caves will be carried out in
consultation with individuals and organizations interested in the
management and use of caves and cave resources, within the limits
imposed by the confidentiality provisions of Sec. 290.4. Nominations
shall be evaluated using the criteria in Sec. 290.3 (c) and (d).
(c) Criteria for significant caves. A significant cave on National
Forest System lands shall possess one or more of the following
features, characteristics, or values.
(1) Biota. The cave provides seasonal or yearlong habitat for
organisms or animals, or contains species or subspecies of flora or
fauna native to caves, or are sensitive to disturbance, or are found on
State or Federal sensitive, threatened, or endangered species lists.
(2) Cultural. The cave contains historic properties or
archeological resources (as defined in Parts 800.2 and 296.3 of this
chapter respectively, or in 16 U.S.C. 470, et seq.), or other features
included in or eligible for inclusion on the National Register of
Historic Places because of their research importance for history or
prehistory, historical associations, or other historical or traditional
significance.
(3) Geologic/Mineralogic/Paleontologic. The cave possesses one or
more of the following features:
(i) Geologic or mineralogic features that are fragile, represent
formation processes that are of scientific interest, or that are
otherwise useful for study.
(ii) Deposits of sediments or features useful for evaluating past
events.
(iii) Paleontologic resources with potential to contribute useful
educational or scientific information.
(4) Hydrologic. The cave is a part of a hydrologic system or
contains water which is important to humans, biota, or development of
cave resources.
(5) Recreational. The cave provides or could provide recreational
opportunities or scenic values.
(6) Educational or scientific. The cave offers opportunities for
educational or scientific use; or, the cave is virtually in a pristine
state, lacking evidence of contemporary human disturbance or impact;
or, the length, volume, total depth, pit depth, height, or similar
measurements are notable.
(d) Specially designated areas. All caves located within special
management areas, such as Special Geologic Areas, Research Natural
Areas, or National Monuments, that are designated wholly or in part due
to the cave resources found therein are determined to be significant.
(e) Designation and documentation. If the authorized officer
determines that a cave nominated and evaluated under paragraphs (a) and
(b) of this section meets one or more of the criteria in paragraph (c)
of this section, the authorized officer shall designate the cave as
significant. The authorized officer will notify the nominating party of
the results of the evaluation and designation. Each forest will retain
appropriate documentation for all significant caves located within its
administrative boundaries. At a minimum, this documentation shall
include a statement of finding signed and dated by the authorized
officer and the information used to make the determination. This
documentation will be retained as a permanent record in accordance with
the confidentiality provision in Sec. 290.4.
(f) Undiscovered passages. If a cave is determined to be
significant, its entire extent on federal land, including passages not
mapped or discovered at the time of the determination, is deemed
significant. This includes caves that extend from lands managed by any
other Federal agency into National Forest System lands, as well as
caves initially believed to be separate for which interconnecting
passages are discovered after significance is determined.
(g) Decision final. The decision to designate or not designate a
cave as significant is made at the sole discretion of the authorized
officer based upon the criteria in paragraphs (c) and (d) of this
section and is not subject to further administrative review of appeal
under Parts 217 or 251.82 of this chapter.
Sec. 290.4 Confidentiality of cave location information.
(a) Information disclosure. No Forest Service employee shall
disclose any information that could be used to determine the location
of a significant cave or a cave nominated for designation, unless the
authorized officer determines that disclosure will further the purposes
of the Act and will not create a substantial risk of harm, theft, or
destruction to cave resources.
(b) Requesting confidential information. Notwithstanding paragraph
(a) of this section, the authorized officer may make confidential cave
information available to Federal or State governmental agencies, bona
fide educational or research institutes, or individuals or
organizations assisting the land management agencies with cave
management activities. To request confidential cave information, such
entities shall make a written request to the authorized officer which
includes the following:
(1) Name, address, and telephone number of the individual
responsible for the security of the information received;
(2) A legal description of the area for which the information is
sought;
(3) A statement of the purpose for which the information is sought;
and,
(4) Written assurances that the requesting party will maintain the
confidentiality of the information and protect the cave and its
resources.
(c) Decision final. The decision to permit or deny access to
confidential cave information is made at the sole discretion of the
authorized officer and is not subject to further administrative review
or appeal under 5 U.S.C. 552 or parts 217 or 251.82 of this chapter.
Sec. 290.5 Collection of information.
The collection of information contained in this rule represents new
information requirements as defined in 5 CFR part 1320, Controlling
Paperwork Burdens on the Public. In accordance with those rules and the
Paperwork Reduction Act of 1980 as amended (44 U.S.C. 3507), the Forest
Service has received approval by the Office of Management and Budget to
collect cave nomination information under clearance number 0596-0123
and confidential information under 0596-0122. The information provided
for the cave nominations will be used to determine which caves will be
listed as ``significant'' and the information in the requests to obtain
confidential cave information will be used to decide whether to grant
access to this information. Response to the call for cave nominations
is voluntary. No action may be taken against a person for refusing to
supply the information requested. Response to the information
requirements for obtaining confidential cave information is required to
obtain a benefit in accordance with section 5 of the Federal Cave
Resources Protection Act of 1988 (16 U.S.C. 4304).
Dated: May 17, 1994.
James R. Lyons,
Assistant Secretary, Natural Resources and Environment.
[FR Doc. 94-14714 Filed 6-16-94; 8:45 am]
BILLING CODE 3410-11-M
