[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Proposed Rules]
[Pages 6422-6468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2710]



[[Page 6421]]

_______________________________________________________________________

Part II





Department of the Interior





_______________________________________________________________________



Bureau of Land Management



_______________________________________________________________________



43 CFR Part 3800



Mining Claims Under the General Mining Laws: Surface Management; 
Proposed Rule

  Federal Register / Vol. 64, No. 26 / Tuesday, February 9, 1999 / 
Proposed Rules  

[[Page 6422]]



DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[WO-300-1990-00]
RIN 1004-AD22


Mining Claims Under the General Mining Laws; Surface Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Land Management (BLM) proposes to revise its 
regulations governing mining operations involving metallic and some 
other minerals on public lands administered by BLM. BLM is revising the 
regulations to improve their clarity and organization, address 
technical advances in mining, incorporate policies developed after the 
previous regulations were promulgated, and better protect natural 
resources and our Nation's natural heritage lands from the adverse 
impacts of mining. The regulations are intended to prevent unnecessary 
or undue degradation of BLM-administered lands by mining operations 
authorized by the mining laws.

DATES: Comments. Send your comments to reach BLM on or before May 10, 
1999.
    Public Hearings. BLM plans to hold public hearings in conjunction 
with this proposed rule. The dates and times of the hearings are in the 
SUPPLEMENTARY INFORMATION section under Public Hearings.

ADDRESSES: Comments. You may mail comments to Bureau of Land 
Management, Administrative Record, Nevada State Office, P.O. Box 12000; 
Reno, Nevada 89520-0006. You may hand deliver comments to BLM at 850 
Harvard Way, Reno, Nevada. Submit electronic comments and other data to 
WOC[email protected]. For other information about filing comments 
electronically, see the SUPPLEMENTARY INFORMATION section under 
``Electronic access and filing address.''
    Public Hearings. The locations of the public hearings that BLM is 
holding in conjunction with this proposed rule are in the SUPPLEMENTARY 
INFORMATION section under Public Hearings.

FOR FURTHER INFORMATION CONTACT: Robert M. Anderson, (202) 208-4201; or 
Michael Schwartz, (202) 452-5198. Individuals who use a 
telecommunications device for the deaf (TDD) may contact Mr. Anderson 
or Mr. Schwartz by calling the Federal Information Relay Service at 1-
800-877-8339 between 8:00 a.m. and 4:00 p.m. Eastern time, Monday 
through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:
    I. How Can I Comment on this Proposal?
    II. What is the Background of this Rulemaking?
    III. What are the Contents of the Proposal?
    IV. How did BLM Meet its Procedural Obligations?

I. How Can I Comment on this Proposal?

Electronic Access and Filing Address

    You may view an electronic version of this proposed rule at BLM's 
Internet home page: www.blm.gov. You may also comment via the Internet 
to: WOC[email protected]. Please also include ``Attention: RIN 1004-
AD22'' and your name and return address in your Internet message. If 
you do not receive a confirmation from the system that we have received 
your Internet message, contact us directly at (202) 452-5030. BLM is 
working to set up a system that would allow commenters to send comments 
via the Internet and to view already submitted comments. When this 
system is available, we will publish a notice in the Federal Register.

Written Comments

    Your written comments on the proposed rule should be specific, 
confined to issues pertinent to the proposed rule, and should explain 
the reason for any recommended change. Where possible, you should 
reference the specific section or paragraph of the proposal that you 
are addressing. BLM may not necessarily consider or include in the 
Administrative Record for the final rule comments that BLM receives 
after the close of the comment period (see DATES) or comments delivered 
to an address other than those listed above (see ADDRESSES).
    BLM will make comments, including names, street addresses, and 
other contact information of respondents, available for public review 
at this address during regular business hours (8:00 a.m. to 4:00 p.m.), 
Monday through Friday, except Federal holidays. BLM will also post all 
comments on its Internet home page (www.blm.gov) at the end of the 
comment period. Individual respondents may request confidentiality. If 
you wish to request that BLM consider withholding your name, street 
address, and other contact information (such as: Internet address, FAX 
or phone number) from public review or from disclosure under the 
Freedom of Information Act, you must state this prominently at the 
beginning of your comment. BLM will honor requests for confidentiality 
on a case-by-case basis to the extent allowed by law. BLM will make 
available for public inspection in their entirety all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses.

Public Hearings

    BLM will hold public hearings at the following locations on the 
dates and local times specified.
Alaska
    Fairbanks--March 30, 1999--Carlson Center, 2010 Second Avenue; 1:00 
p.m. and 7:00 p.m.
Arizona
    Phoenix--March 30, 1999--Sheraton Hotel, 2620 Dunlap Avenue; 1:00 
p.m. and 6:00 p.m.
California
    San Francisco--April 20, 1999--Holiday Inn Civic Center, 50 Eighth 
Street; 1:00 p.m. and 6:00 p.m.
    Ontario--April 21, 1999--Doubletree Hotel; times to be determined.
    Sacramento--April 22, 1999--Red Lion Inn, 1401 Arden Way; 1:00 p.m. 
and 6:00 p.m.
Colorado
    Lakewood--March 30, 1999--Sheraton Denver West Hotel and Conference 
Center, 360 Union Blvd., Golden Room; 1:00 p.m. and 7:00 p.m.
Washington, D.C.
    April 14, 1999--Washington Plaza Hotel, 10 Thomas Circle, NW, 
Monroe Room; 12:30 p.m.
Idaho
    Boise--April 27, 1999--BLM State Office, 1387 S. Vinnell Way, 
Sagebrush-Ponderosa Conference Room; 6:00 p.m.
Montana
    Helena--April 14, 1999--Colonial Inn, 2301 Colonial Drive; 1:30 
p.m. and 7:00 p.m.
New Mexico
    Socorro--March 31, 1999--Macey Center, 801 Leroy, Galina Room; 3:00 
p.m.
Nevada
    Reno--March 23, 1999--Silver Legacy Hotel; 2:00 p.m. and 7:00 p.m.
    Elko--March 24, 1999--Convention Center; 1:00 p.m. and 6:00 p.m.
Oregon
    Eugene--April 22, 1999--BLM District Office, 2890 Chad Street, 
Conference Room; times to be determined.
Utah
    Salt Lake City--April 7, 1999--Department of Natural Resources, 
1594 West North Temple, Rooms 1040/50, 1:00 p.m. and 6:00 p.m.
Washington

[[Page 6423]]

    Spokane--April 20, 1999--Doubletree Inn; times to be determined.
Wyoming
    Casper--March 31, 1999--Casper Parkway Plaza Inn, 123 West E 
Street; 2:00 p.m. and 7:00 p.m.
    In order to assist the transcriber and to ensure an accurate 
record, BLM requests that persons who testify at a hearing give the 
transcriber a copy of their testimony. The meeting sites are accessible 
to individuals with disabilities. An individual with a disability who 
will need an auxiliary aid or service to participate in the hearing, 
such as interpreting service, assistive listening device, or materials 
in an alternate format, must notify the person listed under FOR FURTHER 
INFORMATION CONTACT two weeks before the scheduled hearing date. 
Although BLM will attempt to meet a request received after that date, 
the requested auxiliary aid or service may not be available because of 
insufficient time to arrange it.

II. What is the Background of this Rulemaking?

    Under the Constitution, Congress has the authority and 
responsibility to manage public land. See U.S. Const. art. IV, Sec. 3, 
cl. 2. Through statute, Congress has delegated this authority to 
agencies such as the Bureau of Land Management (BLM). The Federal Land 
Policy and Management Act of 1976 (FLPMA) directs the Secretary of the 
Interior, by regulation or otherwise, to take any action necessary to 
prevent unnecessary or undue degradation of the public lands. See 43 
U.S.C. 1732(b). FLPMA also directs the Secretary of the Interior, with 
respect to public lands, to promulgate rules and regulations to carry 
out the purposes of FLPMA and of other laws applicable to the public 
lands. See 43 U.S.C. 1740. ``Public lands'' are defined in FLPMA (in 
pertinent part) as ``any land and interest in land owned by the United 
States . . . and administered by the Secretary of the Interior through 
the Bureau of Land Management. . . .'' See 43 U.S.C. 1702. The law 
gives the Secretary of Agriculture responsibility for promulgating 
rules and regulations applicable to lands within the National Forest 
System. For this reason, none of the regulatory changes discussed in 
this proposal would apply to the National Forests. See 36 CFR part 228 
for regulations governing mining operations on National Forests. These 
proposed regulations are also authorized by 30 U.S.C. 22, the portion 
of the mining laws that opens public lands to exploration and purchase 
``under regulations prescribed by law.''
    Under this statutory authority, BLM issued regulations in 1980 to 
ensure that public lands are protected from unnecessary or undue 
degradation and that areas disturbed during the search for and 
extraction of mineral resources are reclaimed. See 45 FR 78902-78915, 
November 26, 1980. These regulations were BLM's first specific 
regulations to govern surface-disturbing activities on public lands 
resulting from operations under the mining laws. The basic framework 
established by the 1980 regulations separates mining activities into 
three distinct categories based on increasing levels of disturbance, 
casual use, notice-level operations, and plan-level operations--each 
with a correspondingly increasing level of BLM involvement.
    In recognition of the fact that the 1980 regulations were a first 
attempt at regulating mining activities on public lands, BLM 
acknowledged that implementation of the regulations would involve 
monitoring and a cooperative effort by BLM, the States, the mining 
industry, and the public. BLM pledged to reassess the regulations and 
amend them at the end of two years, as necessary to ensure that they 
protect public lands from unnecessary or undue degradation (45 FR 
78903).
    Subsequently, a series of developments occurred that collectively 
had the effect of focusing increased attention on Federal minerals 
management under the mining laws and on mining law reform in general. 
One of the most important developments was the widespread use of 
cyanide leaching technology to extract gold from relatively low-grade 
ores. According to the U.S. Geological Survey, in 1980 about two-thirds 
of the 960,000 troy ounces of gold mined in the U.S. was produced using 
cyanide technology. In 1997, virtually all the 10 million troy ounces 
of U.S. gold production came through the use of cyanide technology. See 
Minerals Information--Gold, U.S.G.S. (various years) and Minerals 
Commodities Summaries--Gold, U.S.G.S. (Jan. 1988). The mining 
operations using this technology process relatively large quantities of 
ore and often disturb large areas, create large pits, require large 
spoil and waste rock depositories, and utilize a significant amount of 
water. At the same time, there was concern over migratory birds and 
other wildlife being killed through contact with cyanide-containing 
solutions in ponds and impoundments. There was also public concern 
about the possible effects on human health of the use of cyanide by 
mining operations. The General Accounting Office issues a series of 
reports highlighting, among other things, abuses from hardrock mining, 
the need for bonding of mining operations, and the need for better 
reclamation. See GAO/RCED 86-48, GAO/RCED 87-157, GAO/RCED 88-21, and 
GAO/RCED 88-123BR. As a result, in January 1989, the Director of BLM 
established a task force to recommend ways to address the issues that 
had been raised. See also GAO/RCED 91-145.
    In late 1989, the task force recommended that BLM (1) expand its 
bonding policy for exploration and mining, (2) develop a cyanide 
management program, (3) review current reclamation practices, and (4) 
address pre-1981 mining operations that have been abandoned. BLM took a 
number of steps to implement these recommendations, including 
development of a cyanide policy (BLM Instruction Memorandum 90-566, 
August 6, 1990, amended November 1, 1990); issuance of a proposed rule 
to revise the bonding regulations (56 FR 31602, July 11, 1991); and 
completion of the Solid Minerals Reclamation Handbook (BLM Manual 
Handbook H-3042-1, February 7, 1992, as amended). However, BLM had not 
yet conducted a comprehensive review of the 1980 regulations, and the 
Director decided in July 1991 that the time had come.
    Thus, on October 23, 1991, BLM published a notice of intent to 
propose rulemaking. See 56 FR 54815-54816. The notice solicited 
comments on a number of issues, including--
     Whether the five-acre threshold for notices should be 
modified or eliminated,
     Whether the definition of ``unnecessary or undue 
degradation'' should be revised,
     Whether the regulations should specify prohibited acts 
subject to civil and criminal enforcement,
     Whether time frames for review of plans and processing of 
notices should be specified,
     Whether additional environmental and reclamation 
requirements should be added to the regulations,
     Whether the regulations should clarify or elaborate the 
activities authorized under casual use, and
     Whether the regulations should provide for improved 
coordination and cooperation with States.
    As a part of the review, BLM conducted four public workshops in 
December 1991, in Anchorage, Alaska; Spokane, Washington; Denver, 
Colorado; and Reno, Nevada. BLM received about 140 written comments, 
along with petitions containing about 250 signatures. About 250 people 
attended the four workshops. Following the close of the comment period 
on

[[Page 6424]]

January 3, 1992, a task force of BLM employees began work on proposed 
revisions to the 1980 regulations. The task force completed its work 
and presented its recommendations to the Director of BLM in April 1992. 
The recommendations included changing the five-acre threshold to give 
BLM greater management control over special areas, sensitive resource 
values, processing operations, and reclamation and adding enforcement 
provisions to the regulations.
    However, BLM put the initiative on hold due to the legislative 
proposals for mining law reform then under consideration by the 
Congress. The legislative changes would have superseded any changes to 
the 1980 regulations. Ultimately, neither the 103rd (1993/1994) nor the 
104th (1995/1996) Congress produced legislative changes. In the 
meantime, BLM moved forward to complete and implement other proposals 
that stemmed from initiatives begun earlier, including:
     An acid mine drainage policy to ensure uniform 
consideration of this issue in plans of operations (BLM Instruction 
Memorandum 96-79, April 2, 1996);
     A final rule tightening standards and strengthening 
enforcement against improper use and occupancy of mining claims (61 FR 
37116, July 16, 1996); and
     A final rule to strengthen bonding requirements (62 FR 
9093, February 28, 1997).
    On January 6, 1997, the Secretary of the Interior, expressing the 
view that, ``It is plainly no longer in the public interest to wait for 
Congress to enact legislation that corrects the remaining shortcomings 
of the 3809 regulations,'' directed BLM to restart the rulemaking 
process. The Secretary identified several regulatory revisions that 
should be proposed for public comment, including:
     Rewriting the definition of ``unnecessary or undue 
degradation;''
     Developing performance standards for the conduct of mining 
and reclamation;
     Proposing alternative ways of addressing the issue of 
notice-level operations; and
     Coordinating with State regulatory programs to minimize 
duplication and promote cooperation.
    On April 4, 1997, BLM issued a notice informing the public of the 
agency's intent to prepare an environmental impact statement (EIS) for 
the revision of the 3809 regulations and requesting comments on the 
scope of the EIS. See 62 FR 16177. To collect a wide range of comments, 
BLM held public meetings at 11 locations throughout the Western United 
States. BLM also held a public meeting in Washington, D.C. Over 1,000 
people attended the public meetings. In addition to the verbal comments 
collected at the public meetings, BLM also received more than 1,800 
comment letters from individuals and representatives of State and local 
governments, the mining industry, and citizens' groups.
    As highlighted earlier in this discussion, BLM revised the 
financial guarantee requirements of the 1980 regulations in a final 
rule issued on February 28, 1997. See 62 FR 9093. The changes included 
requiring financial guarantees for all plan-level operations, requiring 
certification of the existence of financial guarantee for all notice-
level operations, requiring third-party certification of reclamation 
cost estimates, setting minimum per-acre financial guarantee amounts, 
and expanding the kinds of financial instruments that can be used as 
financial guarantees. The 1997 financial guarantee changes were 
challenged by an industry association. On May 13, 1998, a Federal Court 
remanded the revised regulations on procedural grounds. See Northwest 
Mining Association v. Babbitt, No. 97-1013 (D.D.C. May 13, 1998). This 
action reinstated the regulations that were in place prior to the 1997 
final rule. A significant aspect of this rulemaking is to respond to 
the remand by re-promulgating strengthened financial guarantee 
provisions. See the discussion of the proposed financial guarantee 
regulations in the section-by-section description of the proposed 
regulations later in this preamble.
    Despite the foregoing history and developments related to subpart 
3809 which would justify a rulemaking to update subpart 3809, it has 
been asserted that BLM has not demonstrated a need to revise subpart 
3809 in light of improvements in State regulation of locatable minerals 
mining since 1980. BLM disagrees. Both the authority and the need exist 
for this rulemaking. This rulemaking is based upon BLM's non-delegable 
and independent responsibility under FLPMA to manage the public lands 
to prevent unnecessary or undue degradation of the public lands, and a 
recognition that BLM's current rules may not be adequate to assure this 
result. In enacting FLPMA, Congress intended that the Secretary of the 
Interior determine what constitutes unnecessary or undue degradation 
and not that the States would do so on a State-by-State basis. Sections 
302(b), 303(a), and 310 of FLPMA reflect this responsibility. This 
rulemaking, therefore, reflects the Secretary's judgment of the 
regulations required to prevent unnecessary or undue degradation.
    BLM recognizes that many of the States have upgraded their 
regulation of locatable minerals mining since 1980. It is clear, 
however, the Federal rules need upgrading, regardless of State law. 
Areas where the existing rules require upgrading include financial 
guarantees (to require financial guarantees for all operations greater 
than casual use, thereby ensuring the availability of resources for the 
completion of reclamation); enforcement (to implement section 302(c) of 
FLPMA and provide administrative enforcement tools and penalties); 
threshold for notice operations (to require plans of operations for 
operations more likely to pollute the land and those in sensitive 
areas); withdrawn areas (to require validity exams before allowing 
plans of operations to be approved in such areas); casual use (to 
clarify which activities do or do not constitute casual use); 
performance standards and the definition of unnecessary or undue 
degradation (to establish objective standards to reflect current mining 
technology); and others. As mentioned earlier in this preamble, many of 
these shortcomings have been pointed out since 1986 in a series of 
Congressional hearings, General Accounting Office reports, and 
Departmental Inspector General reports. See the Secretary's January 6, 
1997 memorandum.
    To the extent an overlap with State regulations would exist, BLM is 
proposing a general set of standards that is intended to set a national 
floor, but in a manner that will accommodate most State standards. 
Thus, for the most part, these proposed rules would not mandate 
specific designs or contain numeric standards. This has been done 
intentionally so as not to unnecessarily interfere with the current 
regulation of mining operations in situations where it is working 
successfully. Also, BLM is proposing a procedure under which BLM would 
be able to defer in large part to State regulation of locatable 
minerals mining.
    In the development of this proposed rule, BLM engaged in a 
comprehensive consultation process with the States. BLM recognizes that 
the States are its primary partners in regulating mining activities on 
public lands. Throughout the process, BLM has solicited the States' 
views, both collectively and individually, on how best to avoid 
duplication and encourage cooperation. BLM met with the representatives 
of State agencies under the auspices of the Western Governors 
Association in April

[[Page 6425]]

1997, February 1998, and September 1998.
    BLM also met with representatives of the Environmental Protection 
Agency and the Small Business Administration. We also posted two 
successive drafts of regulatory provisions on the Internet for public 
information purposes in February and August 1998. We received and 
considered many comments from a variety of interested parties, 
including States, as a result of those Internet postings. We also had a 
series of meetings to receive comments from constituent groups, such as 
industry representatives and citizens and environmental groups. BLM 
made many revisions in response to the consultations with States and 
the informal comments received from constituents. In this preamble, we 
do not respond to every comment we received. To do so would result in 
an unnecessarily long and complicated document. In the preamble to the 
final rule, BLM will respond only to substantive comments received 
during the comment period on this proposed rule.

III. What are the Contents of the Proposal?

Organization and Format

    Using the principles of plain language, BLM is proposing to 
reorganize and rewrite the surface management regulations to make 
information easier to find and, once found, easier to understand. From 
an organizational standpoint, we have arranged the information in the 
proposed subpart in sequence from the general to the specific and from 
the less complex to the more complex. Thus, the subpart would first 
provide general information, including the definitions of terms 
(proposed Sec. 3809.5) and the circumstances under which an operator 
must submit either a notice or a plan of operations (proposed 
Sec. 3809.11). Following that, there are four ``200'' series sections 
(proposed Secs. 3809.201 through 3809.204) that would address 
agreements between BLM and the States concerning regulation of mining. 
In the ``300'' series of sections (proposed Secs. 3809.300 through 
3809.336), the subpart would address operations conducted under 
notices. The proposed regulations governing notice-level operations are 
arranged sequentially so that a person interested in conducting a 
notice-level operation would first encounter information related to 
initiating operations, followed by information related to conducting, 
modifying, and closing operations.
    The ``400'' series of sections of the proposed rule addresses 
operations conducted under a plan of operations and is divided into two 
parts. The first part (proposed Secs. 3809.400 to 3809.424) would 
sequentially cover topics related to initiating, conducting, and 
closing plan-level operations. The second part (proposed Secs. 3809.430 
to 435) would cover topics related to modifying a plan of operations. 
The ``500'' series (proposed Secs. 3809.500 through 3809.599) covers 
financial guarantees and is arranged sequentially from the various 
kinds of acceptable financial guarantees and how to obtain them through 
modifying, releasing, and forfeiting a financial guarantee. Finally, in 
the ``600,'' ``700,'' and ``800'' series, we have placed provisions 
that would govern inspection and enforcement, penalties, and appeals 
respectively.
    Underneath the series described above, we propose to divide the 
information into smaller ``bites.'' The reader will notice that the 
proposal contains many more sections than the existing regulations. The 
purpose of this is to make the table of contents and the section 
headings themselves more informative so that the reader will be able to 
more easily locate specific information without having to read a great 
deal of non-pertinent text.
    Another aspect of the proposal that readers will quickly notice is 
that the section headings are phrased as questions that readers might 
ask themselves, complete with first-person personal pronouns. For 
example, the heading of proposed Sec. 3809.430 is ``May I modify my 
plan of operations?'' The text of each section contains the answer to 
the question posed in the heading. Frequently, the answer is stated in 
terms of what ``you'' (the reader) must do. For example, the answer to 
``May I modify my plan of operations?'' is, ``Yes. You may request a 
modification of the plan at any time during operations under an 
approved plan of operations.'' We propose to use this format because we 
believe that the regulations are more effective when they speak 
directly to the reader. Within the text of each section, we are 
proposing to favor clear and simple language at the expense of jargon 
and to use active voice in preference to passive voice, among other 
things, all of which we believe will make the regulations easier to 
understand. We specifically invite your comments on the organization 
and format of the proposed rule.
    As a result of the reorganization of the subpart, we are proposing 
to move many of the provisions of the existing regulations. To assist 
the reader to understand the changes we are proposing, we have prepared 
the following table that shows the proposed counterpart to each 
existing provision down to the paragraph level.

----------------------------------------------------------------------------------------------------------------
     Existing regulations                                     Proposed regulations
----------------------------------------------------------------------------------------------------------------
Sec.  3809.0-1...............  Sec.  3809.1.
Sec.  3809.0-2...............  Sec.  3809.1.
Sec.  3809.0-3...............  Authority citation.
Sec.  3809.0-5...............  Sec.  3809.5.
Sec.  3809.0-6...............  Sec.  3809.1.
Sec.  3809.1-1...............  Secs.  3809.11(a) and 3809.415.
Sec.  3809.1-2...............  Sec.  3809.11(a).
Sec.  3809.1-3(a)............  Secs.  3809.11(b) and 3809.301(a).
Sec.  3809.1-3(b)............  Secs.  3809.312 and 3809.313(c).
Sec.  3809.1-3(c)............  Secs.  3809.301(b) and 3809.313(c).
Sec.  3809.1-3(d)............  Secs.  3809.320 and 3809.420.
Sec.  3809.1-3(e)............  Sec.  3809.600(a).
Sec.  3809.1-3(f)............  Sec.  3809.601(a).
Sec.  3809.1-4(a)............  Sec.  3809.11(c).
Sec.  3809.1-4(b) and (c)....  Sec.  3809.11(d) and (k).
Sec.  3809.1-5...............  Sec.  3809.401.
Sec.  3809.1-6(a), (b), and    Sec.  3809.411(a).
 (c).
Sec.  3809.1-6(d)............  Sec.  3809.411(b).
Sec.  3809.1-6(e)............  Sec.  3809.593.
Sec.  3809.1-7(a)............  Secs.  3809.430 and 3809.431(a).
Sec.  3809.1-7(b) and (c)....  Sec.  3809.432.

[[Page 6426]]

 
Sec.  3809.1-8...............  Secs.  3809.300 and 3809.400.
Sec.  3809.1-9(a)............  Sec.  3809.500(a).
Sec.  3809.1-9(b)............  Secs.  3809.500(b), 3809.551(a) and (c), Sec.  3809.552(a), and Sec.  3809.570.
Sec.  3809.1-9(c)............  Sec.  3809.555.
Sec.  3809.1-9(d)............  Secs.  3809.551(b) and 3809.560.
Sec.  3809.1-9(e)............  Sec.  3809.580.
Sec.  3809.1-9(f)............  Sec.  3809.590.
Sec.  3809.1-9(g)............  Sec.  3809.594.
Sec.  3809.2-1...............  None.
Sec.  3809.2-2(a)............  Sec.  3809.420(b)(1).
Sec.  3809.2-2(b)............  Sec.  3809.420(b)(2).
Sec.  3809.2-2(c)............  Sec.  3809.420(c)(8).
Sec.  3809.2-2(d)............  Sec.  3809.420(b)(6).
Sec.  3809.2-2(e)............  Sec.  3809.420(b)(7).
Sec.  3809.2-2(f)............  Sec.  3809.420(c)(11).
Sec.  3809.3-1(a)............  Sec.  3809.3.
Sec.  3809.3-1(b)............  None.
Sec.  3809.3-1(c)............  Sec.  3809.201.
Sec.  3809.3-2...............  Secs.  3809.601, 3809.603, and 3809.604.
Sec.  3809.3-3(a)............  None.
Sec.  3809.3-3(b)............  Secs.  3809.301(b)(2), 3809.401(b)(2), and 3809.420(c)(1).
Sec.  3809.3-4...............  Sec.  3809.420(c)(9).
Sec.  3809.3-5...............  Sec.  3809.420(c)(10).
Sec.  3809.3-6...............  Sec.  3809.600.
Sec.  3809.3-7...............  Secs.  3809.334 and 3809.424.
Sec.  3809.4.................  Sec.  3809.800.
Sec.  3809.5.................  Sec.  3809.111.
Sec.  3809.6.................  Sec.  3809.2.
----------------------------------------------------------------------------------------------------------------

    Readers should note that the above table does not include 
provisions we promulgated in 1997 that were remanded on procedural 
grounds. Also, the proposal contains many new provisions that are not 
present in the existing regulations. The following section of the 
preamble describes both the new provisions and changes to existing 
regulations. We use the terms ``BLM'' and ``we'' interchangeably in 
this preamble to refer to the Bureau of Land Management.

General Information

    This portion of the proposed rule (Secs. 3809.1 through 3809.116) 
would provide the reader with general information, including what 
activities the regulations apply to, how to handle conflicts with State 
laws, definitions of certain terms, and when you must submit a notice 
or plan of operations. Consistent with the Secretary of the Interior's 
January 6, 1997, memorandum, the proposed rule offers two alternatives 
for regulating mining operations on BLM lands. See the two sections 
numbered 3809.11. The first alternative preserves BLM's existing scheme 
of classifying operations according to the scale of their impacts as 
casual use, notice-level, or requiring a plan of operations. The second 
alternative incorporates the approach used by the Forest Service to 
regulate mining operations on National Forests and other lands it 
manages. Both alternatives are described more fully below. This portion 
of the proposal also includes two new sections that would address 
mining operations on segregated or withdrawn lands (proposed 
Sec. 3809.100) and situations where it is not clear whether the 
minerals sought are locatable or common variety (proposed 
Sec. 3809.101).

Section 3809.1 What Are the Purposes of This Subpart?

    This proposed section combines language from existing Secs. 3809.0-
1, 3809.0-2, and 3809.0-6. We have edited the wording for brevity and 
clarity. The purposes of the subpart would continue to be to prevent 
unnecessary or undue degradation of the public lands and to coordinate 
with responsible State agencies to avoid duplication of efforts.
    We considered, but decided not to propose an idea that was 
suggested by many commenters in the development of this proposal: The 
regulations should prevent or preclude mining where it would conflict 
with other uses or resources. The mining laws, which consist of the 
1872 Mining Law, as amended and interpreted (30 U.S.C. 22 et seq.), 
provide (in part) that all valuable mineral deposits in lands belonging 
to the United States shall be free and open to exploration and 
purchase, unless otherwise provided. BLM does not have the authority to 
issue a regulation that would nullify or modify the mining laws. For 
that reason, the proposed regulations focus on managing the impacts of 
mining operations. The regulations would not address the question of 
whether a particular area or class of areas is considered, as a zoning 
matter, to be suitable or unsuitable for hardrock mining. That is a 
matter that can be addressed through other means, such as withdrawal 
and the BLM land-use planning process.
    We also considered whether to carry over from existing Sec. 3809.0-
6 the expression of Departmental policy to encourage development of 
Federal mineral resources and reclamation of disturbed lands. For the 
purposes of simplicity and clarity, we decided not to include this 
policy statement in this proposal. We are limiting proposed subpart 
3809 to operational regulatory provisions.

Section 3809.2 What is the Scope of This Subpart?

    This proposed section combines language from the existing 
definition of ``Federal lands'' at Sec. 3809.0-5 and existing 
Sec. 3809.6. Proposed paragraph (a) would apply this subpart to all 
operations under the mining laws on public lands, including Stock 
Raising Homestead Lands, as provided in Sec. 3809.11(i), where the 
mineral interest is reserved to the United States. This provision would 
allow BLM to approve the use or occupancy, without a millsite, of non-
mineral land for milling,

[[Page 6427]]

processing, beneficiation, or other operations in support of mining. 
BLM would approve the use or occupancy of such areas through a plan of 
operations and only to the extent the activities would support 
operations on public lands. The mining laws and section 302(b) of 
FLPMA, 43 U.S.C. 1732(b), allow this type of authorization. We mention 
it because of a recent legal opinion by the Department of the Interior 
Solicitor ( Limitations on Patenting Millsites under the Mining Law of 
1872, M-36988, Nov. 7, 1997) interpreting limits in the millsite 
provision of the mining laws, 30 U.S.C. 42. BLM's existing policy 
guidance on this issue may be found in BLM's Instruction Memorandum No. 
98-154, dated Aug. 17, 1998, which is posted on BLM's Internet website 
at www.blm.gov/nhp/efoia/wo/fy98/im98-154.html.
    One substantive change we are proposing is to apply the subpart to 
all operations under the mining laws on Stock Raising Homestead Act 
lands where the mineral interest is reserved to the United States, 
subject to proposed Sec. 3809.11(i), discussed below. On these lands, 
the surface is privately owned, and the minerals are owned by the 
United States. Applying this subpart to those lands would enable BLM, 
in cases where surface owner consent is not obtained, to manage surface 
impacts. This would be in accord with recent amendments to the Stock 
Raising Homestead Act (Pub. L. 103-23). See 43 U.S.C. 299.
    Proposed paragraph (c) would incorporate existing Sec. 3809.6, 
which applies the surface management regulations to operations on all 
patents issued on mining claims located in the California Desert 
Conservation Area (CDCA) after the enactment of FLPMA. We are proposing 
to modify this existing provision by incorporating the concept of valid 
existing rights from section 601(f) of FLPMA (43 U.S.C. 1781(f)). That 
is, this subpart would not apply to operations on any patent issued 
after October 21, 1976, for which a right to the patent vested before 
that date.
    Despite the urging of certain commenters, BLM is not proposing 
additional regulations to implement the ``undue impairment'' standard 
of section 601(f) of FLPMA. BLM has tentatively concluded that the 
standards of proposed subpart 3809, plus the specific reference in the 
definition of ``unnecessary or undue degradation'' to the stated level 
of protection for the CDCA, would provide BLM sufficient authority and 
flexibility to achieve the statutory level of protection.
    Proposed paragraph (d) would inform the general reader about the 
kinds of minerals that are regulated under this subpart. The subpart 
would apply to minerals that can be ``located'' under the mining laws. 
These ``locatable'' minerals are sometimes referred to as ``hardrock'' 
minerals. This section would direct the reader to other parts of BLM's 
regulations for ``leasable'' and ``salable'' minerals. This is an 
informational section that has no regulatory content, but simply helps 
the reader understand the scope of the subpart.

Section 3809.3  What Rules Must I Follow if State Law Conflicts With 
This Subpart?

    This proposed section corresponds to existing Sec. 3809.3-1(a), 
which provides that this subpart shall not be construed to effect a 
pre-emption of State laws or regulations relating to the conduct of 
mining operations. BLM recognizes that States may apply their laws to 
operations on public lands. This proposed section addresses situations 
where State and Federal law conflict. In the proposal, we are changing 
the wording to clarify that if State laws or regulations conflict with 
this subpart, an operator would have to follow the requirements of this 
subpart. If State laws or regulations require a higher standard of 
protection for public lands than this subpart provides, then there 
would be no conflict. The proposed language is in accord with the 
preamble to the existing regulations, where BLM stated that, ``It has 
been the view of the Department of the Interior that under section 3 of 
the 1872 Mining Law (30 U.S.C. 26), the States may assert jurisdiction 
over mining activities on Federal lands in connection with their own 
State laws. This may be done as long as the laws of the State are not 
in conflict or inconsistent with Federal law.'' (45 FR 78908, November 
26, 1980)
    In developing the proposed language, we have been guided by the 
Supreme Court's pre-emption analysis, as expressed in the Granite Rock 
case, which provides that State law can be pre-empted in either of two 
general ways. If Congress evidences an intent to occupy a given field, 
any State law falling within that field is pre-empted. If Congress has 
not entirely displaced State regulation over the matter in question 
(such as in the case of the mining laws), State law is pre-empted to 
the extent it actually conflicts with Federal law. A conflict occurs 
when it is impossible to comply with both State and Federal law, or 
where the State law stands as an obstacle to the accomplishment of the 
full purposes and objectives of Congress. See California Coastal 
Commission, et al. v. Granite Rock Co., 480 U.S. 572, 581 (1987). The 
Supreme Court urged agencies to include their position regarding pre-
emption in their regulations. For that reason, BLM proposes to 
incorporate the 1980 final rule preamble position into the text of 
subpart 3809.

Section 3809.5  How Does BLM Define Certain Terms Used in This Subpart?

    We propose to eliminate the following existing definitions: 
``Authorized officer,'' ``Federal lands,'' and ``King Range 
Conservation Area.'' We propose to change some existing definitions and 
add the following new definitions, as discussed below: ``Minimize,'' 
``Mitigation,'' ``Most appropriate technology and practices,'' ``Public 
lands,'' ``Riparian area,'' and ``Tribe.''
    Casual use. This proposed definition is based on the existing 
definition. To address situations that have arisen since the 1980 
regulations came out, we propose to add examples of activities that are 
generally considered ``casual use,'' including collection of mineral 
specimens using hand tools, hand panning, and non-motorized sluicing. 
We also propose to expand the list of examples of activities that are 
not generally considered ``casual use'' by adding use of truck-mounted 
drilling equipment, portable suction dredges, and chemicals; 
``occupancy'' as defined in 43 CFR 3715.0-5; and hobby or recreational 
mining in areas where the cumulative effects of the activities result 
in more than negligible disturbance. These activities normally would 
result in greater-than-negligible disturbance and should not be 
considered ``casual use.''
    Minimize. We are proposing to define the term ``minimize'' as it is 
used in a number of the performance standards in proposed Sec. 3809.420 
as reducing the adverse impact of an operation to the lowest practical 
level. During BLM's review of proposed operations, either notice- or 
plan-level, BLM may determine that ``minimize'' means to avoid or 
eliminate specific impacts. BLM would determine the lowest practical 
level of a particular impact (or whether it should be avoided or 
eliminated) on a case-by-case basis.
    Mitigation. We propose to incorporate with minor editing the 
Council on Environmental Quality's (CEQ) government-wide definition of 
``mitigation'' as it appears in 40 CFR 1508.20. An operator who must 
``mitigate'' damage to wetlands or riparian areas (See proposed 
Sec. 3809.420(b)(3).) or who must take

[[Page 6428]]

appropriate ``mitigation'' measures for a pit or other disturbance that 
is not backfilled (See proposed Sec. 3809.420(c)(7).), would have to 
take mitigation measures, which may include the measures listed in the 
proposed definition. BLM does not intend any portion of this 
definition, including ``avoiding the impact altogether by not taking a 
certain action,'' to preclude or prevent mining. However, an operator 
may have to avoid locating certain facilities in sensitive areas to 
avoid unnecessary impacts. Under the CEQ definition, compensating for 
an impact by replacing, or providing substitute, resources or 
environments is an acceptable form of mitigation. We specifically 
solicit comments on when compensation would be appropriate, how best to 
evaluate the amount of compensation, and whether compensation should be 
voluntary or mandatory.
    Most appropriate technology and practices (MATP). We propose to 
define MATP as equipment, devices, or methods that have demonstrable 
feasibility, success, and practicality in meeting the standards of this 
subpart. MATP would include the use of equipment and procedures that 
are either proven or reasonably expected to be effective in a 
particular region or location. MATP would not necessarily require the 
use of the most expensive technology or practice. BLM would determine 
whether the requirement to use MATP is met on a case-by-case basis 
during its review of a notice or plan of operations. We developed this 
concept in response to the Secretary of the Interior's direction that 
the rules should more clearly require the use of ``best available 
technology and practices'' or other similar technology-based standards 
(January 7, 1997 memorandum). However, we received many comments during 
public meetings asserting that BLM could not successfully apply a best 
available technology standard on the national level to an industry that 
is active in a variety of regions and uses a variety of mining 
techniques. In response, we developed MATP, which would be applied on a 
case-by-case basis.
    Proposed Sec. 3809.420(a)(2) would require an operator to use MATP 
to meet the standards of this subpart. We developed the concept of MATP 
in an attempt to allow operators flexibility in deciding how to carry 
out operations while assuring that the methods that operators employ 
have reasonable probability of effectiveness and success. We do not 
expect that the concept of MATP will adversely affect operators' 
ability to meet the outcome-based performance standards of proposed 
Sec. 3809.420.
    Operator. This proposed definition is based on the existing 
definition, but we propose to extend it to include a parent entity or 
an affiliate who materially participates in the management, direction, 
or conduct of operations at a project area. This is in accord with the 
Supreme Court's recent decision explaining the term ``operator'' in the 
Best Foods case (U.S. v. Best Foods et al., 118 S.Ct. 1876, 141 L.Ed. 
2d 43). In discussing the concept of direct parental liability for a 
facility, the court said that, ``The question is not whether the parent 
operates the subsidiary, but rather whether it operates the facility, 
and that operation is evidenced by participation in the activities of 
the facility, not the subsidiary.''
    Project area. We are proposing to revise the existing definition to 
eliminate the idea that a ``project area'' is a single tract of land 
upon which an operator conducts operations (Emphasis added.). Based on 
comments from BLM field staff, we believe that limiting a project area 
to a single tract of land creates an increase in the amount of notices 
without any concomitant benefits to lands or resources.
    Public lands. The proposed definition of ``public lands'' would 
replace the existing definition of ``Federal lands.'' We are proposing 
to use the definition of ``public lands'' found in FLPMA throughout 
this subpart for the sake of consistency and clarity.
    Reclamation. We are proposing to change the existing definition of 
``reclamation'' to mean measures required by this subpart following 
disturbance of public lands caused by operations to meet applicable 
performance standards and achieve conditions at the conclusion of 
operations required by BLM. The definition would also provide a list of 
some of the components of reclamation. Finally, the proposed definition 
would advise that a separate definition of ``reclamation'' exists for 
operations conducted under the mining laws on Stock Raising Homestead 
Act lands. This latter definition is part of another rulemaking that 
BLM is currently working on.
    Riparian area. We are proposing to add a definition of ``riparian 
area'' to this subpart. The proposed definition would identify riparian 
areas as a form of wetland transition between permanently saturated 
wetlands and upland areas that exhibit vegetation or characteristics 
reflective of permanent surface or subsurface water influence. The 
proposed definition would give some examples of riparian areas and 
would exclude ephemeral streams or washes that do not exhibit the 
presence of vegetation dependent upon free water in the soil. Proposed 
Sec. 3809.420(b)(3) would require an operator to avoid locating 
operations in riparian areas, where possible; minimize unavoidable 
impacts; and mitigate damage to riparian areas. It would also require 
an operator to return riparian areas to proper functioning condition 
and to take appropriate mitigation measures, if an operation causes 
loss of riparian areas or diminishment of their proper functioning 
condition. This definition is currently part of the BLM Manual (BLM 
1737, Dec. 10, 1992), and we are proposing to include it in this 
subpart for the convenience of the public.
    Tribe. We are proposing to define ``tribe'' or ``tribal'' as 
referring to a Federally recognized Indian tribe.
    Unnecessary or undue degradation (UUD). We are proposing a revised 
definition of UUD that eliminates the current reference to the 
``prudent operator'' standard because we believe it is too vague and 
subjective, and it may not be sufficient to prevent UUD, as required by 
section 302(b) of FLPMA. Instead, the proposed definition would define 
UUD in terms of failure to comply with the performance standards of 
this subpart (proposed Sec. 3809.420), the terms and conditions of an 
approved plan of operations, the operations described in a complete 
notice, and other Federal and State laws related to environmental 
protection and protection of cultural resources. UUD would also mean 
activities that are not ``reasonably incident to prospecting, mining, 
or processing operations as defined in existing 43 CFR 3715.0-5. We 
believe the proposed definition is more straightforward and easily 
measured than the ``prudent operator'' standard.
    BLM wishes to emphasize one conceptual difference between the 
existing and proposed definitions of UUD. The existing definition 
assumes that a valid operation exists at a location, and the impacts 
may not exceed those that would be caused by a prudent operator. The 
proposed definition would recognize that FLPMA amended the mining laws, 
subject to valid existing rights, by limiting the right to develop 
locatable minerals to those operations that prevent UUD. Our inclusion 
of the proposed performance standards in the proposed definition of UUD 
means that in some situations, BLM could disapprove operations that 
would fail to satisfy the performance standards. An operator does not 
have an unfettered right under the mining laws

[[Page 6429]]

to develop locatable minerals regardless of the level of surface 
disturbance.
    One commenter on an early draft of this proposed rule that we made 
publicly available on the Internet objected to the definition of UUD. 
The commenter asserted that in using the term UUD in section 302(b) of 
FLPMA, Congress was referring to surface disturbances caused by mining 
and did not authorize BLM to regulate impacts of mining operations on 
surface- or ground-water quality. The commenter cited section 603(c) of 
FLPMA, which deals with lands recommended for designation as wilderness 
areas, as supporting the assertion. Section 603(c) provides (in part) 
that the Secretary may take any action to prevent [UUD] of the lands 
and their resources or to afford environmental protection. (Emphasis 
added.) The commenter interpreted this language to mean that Congress 
was consciously not giving BLM environmental authority over mining 
operations on public lands not recommended for designation as 
wilderness areas. Since FLPMA was enacted, BLM has not ever agreed with 
with the commenter's view, and does not agree with it now. Section 
603(c) establishes a non-impairment standard for wilderness study 
areas. This is a more environmentally protective standard than UUD. The 
cited language relates to managing existing uses under the non-
impairment standard and providing additional protection to preserve 
wilderness values. BLM agrees that a non-impairment standard for 
preserving wilderness values is different from a UUD standard, but does 
not agree that a UUD standard contains no elements of environmental 
protection.

Section 3809.10 How Does BLM Classify Operations?

    This is a new section that would simply inform the reader of BLM's 
existing scheme for classifying operations in three categories: casual 
use, notice-level, and plan-level. For casual use, an operator 
generally need not notify BLM before initiating operations. For notice-
level, an operation must submit a notice to BLM before beginning 
operations, except for certain suction-dredging operations covered by 
proposed Sec. 3809.11(h). For plan-level, an operator must submit a 
plan of operations and obtain BLM's approval before beginning 
operations.

Section 3809.11 When Does BLM Require That I Submit a Notice or a Plan 
of Operations?

    Proposed Sec. 3809.11 is in the form of a table that would clarify 
when an operator would need to submit a notice or a plan of operations 
to BLM. The table also would provide informative references to other 
applicable sections of BLM's regulations. We propose to use tables 
throughout this subpart to reduce complexity and to make it easier for 
the reader to understand proposed requirements. This proposed section 
preserves BLM's three distinct levels of involvement dependent on the 
level of mining activity the operator proposes to conduct: casual use, 
notice-level, and plan-level.
    Proposed Sec. 3809.11(b) would continue the existing five-acre 
threshold for notice-level operations. See existing Sec. 3809.1-3(a). 
We are proposing two changes that would clarify exactly how the five-
acre threshold would work. First, the threshold would be ``unreclaimed 
surface disturbance of 5 acres or less of public lands.'' This would 
clarify some diverse interpretations of the existing threshold wherein 
some believe that any disturbance greater than five acres, even if it 
is reclaimed, requires a plan of operations. Other BLM offices have 
interpreted the existing threshold to mean that once a disturbance 
within the 5 acres is properly reclaimed, the operator can ``roll 
over'' that area and disturb an equivalent area without getting a new 
notice. BLM believes that the latter interpretation is correct, as long 
as any disturbance is reclaimed to the standards of this subpart, 
including the appropriate period of time for establishment of 
vegetation.
    We are also proposing to change the amount of advance notice that 
an operator planning to conduct notice-level operations must give BLM 
from 15 ``calendar'' days to 15 ``business'' days before the operator 
plans to start operations. We are proposing this change to allow BLM 
field staff more time to review notices.
    This proposed section also includes several new concepts as 
follows.
    Proposed Sec. 3809.11(e) would require the representative of a 
recreational mining group to contact the local BLM office with 
jurisdiction over the lands involved at least 15 business days before 
initiating activities to find out if the group must submit a notice or 
plan of operations. This would address situations where there are 
concentrations of recreational mining activities on public lands with 
resultant surface disturbances. Recreational mining tends to 
concentrate surface disturbance in areas popular for gold panning and 
other uses that, on an individual basis, are generally considered 
casual use. However, BLM is concerned that sustained or aggregated use 
in certain areas could cause cumulative impacts greater than casual 
use. Therefore, the intent of 3809.11(e) is for recreational mining 
groups to consult with BLM before conducting operations within a 
project area to ensure that any necessary steps are taken to reclaim 
impacts of the groups' activities. Under the proposal, the recreational 
mining group would not have to consult with BLM if it submitted a 
notice or plan of operations.
    Proposed Sec. 3809.11(f) would require an operator to submit a plan 
of operations for an operation involving any leaching or storage, 
addition, or use of chemicals in milling, processing, beneficiation, or 
concentrating activities, regardless of the amount of acreage that the 
operation would disturb. This would not include chemicals used for fuel 
or as lubricants for equipment. The potential impacts associated with 
use of leaching processes and chemicals are greater than the impacts 
that would be associated with operations that do not involve leaching 
or chemical use. Some of the chemicals used in leaching and processing, 
such as cyanide and mercury, are highly toxic. For this reason, BLM 
believes that the greater scrutiny given to plans of operations is 
warranted.
    Proposed Sec. 3809.11(h) would not require an operator to submit a 
notice or a plan of operations, if--
     The operations involve use of a portable suction dredge 
with an intake diameter of 4 inches or less,
     The State in which the operations occur requires 
authorization for its use, and
     BLM and the State have an agreement under proposed 
Sec. 3809.201 addressing suction dredging.
    This provision would be an exception to the general rule that all 
use of suction dredges requires either a notice or plan of operations, 
whichever is applicable. See also the definition of ``casual use'' in 
proposed Sec. 3809.5. The impacts of use of the smallest suction 
dredges (under 4 inches intake diameter) under a State permit and 
within the parameters of a BLM/State agreement under proposed 
Sec. 3809.201 would be controlled to the extent that BLM need not also 
regulate each operation. BLM believes that to also require a notice or 
plan of operations would be unnecessarily duplicative of State 
permitting requirements. We specifically request comments on the 
adequacy of State permitting requirements for suction dredges.
    Proposed Sec. 3809.11(i) would cross-reference regulations that BLM 
plans to promulgate under 43 CFR part 3810, subpart 3814, for 
operations proposed

[[Page 6430]]

on lands where the surface was patented under the Stock Raising 
Homestead Act and the minerals were reserved to the United States. 
Under FLPMA, such split-estate lands are ``public lands'' and are 
subject to BLM management. If an operator does not have written surface 
owner consent to conduct mineral activities, the operator would have to 
submit a plan of operations to BLM. This proposed addition reflects the 
requirements of the Stock Raising Homestead Amendments Act (Pub. L. 
103-23, 43 U.S.C. 299, as amended) which became effective after the 
effective date of the existing 3809 regulations.
    Proposed Sec. 3809.11(j) corresponds to existing Sec. 3809.1-4 and 
lists special status areas where BLM would require a plan of operations 
for all operations greater than casual use. We are proposing the 
following additions: areas specifically identified in BLM land-use or 
activity plans where a plan of operations would be required to allow a 
more detailed review of the effects of proposed operations on values 
listed in the section (proposed Sec. 3809.11(j)(6)); National Monuments 
and National Conservation Areas administered by BLM (proposed 
Sec. 3809.11(j)(7)); and all lands segregated in anticipation of a 
mineral withdrawal or withdrawn from operations under the mining laws 
(proposed Sec. 3809.11(j)(8)). These areas have officially recognized 
special values, such as wildlife habitat and cultural resources, where 
BLM believes it is appropriate to take a closer look at the potential 
effects of proposed operations in these areas and not to allow 
operations to begin before BLM approval.

Section 3809.11 ``Forest Service'' alternative) When Does BLM Require 
that I Submit a Notice or a Plan of Operations?

    Proposed Sec. 3809.11 is an alternative to the one discussed 
immediately above. Under this alternative, an operator would have to 
submit to BLM a complete notice of intention to operate 15 days before 
planned start-up if activities would be greater than those described in 
paragraph (a) of the table. After reviewing the notice of intention to 
operate, BLM would determine if proposed operations would be likely to 
cause significant surface disturbance. If so, the operator would have 
to submit a plan of operations and obtain BLM approval prior to 
commencing operations. This alternative would closely align procedures 
in subpart 3809 with Forest Service mining claim regulations, thereby 
providing a more consistent regulatory frame work for the public in the 
area of mining law surface management. See existing Forest Service 
regulations in 36 CFR part 211.
    We specifically request public comments on the pros and cons of 
selecting this alternative in lieu of the first one. One advantage we 
perceive is that adoption of the Forest Service alternative would make 
BLM's and the Forest Service's mining regulations correspond more 
closely and require an operator to be familiar with only one, rather 
than two, sets of threshold regulations. It could also simplify a 
situation where a mining claim overlaps the boundary between land 
administered by BLM and a National Forest. One disadvantage we perceive 
is that adoption of the Forest Service alternative could result in an 
increase in BLM's workload. The increase could come from having to 
review notices of intention for each proposed operation and possibly 
from an increased number of plans of operations based on determinations 
of significant disturbance.

Section 3809.100 What Special Provisions Apply to Operations on 
Segregated or Withdrawn Lands?

    We are proposing to add a new Sec. 3809.100 to govern proposed 
operations on pre-existing claims on segregated or withdrawn lands. 
Currently, BLM does not have any regulations to address this topic 
directly. The proposal would enable BLM to deal with operations on 
lands where additional protection has been deemed necessary through 
segregations or withdrawals. We would suspend the time frames for BLM 
approval of a plan of operations until we complete a validity 
examination report. Segregations or withdrawals would close lands to 
operation of the mining laws, subject to valid existing rights. The 
purpose of this provision is to ensure that BLM approves only mining 
operations based on valid claims in segregated or withdrawn areas. This 
furthers the purpose of the segregation or withdrawal in closing the 
land under the mining laws and prevents disturbance from occurring on 
claims subsequently determined to be invalid. Preparation of a mineral 
examination report would be discretionary for segregated lands because 
some segregations, for example, those in advance of a realty action, 
occur for purposes other than environmental protection.
    If BLM has not completed the mineral examination report, if the 
mineral examination report for proposed operations concludes that a 
mining claim is invalid, or if there is a pending contest proceeding 
for the mining claim, BLM would only approve a plan of operations for 
the purpose of sampling to corroborate discovery points or to comply 
with assessment work requirements. We considered an alternative 
approach that would allow BLM the option to approve a plan of 
operations pending the outcome of a validity determination. We decided 
not to propose this option because of the potential for unnecessary 
disturbance of segregated or withdrawn public lands.

Section 3809.101 What Special Provisions Apply to Minerals That May be 
Common Variety Minerals, Such as Sand, Gravel, and Building Stone?

    Proposed Sec. 3809.101 would address the long-standing issue of 
proposed mining of ``common variety minerals'' as defined in 3711.1(b) 
of this title, under the mining laws. Common variety minerals are not 
locatable under the mining laws and are normally sold at fair market 
value by BLM to an operator under 43 CFR part 3600. New language would 
prohibit operations for minerals that may be common variety until BLM 
has prepared a mineral examination report on the mining claims 
involved. This new requirement for a mineral report before allowing 
operations for minerals that may be common varieties would help ensure 
the public interest and the Federal treasury are protected because it 
would avoid giving away for free what the law on common varieties says 
must be disposed of for fair market value. See 30 U.S.C. 601 and 611 
and 43 CFR part 3600.
    If the report were to conclude that the minerals are common 
variety, the operator would either relinquish the mining claims, or BLM 
would initiate contest proceedings. Until BLM prepares a mineral 
examination report, interim operations could be authorized for 
sampling, performing minimum necessary annual assessment work, or for 
mining if an acceptable escrow account was established to cover the 
fair market value of the common variety mineral. We are proposing that 
BLM have the authority to dispose of common variety minerals from 
unpatented mining claims with a written waiver from the mining 
claimant. This proposal would require that 43 CFR 3601.1-1, concerning 
mineral material sales on mining claims, be amended to allow disposal. 
If we adopt this proposed provision, we will make conforming changes to 
43 CFR part 3600.

[[Page 6431]]

Section 3809.116 As a Mining Claimant or Operator, What are my 
Responsibilities Under This Subpart for my Project Area?

    This is a new section that would set forth clearly the 
responsibilities under subpart 3809 of mining claimants and operators 
for their project areas. We are adding this section in response to 
comments we received during development of this proposal that suggested 
that there is confusion as to exactly what responsibility mining 
claimants and operators have for their project areas under subpart 
3809, particularly when a project area has been abandoned. Absent a 
clear assignment of responsibility, society as a whole could have to 
bear the cost of any problems associated with abandoned operations. 
Proposed paragraph (a) would establish the principle that mining 
claimants and operators have joint and several liability for 
obligations under this subpart that accrued while they held their 
interests. This means that all mining claimants and operators would be 
responsible together and individually for obligations, such as 
reclaiming the project area. In the event obligations are not met, BLM 
would have the ability to take any action authorized under this subpart 
against either the mining claimant(s) or the operator(s), or both.
    We do not intend proposed Sec. 3809.116 to address or affect in any 
way obligations established under laws other than FLPMA and the mining 
laws.
    Under proposed paragraphs (b) and (c), we discuss how 
relinquishment, forfeiture, or abandonment of a mining claim or 
transfer of a mining claim or operations would affect the liability set 
forth in proposed paragraph (a). Relinquishment, forfeiture, or 
abandonment would not relieve a mining claimant's or an operator's 
responsibility for obligations or conditions created while the mining 
claimant or operator was responsible for operations on a mining claim 
or in a project area. Transfer of a mining claim or operation would 
relieve responsibility if the transferee accepts responsibility and BLM 
accepts adequate replacement financial guarantee. The parties to the 
transfer would have to send to BLM documentation that the transferee 
accepts responsibility. This documentation could take the form of a 
copy of the transfer agreement.

Federal/State Agreements

    This portion of the proposed rule (Secs. 3809.201 through 3809.204) 
would set forth the types of agreements that BLM and a State may enter 
to prevent administrative delay and avoid duplication of effort. It 
would also establish the procedure for setting up an agreement under 
which BLM would defer to State regulation of mining operations, the 
limitations on that type of agreement, and the effect of this subpart 
on existing agreements.

Section 3809.201 What Kinds of Agreements may BLM and a State Make 
Under This Subpart?

    This section would allow BLM and a State to make two kinds of 
agreements, one for a joint Federal/State program and one under which 
BLM would defer to State administration of the requirements of this 
subpart, subject to the limitations in proposed Sec. 3809.203. This 
section would incorporate existing Sec. 3809.3-1(c), which provides for 
setting up joint Federal/State programs.
    The authority for BLM to defer to State administration of their 
surface management provisions relating to the regulation of operations 
derives from section 303(d) of FLPMA, 43 U.S.C. 1733(d). Under that 
section, BLM may allow States to assist in the ``administration and 
regulation of use and occupancy of the public lands.'' In connection 
with the administration and regulation of the use of the public lands, 
Section 303(d) authorizes the Secretary to cooperate with States' 
regulatory and law enforcement officials in the enforcement of State 
law.
    Under proposed Sec. 3809.202, States would provide the assistance 
envisioned in FLPMA by regulating mining operations on public lands 
under their laws and regulations in lieu of BLM administration of 
subpart 3809. Despite such deferrals to States, BLM would not delegate 
its public land management responsibility under FLPMA and would retain 
certain responsibilities and authorities. These would include 
concurrence on approval of each plan of operations, concurrence on the 
approval and release of financial guarantees, and retention of 
necessary enforcement authority. This cooperative approach would 
provide meaningful responsibilities to the States, yet maintain both 
case-by-case and, under proposed Sec. 3809.203(e), programmatic 
oversight by BLM.
    State officials have inquired as to the availability of Federal 
funding for their activities if they were to enter into agreements 
under proposed Sec. 3809.202. Although section 303(d) of FLPMA 
authorizes the Secretary to reimburse States for expenditures incurred 
by them in connection with activities which assist in the 
administration and regulation of use and occupancy of the public lands, 
no such reimbursement could occur without Congressional appropriation.

SECTION 3809.202  Under What Condition Will BLM Defer to State 
Regulation of Operations?

    This is a new section that sets forth the procedure for a State to 
request and BLM to approve an agreement under which BLM would defer to 
State regulation of operations. A State would request an agreement from 
the BLM State Director. The State Director would provide an opportunity 
for public comment and would review the request to determine if the 
State's requirements are consistent with the requirements of this 
subpart. In determining consistency, the State Director would look at 
whether non-numerical State standards are functionally equivalent to 
BLM's counterparts; and whether numerical State standards, such as the 
five-acre threshold for plans of operations, are the same as 
corresponding BLM standards, except that State review and approval time 
frames do not have to be the same as the corresponding Federal time 
frames. The State Director would consider a State environmental 
protection standard that exceeds a corresponding Federal standard to be 
consistent with the requirements of this subpart. The State Director 
would make a written decision that could be appealed to the Assistant 
Secretary for Land and Minerals Management, Department of the Interior.

Section 3809.203 What are the Limitations on BLM Deferral to State 
Regulation of Operations?

    This is a new section that would establish limitations on deferral 
agreements. Even if BLM deferred to State regulation, BLM would have to 
concur with each State decision approving a plan of operations. This 
would enable BLM to fulfill its responsibility to assure compliance 
with this subpart and the National Environmental Policy Act. In 
comments on an earlier draft, States urged that, in an effort to reduce 
duplication of effort, BLM base its concurrence on any written findings 
the State may have prepared to support the State's decision approving a 
plan of operations. We specifically solicit comments as to whether this 
would be appropriate.
    BLM would continue to be responsible for all land-use planning on 
public lands and for implementing other Federal laws relating to the 
public lands for which BLM is responsible. BLM would continue to have 
the ability to

[[Page 6432]]

take any authorized action to enforce the requirements of this subpart 
or any term, condition, or limitation of a notice or an approved plan 
of operations. However, BLM would generally avoid subjecting an 
operator to Federal enforcement action for a violation where a State 
has already issued an enforcement action for the violation. The amount 
of the financial guarantee would be calculated based on the completion 
of both Federal and State reclamation requirements, but could be held 
as one instrument. If the financial guarantee is held as one 
instrument, it would have to be redeemable by both the Secretary and 
the State. BLM would have to concur in the approval and release of a 
financial guarantee for public lands. If BLM determined that a State 
was not in compliance with all or part of its Federal/State agreement, 
BLM would notify the State and provide a reasonable time for the State 
to comply. If a State does not comply, BLM would take appropriate 
action, which could include termination of all or part of the 
agreement. BLM anticipates that it would not look at isolated incidents 
in determining that a State is not in compliance with a Federal/State 
agreement. We would consider patterns, trends and programmatic issues 
more important indicators of State performance than isolated incidents. 
A State could terminate an agreement by notifying BLM 60 days in 
advance.

Section 3809.204 Does This Subpart Cancel an Existing Agreement Between 
BLM and a State?

    This is a new section that would allow existing joint program 
agreements to continue while BLM and a State perform a review to 
determine whether revisions are required under this subpart. The time 
frame for completing the review and making any necessary revisions to 
an agreement would be one year from the effective date of the final 
rule. We specifically request comments on whether the time frame is too 
long, too short, about right, or whether there should be a provision 
for extension of the one-year period. We also request comments on 
whether, and to what extent, there should be public participation in 
the review of existing agreements.

Operations Conducted Under Notices

    This portion of the proposal (proposed Secs. 3809.300 through 
3809.336) would govern operations conducted under notices. It is based 
primarily on existing Sec. 3809.1-3. We are proposing to use two 
tables: One would cover applicability of this subpart to existing 
notice-level operations (See proposed Sec. 3809.300.). This is a 
transition section to address notices in existence when a final rule 
becomes effective. The other table would govern when an operator may 
begin operations after submitting a notice (See proposed 
Sec. 3809.313.). For the sake of simplicity, we are not proposing a 
separate set of performance standards applicable only to notices. 
Instead, proposed Sec. 3809.320 simply references the plan-level 
performance standards of proposed Sec. 3809.420, where applicable. In 
many cases, some of the performance standards will not be applicable to 
notice-level operations. See the discussion of the performance 
standards of proposed Sec. 3809.420 later in this preamble. Notices 
would have two-year expiration dates, unless extended. This would 
significantly reduce the number of outstanding notices where operations 
have either never occurred or where reclamation has been completed to 
BLM's satisfaction, but the notice has not been formally closed by BLM.

Section 3809.300 Does This Subpart Apply to My Existing Notice-Level 
Operations?

    Proposed Sec. 3809.300 would allow operators identified in an 
existing notice already on file with BLM to continue operations for two 
years. After 2 years, the notice could be extended under proposed 
Sec. 3809.333. New operators would have to conduct operations under 
this subpart. If a notice has expired, the operator would have to 
immediately reclaim the project area or promptly submit a new notice 
under this subpart.

Section 3809.301 Where Do I File My Notice and What Information Must I 
Include in It?

    Proposed Sec. 3809.301 would replace the notice-content 
requirements of existing Sec. 3809.1-3. If the required information 
were not incorporated in the notice, BLM would not consider it to be 
complete and operations could not commence (See also proposed 
Sec. 3809.312.). Requirements for information about the operator would 
clarify the need for one individual point of contact if a corporation 
is named as the operator. The proposal would require a description of 
proposed operations, schedule of activities, and a map, as are 
generally found in existing section 3809.1-3. However, we are proposing 
several new requirements. The operator would have to describe measures 
to be taken to prevent unnecessary or undue degradation during 
operations. In contrast, existing section 3809.1-3(c)(4) requires only 
a statement that reclamation will be completed to the required 
standards, and that reasonable measures will be taken to prevent 
unnecessary or undue degradation during operations. The operator would 
have to submit a reclamation plan, not as a separate plan, but as part 
of the notice. The operator would have to describe how reclamation 
would be completed to the standards outlined in proposed Sec. 3809.420, 
as applicable. In addition, the operator would have to submit an 
estimate of the cost to implement the reclamation as planned. Also, the 
operator would have to notify BLM within 30 days of either a change of 
operator, point of contact or mailing address. These requirements are 
the minimum information needed by BLM to identify who will be 
conducting operations on the site, what activities are planned, and how 
reclamation will be accomplished.

Section 3809.311 What Action Does BLM Take When It Receives My Notice?

    Proposed Sec. 3809.311 would outline actions BLM would take when it 
receives a notice. BLM would have 15 ``business'' days from the time 
that we receive a notice to review it, compared to the existing 15-
calendar day time frame (See existing Sec. 3809.1-3(a).). If BLM were 
to determine that a submitted notice is incomplete, we would inform the 
operator of what additional information would be needed to comply with 
proposed Sec. 3809.301. A new 15-business day review period would 
commence upon receipt of each re-submittal of a notice, although where 
feasible, BLM would try to perform its review of the revised notice in 
a shorter time frame.

Section 3809.312 When May I Begin Operations After My Notice is 
Complete?

    Proposed Sec. 3809.312 would specify that an operator would be able 
to commence operations 15 business days after BLM receives a complete 
notice from that operator, or earlier if BLM informs the operator that 
it has completed its review, and after the operator provides a 
financial guarantee that meets the requirements of this subpart. This 
proposed would also alert the operator that operations may be subject 
to approval under 43 CFR part 3710, subpart 3715, which governs 
occupancy of public lands.

Section 3809.313 Under What Circumstances May I not Begin Operations 15 
Business Days After Filing my Notice?

    Proposed Sec. 3809.313 would outline, in table format, cases in 
which BLM may extend the time to process a notice. Under proposed 
paragraph (a), if BLM

[[Page 6433]]

needs additional time to complete it review of a notice, we would 
notify the operator of the additional period, not to exceed 15 business 
days, needed for completing our review. We are proposing to add this 
provision allowing extension of the notice review period in recognition 
of the fact that BLM occasionally has difficulty in performing its 
review within the current 15-day review time period. These cases 
typically have been due to the complexity of the proposed operations, 
the proposed location, or the fact that BLM staff specialists needed 
for the review were not available during the review period.
    Under proposed paragraph (b), we would clarify that BLM may require 
an operator to modify a notice before commencing operations if we 
believe the operations would likely cause unnecessary or undue 
degradation. We believe that an express reference to BLM's ability to 
require changes in notices will avoid administrative processing delays.
    Under proposed paragraph (d), BLM could notify an operator that 
operations may not start until BLM visits the site, and agency concerns 
about prevention of unnecessary or undue degradation arising from the 
visit are satisfied. We make an attempt to visit the site of any notice 
submitted for review to gather information and to consider whether any 
site-specific factors are present that should be taken into account 
during review of a notice. Sometimes, due to weather conditions that 
limit access or scheduling problems, we are unable to conduct the site 
visit within the 15-day review period. On the theory that an ounce of 
prevention is worth a pound of cure, we believe that any costs 
associated with delaying notice-level operations to conduct a site 
visit would be offset by the benefits of identifying and dealing with 
site-related problems before they occur.

Section 3809.320 Which Performance Standards Apply to My Notice-Level 
Operations?

    Proposed Sec. 3809.320 would require that notice-level operations 
meet all applicable performance standards listed in proposed 
Sec. 3809.420. See the discussion of performance standards later in 
this preamble under proposed Sec. 3809.420.

Section 3809.330 May I Modify My Notice?

    Proposed Sec. 3809.330 is a new provision that would clarify that 
an operator may modify an existing notice to reflect proposed changes 
in operations. BLM would review the modification under the same time 
frames proposed in Secs. 3809.311 and 3809.313. This provision 
addresses confusion over whether a notice may be modified. The existing 
regulations are silent on this topic.

Section 3809.331 Under What Conditions Must I Modify My Notice?

    Proposed Sec. 3809.331 would require that an operator modify a 
notice if BLM requires such modification to prevent unnecessary or 
undue degradation, or if the operator plans to make material changes in 
the operations. We would interpret material changes to be changes that 
would disturb areas not described in the existing notice, or result in 
impacts of a different kind, degree or extent than those described in 
the existing notice. Where an operator plans to make material changes, 
the operator would have to submit the modification 15 business days 
before making the changes. While BLM is reviewing the modification, the 
operator could halt operations or continue operating under the existing 
(unmodified) notice. However, BLM could require an operator to proceed 
with modified operations before the 15-day period has elapsed to 
prevent unnecessary or undue degradation.

Section 3809.332 How Long Does My Notice Remain in Effect?

    Proposed Sec. 3809.332 would provide for an effective period of 2 
years for a notice, unless extended under proposed section 3809.333 or 
unless the operator were to complete reclamation beforehand to the 
satisfaction of BLM, in which case BLM would notify an operator that 
the notice is terminated. We are proposing this new provision to 
address the situation where notices with no expiration dates remain 
``active'' on BLM records even if no operations are being conducted. An 
operator's obligation to meet all applicable performance standards, 
including reclamation, would not terminate until the operator has in 
fact satisfied the obligation.

Section 3809.333 May I Extend My Notice, and, if so, How?

    Section 3809.333 would contain a new provision to allow notices to 
be extended beyond the 2-year effective period outlined in proposed 
section 3809.332. This provision would accommodate notice-level 
operations that cannot be completed within 2 years. We are specifically 
requesting comments on whether the 2-year period is too long, too 
short, or about right.

Section 3809.334 What if I Temporarily Stop Conducting Operations Under 
a Notice?

    Proposed Sec. 3809.334 would expand existing Sec. 3809.3-7, which 
addresses periods of non-operation. The proposal would clarify that 
during such periods, the operator must take all steps necessary to 
prevent unnecessary or undue degradation as well as maintain an 
adequate financial guarantee. BLM would require in writing that the 
operator take such steps if the agency determines that unnecessary or 
undue degradation would be likely to occur.

Section 3809.335 What Happens When My Notice Expires?

    Proposed Sec. 3809.335 is a new provision that tells what must 
occur when a notice expires and is not extended. The operator would 
have to cease operations, except reclamation, and promptly complete 
reclamation as described in the notice. The operator's responsibility 
to complete reclamation would continue beyond notice expiration, until 
such responsibilities are satisfied. This provision would help address 
the problem of abandoned operations by clearly establishing the 
operator's responsibilities.

Section 3809.336 What if I Abandon My Notice-Level Operations?

    Proposed Sec. 3809.336 is a new provision that would outline what 
characteristics BLM would use to determine if it considers an operation 
to be abandoned. The section would also specify that BLM may, upon a 
determination that operations have been abandoned, initiate forfeiture 
of an operator's financial guarantee. BLM could complete reclamation if 
the financial guarantee were found to be inadequate, with the operator 
and all other responsible persons liable for the cost of reclamation. 
We intend that this provision will also address the problem of 
abandoned operations by clarifying the steps BLM could take to reclaim 
abandoned project areas.

Operations Conducted Under Plans of Operations

    This portion of the proposed rule (Secs. 3809.400 through 3809.424) 
contains regulations that would govern operations conducted under plans 
of operations.

Section 3809.400 Does This Subpart Apply to My Existing or Pending Plan 
of Operations?

    In developing this proposed rule, BLM has been mindful of the 
difficulty inherent in applying new rules to existing operations, 
particularly the type

[[Page 6434]]

of long-term, large scale operations that make up a significant portion 
of today's mining on public lands. Accordingly, in proposed 
Sec. 3809.400 and other proposed sections discussed later in this 
preamble, BLM would apply the performance standards and information 
collection requirements of this subpart to new operations and 
modifications and would limit the circumstances where they would apply 
to pending applications for operations and modifications. The first of 
these transition sections is in the form of a table that explains how 
this subpart would affect plans of operations that (1) BLM approved 
before this subpart becomes effective, or (2) are pending at the time 
this subpart becomes effective. For plans of operations already 
approved, these regulations would not change the applicable performance 
standards. This approach would prevent operators from having to make 
potentially costly changes in existing facilities and operations. The 
remaining provisions of this proposed subpart, such as those related to 
inspection and enforcement, would apply to existing operations.
    Similar transition provisions applicable to modifications of plan 
of operations would be set forth at proposed Secs. 3809.433-435. A 
transition period for financial guarantees for existing operations 
would be set forth at proposed Sec. 3809.505.
    Where an operator has submitted a plan of operations for BLM 
review, but BLM has not yet approved it when these regulations go into 
effect, we are proposing a cutoff date under Sec. 3809.400 after which 
the plan content requirements and performance standards of this subpart 
would apply to the pending plan of operations. If BLM has already made 
available to the public an environmental assessment (EA) or draft 
environmental impact statement (EIS) by the effective date of the final 
rule, a plan of operations would not be subject to the new content 
requirements or performance standards since the operator and BLM would 
have already committed considerable time and resources towards 
developing the plan under the existing regulations. If BLM had not 
processed a pending plan of operations to the point where it has made 
an EA or draft EIS available by that date to the public, then the plan 
would be subject to all provisions of the proposed regulations.
    We considered proposing an 18-month cutoff for pending plans, that 
is, if BLM had been reviewing a plan for 18 months or more when this 
subpart becomes effective, the plan would not be subject to the plan 
content requirements or performance standards of this subpart. However, 
we believe that a process milestone (the EA or EIS publication date) is 
less arbitrary than a fixed amount of time. A process milestone takes 
into account the specific circumstances of each plan review in a way 
that a fixed amount of time cannot.

Section 3809.401 Where do I File My Plan of Operations and What 
Information Must I Include With it?

    This section is the counterpart of existing Sec. 3809.1-5 and would 
tell operators what to include in a plan of operations and what 
supporting information BLM may also require to conduct its review of a 
plan. Based on our experience since 1980, the existing regulations do 
not require enough information about what an operator must submit. As a 
result, operators frequently do not initially submit the information 
BLM needs to review the anticipated impacts of a proposed operation, 
and time and resources are wasted on both sides in an effort to obtain 
the necessary information. Further, we believe that more specific 
information requirements will help to ensure that the information 
submitted in a proposed plan of operations is consistent from State to 
State. The proposal would require operator information; a description 
of proposed operations, including a map and a schedule of activities; 
and a reclamation plan, as are generally found in existing section 
3809.1-5. However, we are proposing several new requirements, discussed 
below.
    The introductory language of proposed paragraph (b) would require 
an operator or mining claimant to demonstrate that the proposed 
operations would not result in unnecessary or undue degradation of 
public lands. We intend this provision to place the responsibility for 
showing no unnecessary or undue degradation on those who are seeking to 
conduct operations. This provision does not appear in the existing 
regulations, and some have taken the position that BLM must approve a 
plan unless BLM can prove the plan will cause unnecessary or undue 
degradation. The proposal would clarify that the burden is on the 
operator or mining claimant to make an acceptable demonstration. If the 
operator or mining claimant fails to do so, BLM would require submittal 
of additional information, submittal of a modified proposal, or would 
disapprove the plan.
    Proposed paragraph (b)(1) would add to the information that BLM 
requires to identify an operator the requirement to submit the social 
security number or corporate identification number of the operator(s), 
the BLM serial numbers of any unpatented mining claim(s) where 
disturbance would occur, and a corporate point of contact. This 
information is necessary to identify the operator(s), identify and 
locate the claim(s) involved, and enable contact with the operator. 
This proposed paragraph would also require the operator to notify BLM 
in writing within 30 days of any change in the operator, the corporate 
point of contact, or their addresses. This requirement will allow BLM 
to maintain an accurate list of contacts.
    Proposed paragraph (b)(2) would specify the types of plans that an 
operator must submit to adequately describe proposed operations, 
including water management plans, rock handling plans, quality 
assurance plans, and spill contingency plans, among other things. These 
plans and the other items listed in this paragraph are necessary for 
BLM to review and approve a plan of operations. We intend that the 
information submitted in response to these requirements will be 
sufficient to fully describe the proposed operations. At the same time, 
we recognize that in the initial phase of developing a mining 
operation, complete, detailed designs and plans are not always 
available. If we adopt this proposal, we would encourage anyone 
planning to submit a plan of operations for review to contact the local 
BLM office beforehand to discuss the level of detail that would be 
responsive to these information requirements.
    Proposed paragraph (b)(3) incorporates and expands existing 
Sec. 3809.1-5(c)(5), which requires measures to prevent unnecessary or 
undue degradation and to reclaim disturbed areas. We are proposing to 
add a list of items that the reclamation plan must address, where 
applicable, including drill-hole plugging, regrading, mine reclamation, 
riparian mitigation, and wildlife habitat rehabilitation, among other 
things. This list is not all-inclusive. It is intended to be used as a 
checklist by the operator to ensure that reclamation activities are 
adequately described. Depending on the nature of the proposed 
operations, the reclamation plan might also contain information related 
to other topics.
    Proposed paragraph (b)(4) would require an operator to submit a 
plan for monitoring the effect of operations. Under this provision, BLM 
could expressly require an operator to collect data to detect potential 
adverse impacts before they cause extensive or irreversible damage. 
Because the existing regulations do not specifically

[[Page 6435]]

and explicitly require a monitoring plan, some BLM offices have been 
reluctant to ask for, and some operators have been reluctant to 
provide, this type of information, thereby foregoing an important tool 
for preventing unnecessary or undue degradation. This requirement 
should benefit both the operator and the Nation as a whole since it is 
far less costly to remedy a problem when it is detected early.
    Proposed paragraph (c) would require an operator to submit certain 
operational and baseline environmental information to enable BLM to 
analyze potential environmental impacts as required by the National 
Environmental Policy Act (NEPA). There is no counterpart to this 
provision in the existing regulations. BLM must collect this 
information to fulfill its NEPA responsibilities, as well as to analyze 
a proposed plan of operations. For the most part, BLM currently 
collects this information, but this proposed provision would clarify 
BLM's authority. This proposed provision would also clarify BLM's 
authority to collect information concerning impacts and activities on 
non-public lands if BLM needs the information to analyze a plan of 
operations. This provision is not included in the existing regulations 
and would clarify the extent of BLM's authority with regard to non-
public lands. This provision is not intended to extend BLM's regulatory 
authority to non-public lands. However, BLM may need information 
concerning non-public lands that are adjacent to or near proposed 
operations on public lands to analyze the impact of the operations and 
the operations' potential for unnecessary or undue degradation of 
public lands.
    The existing financial guarantee regulations do not specify who 
prepares the financial guarantee calculations, though in many cases the 
operator has been providing the initial estimate. Proposed paragraph 
(d) would address any confusion by clearly putting the burden of 
preparing the initial reclamation cost estimate on the operator. The 
estimate would be subject to BLM review and acceptance as provided in 
proposed Sec. 3809.554(b). Because the reclamation cost estimate would 
likely depend on mitigation measures developed in the NEPA compliance 
process, the operator would not have to submit the estimate with the 
initial plan of operations. BLM would tell the operator when to submit 
the reclamation cost estimate.

Section 3809.411 What Action will BLM Take When it Receives My Plan of 
Operations?

    Proposed Sec. 3809.411 would outline the range of actions BLM could 
take when it receives a proposed plan of operations. This section 
corresponds to existing Sec. 3809.1-6, which has been reorganized and 
edited for clarity. In summary, BLM would review the plan of operations 
within 30 business days and could--
     Approve the plan of operations as submitted;
     Request additional information;
     Approve the plan of operations subject to required 
changes;
     Delay approving the plan of operations until certain 
additional steps are completed, for example, NEPA compliance and 
Endangered Species Act consultation; or
     Disapprove the plan of operations.
    The existing regulations provide for approval of a plan of 
operations within 30 (calendar) days. The proposed regulations would 
require BLM to review a proposed plan of operations within 30 
``business'' days and would remove the time frame by which BLM 
previously had to approve plan of operations that required preparation 
of an environmental impact statement. This is not so much a change in 
procedures as a recognition of current practices. Due to workload 
demands, staffing levels, NEPA compliance activities, and the 
increasing need to consult with outside agencies or Tribal governments, 
setting a review time limit on plans of operations is no longer 
practical.
    The existing regulations do not say under what circumstances BLM 
will withhold approval or disapprove a plan of operations. As a result, 
some BLM staff have assumed, and some prospective operators have 
asserted, that BLM cannot deny a plan of operations. Proposed paragraph 
(c) would clarify that BLM has the authority to withhold approval for, 
or disapprove, a plan of operations under certain circumstances to 
prevent unnecessary or undue degradation.
    We considered a provision that would have required BLM to 
disapprove a plan of operations if it would have predicted permanent 
water treatment to meet water quality standards. We provided a draft 
rule with this provision to State and Federal agencies and posted the 
draft on the Internet on BLM's web page. This provision generated much 
public interest; many commenters opposed inclusion of it.
    We decided not to propose it for a number of reasons. It is often 
difficult to determine in advance when permanent treatment will be 
necessary. If an unanticipated need for permanent treatment becomes 
apparent during the course of operations, it is too late to disapprove 
the plan of operations. Precluding operations involving permanent 
treatment could have the unintended effect of encouraging prospective 
operators to claim that permanent treatment would not be necessary 
when, in fact, it would. We concluded that it would make more sense to 
discuss the nature of required treatment and assurances that it would 
continue than to argue over whether treatment would be permanent. Under 
a permanent treatment prohibition, if BLM approves the plan of 
operations based on a finding that no permanent treatment would be 
necessary, and it later becomes apparent that permanent treatment is 
necessary, none of the treatment measures and infrastructure would be 
in place. Where treatment is the only available technology that will 
achieve compliance with the water quality standards, a trust fund or 
other long-term funding mechanism effectively ensures permanent 
treatment requirements are met. Thus, the proposed regulations would 
emphasize use of source control methods over long-term or permanent 
treatment and would allow permanent treatment only after source control 
methods have been fully applied, or as a backup technology, and only 
with an adequate long-term funding mechanism in place.
    Proposed paragraph (d) would require that before BLM approves a 
plan of operations, BLM will publish the reclamation financial 
guarantee amount and an explanation of the basis for the amount in a 
local newspaper of general circulation or in a NEPA document, and 
accept comments for 30 days. A NEPA document could be an environmental 
assessment or an environmental impact statement (EIS). This is a new 
requirement that would increase the level of public participation in 
the plan approval process by giving the public access to the cost 
estimating sources and assumptions used to arrive at the reclamation 
financial guarantee amount. We are proposing this provision because we 
believe public participation will result in better informed decisions 
by BLM in its role as manager of public lands. We specifically request 
comments on--
     Whether, and to what extent, obtaining public comments on 
the financial guarantee amount should be integrated into the NEPA 
process;
     Whether, and to what extent, the public would be 
interested in

[[Page 6436]]

commenting on proposed financial guarantee amounts;
     Whether the 30-day comment period is too long or too 
short;
     Whether the opportunity for public comment should be 
limited to operations for which an EIS is prepared; and
     Whether there is any benefit to publication of financial 
guarantee amounts for small exploration operations.

Section 3809.412 When May I Operate Under a Plan of Operations?

    Proposed Sec. 3809.412 would specify that BLM must approve a plan 
of operations, and the operator must provide the required financial 
guarantee before the operator may begin conducting operations. This 
provision would clarify the existing regulations, which, while 
requiring a plan of operations and reclamation financial guarantee, do 
not specifically prohibit conducting operations until these 
requirements are met. A small number of operators have assumed they 
could proceed with operations prior to plan approval or posting of the 
financial guarantee.

Section 3809.415 How Do I Prevent Unnecessary or Undue Degradation 
While Conducting Operations on Public Lands?

    The existing regulations define the term, ``unnecessary or undue 
degradation,'' but do not specify what the operator is expected to do 
in order to prevent it. Proposed Sec. 3809.415 would provide specific 
guidance to operators in understanding their obligations by tying all 
of the components of the definition to an enforceable requirement. BLM 
anticipates that the clarity of this provision, plus the enumeration of 
performance standards in proposed Sec. 3809.420, will improve 
compliance.

Section 3809.420 What Performance Standards Apply to My Notice or Plan 
of Operations?

    The existing regulations provide general performance standards in 
areas such as performing reclamation and complying with all applicable 
State and Federal environmental requirements. In reviewing the existing 
regulations, BLM determined that additional detailed standards would 
assist both operators and BLM in defining and preventing unnecessary or 
undue degradation. We considered several alternative approaches for 
developing standards. One alternative was to create standards that 
would specify the design and operating requirements for exploration, 
mining, and reclamation components. These requirements would then serve 
as minimum national requirements that would apply to all operations, 
specifying how operations had to be designed, constructed, and 
operated. We rejected this approach as too inflexible and impractical 
given the range of environmental settings on the public lands and the 
wide variety of exploration and mining activities.
    The approach generally chosen for the proposed regulations is to 
focus on the outcome or accomplishment that the operator must achieve. 
These ``outcome-based'' performance standards put minimum emphasis on 
how the operator conducts the activity so long as the desired outcome 
is met. This allows the operator maximum flexibility, encourages 
innovation, and fosters the development of low-cost solutions. In 
implementing the proposed regulations, BLM would review the notice or 
proposed plan of operations to determine if it is reasonably likely to 
meet each outcome-based performance standard, but we would not require 
any specific design be used.
    We are proposing to divide the performance standards in this 
section of the proposed regulations into three groups:
     General performance standards,
     Environmental performance standards, and
     Operational performance standards.
This would be done to distinguish the broad performance standards such 
as concurrent reclamation and land use plan conformance from the 
environmental performance standards that are specific to certain media 
like air or water; or from the operational standards which describe 
what operational components of a project must achieve.
    General performance standards. Proposed paragraph (a) contains the 
general performance standards, which would clarify how an operator must 
conduct overall operations. Proposed paragraph (a)(1) would require an 
operator to use most appropriate technology and practices (MATP) to 
meet the standards of this subpart. Commenters on early drafts of this 
subpart expressed confusion over the relationship between the 
requirement to use MATP and the requirement to meet the performance 
standards. We intend that all operations must fully achieve the 
performance standards. As discussed earlier in this preamble, MATP 
would be established on a case-by-case basis, which would allow 
operators to demonstrate that their activities constitute MATP.
    Proposed paragraph (a)(2) would require operators to avoid 
unnecessary impacts by following a reasonable and customary mineral 
exploration, development, mining, and reclamation sequence. This 
provision would expand on the ``unnecessary'' part of the existing 
definition of ``unnecessary or undue degradation.'' There have been 
past instances where operators have created unnecessary impacts by not 
following a reasonable and customary sequence. This requirement would 
prevent activity from being conducted that was substantially out of 
sequence with reasonable and customary mineral development practices, 
resulting in unnecessary impacts. We intend that this performance 
standard would be applied on a large scale as it relates to sequencing. 
For example, we do not intend it to be used to regulate the precise 
number of drill holes needed to define an ore deposit, or the size of a 
leach pad or waste rock disposal area. We intend it to be applied in 
those extreme cases where an operator intends to construct extensive 
access, infrastructure systems, or initiate mining, without having 
first done any exploration activity to determine whether a mineral 
deposit is present.
    Proposed paragraph (a)(3) would require an operator, consistent 
with the mining laws, to comply with applicable BLM land-use plans and 
activity plans and with coastal zone management plans, as appropriate, 
where such plans have been prepared. Land-use plans, including 
Management Framework Plans, Resource Management Plans and activity 
plans, are BLM's main guidance documents for multiple use management of 
the public lands. The existing regulations do not integrate activities 
conducted under the authority of the mining laws with resource 
management guidance developed through the land-use planning process. 
The purpose of this proposed performance standard is to use the 
resource information and management guidance developed during the 
planning process to provide for appropriate consideration of other 
resources.
    Mining industry representatives have asserted that land-use 
planning does not apply to operations under the mining laws because 
section 302 of FLPMA states that, with certain exceptions (including 
the UUD prohibition), FLPMA did not amend the mining laws. BLM 
disagrees to the extent that BLM's land-use planning can be integrated 
with the subpart 3809 surface management requirements without impairing 
rights established under the mining laws. For instance, the management 
guidance or prescriptions

[[Page 6437]]

included in land-use plans cannot be so stringent as to deny rights 
obtained under the mining laws. Other processes, such as a withdrawal 
action and/or mineral contest, must be used in areas where mining has 
to be excluded, subject to valid existing rights, to protect other 
resource values.
    Some commentors on early drafts of this proposed subpart expressed 
confusion about how the performance standards would mesh with BLM's 
standards and guidelines for grazing administration (43 CFR part 4100, 
subpart 4180). The rangeland health standards are expressions of 
physical and biological conditions or degree of function required of 
healthy sustainable lands. Operations under this subpart would have to 
comply with the performance standards of proposed Sec. 3809.420. These 
performance standards will ensure that rangeland health standards can 
be met. To the extent that the standards and guidelines are 
incorporated into BLM's land-use plans, they will be reflected in the 
plans of operations that BLM approves under this subpart. BLM, in its 
role as manager of the public lands over the long term, will assess 
lands affected by operations for progress towards achieving rangeland 
health after reclamation is completed.
    Proposed paragraph (a)(4) would require an operator to take 
mitigation measures specified by BLM to protect public lands. This 
requirement is not found in the existing regulations, but would 
recognize current practice. See also the definition of ``mitigation'' 
at proposed Sec. 3809.5. BLM would determine the required mitigation on 
a case-by-case basis to minimize the impacts and environmental losses 
from operations. The measures could be developed through the NEPA 
process.
    Environmental performance standards. Proposed paragraph (b) 
contains environmental performance standards that would describe the 
outcome an operation must achieve relative to each environmental 
resource. Many of the proposed environmental performance standards 
would incorporate a requirement to comply with other State and Federal 
laws and regulations. The existing regulations currently use this 
approach so that BLM does not become involved in setting standards in 
areas where Congress has authorized other agencies to do so. A few 
commenters on early drafts of this proposed subpart thought BLM was 
trying to inappropriately extend its jurisdiction or responsibility. We 
do not agree, and in certain respects, we are merely carrying over 
existing language into the proposal. See, for example, existing 
Sec. 3809.2-2(a), (b), and (c).
    For some of the standards, the proposed regulations elaborate on 
the desired approach to achieve the standard. This is consistent with 
BLM's authority and responsibility as manager of public lands. In 
accord with the proposed outcome-based regulatory scheme, however, we 
generally do not require a particular approach. For example, one 
standard would require an operator to give preference to the use of 
pollution prevention technologies (source control) over pollution 
treatment or remediation, but would not specify what source control 
techniques the operator must use.
    For proposed paragraph (b)(2), the water resources performance 
standard, we considered an alternative approach that would have 
established a numeric standard for groundwater affected by operations. 
Currently, there is no Federal groundwater standard, and some States do 
not have their own groundwater standards. We decided not to propose a 
numeric standard because of the difficulty of designing a nationwide 
numeric standard relevant to the range of groundwater conditions and 
public-use levels near minesites. We believe the States are better 
positioned to develop groundwater standards applicable within their 
borders. Instead, the proposed regulations would adopt a pollution 
prevention requirement, in preference to treatment or remediation, and 
rely on applicable State standards for groundwater protection where 
they are present.
    The existing regulations do not have a performance standard for 
wetlands or riparian areas. We recognize that dredge and fill 
activities in ``jurisdictional wetlands'' are regulated by the U.S. 
Army Corps of Engineers (COE). We are not proposing to duplicate the 
existing COE regulatory scheme under section 404 of the Clean Water 
Act. However, not all riparian areas contain vegetation dependent on 
saturated soil that qualifies them as jurisdictional wetlands. The COE 
regulates activities that occur in or that impact jurisdictional 
wetlands. BLM, as a land management agency, manages wetlands and 
riparian areas to maintain their proper functioning condition. This 
role is different from and not duplicative of the COE responsibility 
over jurisdictional wetlands.
    This standard would govern wetlands and riparian areas that are not 
considered ``jurisdictional wetlands.'' Wetland and riparian areas are 
extremely valuable to the ecosystem, especially in the arid west. 
Wetlands and riparian areas often occur in the topographically low 
portions of the project area, which are also preferred by mine 
operators as natural containment basins for waste rock placement or 
construction of tailings impoundments or leaching facilities, and, of 
course, placer operations almost exclusively operate in these areas. 
Proposed paragraph (b)(3) would establish a hierarchy of (1) avoiding 
locating in, (2) minimizing impacts to, and (3) mitigating damage to 
wetland and riparian areas. This provision would minimize, to the 
extent feasible, disturbance in these areas and promote restoration of 
unavoidable disturbance. In applying this hierarchy, we intend that 
activities directly involved with ore recovery would not be treated the 
same as activities associated with access, processing, and waste 
handling. That is, while ore recovery activities might have to be 
located in a wetland due to their site-specific nature, we would expect 
operators to avoid locating other activities, such as roads and waste 
dumps, in wetlands.
    Proposed paragraph (b)(5) would incorporate and expand upon the 
revegetation requirement in the existing regulations. Since BLM issued 
the existing regulations in 1980, there has been considerable 
development in the science of revegetation and an increased awareness 
as to the importance of achieving successful revegetation. The proposed 
revegetation performance standard would incorporate the concepts of 
adequate revegetation diversity and density, use of native species, 
timeliness of reclamation, and the importance of controlling noxious 
weed infestations into the reclamation requirements. At the same time, 
the proposal would recognize that where revegetation is not possible, 
other techniques must be used to prevent erosion and stabilize 
disturbed areas.
    Proposed paragraph (b)(6) would not materially change existing 
Sec. 3809.2-2(d), the performance standard for fish and wildlife 
protection. We considered requiring an operator to ``enhance'' wildlife 
habitat during reclamation (and included the provision in a draft that 
we made publicly available). We decided not to propose it because of 
the subjectivity involved in determining what is an enhancement and 
because it can be inequitable or impractical to require the operator to 
improve habitat values above pre-disturbance conditions.
    Proposed paragraph (b)(7) would make several changes to existing 
Sec. 3809.2-2(e) regarding protection of cultural and paleontologic 
resources. We are proposing to give the same level

[[Page 6438]]

of protection to cave resources as the existing regulations give to 
cultural and paleontological resources. The terms ``cave'' and ``cave 
resources'' are defined at 43 CFR 37.4. Caves may contain important 
cultural, biological, and geological resources. These resources should 
be identified before initiating operations so that mitigating measures 
can be incorporated into proposed operations. We considered adding a 
separate performance standard for cave resources, but decided to 
combine this standard with the cultural and paleontological resources 
standard due to the similarity in procedures used to consider cave 
resources, and the overlap between the occurrence of cave resources and 
cultural or paleontological resources.
    Proposed paragraph (b)(7)(i) would clarify and make explicit BLM's 
interpretation of existing Sec. 3809.2-2(e)(1). The existing paragraph 
provides that operators shall not knowingly disturb, alter, injure, or 
destroy any scientifically important paleontologic remains or any 
historical or archaeological site, structure, building or object on 
Federal lands. This has been construed to preclude such activities by 
operators, unless such actions are approved in advance by BLM after 
appropriate site investigation, and necessary actions to protect, 
remove, or preserve the resource. This procedure would be codified in 
the proposed rules.
    Proposed paragraph (b)(7)(ii) would change the time frame for 
action on cultural, paleontologic, and cave resources that are 
discovered after initiating operations from a mandatory 10 working days 
to 20 working days, unless otherwise agreed to by the operator and BLM, 
or unless otherwise provided by law. The time frame at existing 
Sec. 3809.2-2(e)(2) is not adequate to accomplish the site 
investigation, data recovery, and consultation required with State and 
Federal cultural resource agencies, or with interested parties. We 
considered proposing an open-ended suspension of operations until 
investigation and data recovery is complete. We decided not to propose 
this alternative due to the possible adverse impacts an indefinite 
suspension could have on an operator.
    In proposed paragraph (b)(7)(iii), we would change the 
responsibility for costs associated with investigation, recovery, and 
preservation of resources discovered during operations from the 
government to the operator. BLM believes that since the operator is 
responsible for the disturbance and is generating revenue from the 
extraction of publicly owned locatable minerals, the operator receives 
a benefit from the investigation and recovery (the ability to continue 
to operate) and, thus, generally should be responsible for the costs as 
a cost of doing business on public lands. If BLM were to incur costs 
from the investigation, recovery, and preservation of discovered 
resources, the proposal would provide that BLM will recover the costs 
as determined on a case-by-case basis after an evaluation of the 
reasonableness of doing so under the factors set forth in section 
304(b) of FLPMA, 43 U.S.C. 1734(b). BLM may decide to recover less than 
all of the actual costs on a case-by-case basis depending upon the 
nature of the discovery and the potential benefit to the general public 
and the other factors specified in section 304(b) of FLPMA .
    Operational performance standards. Proposed paragraph (c) contains 
operational performance standards that describe the outcome that must 
be achieved by the various project components or facilities associated 
with mineral exploration and development. Proposed paragraph (c)(1) 
would incorporate existing Sec. 3809.1-3(d) and a portion of existing 
Sec. 3809.3-3(b). It would also require an operator to design, 
construct, and maintain roads and structures to control or prevent 
erosion, siltation, and air pollution and minimize impacts to 
resources. Access roads frequently make up the majority of acreage 
disturbed by exploration and smaller mining operations. For this 
reason, it is important to control the impacts associated with roads.
    Many of the operational performance standards are standard 
operating practices currently used by the industry. For example, 
proposed paragraph (c)(2) would require an operator to control drill 
fluids and cuttings and correctly plug drill holes. This would be a new 
requirement in the regulations, but one that is already being followed 
by the majority of operators.
    Proposed paragraphs (c)(3) and (4) consist of requirements from 
BLM's existing acid mine drainage policy (BLM Instruction Memorandum 
96-79, April 2, 1996) and cyanide management policy (BLM Instruction 
Memorandum 90-566, August 6, 1990, amended November 1, 1990), 
respectively. Incorporating these policies into the proposed 
regulations will make them more readily available to operators and 
provide for a more consistent application of the requirements.
    While not requiring a specific design, the performance standard for 
mine components that contain acid-forming, toxic, or other deleterious 
materials (proposed Sec. 3809.420(c)(3)) requires an operator to make 
source control and pollution prevention measures the priority 
consideration in facility design and operations. It is in this one area 
that the proposed performance standards go beyond a purely outcome-
based standard and require a certain technical approach be taken to 
meet the applicable water quality standards. BLM believes this is 
justified because of the long-term, and perhaps permanent, commitment 
of resources that accompanies proposals for the post-reclamation 
collection and treatment of acidic, toxic, or other deleterious 
drainage. Several commenters on early drafts of this proposed rule 
suggested we provide a definition of ``deleterious.'' We note that the 
word is found in the existing regulations (Sec. 3809.1-3(d)(2)), which 
have been in place for nearly two decades. In the interest of brevity, 
we decided not to propose a definition at this time.
    Proposed paragraph (c)(4), the performance standard for leaching 
operations and impoundments, would include requirements from the 
existing BLM cyanide management policy. The requirement for leaching 
systems to contain precipitation from the local 100-year, 24-hour storm 
event would be modified slightly from the policy to remove the 
qualifier ``* * * unless otherwise specifically authorized for such 
facilities under State or Federal law.'' BLM believes modification of 
the policy requirement is appropriate and that the ability to contain 
the precipitation of a 100-year, 24-hour storm event is the minimum 
performance acceptable for use of leaching systems on public lands. 
There were some early comments on drafts that we made publicly 
available that because this performance standard contains a number, it 
is really a design standard. We do not agree. The standard is the 
ability to contain a certain excess amount of solution that enters the 
process circuit as precipitation, thus preventing overflow and release 
to the environment. The standard does not specify how containment is to 
be accomplished or what design to use, only the performance that must 
be achieved. The local 100-year, 24-hour storm event is a way to 
describe the amount of precipitation that must be contained. The actual 
size of this storm event varies from location to location.
    Proposed paragraph (c)(5) would require an operator to locate, 
design, construct, operate, and reclaim waste rock, tailings, and leach 
pads to minimize infiltration and contamination of surface water and 
ground water; achieve stability; and, to the extent feasible, blend 
with pre-mining, natural topography. This proposed provision

[[Page 6439]]

expands upon existing Sec. 3809.1-3(d)(2), which requires prevention of 
UUD and adherence to applicable laws in disposing tailings, dumps, 
deleterious materials or substances, and other waste.
    Proposed paragraph (c)(6) is the stability, grading, and erosion 
control performance standard. Under proposed paragraph (c)(6)(1), an 
operator would have to grade or otherwise engineer all disturbed areas 
to a stable condition to minimize erosion and facilitate revegetation. 
This provision is a restatement of existing Sec. 3809.1-3(d)(4)(iv).
    Existing Sec. 3809.1-3(d)(3) allows disturbed areas to remain 
unreclaimed to preserve evidence of mineralization. Proposed paragraph 
(c)(6)(ii) would modify this provision by stating that disturbed areas 
may ``temporarily'' remain unreclaimed to preserve evidence of 
mineralization. We are proposing this change to ensure that disturbed 
areas are not left unreclaimed indefinitely. There are legitimate 
reasons that certain areas must remain open to show evidence of 
mineralization (for example, patenting). However, the operator must 
reclaim all areas for which the operator is responsible. BLM 
anticipates that the operator will describe any areas left open to 
establish mineralization in the reclamation plan, along with a time 
frame for completion of final reclamation.
    The existing regulations do not specify a performance standard for 
mine pit reclamation, stating only the reclamation measures that must 
be used ``where reasonably practicable.'' Proposed paragraph (c)(7)(i) 
would require an operator to backfill mine pits unless the operator 
demonstrates it is not feasible for economic, environmental, or safety 
reasons. The proposal would change the assumption from generally 
regarding backfilling as impractical, to one of assuming it is 
practical unless demonstrated otherwise. BLM believes that the burden 
of proof regarding the feasibility of pit backfilling should be on the 
operator to say why backfilling is not practical. The proposal would 
ensure that operators consider backfilling options for all operations.
    We do not intend the economic feasibility determination anticipated 
under the proposed pit backfilling requirement to be a detailed review 
of the project economics, such as rate of return on investment. BLM 
does not intend to determine what is a reasonable profit margin for 
mine operators. The fact that an operator could conduct complete 
backfilling and still show a profit does not automatically mean BLM 
would require backfilling. Nor does it mean that an operation which 
appears to be uneconomic, even without any backfilling, is exempt from 
performing backfilling. When considering the economic feasibility of 
pit backfilling, BLM would weigh the anticipated environmental benefits 
in relation to operational economic factors such as: whether the 
project is a single or multiple pit operation, the distance and grade 
from mine site to waste rock storage versus backfill location, the 
direct haul cost versus temporary storage and rehandling cost, and the 
reclamation costs as a function of disturbance area size.
    Proposed paragraph (c)(7)(ii) would require mitigation for pit 
areas that are not backfilled. The type of mitigation anticipated is 
not a dollar-for-dollar cost compensation (That is, for every dollar of 
backfill cost saved, one dollar must be spent on mitigation.) or 
necessarily an acre-for-acre compensation (For every acre of 
unreclaimed pit, one acre must be provided as mitigation.). Instead, 
the intent of the mitigation requirement is to insure that the impacts 
associated with not backfilling pit areas are mitigated. For example, 
if leaving a pit highwall creates a safety hazard, required mitigation 
may include erecting perimeter fencing and posting hazard signs. If the 
pit area is in critical wildlife habitat that cannot be restored unless 
backfilled, then the mitigation may require providing replacement 
habitat at another location.
    Proposed paragraphs (c)(8), (9), (10), and (11) are the performance 
standards for solid waste, fire prevention and control, maintenance and 
public safety, and protection of survey monuments respectively. We have 
carried them over from the existing regulations with minor editing. See 
Secs. 3809.2-2(c), 3809.3-4, 3809.3-5, and 3809.2-2(f) respectively.

Section 3809.423 How Long Does My Plan of Operations Remain in Effect?

    Proposed Sec. 3809.423 would provide that a plan of operations 
remains in effect as long as the operator conducts operations, unless 
BLM suspends or revokes the plan of operations for failure to comply 
with this subpart. BLM's suspension and revocation provisions are found 
in proposed Secs. 3809.601 and 3809.602, which are discussed later in 
this preamble. There is no counterpart to this provision in the 
existing regulations, which has the effect of allowing a plan of 
operations to remain in effect indefinitely.

Section 3809.424 What Are My Obligations if I Stop Conducting 
Operations?

    Proposed Sec. 3809.424 would establish an operator's obligations if 
the operator stops conducting operations. This section appears in table 
format and would incorporate existing Sec. 3809.3-7 with the changes 
and additions discussed below.
    Proposed paragraph (a)(1) would add two requirements to the 
existing requirement to maintain the site of operations in a safe and 
clean condition during any non-operating periods. An operator would 
also have to take all necessary action to prevent unnecessary or undue 
degradation and would have to maintain an adequate financial guarantee. 
Action to prevent unnecessary or undue degradation could include 
providing adequate maintenance, monitoring, and security and 
detoxifying process solutions, if any. BLM believes these are the 
minimum measures necessary to stabilize the site and prevent 
unnecessary or undue degradation. Proposed paragraph (a)(2) 
incorporates existing Sec. 3809.3-7, with minor editing.
    Proposed paragraph (a)(3) would provide that BLM will review an 
operation after five consecutive years of inactivity to determine if we 
should terminate the plan of operations and require final reclamation 
and closure. We are proposing this provision in an effort to clear the 
books of long-term, inactive plans of operations. These sites require 
attention and resources that we believe we could more productively 
direct at sites where operations are active. It is important to note 
that if BLM terminated a plan based on inactivity, that action would 
not affect the status of the mining claim, if any; nor would it prevent 
the operator from submitting a new notice or proposed plan of 
operations, as appropriate, for the same project area. Terminating a 
plan of operations would limit an operator's operations to activities 
designed to fulfill the operator's reclamation obligation, which 
continues until satisfied. We specifically request comments on whether 
the 5-consecutive-year period of inactivity, which would be a 
prerequisite to BLM's review for possible termination, is too long, too 
short, or about right.
    Proposed paragraph (a)(4) describes the process BLM would follow if 
we determine that an operator has abandoned an operation. Relying on 
the indicators of abandonment set forth in proposed Sec. 3809.336(a), 
BLM would take steps to collect any financial guarantee for the 
operation. If the

[[Page 6440]]

collected financial guarantee were insufficient to pay for reclamation, 
the operator and all other responsible parties would be held liable for 
the costs of reclamation not covered by the forfeited amount.
    Proposed paragraph (b) would establish the policy that an 
operator's or mining claimant's reclamation and closure obligations 
continue until satisfied. This provision is not explicitly stated in 
the existing regulations, but is necessary to clear up confusion about 
whether the operator or mining claimant has any residual obligations 
after financial guarantee forfeiture. Some have argued that financial 
guarantee forfeiture ends the obligation to reclaim, but in cases where 
the financial guarantee does not cover the costs of reclamation, this 
position effectively enables an operator to evade full responsibility 
for reclamation and closure. BLM believes that operators and mining 
claimants should not be able to pass the costs of reclamation resulting 
form their activities to the Nation as a whole. We intend this 
provision to ensure that they do not.

Modifications of Plans of Operations

    This portion of the proposal (proposed Secs. 3809.430 through 
3809.435) contains provisions governing modification of a plan of 
operations. Most of these proposed sections are derived without 
substantive change from existing Sec. 3809.1-7. We discuss changes and 
new material below.

Section 3798,432 What Process Will BLM Follow in Reviewing a 
Modification of My Plan of Operations?

    Proposed Sec. 3809.432 is the counterpart of existing Sec. 3809.1-
7(b) and would set forth the processes BLM would use in reviewing a 
proposed modification of a plan of operations. Under proposed paragraph 
(a), BLM would review and approve a modification in the same manner as 
we did for the initial plan, except that we would not solicit public 
comment on the financial guarantee amount if the modification does not 
change the financial guarantee amount, or only changes it minimally. We 
specifically solicit comments on how we should interpret the term 
``minimally,'' such as using a dollar threshold. We did not include in 
this proposed rule the procedures contained in existing Sec. 3809.1-
7(c) relating to BLM State Director review of proposed required 
modifications. These procedures are unnecessarily detailed and 
cumbersome. The proposal would allow BLM field staff flexibility to 
streamline the modification review process.
    Under proposed paragraph (b), BLM would accept a modification 
without formal approval if it does not constitute a substantive change 
and does not require additional analysis under the National 
Environmental Policy Act. We are proposing this procedure to expedite 
processing of non-substantive modifications.

Section 3809.433 Does This Subpart Apply to a New Modification of My 
Plan of Operations?

    Proposed Sec. 3809.433 sets forth the guidelines that BLM would use 
in applying this subpart to a new modification of a plan of operations. 
This material is not included in the existing regulations, but BLM 
believes it is necessary to give operators and the public a clear idea 
of how and under what circumstances this subpart would apply to 
modified operations. For the purposes of this section, a ``new'' 
modification is one that an operator submits to BLM after the effective 
date of this subpart.
    Under proposed paragraph (a), for a new modification that proposes 
to add a discrete new facility to an existing operation, the plan 
contents requirements (proposed Sec. 3809.401) and performance 
standards (proposed Sec. 3809.420) of this subpart would apply to the 
new facility. The facilities and areas already existing would continue 
to operate under the existing plan of operations. We believe that it 
would not be unduly burdensome to subject a new facility, such as a 
waste rock repository, leach pad, impoundment, drill site, or road, to 
any new requirements contained in this subpart. We specifically request 
comments on whether we would be creating too much confusion by setting 
up a situation where one set of regulations governs part of an 
operation and another set governs another part.
    Under proposed paragraph (b), for a new modification that proposes 
to modify an existing facility, the plan contents requirements 
(proposed Sec. 3809.401) and performance standards (proposed 
Sec. 3809.420) of this subpart would apply to the modified facility. 
However, the operator would have the option of demonstrating to BLM's 
satisfaction that it is not feasible to apply the plan content 
requirements and performance standards of this subpart for 
environmental, safety, or technical reasons. If BLM agrees, then the 
plan contents requirements and performance standards in effect 
immediately before the effective date of this subpart would apply to 
the plan of operations. We are proposing to give an operator this 
option for a modification of existing facilities, such as expansion of 
a waste rock repository, leach pad, or impoundment; layback of a mine 
pit; or widening of a road, because in some cases, it may be burdensome 
or unnecessarily complicated to apply two sets of regulations to a 
single facility.

Section 3809.434 Does This Subpart Apply to My Pending Modification for 
a New Facility?

    Proposed Sec. 3809.434 sets forth the guidelines that BLM would use 
in applying this subpart to a pending modification of a plan of 
operations to add a new facility. This material is not included in the 
existing regulations, but BLM believes it is necessary to give 
operators and the public a clear idea of how and under what 
circumstances this subpart would apply to modified operations. For the 
purposes of this section, a pending modification is one that an 
operator submitted to BLM before the effective date of this subpart, 
and BLM had not made a final decision by that date.
    Under proposed paragraph (a), if an operator submitted a proposed 
modification of an existing plan of operations to construct a new 
facility before the effective date of this subpart, and BLM made an 
environmental assessment (EA) or environmental impact statement (EIS) 
available to the public before that date, then the new facility would 
not be subject to the plan content requirements and performance 
standards of this subpart. In contrast, under proposed paragraph (b), 
if BLM had not made the EA or EIS publicly available by that date, then 
the plan content requirements and performance standards of this subpart 
would apply to the new facility. This is the same cutoff that we 
propose to apply to pending proposed plans of operations. See the 
discussion of proposed Sec. 3809.400 earlier in this preamble. The 
reason for choosing this cutoff date is that by the time an EA or EIS 
is published, an operator and BLM would have already committed 
considerable time and resources towards developing the modification 
under the existing regulations.

Section 3809.435 Does This Subpart Apply to My Pending Modification For 
an Existing Facility?

    Proposed Sec. 3809.435 sets forth the guidelines that BLM would use 
in applying this subpart to a pending modification of a plan of 
operations to modify an existing facility. This material is not 
included in the existing regulations, but BLM believes it is necessary 
to give operators and the public a clear idea of how and under

[[Page 6441]]

what circumstances this subpart would apply to modified operations. For 
the purposes of this section, a pending modification is one that an 
operator submitted to BLM before the effective date of this subpart.
    Under proposed paragraph (a), if an operator submitted a proposed 
modification of an existing plan of operations to modify an existing 
facility before the effective date of this subpart, and BLM made an 
environmental assessment (EA) or environmental impact statement (EIS) 
available to the public before that date, then the new facility, when 
approved, would not be subject to the plan content requirements and 
performance standards of this subpart. Under proposed paragraph (b), if 
the EA or EIS had not been published, then the plan content 
requirements and performance standards of this subpart would apply to 
the modified facility, unless the operator demonstrates to BLM's 
satisfaction that it is not feasible to apply it for environmental, 
safety, or technical reasons.

Financial Guarantee Requirements--General

    This proposed rule would establish mandatory provisions for 
financial guarantees for all activities greater than casual use, expand 
the types of financial guarantees available, and establish the 
circumstances and procedures under which BLM would pursue forfeiture of 
a guarantee. It would also require that financial guarantees be 
redeemable by the Secretary while allowing BLM to accept financial 
guarantees posted with the State in which operations take place, 
provided the level of protection is compatible with this subpart. The 
rule would also authorize BLM to require the establishment of a trust 
fund in those circumstances where long term, post-mining water 
treatment will be necessary. Included in the proposal is a description 
of when current operations would have to comply with these rules.
    On February 27, 1997, BLM published rules affecting financial 
guarantees under this subpart (62 FR 9093). Those rules were challenged 
in Northwest Mining Association v. Babbitt, 5 F. Supp. 2d 9 (D.D.C. May 
13, 1998) and remanded on procedural grounds. The effect of the remand 
is to reinstate the previous financial guarantee regulations. The 
proposed rules are different from the invalidated rulemaking in several 
substantial ways:
    1. The proposed rule would not differentiate between notice- and 
plan-level operations.
    2. The proposed rule would require all financial guarantees be 
actual guarantees, rather than certification that the guarantee exists.
    3. The proposed rule would eliminate the requirement that a third 
party professional engineer certify the amount of the financial 
guarantee.
    4. The proposed rule would require that financial guarantees be 
posted for the actual amount of the estimated reclamation cost. Thus, 
if the estimated cost is $500 per acre, the financial guarantee to be 
posted must be $500 times the number of acres disturbed (rounded to the 
next highest acre). This differs from the remanded requirement that 
minimum financial guarantee amounts be posted.
    5. The rule would also allow for additional types of financial 
instruments to be used when posting a guarantee.
    6. The rule would permit BLM to require the operator to establish a 
long-term funding mechanism for water treatment and other post-mining 
maintenance requirements.
    7. The rule would establish time frames for existing operations to 
comply with the financial guarantee requirements.
    8. As discussed in the enforcement section of this preamble, BLM 
would not require a second financial guarantee for operations in non-
compliance.
    In the section-by-section analysis that follows, we compare the 
proposal to the regulations in place prior to the remanded 1997 
regulations. Readers should note that when we talk about the 
``existing'' financial guarantee regulations in this preamble, we are 
not referring to the financial guarantee regulations in the current 
(1997) edition of the Code of Federal Regulations (CFR), which contains 
the remanded rules (Sec. 3809.1-9(a)-(q)). Instead, we are referring to 
the financial guarantee regulations in the 1996 edition of the CFR 
(Sec. 3809.1-9(a)-(g)).

Section 3809.500 In General, What Are BLM's Financial Guarantee 
Requirements?

    Proposed Sec. 3809.500 would change existing Secs. 3809.1-9(a) and 
3809.1-9(b) by requiring operators to provide financial guarantees in 
advance for all operations other than casual use. The existing 
regulations make the posting of a financial guarantee discretionary for 
plans of operations and do not address financial guarantee for notice-
level operations. BLM believes that a requirement to provide a 
financial guarantee for notice- and plan-level operations would ensure 
that operators will reclaim project areas to the standards of this 
subpart. We recognize that this requirement imposes a cost on those 
conducting operations on public lands. (We have analyzed the cost of 
this requirement in the course of complying with Executive Order 12866 
and the Regulatory Flexibility Act. See part IV of this preamble which 
discusses how BLM has met its procedural obligations.) We believe that 
the cost of this requirement is greatly outweighed by the benefits that 
it produces, namely avoiding the creation of new sources of land and 
water pollution on public lands.

Section 3809.503 When Must I Provide a Financial Guarantee for My 
Notice-Level Operations?

    Proposed Sec. 3809.503 is a new section that governs when a notice-
level operator must provide a financial guarantee. It would not require 
a current notice-level operator to provide a financial guarantee unless 
the notice is modified or extended. This provision would minimize the 
impact of the financial guarantee requirement on existing notice-level 
operations as long as they are unchanged. It would also make clear that 
persons filing notices after the effective date of a final rule must 
provide the financial guarantee before beginning operations.

Section 3809.505 How Do the Financial Guarantee Requirements of This 
Subpart Apply to My Existing Plan of Operations?

    Proposed Sec. 3809.505 is a new section that would allow those 
operating under an existing plan of operations 180 days from the 
effective date of a final rule to comply with the financial guarantee 
requirements of this rule if they have not already done so. We are 
proposing the 180-day grace period to ensure an orderly transition to 
the new requirements. We specifically request comments on whether the 
180-day time frame is too long, too short, or about right.

Section 3809.551 What Are My Choices for Providing BLM With a Financial 
Guarantee?

    Proposed Sec. 3809.551 restates the requirements of existing 
Sec. 3809.1-9(b) and (d) in the form of a table. It would allow an 
operator to provide an individual financial guarantee for a single 
notice or plan of operations, a blanket financial guarantee for State-
wide or nation-wide operations, or to provide evidence of an existing 
financial guarantee under State law or regulations.

Individual Financial Guarantee

    This portion of the proposed rule (Secs. 3809.552 through 3809.556) 
contains

[[Page 6442]]

provisions applicable to financial guarantees that cover the 
reclamation obligations associated with a single notice or plan of 
operations.

Section 3809.552 What Must My Individual Financial Guarantee Cover?

    Proposed Sec. 3809.552 would require that an individual financial 
guarantee cover reclamation costs as if BLM were to contract for 
reclamation with a third party. This clarifies current BLM policy under 
existing Sec. 3809.1-9(b), which does not expressly address the cost of 
contracting with a third party for reclamation. We are proposing this 
clarification because the administrative cost of contracting, including 
overhead, can be significant and may otherwise have to be subtracted 
from the funds available for on-the-ground work. This might result in 
on-the-ground reclamation work being incomplete or substandard. The 
proposal would also clarify that the financial guarantee covers all 
reclamation obligations arising from an operation, regardless of the 
areal extent or depth of activities described in the notice or approved 
plan of operations.
    In light of our recent experience with operators who file for 
bankruptcy protection, BLM intends that reclamation obligations 
continue and that BLM could forfeit a financial guarantee and use it to 
meet reclamation obligations in a bankruptcy situation unless 
specifically precluded by court order. Likewise, in situations where an 
operator experiences financial problems short of bankruptcy and is 
unable to meet ongoing environmental protection obligations, BLM 
intends that we could forfeit a portion of the financial guarantee to 
satisfy such obligations. This would include, for instance, partial 
forfeiture to keep pumps running and prevent overflow of ponds in the 
event an operator ceases operations. In this context, BLM construes the 
ongoing maintenance activity intended to prevent unnecessary or undue 
degradation as a reclamation obligation subject to coverage by the 
financial guarantee. We specifically request comments on whether BLM 
should require additional funding mechanisms to meet operational or 
environmental contingencies.
    Proposed paragraph (b) of this section is a new provision that 
would establish the goal of periodic BLM review of the adequacy of the 
estimated reclamation cost and the long-term funding mechanism, if any, 
and require increased coverage, if necessary. The purpose of this 
review is to ensure that the estimated reclamation cost and amount of 
financial guarantee remain sufficient throughout the life of the 
operation. There are many variables inherent in mining operations that 
can affect the reclamation cost, and we believe there should be a 
mechanism to take this inherent variability into account and allow 
appropriate adjustments. We do not want to create the incentive for an 
operator to forfeit the financial guarantee and walk away from a 
project area because the reclamation cost has become greater than the 
financial guarantee amount. We are not proposing a specific frequency 
for review of the estimated reclamation cost, and by using ``will'' 
instead of ``must,'' we do not intend to create an obligation for BLM 
to conduct any particular review. Accomplishing the goal of 
periodically reviewing reclamation cost estimates is subject to the 
availability of resources.
    Proposed paragraph (c) of this section would authorize BLM to 
require an operator to establish a trust fund or other funding 
mechanism to ensure the continuation of long-term water treatment to 
achieve water quality standards or for other long-term, post-mining 
maintenance requirements. The funding would have to be adequate to 
provide for construction, long-term operation, maintenance, or 
replacement of any treatment facilities and infrastructure, for as long 
as the treatment and facilities are needed after mine closure. BLM 
would identify the need for a trust fund or other funding mechanism 
during plan review or later. This would be a new requirement designed 
to deal with the situation where an otherwise fully reclaimed mining 
operation will continue for the foreseeable future to discharge 
pollutants, such as acid mine drainage, into surface waters. To avoid 
unnecessary or undue degradation, we believe there must be some 
mechanism to fund long-term treatment of the discharge. Under this 
provision, the operator would have to set aside funds that would be 
invested to produce income sufficient to pay for the ongoing cost of 
whatever treatment is required to meet applicable water quality 
standards for as long as the treatment is necessary. We anticipate that 
any prediction that long-term treatment will be necessary would have to 
be based on adequate sampling to determine the acid-generating 
potential of the ore body and surrounding rock. Under this provision 
and proposed Sec. 3809.401(c), BLM would have the authority to require 
an operator to collect and analyze enough samples to ensure that any 
prediction is based on a statistically adequate number of samples. We 
are particularly interested in commenters' views on how well this 
mechanism would work and on alternate approaches to address the problem 
of post-mining acid mine drainage.

Section 3809.553 May I Post a Financial Guarantee for a Part of My 
Operations?

    Proposed Sec. 3809.553(a) would provide that financial guarantees 
may be provided on an incremental basis to cover only those areas being 
disturbed. This new provision is intended to address confusion about 
whether an operator has to provide financial guarantee for the entire 
area to be affected by operations all at once. We believe that where an 
operation is large or is of long duration or will be developed in 
phases, there is no need to require financial guarantee for areas that 
will not be immediately disturbed. The purpose of the financial 
guarantee requirement is to ensure reclamation of disturbed surface 
areas. To the extent that the surface is not disturbed, no financial 
guarantee is needed. However, at any one time, an operator would have 
to maintain enough financial guarantee to cover all estimated 
reclamation costs.
    Proposed paragraph (b) of this section would establish BLM's goal 
of reviewing the financial guarantee for each increment of an operation 
at least annually. We do not consider this provision as creating an 
obligation for BLM to review any particular increment annually. The 
number of reviews we conduct annually is subject to available 
resources.

Section 3809.554 How Do I Estimate the Cost To Reclaim My Operations?

    Proposed Sec. 3809.554 would require an operator to estimate the 
cost to reclaim an operation as if BLM were hiring a third-party 
contractor to perform reclamation of the operation after the operator 
had vacated the project area. The estimate would have to include BLM's 
cost to administer the reclamation contract. An operator could contact 
BLM to obtain the administrative cost information. The purpose of this 
new provision is to ensure that the estimated cost of reclamation, on 
which the financial guarantee amount is based, is sufficient to pay for 
successful reclamation if the operator does not complete reclamation. 
In that event, BLM would most likely have to contract for the 
reclamation work and would incur administrative costs. If funding were 
not available in the financial guarantee to pay the administrative 
costs, the costs would have to come out of the funds available for the 
on-the-ground reclamation. This

[[Page 6443]]

could result in incomplete or substandard reclamation.

Section 3809.555 What Forms of Individual Financial Guarantee Are 
Acceptable to BLM?

    Proposed Sec. 3809.555 would expand the kinds of instruments that 
are acceptable as financial guarantees under existing Sec. 3809.1-9(c). 
In addition to surety bonds, cash, and negotiable securities, which are 
acceptable under the existing regulations, the expanded list of 
acceptable instruments would include letters of credit, certificates of 
deposit, State and municipal bonds, and investment-grade rated 
securities. We believe that expanding the list of acceptable 
instruments will make it easier for an operator to provide the required 
financial guarantee. In proposed paragraph (a), we are proposing to 
change the wording to specify that only non-cancelable surety bonds 
would be acceptable. The intent of this change is to preclude 
cancellation of a surety bond without the existence of a replacement 
financial guarantee.

Section 3809.556 What Special Requirements Apply to Financial 
Guarantees Described in Section 3809.555(e)?

    Proposed Sec. 3809.556 is a new section that we intend to ensure 
that market fluctuations do not erode the security provided by 
financial guarantees and other instruments that fluctuate in value. 
Proposed paragraph (a) would require an operator to provide BLM a 
statement describing the market value of a financial guarantee which is 
in the form of traded securities. The operator would have to provide 
the statement before beginning operations and at the end of each 
calendar year thereafter. Proposed paragraph (b) would require the 
operator to review annually the value of the guarantee and to post an 
additional financial guarantee if the value declines by more than 10 
percent or if BLM determines that a greater guarantee is necessary. 
Proposed paragraph (c) would allow the operator to ask BLM to authorize 
the release of that portion of an account exceeding 110 percent of the 
required financial guarantee. BLM would honor the request if the 
operator is in compliance with the terms and conditions of the 
operator's notice or approved plan of operations.

Blanket Financial Guarantee

    This portion of the proposed rule contains one section (proposed 
Sec. 3809.560) that addresses blanket financial guarantees. We are 
proposing to continue the practice of accepting blanket financial 
guarantees.

Section 3809.560 Under What Circumstances May I Provide a Blanket 
Financial Guarantee?

    Proposed Sec. 3809.560 is identical to existing Sec. 3809.1-9(d), 
with minor editorial changes, and would permit the operator to provide 
a blanket guarantee covering state-wide or nation-wide operations. BLM 
will accept a blanket financial guarantee if we determine that its 
terms and conditions are sufficient to comply with this subpart. The 
amount of any blanket financial guarantee would have to be sufficient 
to cover all of an operator's reclamation obligations.

State-Approved Financial Guarantee

    This portion of the proposed rule contains four sections (proposed 
Secs. 3809.570 through 3809.573) that address State-approved financial 
guarantees. We are proposing to continue the practice of accepting 
State-approved financial guarantees.

Section 3809.570 Under What Circumstances May I Provide a State-
Approved Financial Guarantee?

    Proposed Sec. 3809.570 would deem acceptable a State-approved 
financial guarantee that is redeemable by the Secretary, is held or 
approved by a State agency for the same operations covered by a notice 
or plan of operations, and provides at least the same amount of 
financial guarantee as required by this subpart. We are proposing that 
any State-approved financial guarantee be redeemable by the Secretary 
so that, in case of failure to reclaim, we can initiate forfeiture of 
the financial guarantee to ensure reclamation of public lands. The 
redeemability requirement would not apply to State financial guarantee 
pools. See proposed Sec. 3809.571.

Section 3809.571 What Forms of State-Approved Financial Guarantee Are 
Acceptable to BLM?

    Under proposed Sec. 3809.571, BLM would accept a State-approved 
financial guarantee in any of the forms specified under proposed 
Sec. 3809.555. BLM would also accept participation in a State financial 
guarantee pool if the State agrees that, upon BLM's request, the State 
will use part of the pool to meet reclamation obligations on public 
lands, and the BLM State Director determines that the pool provides the 
level of protection required by this subpart. BLM is also proposing to 
accept a corporate guarantee if it is acceptable to the State, is 
redeemable by or guaranteed to the Secretary, and the BLM State 
Director determines that the corporate guarantee provides a level of 
protection equal to the estimated cost of reclamation, considering the 
operator's net income, net working capital and intangible net worth, 
and total liabilities and assets. We specifically request comments or 
suggestions on what would be an appropriate standard for an acceptable 
corporate guarantee.

Section 3809.572 What Happens if BLM Rejects a Financial Instrument in 
My State-Approved Financial Guarantee?

    Under proposed Sec. 3809.572, BLM would notify an operator in 
writing within 30 days of BLM's receipt of evidence of an operator's 
State-approved financial guarantee whether the guarantee was 
acceptable. If BLM rejected a financial instrument in an operator's 
State-approved financial guarantee, the operator would have to provide 
BLM with a financial guarantee equal to the amount of the financial 
guarantee rejected.

Section 3809.573 What Happens if the State Makes a Demand Against My 
Financial Guarantee?

    Under proposed Sec. 3809.573, if the State makes a demand against 
an operator's financial guarantee and reduces the available balance, 
the operator would have to replace or augment the financial guarantee 
to cover the remaining reclamation cost.

Modification or Replacement of a Financial Guarantee

    This portion of the proposed rule (proposed Secs. 3809.580 through 
3809.582) addresses modification or replacement of a financial 
guarantee.

Section 3809.580 What Happens if I Modify My Notice or Approved Plan of 
Operations?

    Proposed Sec. 3809.580 incorporates existing Sec. 3809.1-9(e) and 
would require an operator to increase the financial guarantee if the 
operator modifies a plan or a notice and the estimated reclamation cost 
increases. This section would not preclude an operator from requesting 
BLM's approval for a decrease in the financial guarantee if the 
estimated reclamation cost decreases as a result of a modification.

Section 3809.581 Will BLM Accept a Replacement Financial Instrument?

    Proposed Sec. 3809.581 covers the procedure for review and approval 
of a replacement financial instrument. This topic is not addressed in 
the existing regulations. If an operator wants to replace a financial 
instrument any time after BLM's approval of the initial

[[Page 6444]]

instrument, the operator would request BLM review of the replacement. 
Within 30 days of the request, BLM would complete its review and, if we 
reject the request, issue a decision in writing.

Section 3809.582 How Long Must I Maintain My Financial Guarantee?

    Proposed Sec. 3809.582 would establish a requirement for 
maintaining the financial guarantee. This topic is not addressed in the 
existing regulations. An operator would have to maintain the financial 
guarantee until the operator, or a new operator, replaces it, or until 
BLM releases the requirement to maintain the financial guarantee after 
completion of successful reclamation.

Release of Financial Guarantee

    This portion of the proposed rule (Secs. 3809.590 through 594) 
addresses when and how BLM releases a financial guarantee after 
completion or transfer of operations. As noted below, the proposal 
would incorporate several portions of the existing regulations. In 
general, the process for release of financial guarantee described in 
this portion of the proposal would apply to all operations once this 
subpart becomes effective. However, for existing operations that are 
not subject to the performance standards of this subpart (See proposed 
Sec. 3809.400), the standards for release would be those included in 
the existing plan of operations.

Section 3809.590 When Will BLM Release or Reduce the Financial 
Guarantee for My Notice or Plan of Operations?

    Proposed Sec. 3809.590 incorporates existing Sec. 3809.1-9(f) with 
the substantive changes discussed below. When the operator completes 
all or any portion of the reclamation of an operation according to the 
notice or approved plan of operations, the operator would notify BLM 
that the reclamation has occurred and request a reduction in the 
financial guarantee or BLM approval of the adequacy of the reclamation, 
or both. BLM will then promptly inspect the reclaimed area. Under the 
proposal, BLM would encourage the operator to accompany the BLM 
inspector. Under the existing regulations, BLM is required to inspect 
the operation with the operator. This change would not preclude the 
operator from accompanying the BLM inspector and would facilitate final 
inspections where the operator is unable to be present. Subsequently, 
BLM would notify the operator, in writing, whether the reclamation is 
acceptable and whether the operator may reduce the financial guarantee 
under Sec. 3809.591.
    Under proposed paragraph (c), BLM would publish notice of final 
release of financial guarantee in a local newspaper of general 
circulation and accept comments for 30 days. This would give the public 
an opportunity to participate in the financial guarantee release 
process. BLM believes that this opportunity for public participation 
could result in information pertinent to financial guarantee release 
coming to BLM's attention. We specifically request comments on whether 
the proposed 30-day comment period is too long, too short, or about 
right.

Section 3809.591 What Are the Limitations on the Amount by Which BLM 
May Reduce My Financial Guarantee?

    Proposed Sec. 3809.591 would govern incremental financial guarantee 
release, a topic that is not covered by the existing regulations. 
Proposed paragraph (a) would provide that this section does not apply 
to any long-term funding mechanism. The financial guarantee release 
provisions in this section apply only to the financial guarantee.
    Under proposed paragraph (b), BLM could reduce the financial 
guarantee by not more than 60 percent of the total guarantee when the 
operator completes backfilling, regrading, establishment of drainage 
control; and stabilization and detoxification of leaching solutions, 
heaps, tailings, and similar facilities. An operator could apply for 
financial guarantee release for a portion of the project area. For 
example, if an operator completed regrading on 50 acres of a 100-acre 
project area, the operator could seek release of 60 percent of the 
financial guarantee applicable to the 50 acres.
    Under proposed paragraph (c), BLM could release the remainder of 
the financial guarantee for a portion of the project area when BLM 
determines that the operator has successfully completed reclamation, 
including revegetation, and water quality standards have been met for 
one year without need for further water treatment unless a long-term 
funding mechanism under proposed Sec. 3809.552(c) has been established. 
If so, BLM could release the financial guarantee (but not the long-term 
funding mechanism) when water quality standards have been achieved for 
one year regardless of whether the discharge is being treated.

Section 3809.592 Does Release of My Financial Guarantee Relieve Me of 
All Responsibility for My Project Area?

    BLM intends proposed Sec. 3809.592 to address the issue of whether 
a mining claimant or operator has any residual responsibility for a 
project area after final release of the financial guarantee. This is an 
issue that is not addressed in the existing regulations and has come up 
many times since BLM issued them in 1980. Under proposed paragraph (a), 
an operator's (or mining claimant's) liability would not terminate upon 
release of the financial guarantee if reclamation should fail to meet 
the standards of this subpart. We believe that this provision is 
necessary to cover situations where, for example, a totally regraded 
and revegetated slope begins to slump or fail. If BLM could not require 
the operator or mining claimant to come back and fix the problem, 
unnecessary or undue degradation of public lands caused by the 
operator's activities would be a likely result. BLM does not anticipate 
a large number of cases of this type and, in any event, must balance an 
operator's reasonable expectation of the finality of final financial 
guarantee release with BLM's responsibility to prevent unnecessary or 
undue degradation.
    In a similar manner, proposed paragraph (b) would provide that 
release of the financial guarantee under subpart 3809 does not release 
or waive claims by BLM or other persons under the Comprehensive 
Environmental Response, Compensation and Liability Act of 1980, as 
amended, 42 U.S.C. 9601 et seq., or under any other applicable statutes 
or regulations. We intend this provision to clarify this aspect of the 
relationship between this subpart and other laws and regulations. 
Release of an operator's financial guarantee under this subpart does 
not affect any responsibility that an operator may have under other 
laws, such as laws governing handling and disposal of hazardous waste. 
This is not a new concept, but it is an important one that, in BLM's 
experience, operators sometimes are not aware of.

Section 3809.593 What Happens to My Financial Guarantee if I Transfer 
My Operations?

    Proposed Sec. 3809.593 would incorporate and expand existing 
Sec. 3809.1-6(e), which provides that in the event of a change of 
operators involving an approved plan of operations, the new operator 
shall satisfy the financial guarantee requirements. The existing 
regulations do not address whether the original

[[Page 6445]]

operator or transferee is responsible for obligations created before 
the transfer, nor at what point after the transfer BLM should release 
the original financial guarantee. Thus, the proposal would provide that 
when an operator transfers an operation, the operator remains 
responsible for obligations or conditions created while that operator 
conducted operations, unless the transferee accepts responsibility and 
BLM accepts an adequate replacement financial guarantee. Therefore, the 
original operator's financial guarantee would remain in effect until 
BLM determines that the original operator is no longer responsible for 
all or part of an operation. The proposal would allow for incremental 
release of the original financial guarantee. The proposal also would 
provide that the new operator may not begin operations until BLM 
accepts the new operator's financial guarantee. BLM believes it is 
important to establish clear responsibility for reclamation of all 
portions of a transferred operation to ensure that responsible parties 
carry our their reclamation obligations. Otherwise, the transfer could 
cause confusion over who is responsible for reclaiming different areas 
and delays in achieving the necessary reclamation.

Section 3809.594 What Happens to My Financial Guarantee When My Mining 
Claim Is Patented?

    Proposed Sec. 3809.594 incorporates existing Sec. 3809.1-9(g) with 
minor editorial changes and sets forth the conditions under which BLM 
would release a financial guarantee when a mining claim is patented.

Forfeiture of Financial Guarantee

    This portion of the proposed rule (Secs. 3809.595 through 3809.599) 
addresses when and how BLM carries out forfeiture of a financial 
guarantee. This topic is not addressed by the existing regulations. 
This portion of the proposal incorporates the remanded 1997 regulations 
governing forfeiture. We are incorporating these procedures to ensure a 
degree of uniformity in the procedures used by various BLM offices to 
collect and use financial guarantees and to complete the logical 
sequence of events that encourage reclamation.

Section 3809.595 When Will BLM Initiate Forfeiture of My Financial 
Guarantee?

    Under proposed Sec. 3809.595, BLM would initiate forfeiture of all 
or part of a financial guarantee for any project area or portion of a 
project area if the operator refuses or is unable to complete 
reclamation as provided in the notice or approved plan of operations, 
if the operator fails to meet the terms of the notice or decision 
approving the plan of operations, or if the operator defaults on any 
condition under which the operator obtained the financial guarantee. 
BLM believes these provisions are the minimum necessary to ensure that 
BLM initiates forfeiture in appropriate circumstances.

Section 3809.596 How Does BLM Initiate Forfeiture of My Financial 
Guarantee?

    Proposed Sec. 3809.596 describes the process that BLM would follow 
to initiate forfeiture of a financial guarantee and the contents of the 
written forfeiture notice BLM would send. The section also explains 
that once an operator receives a forfeiture notice, the operator could 
avoid forfeiture by demonstrating, in writing, to BLM that the operator 
or another person will complete reclamation or by obtaining written 
permission from BLM for a surety to complete reclamation. BLM believes 
that sending an operator a forfeiture notice and giving the operator an 
opportunity to avoid forfeiture balances the need to provide a fair 
process with BLM's responsibility to quickly obtain funding for 
necessary reclamation work.

Section 3809.597 What if I Do Not Comply With BLM's Forfeiture Notice?

    Under proposed Sec. 3809.597, the next step in the forfeiture 
process would occur. If an operator fails to meet the requirements of 
the forfeiture notice, fails to appeal the notice, or if the decision 
appealed is affirmed, BLM would collect the forfeited amount and use 
the funds collected to implement the reclamation plan on the area or 
portion of the area to which the financial guarantee applies. An 
operator could appeal a forfeiture notice under the procedures outlined 
in proposed Sec. 3809.800.

Section 3809.598 What if the Amount Forfeited Will Not Cover the Cost 
of Reclamation?

    Under proposed Sec. 3809.598, if the amount of the financial 
guarantee forfeited is insufficient to pay the full cost of 
reclamation, the operator(s) and mining claimant(s) would be jointly 
and severally liable for the remaining costs. As discussed under 
proposed Sec. 3809.116, joint and several liability means that the 
mining claimant(s) and operator(s) would be responsible together and 
individually for the remaining cost of reclamation. BLM would have the 
ability to take action to recover the remaining reclamation cost 
against either the mining claimant(s) or the operator(s), or both.

Section 3809.599 What if the Amount Forfeited Exceeds the Cost of 
Reclamation?

    Under proposed Sec. 3809.599, BLM would return the unused portion 
of a forfeited guarantee to the party from whom we collected it if the 
reclamation costs are less than the amount forfeited.

Inspection and Enforcement

    This portion of the proposed rule (proposed Secs. 3809.600 through 
3809.604) would set forth BLM's policies applicable to inspection of 
operations under subpart 3809, including the possibility of allowing 
members of the public to accompany BLM inspectors to the site of a 
mining operation. It would also set forth the procedures BLM would use 
to enforce the subpart, including identifying several types of 
enforcement orders, specifying how they would be served, and outlining 
the consequences of noncompliance. The inspection and enforcement rules 
would apply to all operations on the effective date of the final rule.

Section 3809.600 With What Frequency Will BLM Inspect My Operations?

    Proposed Sec. 3809.600 would clarify BLM's authority, as the 
manager of the public lands under FLPMA and the entity that administers 
the mining laws, to conduct inspections of mining operations. This 
section would incorporate existing Secs. 3809.1-3(e) and 3809.3-6. 
Paragraph (a) would provide that at any time, BLM may inspect 
operations, including all structures, equipment, workings, and uses 
located on the public lands. The inspection may include verification 
that the operations comply with this subpart.
    BLM is proposing a new provision in paragraph (b) that would allow 
a member of the public to accompany the BLM inspector if the presence 
of the public does not materially interfere with the mining operations 
or with BLM's administration of this subpart, or create safety 
problems. When BLM authorizes a member of the public to accompany the 
inspector, the operator would have to provide access to operations. 
This section would be added to provide a degree of openness to BLM's 
program and to satisfy the public's interest in the administration of 
BLM's surface management rules. BLM does not intend this provision to 
create an obligation for BLM to allow the public to accompany 
inspectors, nor does BLM intend it to confer on the public the right to 
accompany an inspector. The decision

[[Page 6446]]

to allow the public to accompany a BLM inspector would be at BLM's 
discretion. The public should be aware that mine sites are frequently 
located in remote areas and where access is difficult. Once on a mine 
site, a member of the public may be exposed to dust, noise, vibration, 
heavy equipment, and rocky or uneven ground. BLM expects that members 
of the public who accompany BLM inspectors would knowingly and 
voluntarily assume liability risks associated with their activities. In 
addition, an operator may ask a member of the public to sign a release 
of liability for injury and to wear protective equipment.
    Proposed paragraph (c) would incorporate existing BLM policy with 
regard to inspection of those operations at which greater potential 
hazard exists. See Cyanide Management Policy, Instruction Memorandum 
90-566, August 6, 1990, amended November 1, 1990. It would provide that 
at least 4 times each year, BLM will inspect operations using cyanide 
or other leachate or where there is significant potential for acid 
drainage. BLM believes that cyanide and acid-generating operations have 
the potential for greater adverse impacts to the public lands than 
other types of operations and should receive a greater quantity of 
BLM's inspection resources.

Section 3809.601 What Type of Enforcement Action May BLM Take if I Do 
Not Meet the Requirements of This Subpart?

    Proposed Sec. 3809.601 would specify the types of enforcement 
orders that BLM May issue.
    Noncompliance orders. Existing Sec. 3809.3-2, provides for the 
discretionary issuance of notices of non-compliance for failure to file 
a notice or plan of operations (Sec. 3809.3-1(a)) or for a failure to 
reclaim (Sec. 3809.3-2(b)). Proposed Sec. 3809.601(a) would provide for 
the discretionary issuance of noncompliance orders, which are 
equivalent to notices of noncompliance. Noncompliance orders could be 
issued for operations that do not comply with any provision of a 
notice, plan of operations, or any requirement of subpart 3809.
    Administrative enforcement--suspension orders. The existing rules 
do not provide for administrative orders to enforce notices of 
noncompliance. Existing Sec. 3809.3-2(c) provides for judicial 
enforcement of notices of noncompliance. Judicial enforcement is not 
always practical, however. The agency must work with the local United 
States Attorney to bring judicial actions, which can result in delays, 
or in some cases no enforcement at all. Administrative enforcement is 
available to BLM under section 302(c) of FLPMA, which provides for 
suspensions or revocations of instruments providing for the use 
occupancy or development of the public lands.
    Existing subpart 3809 does not address the suspension or revocation 
authority of section 302(c) of FLPMA, but the proposed rule would. The 
proposed rules would establish BLM's suspension or revocation authority 
without requiring insertion of such language into each notice or plan 
of operations. Inclusion of language in the rule would be more 
convenient than requiring operators to insert the necessary text into 
the notices and plans of operations that they submit to BLM, and would 
not be substantively different.
    In comments on earlier versions of the rule, industry 
representatives asserted that section 302(c) of FLPMA does not apply to 
notices and plans of operations under subpart 3809. BLM disagrees. 
Plans of operations constitute FLPMA authorizations. See James C. 
Mackey, 96 IBLA 356. Although notices under subpart 3809 are not 
considered as Federal actions or authorizations (See Sierra Club v. 
Michael Penfold, 857 F.2d 1307 (9th Cir. 1988)), they can be considered 
as instruments providing for a use under the language of FLPMA.
    Proposed Sec. 3809.601(b) would provide for the issuance of 
suspension orders for all or any part of operations that fail to timely 
comply with a noncompliance order for a significant violation issued 
under Sec. 3809.601(a). Although section 302(c) does not require that 
BLM first issue a noncompliance order or make the distinction between 
significant and non-significant violations, BLM believes that an 
operator should ordinarily be given an opportunity to abate a violation 
before having its operations suspended and that non-significant 
violations should not result in suspensions. The proposal would define 
a significant violation as one that causes or may result in 
environmental or other harm or danger or that substantially deviates 
from the complete notice or approved plan of operations.
    Under the proposal, before the issuance of a suspension order, BLM 
would notify an operator of its intent to issue a suspension order; and 
provide the operator an opportunity for an informal hearing before the 
BLM State Director to object to a suspension.
    The informal hearing requirement before the BLM State Director is 
included to satisfy the hearing requirement of FLPMA section 302(c). In 
the case of Dvorak Expeditions, 127 IBLA 145, 155 (1993), the Interior 
Board of Land Appeals (IBLA) addressed the type of a hearing that is 
required by section 302(c) of FLPMA, and the BLM's responsibilities. 
The IBLA concluded that section 302(c) does not require a hearing ``on 
the record.'' A hearing before an administrative law judge is not 
required before issuance of a suspension order. Thus, the proposed rule 
would be consistent with section 302(c). Like other BLM orders, 
suspension orders would be appealable to the IBLA.
    Temporary immediate suspensions. Section 302(c) contains a proviso 
allowing for temporary immediate suspensions prior to a hearing or 
final administrative finding upon a determination that such a 
suspension is necessary to protect health or public safety or the 
environment. Proposed Sec. 3809.601(b)(2) would implement this proviso. 
Under this paragraph, BLM would be authorized to order an immediate, 
temporary suspension of all or any part of an operation without issuing 
a noncompliance order, notifying an operator in advance, or providing 
the operator an opportunity for an informal hearing if the operator 
does not comply with any provision of a notice, plan of operations, or 
subpart 3809; and an immediate, temporary suspension is necessary to 
protect health, safety, or the environment from imminent danger or 
harm. Although FLPMA does not expressly mention imminent danger or 
harm, BLM views an element of imminence as necessary to forgo the 
normal procedures for an advance hearing.
    The proposed rule would include a provision that BLM may presume 
that an immediate suspension is necessary if a person conducts plan-
level operations without an approved plan of operations or conducts 
operations other than casual use without submitting a complete notice. 
Plans of operation and notices are essential to assure that operations 
proceed in an orderly manner without causing environmental harm. The 
conduct of mining operations in the absence of an approved plan or a 
complete notice on file with BLM is a reasonable basis to conclude that 
a threat exists to the health, safety or the environment, and that a 
temporary immediate suspension is warranted.
    Proposed Sec. 3809.601(b)(3) would specify that BLM will terminate 
a suspension order under Sec. 3809.601(b)(1) or (b)(2) no later than 
the date by which an operator corrects the violation. This provision 
would implement a proviso of FLPMA section 302(c).

[[Page 6447]]

    Contents of enforcement orders. Proposed Sec. 3809.601(c) would 
enumerate the contents of enforcement orders. In part, it is based on 
existing Sec. 3809.3-2(d). It would provide that enforcement orders 
will specify (1) how an operator is failing or has failed to comply 
with the requirements of subpart 3809; (2) the portions of the 
operations, if any, that must be suspended; (3) the actions necessary 
to correct the noncompliance and the time, not exceed 30 days, within 
which corrective action must begin; and (4) the time to complete 
corrective action. These items would provide the information that an 
operator receiving the order should know.
    Portion of remanded section 3809.3-2 not re-proposed. Section 
3809.3-2(e) of the rules remanded in May 1998 contained a provision 
requiring operators with records of noncompliance to provide financial 
guarantees to BLM for all of their operations, and that financial 
guarantees held by a State were not acceptable for purposes of that 
section. Upon consideration, BLM has decided not to re-propose this 
remanded provision. BLM has concluded that if a State is holding an 
adequate financial guarantee that is otherwise acceptable, no good 
reason exists to require an operator to provide a second separate 
financial guarantee with BLM.

Section 3809.602 Can BLM Revoke My Plan of Operations or Nullify My 
Notice?

    Proposed Sec. 3809.602 would be a new section and would implement 
the revocation portion of FLPMA section 302(c). It would provide that 
BLM may revoke a plan of operations or nullify a notice upon finding 
that (1) a violation exists of any provision of the notice, plan of 
operation, or subpart 3809, and the operator has failed to correct the 
violation within the time specified in the enforcement order issued 
under Sec. 3809.601; or (2) a pattern of violations exists at the 
operations. The finding would not be effective until BLM notifies the 
operator of its intent to revoke the plan of operations or nullify the 
notice, and affords the operator with an opportunity for an informal 
hearing before the BLM State Director. The provision would specify that 
if BLM nullifies a notice or revokes a plan of operations, the operator 
must not conduct operations on the public lands in the project area, 
except for reclamation and other measures specified by BLM.

Section 3809.603 How Does BLM Serve Me With an Enforcement Action?

    Proposed Sec. 3809.603 would identify the means by which BLM will 
serve a noncompliance order, a notification of intent to issue a 
suspension order, a suspension order, or other enforcement order. The 
existing service provision appears in Sec. 3809.3-2(b)(1).
    Under the proposal, service would be made on the person to whom it 
is directed or his or her designated agent, either by (1) offering a 
copy at the project area to the designated agent or to the individual 
who, based upon reasonable inquiry, appears to be in charge. If no such 
individual can be located at the project area, BLM may offer a copy to 
any individual at the project area who appears to be an employee or 
agent of the person to whom the notification or order is issued. 
Service would be complete when the notice or order is offered and would 
not be incomplete because of refusal to accept. Optionally service 
could occur by sending a copy of the notification or order by certified 
mail or by hand to the operator or his or her designated agent, or by 
any means consistent with the rules governing service of a summons and 
complaint under rule 4 of the Federal Rules of Civil Procedure. Service 
is complete upon offer of the notification or order or of the certified 
mail. The service rules would recognize that mining claimants, as well 
as operators, are responsible for activities on a mining claim or mill 
site and provide that BLM may serve a mining claimant in the same 
manner an operator would be served.
    The proposal would allow a mining claimant or operator to designate 
an agent for service of notifications and orders. A written designation 
would have to be provided in writing to the local BLM field office 
having jurisdiction over the lands involved.

Section 3809.604 What Happens If I Do Not Comply With a BLM Order?

    Proposed Sec. 3809.604(a) would reiterate the provision of existing 
Sec. 3809.3-2(c) that failure to comply with a BLM enforcement order 
could lead to judicial enforcement. Under the proposed rule, if a 
person does not comply with a BLM order issued under Secs. 3809.601 or 
3809.602, the Department of the Interior may request the United States 
Attorney to institute a civil action in United States District Court 
for an injunction or order to enforce its order, prevent the person 
from conducting operations on the public lands in violation of subpart 
3809, and collect damages resulting from unlawful acts. This judicial 
relief may be in addition to the enforcement actions described in 
proposed Secs. 3809.601 and 3809.602 and the penalties described in 
Secs. 3809.700 and 702.
    Proposed Sec. 3809.604(b) would embody the substance of existing 
Sec. 3809.3-2(e). It would provide that if an operator fails to timely 
comply with a noncompliance order issued under Sec. 3809.601(a), and 
remains in noncompliance, BLM may require submittal of plans of 
operations for current and future notice-level operations.

Penalties

    This portion of the proposed rule (Secs. 3809.700 through 3809.703) 
would set forth the penalties applicable to violations of this subpart. 
These penalty provisions would apply to existing operations as of the 
effective date of the final rule.

Section 3809.700 What Criminal Penalties Apply to Violations of This 
Subpart?

    Proposed Sec. 3809.700 would be included for information purposes 
and identify the criminal penalties established by statute for 
individuals and organizations for violations of subpart 3809. It was 
previously included in Sec. 3809.3-2(f) of the rules that were remanded 
in May 1998. Proposed paragraph (a) would specify that individuals who 
knowingly and willfully violate the requirements of subpart 3809 may be 
subject to arrest and trial under section 303(a) of FLPMA (43 U.S.C. 
1733(a)). Individuals convicted are subject to a fine of not more than 
$100,000 or the alternative fine provided for in the applicable 
provisions of 18 U.S.C. 3571, or imprisonment not to exceed 12 months, 
or both, for each offense. Proposed paragraph (b) would specify that 
organizations or corporations that knowingly or willfully violate the 
requirements of subpart 3809 are subject to trial and, if convicted, 
will be subject to a fine of not more than $200,000, or the alternative 
fine provided for in the applicable provisions of 18 U.S.C. 3571.

Section 3809.701 What Happens if I Make False Statements to BLM?

    Proposed Sec. 3809.701 would inform the public of the existing 
criminal sanctions for making false statements to BLM. Under statute 
(18 U.S.C. 1001), persons are subject to arrest and trial before a 
United States District Court if, in any matter under this subpart, they 
knowingly and willfully falsify, conceal, or cover up by any trick, 
scheme, or

[[Page 6448]]

device a material fact, or make any false, fictitious, or fraudulent 
statements or representations, or make or use any false writings or 
document knowing the same to contain any false, fictitious, or 
fraudulent statement or entry. If a person is so convicted, he or she 
will be fined not more than $250,000 or the alternative fine provided 
for in the applicable provisions of 18 U.S.C. 3571, or imprisoned not 
more than 5 years, or both.

Section 3809.702 What Civil Penalties Apply to Violations of This 
Subpart?

    Proposed subpart 3809 would provide authority for BLM to issue 
administrative civil penalties. Existing subpart 3809 does not provide 
for the issuance of administrative penalties. BLM believes that the 
issuance of administrative penalties for violations of subpart 3809 
would be an important means of deterring violations and to encourage 
abatement of violations that do occur. As stated earlier, section 
302(b) of FLPMA provides that ``[i]n managing the public lands, the 
Secretary shall, by regulation or otherwise, take any action necessary 
to prevent unnecessary or undue degradation of the lands.'' This 
provision confers upon the Secretary, acting through BLM, both the 
authority and the responsibility to take necessary actions to protect 
the public lands. Enforcement of subpart 3809 would be strengthened if 
operators understood that administrative enforcement orders can be 
backed up by administrative penalties. The possibility of such 
penalties should prevent unnecessary or undue degradation of the public 
lands by deterring the occurrence of violations of subpart 3809, and 
should also prevent the further degradation of the public lands by 
operators who fail to see the need for promptly acting to abate 
violations. Providing the authority for such administrative action 
would allow the agency to help itself in enforcing the law without 
having to resort to the judicial system for the assessment of 
penalties. Although industry representatives have understandably 
objected to the administrative penalty provisions, BLM believes that 
the authority and need exist for administrative penalties.
    Proposed Sec. 3809.702(a)(1) would provide that following issuance 
of a noncompliance or suspension order under section 3809.601, BLM may 
assess a proposed civil penalty of up to $5,000 for each violation 
against any persons who (i) violate any term or condition of a plan of 
operations or fail to conform with operations described in a notice; 
(ii) violate any provision of this subpart; or (iii) fail to comply 
with an order issued under proposed Sec. 3809.601. To encourage timely 
compliance, the proposal would specify that BLM may consider each day 
of continuing violation a separate violation for purposes of penalty 
assessments.
    The amount of the administrative penalty would be discretionary. To 
assure that the penalty amount assessed would be reasonable proposed 
Sec. 3809.702(a)(3) would provide that in determining the amount of the 
penalty, BLM must consider the person's history of previous violations 
at the particular mining operation; the seriousness of the violation, 
including any irreparable harm to the environment and any hazard to the 
health or safety of the public; whether the person was negligent; and 
the person's demonstrated good faith in attempting to achieve rapid 
compliance after notification of the violation. Also, to conform with 
section 323(a) of the Small Business Regulatory Enforcement Fairness 
Act of 1996, Pub. L. 104-121 (March 29, 1996), the proposal would 
provide that if the person assessed the penalty is a small entity, BLM 
will, under appropriate circumstances, consider reducing or waiving a 
civil penalty and may consider ability to pay in determining a penalty 
assessment.
    The proposal would also establish procedures to assure fairness in 
the penalty assessment process. Under proposed Sec. 3809.702(b), a 
final administrative assessment of a civil penalty would occur only 
after BLM has notified the person of the assessment and given the 
person opportunity to request within 30 days a hearing by the 
Department's Office of Hearings and Appeals (OHA). BLM would have the 
ability to extend the time to request a hearing if it is conducting 
settlement discussions. If a hearing occurs, OHA would issue any final 
penalty assessment. Under proposed Sec. 3809.702(c), if BLM issues a 
proposed civil penalty and the recipient fails to request a hearing, 
the proposed assessment would become a final order of the Department, 
and the penalty assessed becomes due upon expiration of the time 
allowed to request a hearing.

Section 3809.703 Can BLM Settle a Proposed Civil Penalty?

    Proposed Sec. 3809.703 would clarify BLM's authority to negotiate a 
settlement of civil penalties, in which case BLM would prepare a 
settlement agreement. Under the proposal, the BLM State Director or his 
or her designee must sign the agreement.

Appeals

Section 3809.800 What Appeal Rights do I Have?

    Proposed Sec. 3809.800 would specify the rights of any person 
adversely affected by a decision made under subpart 3809. Existing 
appeal rights are contained in Sec. 3809.4, and require operators to 
appeal to the BLM State Director before an appeal may be taken to the 
Interior Board of Land Appeals. Under the proposal, any person 
adversely affected by a decision made under subpart 3809 may appeal the 
decision to the Office of Hearings and Appeals under 43 CFR parts 4 and 
1840. Review of a decision by the BLM State Director would be 
discretionary and could take place if consistent with 43 CFR part 1840. 
BLM expects in the near future to propose changes to the State Director 
review process to address which decisions would be appealable to the 
State Director.
    Under proposed Sec. 3809.800(b), in order for the Department of the 
Interior to consider the appeal of a decision, the person appealing 
must file a notice of appeal in writing with the BLM office where the 
decision was made within 30 days after the date the decision is 
received. This provision would carry over the terms of existing 
Sec. 3809.4(b).
    Under proposed Sec. 3809.800(b), all decisions under this subpart 
would go into effect immediately and remain in effect while appeals are 
pending unless a stay is granted under 43 CFR section 4.21(b). This 
provision also would carry over the terms of existing Sec. 3809.4(b).
    Proposed Sec. 3809.800 (c) and (d) would continue the provisions of 
existing Sec. 3809.4(c) concerning the contents of an appeal. Under the 
proposal, a written appeal must contain the appellant's name and 
address and the BLM serial number of the notice or plan of operations 
that is the subject of the appeal. It would also require an appellant 
to submit a statement of reasons for the appeal and any arguments the 
appellant wishes to present that would justify reversal or modification 
of the decision within the time frame specified in part 4 of this 
chapter (usually within 30 days after filing an appeal).
    Existing paragraph (e) would not be proposed because it deals with 
the specifics of State Director review. Such procedures would be 
proposed separately as part of another regulatory proposal. Similarly, 
existing Sec. 3809.4(g) is not necessary because although a correct 
statement, it does not need to be stated in the rules. Agency actions 
do not become final until appeals to OHA have been finally resolved.

[[Page 6449]]

IV. How Did BLM Meet Its Procedural Obligations?

Executive Order 12866, Regulatory Planning and Review

    These proposed regulations are a ``significant regulatory action,'' 
as defined in section 3(f) of Executive Order 12866, and require an 
assessment of potential costs and benefits of the regulatory action, 
including an explanation of the manner in which the regulatory action 
is consistent with a statutory mandate and, to the extent permitted by 
law, promotes the President's priorities and avoids undue interference 
with State, local, and tribal governments in the exercise of their 
governmental functions. As a ``significant regulatory action,'' the 
proposed regulations are subject to review by the Office of Management 
and Budget.
    In accordance with E.O. 12866, BLM performed a benefit-cost 
analysis for the proposed action. We used as a baseline the existing 
regulation and current BLM administrative costs. The potential costs 
associated with the regulation are increased operating costs for miners 
and increased administrative costs for BLM. The potential benefits are 
environmental improvements. Both benefits and costs are difficult to 
quantify because many of the possible impacts associated with the 
regulation will be site- or mining operation-specific. Costs were 
analyzed in two ways: (1) a simple supply and demand approach; and (2) 
a simple cost modeling approach. Both approaches were designed to 
provide rough estimates of the potential costs and were not expected to 
provide precise estimates of costs. The analysis does serve, however, 
to establish a rough estimate of the range of potential costs. The site 
specific nature of most of the potential economic benefits prevented 
their quantification. However, the analysis developed sufficient 
information to demonstrate that it was plausible to assume that the 
benefits were at least equal to the costs. The annual costs of the 
proposed regulation are estimated to range from $12.1 million to $89.4 
million. BLM has placed the full assessment on file in the BLM 
Administrative Record at the address specified in the ADDRESSES 
section.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. We invite your comments on how 
to make these proposed regulations easier to understand, including 
answers to questions such as the following: (1) Are the requirements in 
the proposed regulations clearly stated? (2) Do the proposed 
regulations contain technical language or jargon that interferes with 
their clarity? (3) Does the format of the proposed regulations 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce their clarity? (4) Would the regulations be easier to 
understand if they were divided into more (but shorter) sections? (A 
``section'' appears in bold type and is preceded by the symbol 
``Sec. '' and a numbered heading, for example Sec. 3809.430. (5) Is the 
description of the proposed regulations in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in understanding the 
proposed regulations? How could this description be more helpful in 
making the proposed regulations easier to understand?
    Please send any comments you have on the clarity of the regulations 
to the address specified in the ADDRESSES section.

National Environmental Policy Act

    These proposed regulations constitute a major Federal action 
significantly affecting the quality of the human environment under 
section 102(2)(C) of the National Environmental Policy Act of 1969, 42 
U.S.C. 4332(2)(C). BLM is in the process of preparing a draft 
environmental impact statement (DEIS) which will be on file and 
available to the public in the BLM Administrative Record at the address 
specified in the ADDRESSES section. We will publish a notice in the 
Federal Register when the DEIS becomes publicly available.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as 
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. The Small Business Administration 
(SBA) has determined that the size standard for businesses engaged in 
mining of metals and non-metallic minerals, except fuels, is 500 
employees. See 13 CFR 121.201. Thus, any business employing 500 or 
fewer employees is considered ``small'' for the purposes of this 
analysis. Based on the 1992 Census of Mineral Industries (MIC 92-S-1, 
U.S. Department of Commerce, Bureau of the Census, August 1996), we 
believe that virtually all businesses currently engaged in mining on 
public lands could be considered ``small'' under the SBA 500-employee 
standard. Based on the 1992 Census of Mineral Industries and 
information collected from BLM field staff, we estimate that the 
proposed regulations will apply to 672 small entities (289 metal mining 
plus 383 non-metallic mineral mining companies). This represents about 
3 percent of the total number of companies involved in the mineral 
industry in 1992 and about 15 percent of the companies involved in 
metal and non-metallic minerals mining in 1992.
    Cost models developed by BLM suggest that the cost impact of the 
proposed rule would vary according to the type of mining operation. On 
a present value basis, the estimated percent cost increases were 2.9%, 
5.6%, and 7.8% respectively for the modeled placer, open pit, and strip 
operations. These cost increases represent 1.7%, 0.13%, and 3.9% of the 
present value of estimated gross annual revenues over the expected life 
of placer, open pit, and strip operations respectively. We expect 
nearly all exploration activities would face cost increases of less 
than 5 percent.
    The modeled exploration and placer mine probably best represent the 
potential impact on small entities. We do not consider the potential 
effect of this proposed rule on the modeled placer operation to be 
significant, given that the compliance cost represents less than 2 
percent of gross revenues. Nor do we consider exploration cost 
increases below 5 percent significant. While the proposed rule affects 
a significant number of entities, the impacts cannot be classified as 
significant. Therefore, BLM has determined under the RFA that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. For additional information, see 
the Regulatory Flexibility Act analysis on file in the BLM 
Administrative Record at the address specified in the ADDRESSES 
section.

Unfunded Mandates Reform Act

    These proposed regulations do not impose an unfunded mandate on 
State, local, or tribal governments or the private sector of more than 
$100 million per year; nor do these proposed regulations have a 
significant or unique effect on State, local, or tribal governments or 
the private sector.

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights (Takings)

    The proposed rule does not have significant takings implications. 
The

[[Page 6450]]

proposed rule does not affect property rights or interests in property, 
such as mining claims; it governs how an individual or corporation 
exercises those rights. Therefore, the Department of the Interior has 
determined that the rule would not cause a taking of private property 
or require further discussion of takings implications under this 
Executive Order.

Executive Order 12612, Federalism

    The proposed rule will not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. It would provide States greater 
opportunities to administer the mining regulatory program on public 
lands. In accordance with Executive Order 12612, BLM has determined 
that this proposed rule does not have sufficient Federalism 
implications to warrant preparation of a Federalism Assessment.

Paperwork Reduction Act

    Sections 3809.301 and 3809.401 contain information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), BLM has submitted a copy of the proposed regulations 
to the Office of Management and Budget (OMB) for review. BLM will not 
require collection of this information until OMB has given its 
approval.
    This set of information collections, Management of Public Lands 
under the U.S. Mining Laws, is comprised of information about proposed 
operations on public lands, including information necessary to identify 
and contact the operator; a description of the operation (whether 
notice- or plan-level); the reclamation plan; the reclamation cost 
estimate; and, in the case of plan-level operations, a plan for 
monitoring the effect of the operation. Respondents are those 
individuals and corporations who plan to conduct operations on public 
lands. The information would have to be submitted each time an operator 
proposed to conduct a new operation. We estimate the average burden for 
these information collections is 16 hours per notice and 32 hours per 
plan of operations. Since BLM processes about 350 notices each year, we 
estimate the annual total burden for notices is 5,600 hours. We process 
about 325 plans of operations each year for an estimated total yearly 
burden of 10,400 hours.
    Organizations and individuals desiring to submit comments on the 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
New Executive Office Building, Washington, DC 20503; Attention: Desk 
Officer for the Department of the Interior.
    BLM considers comments by the public on this proposed collection of 
information in--
     Evaluating whether the proposed collection of information 
is necessary for the proper performance of the functions of BLM, 
including whether the information will have practical use;
     Evaluating the accuracy of BLM's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology; such as permitting 
electronic submittal of responses.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment to BLM on the proposed 
regulations.

Authors

    The principal authors of this proposed rule are the members of the 
Departmental 3809 Task Force, chaired by Robert M. Anderson; Deputy 
Assistant Director, Minerals, Realty, and Resource Protection; Bureau 
of Land Management, (202) 208-4201.

List of Subjects in 43 CFR Part 3800

    Administrative practice and procedure, Environmental protection, 
Intergovernmental relations, Land Management Bureau, Mines, Public 
lands-mineral resources, Reporting and recordkeeping requirements, 
Surety bonds, Wilderness areas.

    Dated: November 13, 1998.
Sylvia V. Baca,
Assistant Secretary, Land and Minerals Management.
    Accordingly, BLM proposes to amend 43 CFR part 3800 as set forth 
below:

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

    1. BLM is amending part 3800 by revising subpart 3809 to read as 
follows:

Subpart 3809--Surface Management

Sec.

General Information:

3809.1  What are the purposes of this subpart?
3809.2  What is the scope of this subpart?
3809.3  What rules must I follow if State law conflicts with this 
subpart?
3809.5  How does BLM define certain terms used in this subpart?
3809.10  How does BLM classify operations?
3809.11  (Alternative 1) When does BLM require that I submit a 
notice or a plan of operations?
3809.11  (``Forest Service'' Alternative) When does BLM require that 
I submit a notice of intention to operate or a plan of operations? 
(Forest Service Alternative)
3809.100  What special provisions apply to operations on segregated 
or withdrawn lands?
3809.101  What special provisions apply to minerals that may be 
common variety minerals, such as sand, gravel, and building stone?
3809.111  Public availability of information.
3809.115  Information collection.
3809.116  As a mining claimant or operator, what are my 
responsibilities under this subpart for my project area?

Federal/State Agreements

3809.201  What kinds of agreements may BLM and a State make under 
this subpart?
3809.202  Under what conditions will BLM defer to State regulation 
of operations?
3809.203  What are the limitations on BLM deferral to State 
regulation of operations?
3809.204  Does this subpart cancel an existing agreement between BLM 
and a State?

Operations Conducted Under Notices

3809.300  Does this subpart apply to my existing notice-level 
operations?
3809.301  Where do I file my notice and what information must I 
include in it?
3809.311  What action does BLM take when it receives my notice?
3809.312  When may I begin operations after filing a complete 
notice?
3809.313  Under what circumstances may I not begin operations 15 
business days after filing my notice?
3809.320  Which performance standards apply to my notice-level 
operations?
3809.330  May I modify my notice?
3809.331  Under what conditions must I modify my notice?
3809.332  How long does my notice remain in effect?
3809.333  May I extend my notice, and, if so, how?
3809.334  What if I temporarily stop conducting operations under a 
notice?
3809.335  What happens when my notice expires?

[[Page 6451]]

3809.336  What if I abandon my notice-level operations?

Operations Conducted Under Plans of Operations

3809.400  Does this subpart apply to my existing or pending plan of 
operations?
3809.401  Where do I file my plan of operations and what information 
must I include with it?
3809.411  What action will BLM take when it receives my plan of 
operations?
3809.412  When may I operate under a plan of operations?
3809.415  How do I prevent unnecessary or undue degradation while 
conducting operations on public lands?
3809.420  What performance standards apply to my notice or plan of 
operations?
3809.423  How long does my plan of operations remain in effect?
3809.424  What are my obligations if I stop conducting operations?

Modifications of Plans of Operations

3809.430  May I modify my plan of operations?
3809.431  When must I modify my plan of operations?
3809.432  What process will BLM follow in reviewing a modification 
of my plan of operations?
3809.433  Does this subpart apply to a new modification of my plan 
of operations?
3809.434  Does this subpart apply to my pending modification for a 
new facility?
3809.435  Does this subpart apply to my pending modification for an 
existing facility?

Financial Guarantee Requirements--General

3809.500  In general, what are BLM's financial guarantee 
requirements?
3809.503  When must I provide a financial guarantee for my notice-
level operations?
3809.505  How do the financial guarantee requirements of this 
subpart apply to my existing plan of operations?
3809.551  What are my choices for providing BLM with a financial 
guarantee?

Individual Financial Guarantee

3809.552  What must my individual financial guarantee cover?
3809.553  May I post a financial guarantee for a part of my 
operations?
3809.554  How do I estimate the cost to reclaim my operations?
3809.555  What forms of individual financial guarantee are 
acceptable to BLM?
3809.556  What special requirements apply to financial guarantees 
described in Sec. 3809.555(e)?

Blanket Financial Guarantee

3809.560  Under what circumstances may I provide a blanket financial 
guarantee?

State-Approved Financial Guarantee

3809.570  Under what circumstances may I provide a State-approved 
financial guarantee?
3809.571  What forms of State-approved financial guarantee are 
acceptable to BLM?
3809.572  What happens if BLM rejects a financial instrument in my 
State-approved financial guarantee?
3809.573  What happens if the State makes a demand against my 
financial guarantee?

Modification or Replacement of a Financial Guarantee

3809.580  What happens if I modify my notice or approved plan of 
operations?
3809.581  Will BLM accept a replacement financial instrument?
3809.582  How long must I maintain my financial guarantee?

Release of Financial Guarantee

3809.590  When will BLM release or reduce the financial guarantee 
for my notice or plan of operations?
3809.591  What are the limitations on the amount by which BLM may 
reduce my financial guarantee?
3809.592  Does release of my financial guarantee relieve me of all 
responsibility for my project area?
3809.593  What happens to my financial guarantee if I transfer my 
operations?
3809.594  What happens to my financial guarantee when my mining 
claim is patented?

Forfeiture of Financial Guarantee

3809.595  When will BLM initiate forfeiture of my financial 
guarantee?
3809.596  How does BLM initiate forfeiture of my financial 
guarantee?
3809.597  What if I do not comply with BLM's forfeiture notice?
3809.598  What if the amount forfeited will not cover the cost of 
reclamation?
3809.599  What if the amount forfeited exceeds the cost of 
reclamation?

Inspection and Enforcement

3809.600  With what frequency will BLM inspect my operations?
3809.601  What type of enforcement action may BLM take if I do not 
meet the requirements of this subpart?
3809.602  Can BLM revoke my plan of operations or nullify my notice?
3809.603  How does BLM serve me with an enforcement action?
3809.604  What happens if I do not comply with a BLM order?

Penalties

3809.700  What criminal penalties apply to violations of this 
subpart?
3809.701  What happens if I make false statements to BLM?
3809.702  What civil penalties apply to violations of this subpart?
3809.703  Can BLM settle a proposed civil penalty?

Appeals

3809.800  What appeal rights do I have?

    Authority: 16 U.S.C. 1280; 30 U.S.C. 22; 30 U.S.C. 612; 43 
U.S.C. 1201; and 43 U.S.C. 1732, 1733, 1740, 1781, and 1782.

Subpart 3809--Surface Management

General Information


Sec. 3809.1  What are the purposes of this subpart?

    The purposes of this subpart are to:
    (a) Prevent unnecessary or undue degradation of public lands by 
operations authorized by the mining laws. Anyone intending to develop 
mineral resources on the public lands must prevent unnecessary or undue 
degradation of the land and reclaim disturbed areas. This subpart 
establishes procedures and standards to ensure that operators and 
mining claimants meet this responsibility; and
    (b) Provide for maximum possible coordination with appropriate 
State agencies to avoid duplication and to ensure that operators 
prevent unnecessary or undue degradation of public lands.


Sec. 3809.2  What is the scope of this subpart?

    (a) This subpart applies to all operations authorized by the mining 
laws on public lands, including Stock Raising Homestead lands, as 
provided in Sec. 3809.11(i), where the mineral interest is reserved to 
the United States.
    (b) This subpart does not apply to lands in the National Park 
System, National Forest System, and the National Wildlife Refuge 
System; acquired lands; lands leased or patented under the Recreation 
and Public Purposes Act; lands patented under the Small Tract Act; or 
lands administered by BLM that are under wilderness review, which are 
subject to subpart 3802 of this part.
    (c) This subpart applies to all patents issued after October 21, 
1976 for mining claims in the California Desert Conservation Area, 
except for any patent for which a right to the patent vested before 
that date.
    (d) This subpart applies to operations that involve metallic 
minerals; some industrial minerals, such as gypsum; and a number of 
other non-metallic minerals that have a unique property which gives the 
deposit a distinct and special value. This subpart does not apply to 
leasable and salable minerals. Leasable minerals, such as coal, 
phosphate, sodium, and potassium; and salable minerals, such as common 
varieties of sand, gravel, stone, and pumice, are not subject to 
location under the mining laws. Parts 3400, 3500 and 3600 of this title 
govern mining operations for leasable and salable minerals.

[[Page 6452]]

Sec. 3809.3  What rules must I follow if State law conflicts with this 
subpart?

    If State laws or regulations conflict with this subpart regarding 
operations on public lands, you must follow the requirements of this 
subpart. However, there is no conflict if the State law or regulation 
requires a higher standard of protection for public lands than this 
subpart.


Sec. 3809.5  How does BLM define certain terms used in this subpart?

    As used in this subpart, the term:
    Casual use means activities ordinarily resulting in no or 
negligible disturbance of the public lands or resources. For example--
    (1) Casual use generally includes the collection of mineral 
specimens using hand tools, hand panning, and non-motorized sluicing.
    (2) Casual use does not include use of mechanized earth-moving 
equipment, truck-mounted drilling equipment, portable suction dredges, 
motorized vehicles in areas designated as closed to ``off-road 
vehicles'' as defined in Sec. 8340.0-5 of this title, chemicals, or 
explosives; ``occupancy'' as defined in Sec. 3715.0-5 of this title; or 
hobby or recreational mining in areas where the cumulative effects of 
the activities result in more than negligible disturbance.
    Mininize means to reduce the adverse impact of an operation to the 
lowest practical level. During review of operations, BLM may determine 
that ``minimize'' means to avoid or eliminate particular impacts.
    Mining claim means any unpatented mining claim, millsite, or tunnel 
site located under the mining laws. The term also applies to those 
mining claims and millsites located in the California Desert 
Conservation Area that were patented after the enactment of the Federal 
Land Policy and Management Act of October 21, 1976. Mining ``claimant'' 
is defined in Sec. 3833.0-5 of this title.
    Mining laws means the Lode Law of July 26, 1866, as amended (14 
Stat. 251); the Placer Law of July 9, 1870, as amended (16 Stat. 217); 
and the Mining Law of May 10, 1872, as amended (17 Stat. 91); as well 
as all laws supplementing and amending those laws, including the 
Building Stone Act of August 4, 1892, as amended (27 Stat. 348); the 
Saline Placer Act of January 31, 1901 (31 Stat. 745); the Surface 
Resources Act of 1955 (30 U.S.C. 611-614); and the Federal Land Policy 
and Management Act of 1976 (43 U.S.C. 1701 et seq.).
    Mitigation, as defined in 40 CFR 1508.20, may include one or more 
of the following:
    (1) Avoiding the impact altogether by not taking a certain action 
or parts of an action;
    (2) Minimizing impacts by limiting the degree or magnitude of the 
action and its implementation;
    (3) Rectifying the impact by repairing, rehabilitating, or 
restoring the affected environment;
    (4) Reducing or eliminating the impact over time by preservation 
and maintenance operations during the life of the action; and
    (5) Compensating for the impact by replacing, or providing 
substitute, resources or environments.
    Most appropriate technology and practices (MATP) means equipment, 
devices, or methods that have demonstrable feasibility, success, and 
practicality in meeting the standards of this subpart. MATP includes 
the use of equipment and procedures that are either proven or 
reasonably expected to be effective in a particular region or location. 
MATP does not necessarily require use of the most expensive technology 
or practice. BLM determines whether the requirement to use MATP is met 
on a case-by-case basis during its review of a notice or plan of 
operations.
    Operations means all functions, work, facilities, and activities on 
public lands in connection with prospecting, discovery and assessment 
work, development, extraction, and processing of mineral deposits 
locatable under the mining laws; reclamation of disturbed areas; and 
all other reasonably incident uses, whether on a mining claim or not, 
including the construction of roads, transmission lines, pipelines, and 
other means of access across public lands for support facilities.
    Operator means any person who manages, directs, or conducts 
operations at a project area under this subpart, including a parent 
entity or an affiliate who materially participates in such management, 
direction, or conduct. An operator on a particular mining claim may 
also be the mining claimant.
    Person means any individual, firm, corporation, association, 
partnership, trust, consortium, joint venture, or any other entity 
conducting operations on public lands.
    Project area means the area of land upon which the operator 
conducts operations, including the area required for construction or 
maintenance of roads, transmission lines, pipelines, or other means of 
access by the operator.
    Public lands, as defined in 43 U.S.C. 1702, means any land and 
interest in land owned by the United States within the several States 
and administered by the Secretary of the Interior through the BLM, 
without regard to how the United States acquired ownership, except--
    (1) Lands located on the Outer Continental Shelf; and
    (2) Lands held for the benefit of Indians, Aleuts, and Eskimos.
    Reclamation means taking measures required by this subpart 
following disturbance of public lands caused by operations to meet 
applicable performance standards and achieve conditions required by BLM 
at the conclusion of operations. (For a definition of ``reclamation'' 
applicable to operations conducted under the mining laws on Stock 
Raising Homestead Act lands, see part 3810, subpart 3814 of this title) 
Components of reclamation include, where applicable:
    (1) Isolation, control, or removal of acid-forming, toxic, or 
deleterious substances;
    (2) Regrading and reshaping to conform with adjacent landforms, 
facilitate revegetation, control drainage, and minimize erosion;
    (3) Rehabilitation of fisheries or wildlife habitat;
    (4) Placement of growth medium and establishment of self-sustaining 
revegetation;
    (5) Removal or stabilization of buildings, structures, or other 
support facilities;
    (6) Plugging of drill holes and closure of underground workings; 
and
    (7) Providing for post-mining monitoring, maintenance, or 
treatment.
    Riparian area is a form of wetland transition between permanently 
saturated wetlands and upland areas. These areas exhibit vegetation or 
physical characteristics reflective of permanent surface or subsurface 
water influence. Typical riparian areas include lands along, adjacent 
to, or contiguous with perennially and intermittently flowing rivers 
and streams, glacial potholes, and the shores of lakes and reservoirs 
with stable water levels. Excluded are areas such as ephemeral streams 
or washes that do not exhibit the presence of vegetation dependent upon 
free water in the soil.
    Tribe means, and Tribal refers to, a Federally recognized Indian 
tribe.
    Unnecessary or undue degradation means conditions, activities, or 
practices that:
    (1) Fail to comply with one or more of the following: 
Sec. 3809.420, the terms and conditions of an approved plan of 
operations, operations described in a complete notice, and other 
Federal and State laws related to environmental protection and 
protection of cultural resources;

[[Page 6453]]

    (2) Are not ``reasonably incident'' to prospecting, mining, or 
processing operations as defined in Sec. 3715.0-5 of this title; or
    (3) Fail to attain a stated level of protection or reclamation 
required by specific laws in areas such as the California Desert 
Conservation Area, Wild and Scenic Rivers, BLM-administered portions of 
the National Wilderness System, and BLM-administered National Monuments 
and National Conservation Areas.


Sec. 3809.10  How does BLM classify operations?

    BLM classifies operations as--
    (a) Casual use, for which an operator generally need not notify 
BLM;
    (b) Notice-level operations, for which an operator must submit a 
notice (except for certain suction-dredging operations covered by 
Sec. 3809.11(h)); and
    (c) Plan-level operations, for which an operator must submit a plan 
of operations and obtain BLM's approval.


Sec. 3809.11 (Alternative 1)  When does BLM require that I submit a 
notice or a plan of operations?

    To see when you must submit a notice or a plan of operations, 
follow this table:

------------------------------------------------------------------------
      If your operations . . .                    Then . . .
------------------------------------------------------------------------
(a) Consist of casual use,           You do not need to notify BLM or
                                      seek permission to conduct
                                      operations. You must reclaim
                                      casual-use disturbance. BLM may
                                      monitor your operations to ensure
                                      that unnecessary or undue
                                      degradation does not occur.
(b) Consist of unreclaimed surface   You must give BLM a complete notice
 disturbance of 5 acres or less of    of your planned activities 15
 public lands,                        business days before you plan to
                                      start operations. You have the
                                      option to file a plan of
                                      operations. You must not segment a
                                      project area by filing a series of
                                      notices solely to avoid filing a
                                      plan of operations. See Secs.
                                      3809.300 through 3809.336.
(c) Consist of unreclaimed surface   You must submit a plan of
 disturbance of more than 5 acres     operations and obtain BLM's
 of public lands,                     approval before beginning
                                      operations. See Secs.  3809.400
                                      through 3809.435.
(d) Cause any surface disturbance    You must submit a plan of
 greater than casual use in the       operations and obtain BLM's
 special status areas described in    approval. See Secs.  3809.400
 paragraph (j) of this section,       through 3809.435.
(e) Involve any recreational mining  The group's representative must
 activities by a group, such as a     contact BLM at least 15 business
 mining club,                         days before initiating activities
                                      to find out if BLM will require
                                      the group to file a notice or a
                                      plan of operations. This contact
                                      is not required if the group
                                      submits a notice or plan of
                                      operations.
(f) Involve any leaching or          You must submit a plan of
 storage, addition, or use of         operations and obtain BLM's
 chemicals in milling, processing,    approval. See Secs.  3809.400
 beneficiation, or concentrating      through 3809.435.
 activities (This does not include
 chemicals used solely for fuel or
 as lubricants for equipment.),
(g) Require you to occupy or use a   Whether you are operating under a
 site for activities ``reasonably     notice or a plan, you must also
 incident'' to mining, as defined     comply with part 3710, subpart
 in Sec.  3715.0-5 of this title,     3715, of this title.
(h) Involve the use of a portable    You need not submit a notice or
 suction dredge with an intake        plan of operations unless
 diameter of 4 inches or less, the    otherwise required by this
 State requires an authorization      section. For all other use of a
 for its use, and BLM and the State   suction dredge, you must submit to
 have an agreement under Sec.         BLM either a notice or a plan of
 3809.201 addressing suction          operations, whichever is
 dredging,                            applicable under this section.
(i) Are located on lands patented    You must submit a plan of
 under the Stock Raising Homestead    operations and obtain BLM's
 Act and you do not have the          approval. Where you have surface-
 written consent of the surface       owner consent, you do not need a
 owner,                               notice or a plan of operations
                                      under this subpart. See part 3810,
                                      subpart 3814, of this title.
------------------------------------------------------------------------

    (j) The special status areas where BLM requires a plan of 
operations for all operations greater than casual use include:
    (1) Lands in the California Desert Conservation Area (CDCA) 
designated by the CDCA plan as ``controlled'' or ``limited'' use areas;
    (2) Areas in the National Wild and Scenic Rivers System, and areas 
designated for potential addition to the system;
    (3) Designated Areas of Critical Environmental Concern;
    (4) Areas designated as part of the National Wilderness 
Preservation System and administered by BLM;
    (5) Areas designated as ``closed'' to off-road vehicle use, as 
defined in Sec. 8340.0-5 of this title;
    (6) Any areas specifically identified in BLM land-use or activity 
plans where BLM has determined that a plan of operations is required to 
provide detailed review of project effects on unique, irreplaceable, or 
outstanding historical, cultural, recreational, or natural resource 
values, such as threatened or endangered species or their critical 
habitat;
    (7) National Monuments and National Conservation Areas administered 
by BLM; and
    (8) All areas segregated in anticipation of a mineral withdrawal 
and all withdrawn areas, except for areas segregated or withdrawn under 
the Alaska Native Claims Settlement Act, the Alaska National Interest 
Lands Conservation Act, and the Alaska Statehood Act.
    (k) If your operations do not qualify as casual use, you must 
submit a notice or plan of operations, whichever is applicable.


Sec. 3809.11   (``Forest Service'' Alternative) When does BLM require 
that I submit a notice of intention to operate or a plan of operations?

    To see when you must submit a notice of intention to operate or a 
plan of operations, follow this table:

------------------------------------------------------------------------
              If . . .                            Then . . .
------------------------------------------------------------------------
(a) Your proposed operations--       You do not need to notify BLM or
                                      seek permission to conduct your
                                      operations. You must reclaim your
                                      operations, and BLM may monitor
                                      them to ensure that unnecessary or
                                      undue degradation does not occur.

[[Page 6454]]

 
(1) Are limited to the use of
 vehicles on existing public roads
 or roads used and maintained for
 BLM purposes;
(2) Involve individuals desiring to
 search for and occasionally remove
 small mineral samples or
 specimens;
(3) Consist of prospecting and
 sampling that will not cause
 significant surface resource
 disturbance and will not involve
 removal of more than a reasonable
 amount of mineral deposit for
 analysis and study;
(4) Are limited to marking and
 monumenting a mining claim;
(5) Involve subsurface operations
 that will not cause significant
 surface resource disturbance; or
(6) Do not involve the use of
 mechanized earthmoving equipment,
 such as a bulldozer or a backhoe,
 and will not involve the cutting
 of trees;
(b) You propose to conduct           You must file with BLM a complete
 operations that--                    notice of intention to operate 15
                                      business days before you plan to
                                      start operations. See Secs.
                                      3809.300 through 3809.336.
(1) Are not described in paragraph
 (a) of this section; and
(2) Might cause disturbance of
 surface resources,
(c) After reviewing your notice of   You must submit a plan of
 intention to operate, BLM            operations and obtain BLM's
 determines that your operations      approval. See Secs.  3809.400
 are likely to cause significant      through 3809.435.
 disturbance of surface resources,
------------------------------------------------------------------------

    (d) You always have the option to submit a plan of operations in 
lieu of the notice of intention to operate required under paragraph (b) 
of this section.


Sec. 3809.100  What special provisions apply to operations on 
segregated or withdrawn lands?

    (a) Mineral examination report. After the date on which the lands 
are withdrawn from appropriation under the mining laws, BLM will not 
approve a plan of operations until BLM has prepared a mineral 
examination report to determine whether the mining claim was valid 
before the withdrawal, and whether it remains valid. BLM may require 
preparation of a mineral examination report before approving operations 
on segregated lands. If the report concludes that the mining claim is 
invalid, BLM will not approve operations on the mining claim. BLM will 
also promptly initiate contest proceedings.
    (b) Allowable operations. If BLM has not completed the mineral 
examination report under paragraph (a) of this section, if the mineral 
examination report for proposed operations concludes that a mining 
claim is invalid, or if there is a pending contest proceeding for the 
mining claim, BLM may--
    (1) Approve a plan of operations for the disputed mining claim 
proposing operations that are limited to taking samples to confirm or 
corroborate mineral exposures that are physically disclosed and 
existing on the mining claim before the segregation or withdrawal date, 
whichever is earlier; and
    (2) Approve a plan of operations for the operator to perform the 
minimum necessary annual assessment work under Sec. 3851.1 of this 
title.
    (c) Time limits. While BLM prepares a mineral examination report 
under paragraph (a) of this section, it may suspend the time limit for 
responding to a notice for operations in Alaska or acting on a plan of 
operations. See Secs. 3809.311 and 3809.411, respectively.
    (d) Final decision. If a final departmental decision declares a 
mining claim to be null and void, the operator must cease all 
operations, except required reclamation.


Sec. 3809.101  What special provisions apply to minerals that may be 
common variety minerals, such as sand, gravel, and building stone?

    (a) Mineral examination report. On mining claims located on or 
after July 23, 1955, you must not initiate operations for minerals that 
may be ``common variety'' minerals, as defined in Sec. 3711.1(b) of 
this title, until BLM has prepared a mineral examination report, except 
as provided in paragraph (b) of this section.
    (b) Interim authorization. Until the mineral examination report 
described in paragraph (a) of this section is prepared, BLM will allow 
notice-level operations or approve a plan of operations for the 
disputed mining claim for--
    (1) Operations limited to taking samples to confirm or corroborate 
mineral exposures that are physically disclosed and existing on the 
mining claim;
    (2) Performance of the minimum necessary annual assessment work 
under Sec. 3851.1 of this title; or
    (3) Operations to remove possible common variety minerals if you 
establish an escrow account in a form acceptable to BLM. You must make 
regular payments to the escrow account for the appraised value of 
possible common variety minerals removed under a payment schedule 
approved by BLM. The funds in the escrow account must not be disbursed 
to the operator or to the U.S. Treasury until a final determination of 
whether the mineral is a common variety and therefore salable under 
part 3600 of this title.
    (c) Determination of common variety. If the mineral examination 
report under paragraph (a) of this section concludes that the minerals 
are common variety minerals, you may either relinquish your mining 
claim(s) or BLM will initiate contest proceedings. Upon relinquishment 
or final departmental determination that the mining claim(s) is null 
and void, you must promptly close and reclaim your operations unless 
you are authorized to proceed under parts 3600 and 3610 of this title.
    (d) Disposal. BLM may dispose of common variety minerals from an 
unpatented mining claim with a written waiver from the mining claimant.


Sec. 3809.111  Public availability of information.

    Part 2 of this title applies to all information and data you submit 
under this subpart. If you submit information or data under this 
subpart that you believe is exempt from disclosure, you must mark each 
page clearly ``CONFIDENTIAL INFORMATION.'' You must also separate it 
from other materials you submit to BLM. BLM will keep confidential 
information or data marked in this manner to the extent required by 
part 2 of this title. If you do not mark the information as 
confidential, BLM, without notifying you, may disclose the information 
to the public to the full extent allowed under part 2 of this title.

[[Page 6455]]

Sec. 3809.115  Information collection.

    (a) The Office of Management and Budget has approved the 
collections of information contained in this subpart 3809 under 44 
U.S.C. 3501 et seq. and assigned clearance number 1004-____. BLM will 
use this information to regulate and monitor mining and exploration 
operations on public lands. Response to requests for information is 
mandatory in accordance with 43 U.S.C. 1701 et seq. The information 
collection approval expires ______.
    (b) BLM estimates that the public reporting burden for this 
information averages 8 hours per response for notices and 80 hours per 
response for plans of operations. This includes reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding this burden estimate or any other aspect of 
this collection of information, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer (783), Bureau 
of Land Management, Washington, D.C. 20240, and the Office of 
Management and Budget, Attention Desk Officer for the Interior 
Department, Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington, DC 20503, referring to information 
collection clearance number 1004-____.


Sec. 3809.116  As a mining claimant or operator, what are my 
responsibilities under this subpart for my project area?

    (a) Mining claimants and operators (if other than the mining 
claimant) are jointly and severally liable for obligations under this 
subpart that accrued while they held their interests. Joint and several 
liability, in this context, means that the mining claimants and 
operators are responsible together and individually for obligations, 
such as reclaiming the project area. In the event obligations are not 
met, BLM may take any action authorized under this subpart against 
either the mining claimants or the operators, or both.
    (b) Relinquishment, forfeiture, or abandonment of a mining claim 
does not relieve a mining claimant's or operator's responsibility under 
this subpart for obligations or conditions created while the mining 
claimant or operator was responsible for operations conducted on that 
mining claim or in the project area.
    (c) Transfer of a mining claim or operation does not relieve a 
mining claimant's or operator's responsibility under this subpart for 
obligations or conditions created while the mining claimant or operator 
was responsible for operations conducted on that mining claim or in the 
project area until--
    (1) BLM receives documentation that a transferee accepts 
responsibility, and
    (2) BLM accepts an adequate replacement financial guarantee.

Federal/State Agreements


Sec. 3809.201  What kinds of agreements may BLM and a State make under 
this subpart?

    To prevent unnecessary administrative delay and to avoid 
duplication of administration and enforcement, BLM and a State may make 
the following kinds of agreements:
    (a) An agreement to provide for a joint Federal/State program; and
    (b) An agreement under Sec. 3809.202 which provides that, in place 
of BLM administration, BLM defers to State administration of some or 
all of the requirements of this subpart subject to the limitations in 
Sec. 3809.203.


Sec. 3809.202  Under what conditions will BLM defer to State regulation 
of operations?

    (a) State request. A State may request BLM enter into an agreement 
for State regulation of operations on public lands in place of BLM 
administration of some or all of the requirements of this subpart. The 
State must send the request to the BLM State Director with jurisdiction 
over public lands in the State.
    (b) BLM review. (1) When the State Director receives the State's 
request, he/she will notify the public and provide an opportunity for 
comment. The State Director will then review the request and determine 
whether the State's requirements are consistent with the requirements 
of this subpart, and whether the State has necessary legal authorities, 
resources, and funding for an agreement. The State requirements may be 
contained in laws, regulations, guidelines, policy manuals, and 
demonstrated permitting practices.
    (2) For the purposes of this subpart, BLM will determine 
consistency with the requirements of this subpart by comparing this 
subpart and State standards on a provision-by-provision basis to 
determine--
    (i) Whether non-numerical State standards are functionally 
equivalent to BLM counterparts; and
    (ii) Whether numerical State standards, such as the 5-acre 
threshold for plans of operations, are the same as corresponding BLM 
standards, except that State review and approval timeframes do not have 
to be the same as the corresponding Federal timeframes.
    (3) A State environmental protection standard that exceeds a 
corresponding Federal standard is consistent with the requirements of 
this subpart.
    (c) State Director decision. The BLM State Director will notify the 
State in writing of his/her decision regarding the State's request. The 
State Director will address whether the State requirements are 
consistent with the requirements of this subpart, and whether the State 
has necessary legal authorities, resources, and funding to implement 
any agreement. If BLM determines that the State's requirements are 
consistent with the requirements of this subpart and the State has the 
necessary legal authorities, resources, and funding, BLM must enter 
into an agreement with the State so that the State will regulate some 
or all of the operations on public lands, as described in the State 
request.
    (d) Appeal of State Director decision. The BLM State Director's 
decision will be a final decision of BLM and may be appealed to the 
Assistant Secretary for Land and Minerals Management, but not to the 
Department of the Interior Office of Hearings and Appeals. See 
Sec. 3809.800(c) for the items you should include in the appeal.


Sec. 3809.203  What are the limitations on BLM deferral to State 
regulation of operations?

    Any agreement between BLM and a State in which BLM defers to State 
regulation of some or all operations on public lands is subject to the 
following limitations:
    (a) Plans of operations. BLM must concur with each State decision 
approving a plan of operations to assure compliance with this subpart, 
and BLM retains responsibility for compliance with the National 
Environmental Policy Act (NEPA). The State and BLM may decide who will 
be the lead agency in the plan review process, including preparation of 
NEPA documents.
    (b) Federal land-use planning and other Federal laws. BLM will 
continue to be responsible for all land-use planning on public lands 
and for implementing other Federal laws relating to the public lands 
for which BLM is responsible.
    (c) Federal enforcement. BLM may take any authorized action to 
enforce the requirements of this subpart or any term, condition, or 
limitation of a notice or an approved plan of operations. BLM may take 
this action regardless of the nature of its agreement with a State, or 
actions taken by a State.
    (d) Financial guarantee. The amount of the financial guarantee must 
be calculated based on the completion of both Federal and State 
reclamation

[[Page 6456]]

requirements, but may be held as one instrument. If the financial 
guarantee is held as one instrument, it must be redeemable by both the 
Secretary and the State. BLM must concur in the approval and release of 
a financial guarantee for public lands.
    (e) State performance. If BLM determines that a State is not in 
compliance with all or part of its Federal/State agreement, BLM will 
notify the State and provide a reasonable time for the State to comply.
    (f) Termination. (1) If a State does not comply after being 
notified under paragraph (e) of this section, BLM will take appropriate 
action, which may include termination of all or part of the agreement.
    (2) A State may terminate its agreement by notifying BLM 60 days in 
advance.


Sec. 3809.204  Does this subpart cancel an existing agreement between 
BLM and a State?

    No. A Federal/State agreement or memorandum of understanding in 
effect on (effective date of the final rule.) will continue while BLM 
and the State perform a review to determine whether revisions are 
required under this subpart. BLM and the State must complete the review 
and make necessary revisions no later than one year from (effective 
date of the final rule.)

Operations Conducted Under Notices


Sec. 3809.300  Does this subpart apply to my existing notice-level 
operations?

    To see how this subpart applies to your operations conducted under 
a notice and existing on (effective date of the final rule.), follow 
this table:

------------------------------------------------------------------------
  If you are conducting operations
    under a notice filed before
(effective date of the final rule.)               Then . . .
             and . . .
------------------------------------------------------------------------
(a) You are the operator identified  You may conduct operations under
 in the notice on file with BLM on    the terms of your existing notice
 (effective date of the final         for 2 years after (effective date
 rule.),                              of the final rule.), or longer if
                                      your notice is extended under Sec.
                                       3809.333. See Sec.  3809.503 for
                                      financial guarantee requirements
                                      applicable to notices.
(b) You are a new operator, that     You must conduct operations under
 is, you were not the operator        the provisions of this subpart,
 identified in the notice on file     including Sec.  3809.320 for 2
 with BLM on (effective date of the   years after (effective date of the
 final rule.),                        final rule.), unless extended
                                      under Sec.  3809.333.
(c) Your notice has expired,         You may not conduct operations
                                      under an expired notice. You must
                                      reclaim your project area
                                      immediately or promptly submit a
                                      new notice under Sec.  3809.301.
------------------------------------------------------------------------

Sec. 3809.301  Where do I file my notice and what information must I 
include in it?

    (a) If you qualify under Sec. 3809.11, you must file your notice 
with the local BLM office with jurisdiction over the lands involved. 
BLM does not require that the notice be on a particular form.
    (b) To be complete, your notice must include the following 
information:
    (1) Operator information. The name, mailing address, phone number, 
social security number or corporate identification number of the 
operator(s), and the BLM serial number(s) of any unpatented mining 
claim(s) where the disturbance would occur. If the operator is a 
corporation, you must identify one individual as the point of contact;
    (2) Activity description, map, and schedule of activities. A 
description of the proposed activity with a level of detail appropriate 
to the type, size, and location of the activity. The description must 
include the following:
    (i) The measures that you will take to prevent unnecessary or undue 
degradation during operations;
    (ii) A map showing the location of your project area in sufficient 
detail for BLM to be able to find it and the location of access routes 
you intend to use, improve, or construct;
    (iii) A description of the type of equipment you intend to use; and
    (iv) A schedule of activities, including the date when you will 
begin operations and the date by which you will complete reclamation;
    (3) Reclamation plan. A description of how you will complete 
reclamation to the standards described in Sec. 3809.420; and
    (4) Reclamation cost estimate. An estimate of the cost to fully 
reclaim your operations as required by Sec. 3809.552; and
    (c) BLM may require you to provide additional information, if 
necessary to ensure that your operations will comply with this subpart.
    (d) You must notify BLM in writing within 30 days of any change of 
operator or corporate point of contact, or of the mailing address of 
the operator or corporate point of contact.


Sec. 3809.311  What action does BLM take when it receives my notice?

    (a) Upon receipt of your notice, BLM will review it within 15 
business days to see if it is complete under Sec. 3809.301.
    (b) If your notice is incomplete, BLM will inform you in writing of 
the additional information you must submit. BLM may also take the 
actions described in Sec. 3809.313.
    (c) BLM will review your additional information within 15 business 
days to ensure it is complete. BLM will repeat this process until your 
notice is complete.


Sec. 3809.312  When may I begin operations after filing a complete 
notice?

    (a) If BLM does not take any of the actions described in 
Sec. 3908.313, you may begin operations no sooner than 15 business days 
after the appropriate BLM office receives your complete notice. BLM may 
send you an acknowledgement that indicates the date we received your 
notice. If you don't receive an acknowledgement or have any doubt about 
the date we received your notice, contact the office to which you sent 
the notice. This subpart does not require BLM to approve your notice or 
inform you that your notice is complete.
    (b) If we complete our review sooner than 15 days after receiving 
your complete notice, we may notify you that you may begin operations.
    (c) You must provide a financial guarantee that meets the 
requirements of this subpart before beginning operations.
    (d) Your operations may be subject to BLM approval under part 3710, 
subpart 3715, of this title relating to use or occupancy of unpatented 
mining claims.


Sec. 3809.313  Under what circumstances may I not begin operations 15 
business days after filing my notice?

    To see when you may not begin operations 15 business days after 
filing your notice, follow this table:

[[Page 6457]]



------------------------------------------------------------------------
  If BLM reviews your notice and,
  within 15  business days, . . .                 Then . . .
------------------------------------------------------------------------
(a) Notifies you that BLM needs      You must not begin operations until
 additional time, not to exceed 15    the additional review time period
 business days, to complete its       ends.
 review,
(b) Notifies you that if you do not  You must not begin operations until
 modify your notice, your             you modify your notice to ensure
 operations will likely cause         that your operations prevent
 unnecessary or undue degradation,    unnecessary or undue degradation.
(c) Requires you to consult with     You must not begin operations until
 BLM about the location of existing   you consult with BLM and satisfy
 or proposed access routes,           BLM's concerns about access.
(d) Determines that an on-site       You must not begin operations until
 visit is necessary,                  BLM visits the site, and you
                                      satisfy any concerns arising from
                                      the visit.
(e) BLM determines you don't         You must file a plan of operations
 qualify under Sec.  3809.11 as a     before beginning operations. See
 notice-level operation,              Secs.  3809.400 through 3809.420.
------------------------------------------------------------------------

Sec. 3809.320  Which performance standards apply to my notice-level 
operations?

    Your notice-level operations must meet all applicable performance 
standards of Sec. 3809.420.


Sec. 3809.330  May I modify my notice?

    (a) Yes, you may submit a notice modification at any time during 
operations under a notice.
    (b) BLM will review your notice modification the same way it 
reviewed your initial notice under Secs. 3809.311 and 3809.313.


Sec. 3809.331  Under what conditions must I modify my notice?

    (a) You must modify your notice--
    (1) If BLM requires you to do so to prevent unnecessary or undue 
degradation; or
    (2) If you plan to make material changes to your operations. 
Material changes include the addition of planned surface disturbance up 
to the threshold described in Sec. 3809.11, undertaking new drilling or 
trenching activities, or changing reclamation.
    (b) You must submit your notice modification 15 business days 
before making any material changes. If BLM determines your notice 
modification is complete before the 15-day period has elapsed, BLM may 
notify you to proceed. When BLM requires you to modify your notice, it 
may also notify you to proceed before the 15-day period has elapsed to 
prevent unnecessary or undue degradation.


Sec. 3809.332  How long does my notice remain in effect?

    If you filed your notice on or after (effective date of the final 
rule.), it remains in effect for 2 years, unless extended under 
Sec. 3809.333, or unless you notify BLM beforehand that operations have 
ceased and reclamation is complete. BLM will conduct an inspection to 
verify whether you have met your obligations, will notify you promptly 
in writing, and terminate your notice, if appropriate.


Sec. 3809.333  May I extend my notice, and, if so, how?

    Yes. If you wish to conduct operations for 2 additional years after 
the expiration date of your notice, you must notify BLM in writing on 
or before the expiration date. You may extend your notice more than 
once.


Sec. 3809.334  What if I temporarily stop conducting operations under a 
notice?

    (a) If you stop conducting operations for any period of time, you 
must--
    (1) Maintain public lands within the project area, including 
structures, in a safe and clean condition;
    (2) Take all steps necessary to prevent unnecessary or undue 
degradation; and
    (3) Maintain an adequate financial guarantee.
    (b) If the period of non-operation is likely to cause unnecessary 
or undue degradation, BLM will--
    (1) Require you to take all steps necessary to prevent unnecessary 
or undue degradation; and
    (2) Require you, after an extended period of non-operation for 
other than seasonal operations, to remove all structures, equipment, 
and other facilities and reclaim the project area.


Sec. 3809.335  What happens when my notice expires?

    (a) When your notice expires, you must--
    (1) Cease operations, except reclamation; and
    (2) Complete reclamation promptly according to your notice.
    (b) Your reclamation obligations continue beyond the expiration or 
any termination of your notice until you satisfy them.


Sec. 3809.336  What if I abandon my notice-level operations?

    (a) BLM may consider your operations to be abandoned if, for 
example, you leave inoperable or non-mining related equipment in the 
project area, remove equipment and facilities from the project area 
other than for purposes of completing reclamation according to your 
reclamation plan, do not maintain the project area, discharge local 
workers, or there is no sign of activity in the project area over time.
    (b) If BLM determines that you abandoned your operations without 
completing reclamation, BLM may initiate forfeiture under 
Sec. 3809.595. If the amount of the financial guarantee is inadequate 
to cover the cost of reclamation, BLM may complete the reclamation, and 
the operator and all other responsible persons are liable for the cost 
of reclamation.

Operations Conducted Under Plans of Operations


Sec. 3809.400  Does this subpart apply to my existing or pending plan 
of operations?

    To see how this subpart applies to your existing or pending plan of 
operations, follow this table:

------------------------------------------------------------------------
   If you submitted your plan of
operations to BLM before (effective               Then . . .
  date of final rule.), and . . .
------------------------------------------------------------------------
(a) BLM approved your plan of        The performance standards of this
 operations before that date,         subpart (Sec.  3809.420) do not
                                      apply to your existing plan of
                                      operations. The performance
                                      standards in effect at the time
                                      BLM approved your plan of
                                      operations continue to apply. All
                                      other provisions of this subpart
                                      apply to your plan of operations.
                                      See Sec.  3809.505 for
                                      applicability of financial
                                      guarantee requirements.

[[Page 6458]]

 
(b) BLM made an environmental        The plan content requirements (43
 assessment or a draft                CFR 3809.1-5) and performance
 environmental impact statement       standards (43 CFR 3809.1-3(d) and
 available to the public before       3809.2-2) that were in effect
 that date,                           immediately before (effective date
                                      of final rule.) apply to your plan
                                      of operations. All provisions of
                                      this subpart, except Secs.
                                      3809.401 and 3809.420, apply to
                                      your plan of operations.
(c) BLM has not yet made an          All provisions of this subpart
 environmental assessment or a        apply to your plan of operations.
 draft environmental impact
 statement available to the public,
------------------------------------------------------------------------

    (d) If you want this subpart to apply to any existing plan of 
operations, where not otherwise required, you may choose to have this 
subpart apply.


Sec. 3809.401  Where do I file my plan of operations and what 
information must I include with it?

    (a) If you are required to file a plan of operations under 
Sec. 3809.11, you must file it with the local BLM field office with 
jurisdiction over the lands involved. BLM does not require that the 
plan be on a particular form.
    (b) Operators or mining claimants must demonstrate that the 
proposed operations would not result in unnecessary or undue 
degradation of public lands. Your plan of operations must describe 
fully the proposed activity and contain the following information with 
a level of detail appropriate to the type, size, and location of the 
planned activity:
    (1) Operator information. The name, mailing address, phone number, 
social security number or corporate identification number of the 
operator(s), and the BLM serial number(s) of any unpatented mining 
claim(s) where disturbance would occur. If the operator is a 
corporation, you must identify one individual as the point of contact. 
You must notify BLM in writing within 30 days of any change of operator 
or corporate point of contact or in the mailing address of the operator 
or corporate point of contact;
    (2) Description of operations. A detailed description of the 
equipment, devices, or practices you propose to use during operations 
including, where applicable--
    (i) Maps of the project area at an appropriate scale showing the 
location of exploration activities, drill sites, mining activities, 
processing facilities, waste rock and tailing disposal areas, support 
facilities, structures, buildings, and access routes;
    (ii) Preliminary designs, cross sections, and operating plans for 
mining areas, processing facilities, and waste rock and tailing 
disposal facilities;
    (iii) Water management plans;
    (iv) Rock characterization and handling plans;
    (v) Quality assurance plans;
    (vi) Spill contingency plans;
    (vii) A general schedule of operations from start through closure; 
and
    (viii) Plans for all access roads, water supply pipelines, and 
power or utility services;
    (3) Reclamation plan. A plan for reclamation to meet the standards 
in Sec. 3809.420, with a detailed description of the equipment, 
devices, or practices you propose to use including, where applicable, 
plans for--
    (i) Drill-hole plugging;
    (ii) Regrading and reshaping;
    (iii) Mine reclamation;
    (iv) Riparian mitigation;
    (v) Wildlife habitat rehabilitation;
    (vi) Topsoil handling;
    (vii) Revegetation;
    (viii) Isolation and control of acid, toxic or deleterious 
materials;
    (ix) Facilities removal; and
    (x) Post-closure management;
    (4) Monitoring plan. A plan for monitoring the effect of your 
operations. You must design monitoring plans to meet the following 
objectives: to demonstrate compliance with the approved plan of 
operations and other Federal or State environmental laws and 
regulations, to provide early detection of potential problems, and to 
supply information that will assist in directing corrective actions 
should they become necessary. Where applicable, you must include in 
monitoring plans details on type and location of monitoring devices, 
sampling parameters and frequency, analytical methods, reporting 
procedures, and procedures to respond to adverse monitoring results. 
Examples of monitoring programs which may be necessary include surface- 
and ground-water quality and quantity, air quality, revegetation, 
stability, noise levels, and wildlife mortality;
    (c) In addition to the requirements of paragraph (b) of this 
section, BLM may require you to supply--
    (1) Operational and baseline environmental information for BLM to 
analyze potential environmental impacts as required by the National 
Environmental Policy Act. BLM will also use this information to 
determine if your plan of operations will prevent unnecessary or undue 
degradation. This could include information on public and non-public 
lands needed to characterize the geology, hydrology, soils, vegetation, 
wildlife, air quality, cultural resources, and socioeconomic conditions 
in and around the project area. This may also include requiring static 
and kinetic testing to characterize the potential for your operations 
to produce acid drainage or other leachate. BLM can advise you on the 
exact type of information and level of detail needed to meet these 
requirements; and
    (2) Other information, if necessary to ensure that your operations 
will comply with this subpart.
    (d) Reclamation cost estimate. At a time specified by BLM, you must 
submit an estimate of the cost to fully reclaim your operations as 
required by Sec. 3809.552.


Sec. 3809.411  What action will BLM take when it receives my plan of 
operations?

    (a) BLM will review your plan of operations within 30 business days 
and will notify you that--
    (1) BLM approves your plan of operations as submitted (See part 
3810, subpart 3814, of this title for specific plan-related 
requirements applicable to operations on Stock Raising Homestead Act 
lands.);
    (2) Your plan does not contain a complete description of the 
proposed operations under Sec. 3809.401(b). BLM will identify 
deficiencies that you must address before BLM can continue processing 
your plan of operations. If necessary, BLM may repeat this process 
until your plan of operations is complete;
    (3) BLM approves your plan subject to changes or conditions that 
are necessary to meet the performance standards of Sec. 3809.420;
    (4) The description of the proposed operations is complete, but BLM 
cannot approve the plan until certain additional steps are completed, 
including one or more of the following:
    (i) You complete collection of adequate baseline data;
    (ii) BLM completes the environmental review, required under the 
National Environmental Policy Act;
    (iii) BLM completes the consultation required under the National 
Historic

[[Page 6459]]

Preservation Act or Endangered Species Act;
    (iv) BLM or the Department of the Interior completes other Federal 
responsibilities, such as Native American consultation;
    (v) BLM conducts an on-site visit;
    (vi) BLM completes review of public comments on the amount of the 
financial guarantee;
    (vii) For public lands where BLM does not have responsibility for 
managing the surface, BLM consults with the surface-managing agency; 
and
    (viii) In cases where the surface is owned by a non-Federal entity, 
BLM consults with the surface owner; or
    (5) BLM disapproves your plan of operations under paragraph (c) of 
this section.
    (b) Pending final approval of your plan of operations, BLM may 
approve any operations that may be necessary for timely compliance with 
requirements of Federal and State laws, subject to any terms and 
conditions that may be needed to prevent unnecessary or undue 
degradation.
    (c) BLM must disapprove, or withhold approval of, a plan of 
operations if it--
    (1) Does not meet the content requirements of Sec. 3809.401;
    (2) Proposes operations that are in an area segregated or withdrawn 
from the operation of the mining laws, unless the requirements of 
Sec. 3809.100 are met; or
    (3) Proposes operations that would result in unnecessary or undue 
degradation of public lands.
    (d) Before BLM approves your plan of operations, it will publish in 
a local newspaper of general circulation or in a NEPA document and 
accept comments for 30 days on the amount of financial guarantee 
required and an explanation of the basis for the amount. Detailed 
calculations will remain part of the record, subject to public 
inspection.


Sec. 3809.412  When may I operate under a plan of operations?

    You must not begin operations until BLM approves your plan of 
operations and you provide the financial guarantee required under 
Secs. 3809.411(d) and 3809.552.


Sec. 3809.415  How do I prevent unnecessary or undue degradation while 
conducting operations on public lands?

    You prevent unnecessary or undue degradation while conducting 
operations on public lands by--
    (a) Complying with Sec. 3809.420, as applicable; the terms and 
conditions of your approved plan of operations; the operations 
described in your notice; and other Federal and State laws related to 
environmental protection and protection of cultural resources;
    (b) Assuring that your operations are ``reasonably incident,'' as 
defined in Sec. 3715.0-5 of this title; and
    (c) Attaining the stated level of protection or reclamation 
required by specific laws in areas such as the California Desert 
Conservation Area, Wild and Scenic Rivers, BLM-administered portions of 
the National Wilderness System, and BLM-administered National Monuments 
and National Conservation Areas.


Sec. 3809.420  What performance standards apply to my notice or plan of 
operations?

    The following performance standards apply to your notice or plan of 
operations:
    (a) General performance standards. (1) Technology and practices. 
You must use MATP to meet the standards of this subpart.
    (2) Sequence of operations. You must avoid unnecessary impacts by 
following a reasonable and customary mineral exploration, development, 
mining and reclamation sequence.
    (3) Land-use plans. Consistent with the mining laws, your 
operations and post-mining land use must comply with the applicable BLM 
land-use plans and activity plans, and with coastal zone management 
plans under 16 U.S.C. 1451, as appropriate.
    (4) Mitigation. You must take mitigation measures specified by BLM 
to protect public lands.
    (5) Concurrent reclamation. You must initiate and complete 
reclamation at the earliest feasible time on those portions of the 
disturbed area that you will not disturb further.
    (b) Environmental performance standards. (1) Air quality. Your 
operations must comply with applicable Federal, Tribal, and State laws 
and requirements.
    (2) Water. You must conduct operations to minimize water pollution 
(source control) in preference to water treatment. You must conduct 
operations to minimize changes in water quantity in preference to water 
supply replacement. Your operations must comply with State water law 
with respect to water use and water quality.
    (i) Surface water. (A) Releases to surface waters must comply with 
applicable Federal, Tribal, and State laws and requirements.
    (B) You must handle earth materials and water in a manner that 
minimizes the formation of acidic, toxic, or other deleterious 
pollutants of surface water systems.
    (C) You must manage excavations and other disturbances to prevent 
or control the discharge of pollutants into surface waters.
    (ii) Ground water. (A) Ground water affected by your operations 
must comply with State standards and other applicable requirements.
    (B) You must handle earth materials and water in a manner that 
minimizes the formation of acidic, toxic, or other deleterious 
infiltration to ground water systems and manage excavations and other 
disturbances to minimize the discharge of pollutants into ground water.
    (C) You must conduct operations affecting ground water, such as 
dewatering, pumping, and injecting, to minimize impacts on surface and 
other natural resources, such as wetlands, riparian areas, aquatic 
habitat, and other features that are dependent on ground water.
    (3) Wetlands and riparian areas. (i) You must avoid locating 
operations in wetlands and riparian areas where possible, minimize 
impacts on wetlands and riparian areas that your operations cannot 
avoid, and mitigate damage to wetlands and riparian areas that your 
operations impact.
    (ii) Where feasible, you must return disturbed wetlands and 
riparian areas to a properly functioning condition. Wetlands and 
riparian areas are functioning properly when adequate vegetation, land 
form, or large woody debris is present to dissipate stream energy 
associated with high water flows, thereby reducing erosion and 
improving water quality; filter sediment, capture bedload, and aid 
floodplain development; improve floodwater retention and ground-water 
recharge; develop root masses that stabilize streambanks against 
cutting action; develop diverse ponding and channel characteristics to 
provide the habitat and water depth, duration, and temperature 
necessary for fish production, waterfowl breeding, and other uses, and 
support greater biodiversity.
    (iii) You must take appropriate mitigation measures, such as 
restoration or replacement, if your operations cause the loss of 
nonjurisdictional wetland or riparian areas or the diminishment of 
their proper functioning condition.
    (iv) You must mitigate impacts to wetlands under the jurisdiction 
of the U.S. Army Corps of Engineers (COE) and other waters of the 
United States in accord with COE requirements.
    (4) Soil and growth material. (i) You must remove, segregate, and 
preserve topsoil, or where more feasible other suitable growth 
material, to minimize erosion and sustain revegetation when reclamation 
begins.
    (ii) To preserve soil viability and promote concurrent reclamation, 
you

[[Page 6460]]

must directly transport topsoil from its original location to the point 
of reclamation without intermediate stockpiling, where feasible.
    (5) Revegetation. You must--
    (i) Revegetate disturbed lands by establishing a stable and long-
lasting vegetative cover that is self-sustaining and, considering 
successional stages, will result in cover that is--
    (A) Comparable in both diversity and density to pre-existing 
natural vegetation of the surrounding area; or
    (B) Compatible with the approved BLM land-use plan or activity 
plan;
    (ii) Take all reasonable steps to prevent the introduction of 
noxious weeds and to limit or reduce any existing infestations;
    (iii) Use native species to the extent feasible;
    (iv) Achieve success over the time frame approved by BLM; and
    (v) Where you demonstrate revegetation is not achievable under this 
paragraph, you must use other techniques to prevent erosion and 
stabilize the project area, subject to BLM approval.
    (6) Fish and wildlife. (i) You must minimize disturbances and 
adverse impacts on fish, wildlife, and related environmental values.
    (ii) You must take necessary measures to protect threatened or 
endangered species and their habitat as required by the Endangered 
Species Act.
    (iii) You must take any necessary action to minimize the adverse 
effects of your operations, including access, on BLM-defined special 
status species.
    (iv) You must rehabilitate fisheries and wildlife habitat affected 
by your operations.
    (7) Cultural, paleontologic, and cave resources. (i) You must not 
knowingly disturb, alter, injure, or destroy any scientifically 
important paleontologic remains or any historic, archaeologic, or cave-
related site, structure, building, resource, or object unless--
    (A) You identify the resource in your notice or plan of operations;
    (B) You propose action to protect, remove or preserve the resource; 
and
    (C) BLM specifically authorizes such action in your plan of 
operations, or does not prohibit such action under your notice.
    (ii) You must immediately bring to BLM's attention any previously 
unidentified historic, archaeologic, cave-related, or scientifically 
important paleontologic resources that might be altered or destroyed by 
your operations. You must leave the discovery intact until BLM 
authorizes you to proceed. BLM will evaluate the discovery and take 
action to protect, remove, or preserve the resource within 20 business 
days after you notify BLM of the discovery, unless otherwise agreed to 
by the operator and BLM, or unless otherwise provided by law.
    (iii) BLM has the responsibility for determining who bears the cost 
of the investigation, recovery, and preservation of discovered 
historic, archaeologic, cave-related, and paleontologic resources, or 
of any human remains and associated funerary objects. If BLM incurs 
costs associated with investigation and recovery, BLM will recover the 
costs from the operator on a case-by-case basis, after an evaluation of 
the factors set forth in section 304(b) of FLPMA.
    (c) Operational performance standards. (1) Roads and structures. 
(i) You must design, construct, and maintain roads and structures to 
control or prevent erosion, siltation, and air pollution and minimize 
impacts to resources.
    (ii) You must minimize surface disturbance, using existing access 
where feasible, while maintaining safe design, following natural 
contour where feasible, and minimizing cut and fill.
    (iii) When commercial hauling on an existing BLM road is involved, 
BLM may require you to make appropriate arrangements for use, 
maintenance, and safety.
    (iv) You must remove and reclaim roads and structures according to 
BLM land-use plans and activity plans, unless retention is approved by 
BLM.
    (2) Drill holes. (i) You must not allow drilling fluids and 
cuttings to flow off the drill site.
    (ii) You must plug all exploration drill holes to prevent mixing of 
waters from aquifers, impacts to beneficial uses, downward water loss, 
or upward water loss from artesian conditions.
    (iii) You must conduct surface plugging to prevent direct inflow of 
surface water into the drill hole and to eliminate the open hole as a 
hazard.
    (3) Acid-forming, toxic, or other deleterious materials. You must 
incorporate identification, handling, and placement of potentially 
acid-forming, toxic or other deleterious materials into your 
operations, facility design, reclamation, and environmental monitoring 
programs to minimize the formation and impacts of acidic, alkaline, 
metal-bearing, or other deleterious leachate, including the following:
    (i) You must handle, place, or treat potentially acid-forming, 
toxic, or other deleterious materials in a manner that minimizes the 
likelihood of acid formation and toxic and other deleterious leachate 
generation (source control);
    (ii) If you cannot prevent the formation of acid, toxic, or other 
deleterious drainage, you must minimize uncontrolled migration of 
leachate; and
    (iii) You must capture and treat acid drainage, or other 
undesirable effluent, to the applicable standard if source controls and 
migration controls do not prove effective. You are responsible for any 
costs associated with water treatment or facility maintenance after 
project closure. Long-term, or post-mining, effluent capture and 
treatment are not acceptable substitutes for source control, and you 
may rely on them only after all reasonable source control methods have 
been employed.
    (4) Leaching operations and impoundments. (i) You must design, 
construct, and operate all leach pads, tailings impoundments, ponds, 
and solution-holding facilities according to standard engineering 
practices to achieve and maintain stability and facilitate reclamation.
    (ii) You must construct a low-permeability liner or containment 
system that will minimize the release of leaching solutions to the 
environment. You must monitor to detect potential releases of 
contaminants from heaps, process ponds, tailings impoundments, and 
other structures and remediate environmental impacts if leakage occurs.
    (iii) You must design, construct, and operate cyanide or other 
leaching facilities and impoundments to contain precipitation from the 
local 100-year, 24-hour storm event in addition to the maximum process 
solution inventory. You must also include allowances for snowmelt 
events and draindown from heaps during power outages in the design.
    (iv) You must construct a secondary containment system around vats, 
tanks, or recovery circuits adequate to prevent the release of toxic 
solutions to the environment in the event of primary containment 
failure.
    (v) You must exclude access by the public, wildlife, or livestock 
to solution containment and transfer structures that contain lethal 
levels of cyanide or other solutions.
    (vi) During closure and at final reclamation, you must detoxify 
leaching solutions and heaps and manage tailings or other process waste 
to minimize impacts to the environment from contact with toxic 
materials or leachate. Acceptable practices include natural 
degradation, rinsing, chemical treatment, or equally successful 
alternative methods to detoxify

[[Page 6461]]

solutions and materials. Upon completion of reclamation, all materials 
and discharges must meet applicable standards.
    (vii) In cases of temporary or seasonal closure, you must provide 
adequate maintenance, monitoring, security, and financial guarantee, 
and BLM may require you to detoxify process solutions.
    (5) Waste rock, tailings, and leach pads. You must locate, design, 
construct, operate, and reclaim waste rock, tailings, and leach pads to 
minimize infiltration and contamination of surface water and ground 
water; achieve stability; and, to the extent feasible, blend with pre-
mining, natural topography.
    (6) Stability, grading and erosion control. (i) You must grade or 
otherwise engineer all disturbed areas to a stable condition to 
minimize erosion and facilitate revegetation.
    (ii) You must recontour all areas to blend with pre-mining, natural 
topography to the extent feasible. You may temporarily retain a 
highwall or other mine workings in a stable condition to preserve 
evidence of mineralization.
    (iii) You must minimize erosion during all phases of operations.
    (7) Pit reclamation. (i) You must partially or fully backfill pits 
unless you demonstrate to BLM's satisfaction it is not feasible for 
economic, environmental, or safety reasons.
    (ii) You must take mitigation measures if you do not completely 
backfill a pit or other disturbance.
    (iii) Water quality in pits and other water impoundments must 
comply with applicable Federal, State, and Tribal standards. Where no 
standards exist, you must take measures to protect wildlife, domestic 
livestock, and public water supplies and users.
    (8) Solid waste. (i) You must comply with applicable Federal and 
State standards for the disposal and treatment of solid waste, 
including regulations issued under the Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act (42 U.S.C. 6901 
et seq.).
    (ii) To the extent feasible, you must remove from the project area, 
dispose of, or treat all non-mine garbage, refuse, or waste to minimize 
their impact.
    (9) Fire prevention and control. You must comply with all 
applicable Federal and State fire laws and regulations, and take all 
reasonable measures to prevent and suppress fires in the project area.
    (10) Maintenance and public safety. During all operations and after 
mining--
    (i) You must maintain structures, equipment, and other facilities 
in a safe and orderly manner;
    (ii) You must mark by signs or fences, or otherwise identify 
hazardous sites or conditions resulting from your operations to alert 
the public in accord with applicable Federal and State laws and 
regulations; and
    (iii) You must restrict unaccompanied public access to portions of 
your operations that present a hazard to the public, consistent with 
Secs. 3809.600 and 3712.1 of this title.
    (11) Protection of survey monuments. (i) To the extent feasible, 
you must protect all survey monuments, witness corners, reference 
monuments, bearing trees, and line trees against damage or destruction.
    (ii) If you damage or destroy a monument, corner, or accessory, you 
must immediately report the matter to BLM. BLM will tell you in writing 
how to restore or re-establish a damaged or destroyed monument, corner, 
or accessory.


Sec. 3809.423  How long does my plan of operations remain in effect?

    Your plan of operations remains in effect as long as you are 
conducting operations, unless BLM suspends or revokes your plan of 
operations for failure to comply with this subpart.


Sec. 3809.424  What are my obligations if I stop conducting operations?

    (a) To see what you must do if you stop conducting operations, 
follow this table:

------------------------------------------------------------------------
              If . . .                            Then . . .
------------------------------------------------------------------------
(1) You stop conducting operations   You must--
 for any period of time,
                                     (i) Maintain the project area,
                                      including structures, in a safe
                                      and clean condition;
                                     (ii) Take all necessary actions to
                                      assure that unnecessary or undue
                                      degradation does not occur,
                                      including those specified at Sec.
                                      3809.420(c)(4)(vii); and
                                     (iii) Maintain an adequate
                                      financial guarantee.
(2) The period of non-operation is   BLM will require you to take all
 likely to cause unnecessary or       necessary actions to assure that
 undue degradation,                   unnecessary or undue degradation
                                      does not occur, including
                                      requiring you, after an extended
                                      period of non-operation for other
                                      than seasonal operations, to
                                      remove all structures, equipment,
                                      and other facilities and reclaim
                                      the project area.
(3) Your operations are inactive     BLM will review your operations and
 for 5 consecutive years,             determine whether BLM should
                                      terminate your plan of operations
                                      and direct final reclamation and
                                      closure.
(4) BLM determines that you          BLM may initiate forfeiture under
 abandoned your operations,           Sec.  3809.595. If the amount of
                                      the financial guarantee is
                                      inadequate to cover the costs of
                                      reclamation, BLM may complete the
                                      reclamation, and the operator and
                                      all other responsible persons are
                                      liable for the costs of such
                                      reclamation. See Sec.  3809.336(a)
                                      for indicators of abandonment.
------------------------------------------------------------------------

    (b) Your reclamation and closure obligations continue until 
satisfied.

Modifications of Plans of Operations


Sec. 3809.430  May I modify my plan of operations?

    Yes. You may request a modification of the plan at any time during 
operations under an approved plan of operations.


Sec. 3809.431  When must I modify my plan of operations?

    (a) You must modify your plan of operations to reflect proposed 
operations not described in the approved plan; and
    (b) You must modify your plan of operations when required by BLM to 
prevent unnecessary or undue degradation.

[[Page 6462]]

Sec. 3809.432  What process will BLM follow in reviewing a modification 
of my plan of operations?

    (a) BLM will review and approve a modification of your plan of 
operations in the same manner as it reviewed and approved your initial 
plan under Secs. 3809.401 through 3809.420, except that BLM may not 
obtain public comment on the financial guarantee amount if the 
modification does not change the financial guarantee amount or only 
changes it minimally; or
    (b) BLM will accept the modification without formal approval if it 
does not constitute a substantive change and does not require 
additional analysis under the National Environmental Policy Act.


Sec. 3809.433  Does this subpart apply to a new modification of my plan 
of operations?

    To see how this subpart applies to a new modification of your plan 
of operations, see the following table. A ``new'' modification is one 
that you submit to BLM after this subpart becomes effective:

------------------------------------------------------------------------
  If you have an approved plan of
  operations on (effective date of                Then . . .
     the final rule.) and . . .
------------------------------------------------------------------------
(a) New facility. You subsequently   The plan contents requirements
 propose to modify your plan of       (Sec.  3809.401) and performance
 operations by constructing a new     standards (Sec.  3809.420) of this
 facility, such as waste rock         subpart apply to the new facility.
 repository, leach pad,               Those facilities and areas not
 impoundment, drill site, or road,    included in the modification may
                                      continue to operate under the
                                      terms of your existing plan of
                                      operations.
(b) Existing facility. You           The plan contents requirements
 subsequently propose to modify       (Sec.  3809.401) and performance
 your plan of operations by           standards (Sec.  3809.420) of this
 modifying an existing facility,      subpart apply to the modified
 such as expansion of a waste rock    facility, unless you demonstrate
 repository, leach pad, or            to BLM's satisfaction it is not
 impoundment; layback of a mine       feasible to apply them for
 pit; or widening of a road,          environmental, safety, or
                                      technical reasons. If you make the
                                      demonstration, the plan content
                                      requirements (43 CFR 3809.1-5) and
                                      performance standards (43 CFR
                                      3809.1-3(d) and 3809.2-2) that
                                      were in effect immediately before
                                      (effective date of final rule.)
                                      apply to your modified facility.
                                      Those facilities and areas not
                                      included in the modification may
                                      continue to operate under the
                                      terms of your existing plan of
                                      operations.
------------------------------------------------------------------------

Sec. 3809.434  Does this subpart apply to a pending modification for a 
new facility?

    To see how this subpart applies to a pending modification for a new 
facility, see the following table. A ``pending'' modification is one 
that you submitted to BLM before this subpart became effective, and BLM 
has not yet approved it.

------------------------------------------------------------------------
  If you have an approved plan of
  operations on (effective date of
  the final rule.) and before that
    date, you submitted to BLM a
 proposed modification to construct               Then . . .
 a new facility, such as waste rock
repository, leach pad, impoundment,
   drill site, or road and . . .
------------------------------------------------------------------------
(a) BLM made an environmental        The plan content requirements (43
 assessment or a draft                CFR 3809.1-5) and performance
 environmental impact statement       standards (43 CFR 3809.1-3(d) and
 available to the public before       3809.2-2) that were in effect
 that date,                           immediately before (effective date
                                      of final rule.) apply to the new
                                      facility. Those facilities and
                                      areas not included in the
                                      modification may continue to
                                      operate under the terms of your
                                      existing plan of operations.
(b) BLM has not yet made an          All provisions of this subpart
 environmental assessment or a        apply to the modified facility.
 draft environmental impact           Those facilities and areas not
 statement available to the public,   included in the modification may
                                      continue to operate under the
                                      terms of your existing plan of
                                      operations.
------------------------------------------------------------------------

Sec. 3809.435  Does this subpart apply to my pending modification for 
an existing facility?

    To see how this subpart applies to your pending modification for an 
existing facility, follow this table:

------------------------------------------------------------------------
  If you have an approved plan of
  operations on (effective date of
  the final rule.) and before that
    date, you submitted to BLM a
    proposed modification of an
     existing facility, such as                   Then . . .
     expansion of a waste rock
     repository, leach pad, or
impoundment; layback of a mine pit;
  or widening of a road, and . . .
------------------------------------------------------------------------
(a) BLM made an environmental        The plan content requirements (43
 assessment or a draft                CFR 3809.1-5) and performance
 environmental impact statement       standards (43 CFR 3809.1-3(d) and
 available to the public before       3809.2-2) that were in effect
 that date,                           immediately before (effective date
                                      of final rule.) apply to the new
                                      facility. Those facilities and
                                      areas not included in the
                                      modification may continue to
                                      operate under the terms of your
                                      existing plan of operations.

[[Page 6463]]

 
(b) BLM has not yet made an          The plan contents requirements
 environmental assessment or a        (Sec.  3809.401) and performance
 draft environmental impact           standards (Sec.  3809.420) of this
 statement available to the public,   subpart apply to the modified
                                      facility, unless you demonstrate
                                      to BLM's satisfaction it is not
                                      feasible to apply them for
                                      environmental, safety, or
                                      technical reasons. If you make the
                                      demonstration, the plan content
                                      requirements (43 CFR 3809.1-5) and
                                      performance standards (43 CFR
                                      3809.1-3(d) and 3809.2-2) that
                                      were in effect immediately before
                                      (effective date of final rule.)
                                      apply to your plan of operations.
                                      Those facilities and areas not
                                      included in the modification may
                                      continue to operate under the
                                      terms of your existing plan of
                                      operations.
------------------------------------------------------------------------

Financial Guarantee Requirements--General


Sec. 3809.500  In general, what are BLM's financial guarantee 
requirements?

    To see generally what BLM's financial guarantee requirements are, 
follow this table:

------------------------------------------------------------------------
              If . . .                            Then . . .
------------------------------------------------------------------------
(a) Your operations constitute       You do not have to provide any
 casual use,                          financial guarantee.
(b) You conduct operations under a   You must provide BLM or the State a
 notice or a plan of operations,      financial guarantee that meets the
                                      requirements of this subpart
                                      before starting operations. For
                                      more information, see Secs.
                                      3809.551 through 3809.573.
------------------------------------------------------------------------

Sec. 3809.503  When must I provide a financial guarantee for my notice-
level operations?

    To see how this subpart applies to your notice, follow this table:

------------------------------------------------------------------------
              If . . .                            Then . . .
------------------------------------------------------------------------
(a) Your notice was on file with     You do not need to provide a
 BLM on (effective date of final      financial guarantee unless you
 rule.),                              modify the notice or extend the
                                      notice under Sec.  3809.333.
(b) Your notice was on file with     You must provide a financial
 BLM before (effective date of        guarantee before you can begin
 final rule.) and you choose to       operations under the modified
 modify your notice as required by    notice.
 this subpart on or after that
 date,
(c) You file a new notice on or      You must provide a financial
 after (effective date of final       guarantee before you can begin
 rule.)                               operations under the notice.
------------------------------------------------------------------------

Sec. 3809.505  How do the financial guarantee requirements of this 
subpart apply to my existing plan of operations?

    For each plan of operations approved before (effective date of 
final rule.), you must post a financial guarantee according to the 
requirements of this subpart no later than (date 180 days after 
effective date of final rule.) at the local BLM office with 
jurisdiction over the lands involved.


Sec. 3809.551  What are my choices for providing BLM with a financial 
guarantee?

    You must provide BLM with a financial guarantee using any of the 3 
options in the following table:

------------------------------------------------------------------------
              If . . .                            Then . . .
------------------------------------------------------------------------
(a) You have only one notice or      You may provide an individual
 plan of operations, or wish to       financial guarantee that covers
 provide a financial guarantee for    only the cost of reclaiming areas
 a single notice or plan of           disturbed under the single notice
 operations                           or plan of operations. See Secs.
                                      3809.552 through 3809.556 for more
                                      information.
(b) You are currently operating      You may provide a blanket financial
 under more than one notice or plan   guarantee covering statewide or
 of operations                        nationwide operations. See Sec.
                                      3809.560 for more information.
(c) You do not choose one of the     You may provide evidence of an
 options in paragraphs (a) and (b)    existing financial guarantee under
 of this section                      State law or regulations. See
                                      Secs.  3809.570 through 3809.573
                                      for more information.
------------------------------------------------------------------------

Individual Financial Guarantee


Sec. 3809.552  What must my individual financial guarantee cover?

    (a) If you conduct operations under a notice or a plan of 
operations and you provide an individual financial guarantee, it must 
cover the estimated cost as if BLM were to contract with a third party 
to reclaim your operations according to the reclamation plan, including 
construction and maintenance costs for any treatment facilities 
necessary to meet Federal and State environmental standards.
    (b) BLM will periodically review the estimated cost of reclamation 
and the adequacy of any funding mechanism established under paragraph 
(c) of this section and require increased coverage, if necessary.
    (c) When BLM identifies a need for it, you must establish a trust 
fund or other funding mechanism available to BLM to ensure the 
continuation of long-term treatment to achieve water quality standards 
and for other long term, post-mining maintenance requirements. The

[[Page 6464]]

funding must be adequate to provide for construction, long-term 
operation, maintenance, or replacement of any treatment facilities and 
infrastructure, for as long as the treatment and facilities are needed 
after mine closure. BLM may identify the need for a trust fund or other 
funding mechanism during plan review or later.


Sec. 3809.553  May I post a financial guarantee for a part of my 
operations?

    (a) Yes, BLM may authorize you to provide a financial guarantee 
covering a part of your operations if--
    (1) Your operations do not go beyond what is specifically covered 
by the partial financial guarantee; and
    (2) The partial financial guarantee covers all reclamation costs 
within the incremental area of operations.
    (b) BLM will review the amount and terms of the financial guarantee 
for each increment of your operations at least annually.


Sec. 3809.554  How do I estimate the cost to reclaim my operations?

    (a) You must estimate the cost to reclaim your operations as if BLM 
were hiring a third-party contractor to perform reclamation of your 
operations after you have vacated the project area. Your estimate must 
include BLM's cost to administer the reclamation contract. Contact BLM 
to obtain this administrative cost information.
    (b) Your estimate of the cost to reclaim your operations must be 
acceptable to BLM.


Sec. 3809.555  What forms of individual financial guarantee are 
acceptable to BLM?

    You may use any of the following instruments for an individual 
financial guarantee, provided that the BLM State Director has 
determined that it is an acceptable financial instrument within the 
State where the operations are proposed:
    (a) Non-cancelable surety bonds, including surety bonds arranged or 
paid for by third parties;
    (b) Cash in an amount equal to the required dollar amount of the 
financial guarantee, to be deposited and maintained in a Federal 
depository account of the United States Treasury by BLM;
    (c) Irrevocable letters of credit from a bank or financial 
institution organized or authorized to transact business in the United 
States;
    (d) Certificates of deposit or savings accounts not in excess of 
the maximum insurable amount as set by the Federal Deposit Insurance 
Corporation; and
    (e) Either of the following instruments having a market value of 
not less than the required dollar amount of the financial guarantee and 
maintained in a Securities Investors Protection Corporation insured 
trust account by a licensed securities brokerage firm for the benefit 
of the Secretary of the Interior, acting by and through BLM:
    (1) Negotiable United States Government, State and Municipal 
securities or bonds; or
    (2) Investment-grade rated securities having a Standard and Poor's 
rating of AAA or AA or an equivalent rating from a nationally 
recognized securities rating service.


Sec. 3809.556  What special requirements apply to financial guarantees 
described in Sec. 3809.555(e)?

    (a) If you choose to use the instruments permitted under 
Sec. 3809.555(e) in satisfaction of financial guarantee requirements, 
you must provide BLM, before you begin operations and by the end of 
each calendar year thereafter, a certified statement describing the 
nature and market value of the instruments maintained in that account, 
and including any current statements or reports furnished by the 
brokerage firm to the operator or mining claimant concerning the asset 
value of the account.
    (b) You must review the market value of the account instruments by 
December 31 of each year to ensure that their market value continues to 
be not less than the required dollar amount of the financial guarantee. 
When the market value of the account instruments has declined by more 
than 10 percent of the required dollar amount of the financial 
guarantee, you must, within 10 days after its annual review or at any 
time upon the written request of BLM, provide additional instruments, 
as defined in Sec. 3809.555(e), to the trust account so that the total 
market value of all account instruments is not less than the required 
dollar amount of the financial guarantee. You must send a certified 
statement to BLM within 45 days thereafter describing your actions to 
raise the market value of its account instruments to the required 
dollar amount of the financial guarantee. You must include copies of 
any statements or reports furnished by the brokerage firm to you 
documenting such an increase.
    (c) If your review under paragraph (b) of this section demonstrates 
that the total market value of trust account instruments exceeds 110 
percent of the required dollar amount of the financial guarantee, you 
may ask BLM to authorize a written release of that portion of the 
account that exceeds 110 percent of the required financial guarantee. 
BLM will approve your request only if you are in compliance with the 
terms and conditions of your notice or approved plan of operations.

Blanket Financial Guarantee


Sec. 3809.560  Under what circumstances may I provide a blanket 
financial guarantee?

    (a) If you have more than one notice-or plan-level operation 
underway, you may provide a blanket financial guarantee covering 
statewide or nationwide operations instead of individual financial 
guarantees for each operation.
    (b) BLM will accept a blanket financial guarantee if we determine 
that its terms and conditions are sufficient to comply with the 
regulations of this subpart.

State-Approved Financial Guarantee


Sec. 3809.570  Under what circumstances may I provide a State-approved 
financial guarantee?

    When you provide evidence of an existing financial guarantee under 
State law or regulations that covers your operations, you are not 
required to provide a separate financial guarantee under this subpart 
if--
    (a) The existing financial guarantee is redeemable by the 
Secretary, acting by and through BLM;
    (b) It is held or approved by a State agency for the same 
operations covered by your notice(s) or plan(s) of operations; and
    (c) It provides at least the same amount of financial guarantee as 
required by this subpart.


Sec. 3809.571  What forms of State-approved financial guarantee are 
acceptable to BLM?

    You may provide a State-approved financial guarantee in any of the 
following forms, subject to the conditions in Sec. 3809.570:
    (a) The kinds of individual financial guarantees specified under 
Sec. 3809.555;
    (b) Participation in a State bond pool, if--
    (1) The State agrees that, upon BLM's request, the State will use 
part of the pool to meet reclamation obligations on public lands; and
    (2) The BLM State Director determines that the State bond pool 
provides the equivalent level of protection as that required by this 
subpart; and
    (c) A corporate guarantee if--
    (1) The corporate guarantee is acceptable to the State;
    (2) The corporate guarantee is redeemable by or guaranteed to the 
Secretary; and
    (3) The BLM State Director determines that the corporate guarantee

[[Page 6465]]

provides a level of protection equal to the estimated cost of 
reclamation under Secs. 3809.552 and 3809.554, considering the 
operator's net income, net working capital and intangible net worth, 
and total liabilities and assets.


Sec. 3809.572  What happens if BLM rejects a financial instrument in my 
State-approved financial guarantee?

    If BLM rejects a submitted financial instrument in an existing 
State-approved financial guarantee, BLM will notify you in writing, 
with a complete explanation of the reasons for the rejection within 30 
days of BLM's receipt of the evidence of State-approved financial 
guarantee. You must provide BLM with a financial guarantee acceptable 
under this subpart at least equal to the amount of the rejected 
financial instrument.


Sec. 3809.573  What happens if the State makes a demand against my 
financial guarantee?

    When the State makes a demand against your financial guarantee, 
thereby reducing the available balance, you must replace or augment the 
financial guarantee if the available balance is insufficient to cover 
the remaining reclamation cost.

Modification or Replacement of a Financial Guarantee


Sec. 3809.580  What happens if I modify my notice or approved plan of 
operations?

    In the event you modify a notice or an approved plan under 
Sec. 3809.331 or Sec. 3809.431 respectively and your estimated 
reclamation cost increases, your revised financial guarantee must 
comply with Sec. 3809.552. You must adjust the amount of the financial 
guarantee to cover the estimated additional cost of reclamation and 
long-term treatment, as modified.


Sec. 3809.581  Will BLM accept a replacement financial instrument?

    Yes. If you or a new operator have an approved financial guarantee, 
you may request BLM to accept a replacement financial instrument at any 
time after the approval of an initial instrument. BLM will review the 
offered instrument for adequacy and may reject any offered instrument, 
but will do so by a decision in writing, with a complete explanation of 
the reasons for the rejection, within 30 days of the offering.


Sec. 3809.582  How long must I maintain my financial guarantee?

    You must maintain your financial guarantee until you or a new 
operator replace it, with BLM's written concurrence, by another 
adequate financial guarantee, or until BLM releases the requirement to 
maintain your financial guarantee after you have completed reclamation 
of your operation according to the requirements of Sec. 3809.320 (for 
notices), including any measures identified as the result of 
consultation with BLM under Sec. 3809.313, or Sec. 3809.420 (for plans 
of operations).

Release of Financial Guarantee


Sec. 3809.590  When will BLM release or reduce the financial guarantee 
for my notice or plan of operations?

    (a) When you (the mining claimant or operator) have completed all 
or any portion of the reclamation of your operations in accordance with 
your notice or approved plan of operations, you may notify BLM that the 
reclamation has occurred and request a reduction in the financial 
guarantee or BLM approval of the adequacy of the reclamation, or both.
    (b) BLM will then promptly inspect the reclaimed area. We encourage 
you to accompany the BLM inspector.
    (c) BLM will publish notice of final financial guarantee release in 
a local newspaper of general circulation and accept comments for 30 
days. Subsequently, BLM will notify you, in writing, whether you may 
reduce the financial guarantee under Sec. 3809.591, or the reclamation 
is acceptable, or both.


Sec. 3809.591  What are the limitations on the amount by which BLM may 
reduce my financial guarantee?

    (a) This section applies to your financial guarantee, but not to 
any funding mechanism established under Sec. 3809.552(c) to pay for 
long-term treatment of effluent or site maintenance. Calculation of 
bond percentages in paragraphs (b) and (c) of this section does not 
include any funds held in that kind of funding mechanism.
    (b) BLM may release up to 60 percent of your financial guarantee 
for a portion of your project area when BLM determines that you have 
successfully completed backfilling; regrading; establishment of 
drainage control; and stabilization and detoxification of leaching 
solutions, heaps, tailings, and similar facilities on that portion of 
the project area.
    (c) BLM may release the remainder of your financial guarantee for 
the same portion of the project area when BLM determines that you have 
successfully completed reclamation, including revegetating the area 
disturbed by operations, and when--
    (1) Any effluent discharged from the area has met applicable 
effluent limitations and water quality standards for one year without 
needing additional treatment; or
    (2) If you have established a funding mechanism under 
Sec. 3809.552(c) to pay for long-term treatment, any effluent 
discharged from the area meets applicable effluent limitations and 
water quality standards for one year with or without treatment.


Sec. 3809.592  Does release of my financial guarantee relieve me of all 
responsibility for my project area?

    (a) Release of your financial guarantee under this subpart does not 
release you (the mining claimant or operator) from responsibility for 
reclamation of your operations should reclamation fail to meet the 
standards of this subpart.
    (b) Any release of your financial guarantee under this subpart does 
not release or waive any claim BLM or other persons may have against 
any person under the Comprehensive Environmental Response, Compensation 
and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq., or under 
any other applicable statutes or regulations.


Sec. 3809.593  What happens to my financial guarantee if I transfer my 
operations?

    You remain responsible for obligations or conditions created while 
you conducted operations unless a transferee accepts responsibility 
under Sec. 3809.16, and BLM accepts an adequate replacement financial 
guarantee. Therefore, your financial guarantee remains in effect until 
BLM determines that you are no longer responsible for all or part of 
the operation. BLM can release your financial guarantee on an 
incremental basis. The new operator must provide a financial guarantee 
before BLM will allow the new operator to conduct operations.


Sec. 3809.594  What happens to my financial guarantee when my mining 
claim is patented?

    (a) When your mining claim is patented, BLM will release the 
portion of the financial guarantee that applies to operations within 
the boundaries of the patented land. This paragraph does not apply to 
patents issued on mining claims within the boundaries of the California 
Desert Conservation Area.
    (b) BLM will release the remainder of the financial guarantee, 
including the portion covering approved means of access outside the 
boundaries of the mining claim, when you have completed reclamation to 
the standards of this subpart.
    (c) BLM will continue to regulate under this subpart existing 
access for mining purposes across public lands to patented mining 
claims, including the

[[Page 6466]]

requirement to have an adequate financial guarantee.

Forfeiture of Financial Guarantee


Sec. 3809.595  When will BLM initiate forfeiture of my financial 
guarantee?

    BLM will initiate forfeiture of all or part of your financial 
guarantee for any project area or portion of a project area if--
    (a) You (the operator or mining claimant) refuse or are unable to 
conduct reclamation as provided in the reclamation measures 
incorporated into your notice or approved plan of operations or the 
regulations in this subpart;
    (b) You fail to meet the terms of your notice or the decision 
approving your plan of operations; or
    (c) You default on any of the conditions under which you obtained 
the financial guarantee.


Sec. 3809.596  How does BLM initiate forfeiture of my financial 
guarantee?

    When BLM decides to require the forfeiture of all or part of your 
financial guarantee, BLM will notify you (the operator or mining 
claimant) by certified mail, return receipt requested; the surety on 
the financial guarantee, if any; and the State agency holding the 
financial guarantee, if any, informing you and them of the following:
    (a) BLM's decision to require the forfeiture of all or part of the 
financial guarantee;
    (b) The reasons for the forfeiture;
    (c) The amount that you will forfeit based on the estimated total 
cost of achieving the reclamation plan requirements for the project 
area or portion of the project area affected, including BLM's 
administrative costs; and
    (d) How you may avoid forfeiture, including--
    (1) Providing a written agreement under which you or another person 
will perform reclamation operations in accordance with a compliance 
schedule which meets the conditions of your notice or the decision 
approving your plan of operations and the reclamation plan, and a 
demonstration that such other person has the ability to satisfy the 
conditions; and
    (2) Obtaining written permission from BLM for a surety to complete 
the reclamation, or the portion of the reclamation applicable to the 
bonded phase or increment, if the surety can demonstrate an ability to 
complete the reclamation in accordance with the reclamation measures 
incorporated in your notice or approved plan of operations.


Sec. 3809.597  What if I do not comply with BLM's forfeiture notice?

    If you fail to meet the requirements of BLM's forfeiture notice 
provided under Sec. 3809.596, if you fail to appeal the forfeiture 
notice under Sec. 3809.800, or if the decision appealed is affirmed, 
BLM will--
    (a) Immediately collect the forfeited amount as provided by 
applicable laws for the collection of defaulted financial guarantees, 
other debts, or State bond pools; and
    (b) Use funds collected from financial guarantee forfeiture to 
implement the reclamation plan, or portion thereof, on the area or 
portion of the area to which financial guarantee coverage applies.


Sec. 3809.598  What if the amount forfeited will not cover the cost of 
reclamation?

    If the amount forfeited is insufficient to pay for the full cost of 
reclamation, the operators and mining claimants are jointly and 
severally liable for the remaining costs. BLM may complete or authorize 
completion of reclamation of the area covered by the financial 
guarantee and may recover from you all costs of reclamation in excess 
of the amount forfeited.


Sec. 3809.599  What if the amount forfeited exceeds the cost of 
reclamation?

    If the amount of financial guarantee forfeited is more than the 
amount necessary to complete reclamation, BLM will return the unused 
funds within a reasonable amount of time to the party from whom they 
were collected.

Inspection and Enforcement


Sec. 3809.600  With what frequency will BLM inspect my operations?

    (a) At any time, BLM may inspect your operations, including all 
structures, equipment, workings, and uses located on the public lands. 
The inspection may include verification that your operations comply 
with this subpart. See Sec. 3715.7 of this title for special provisions 
governing inspection of the inside of structures used solely for 
residential purposes.
    (b) BLM may authorize a member(s) of the public to accompany a BLM 
inspector. However, BLM will not authorize a member of the public to 
accompany an inspector if the presence of the public would materially 
interfere with the mining operations or with BLM's administration of 
this subpart, or create safety problems. When BLM authorizes a member 
of the public to accompany the inspector, the operator must provide 
access to operations.
    (c) At least 4 times each year, BLM will inspect your operations if 
you use cyanide or other leachate or where there is significant 
potential for acid drainage.


Sec. 3809.601  What types of enforcement action may BLM take if I do 
not meet the requirements of this subpart?

    BLM may issue various types of enforcement orders, including the 
following:
    (a) Noncompliance order. If your operations do not comply with any 
provision of your notice, plan of operations, or requirement of this 
subpart, BLM may issue you a noncompliance order; and
    (b) Suspension orders. (1) BLM may order a suspension of all or any 
part of your operations after--
    (i) You fail to timely comply with a noncompliance order for a 
significant violation issued under paragraph (a) of this section. A 
significant violation is one that causes or may result in environmental 
or other harm or danger or that substantially deviates from the 
complete notice or approved plan of operations;
    (ii) BLM notifies you of its intent to issue a suspension order; 
and
    (iii) BLM provides you an opportunity for an informal hearing 
before the BLM State Director to object to a suspension.
    (2) BLM may order an immediate, temporary suspension of all or any 
part of your operations without issuing a noncompliance order, 
notifying you in advance, or providing you an opportunity for an 
informal hearing if--
    (i) You do not comply with any provision of your notice, plan of 
operations, or this subpart; and
    (ii) An immediate, temporary suspension is necessary to protect 
health, safety, or the environment from imminent danger or harm. BLM 
may presume that an immediate suspension is necessary if you conduct 
plan-level operations without an approved plan of operations or conduct 
operations other than casual use without submitting a complete notice.
    (3) BLM will terminate a suspension order under paragraph (b)(1) or 
(b)(2) of this section no later than the date by which you correct the 
violation.
    (c) Contents of enforcement orders. Enforcement orders will 
specify--
    (1) How you are failing or have failed to comply with the 
requirements of this subpart;
    (2) The portions of your operations, if any, that you must cease or 
suspend;
    (3) The actions you must take to correct the noncompliance and the 
time, not exceed 30 days, within which you must start corrective 
action; and
    (4) The time within which you must complete corrective action.

[[Page 6467]]

Sec. 3809.602  Can BLM revoke my plan of operations or nullify my 
notice?

    (a) BLM may revoke your plan of operations or nullify your notice 
upon finding that--
    (1) A violation exists of any provision of your notice, plan of 
operation, or this subpart, and you have failed to correct the 
violation within the time specified in the enforcement order issued 
under Sec. 3809.601; or
    (2) A pattern of violations exists at your operations.
    (b) The finding is not effective until BLM notifies you of its 
intent to revoke your plan or nullify your notice, and BLM provides you 
an opportunity for an informal hearing before the BLM State Director.
    (c) If BLM nullifies your notice or revokes your plan of 
operations, you must not conduct operations on the public lands in the 
project area, except for reclamation and other measures specified by 
BLM.


Sec. 3809.603  How does BLM serve me with an enforcement action?

    (a) BLM will serve a noncompliance order, a notification of intent 
to issue a suspension order, a suspension order, or other enforcement 
order on the person to whom it is directed or his or her designated 
agent, either by--
    (1) Offering a copy at the project area to the designated agent or 
to the individual who, based upon reasonable inquiry, appears to be in 
charge. If no such individual can be located at the project area, BLM 
may offer a copy to any individual at the project area who appears to 
be an employee or agent of the person to whom the notification or order 
is issued. Service is complete when the notice or order is offered and 
is not incomplete because of refusal to accept; or
    (2) Sending a copy of the notification or order by certified mail 
or by hand to the operator or his or her designated agent, or by any 
means consistent with the rules governing service of a summons and 
complaint under rule 4 of the Federal Rules of Civil Procedure. Service 
is complete upon offer of the notification or order or of the certified 
mail and is not incomplete because of refusal to accept.
    (b) BLM may serve a mining claimant in the same manner an operator 
is served under paragraph (a)(2) of this section.
    (c) The mining claimant or operator may designate an agent for 
service of notifications and orders. You must provide the designation 
in writing to the local BLM field office having jurisdiction over the 
lands involved.


Sec. 3809.604  What happens if I do not comply with a BLM order?

    (a) If you do not comply with a BLM order issued under 
Secs. 3809.601 or 3809.602, the Department of the Interior may request 
the United States Attorney to institute a civil action in United States 
District Court for an injunction or order to enforce its order, prevent 
you from conducting operations on the public lands in violation of this 
subpart, and collect damages resulting from unlawful acts. This relief 
may be in addition to the enforcement actions described in 
Secs. 3809.601 and 3809.602 and the penalties described in 
Secs. 3809.700 and 3809.702.
    (b) If you fail to timely comply with a noncompliance order issued 
under Sec. 3809.601(a), and remain in noncompliance, BLM may order you 
to submit plans of operations under Sec. 3809.401 for current and 
future notice-level operations.

Penalties


Sec. 3809.700  What criminal penalties apply to violations of this 
subpart?

    The criminal penalties established by statute for individuals and 
organizations are as follows:
    (a) Individuals. If you knowingly and willfully violate the 
requirements of this subpart, you may be subject to arrest and trial 
under section 303(a) of FLPMA (43 U.S.C. 1733(a)). If you are 
convicted, you will be subject to a fine of not more than $100,000 or 
the alternative fine provided for in the applicable provisions of 18 
U.S.C. 3571, or imprisonment not to exceed 12 months, or both, for each 
offense; and
    (b) Organizations. If an organization or corporation knowingly or 
willfully violates the requirements of this subpart, it is subject to 
trial and, if convicted, will be subject to a fine of not more than 
$200,000, or the alternative fine provided for in the applicable 
provisions of 18 U.S.C. 3571.


Sec. 3809.701  What happens if I make false statements to BLM?

    Under statute (18 U.S.C. 1001), you are subject to arrest and trial 
before a United States District Court if, in any matter under this 
subpart, you knowingly and willfully falsify, conceal, or cover up by 
any trick, scheme, or device a material fact, or make any false, 
fictitious, or fraudulent statements or representations, or make or use 
any false writings or document knowing the same to contain any false, 
fictitious, or fraudulent statement or entry. If you are convicted, you 
will be fined not more than $250,000 or the alternative fine provided 
for in the applicable provisions of 18 U.S.C. 3571, or imprisoned not 
more than 5 years, or both.


Sec. 3809.702  What civil penalties apply to violations of this 
subpart?

    (a)(1) Following issuance of an order under Sec. 3809.601, BLM may 
assess a proposed civil penalty of up to $5,000 for each violation 
against you if you--
    (i) Violate any term or condition of a plan of operations or fail 
to conform with operations described in your notice;
    (ii) Violate any provision of this subpart; or
    (iii) Fail to comply with an order issued under Sec. 3809.601.
    (2) BLM may consider each day of continuing violation a separate 
violation for purposes of penalty assessments.
    (3) In determining the amount of the penalty, BLM must consider 
your history of previous violations at the particular mining operation; 
the seriousness of the violation, including any irreparable harm to the 
environment and any hazard to the health or safety of the public; 
whether you were negligent; and your demonstrated good faith in 
attempting to achieve rapid compliance after notification of the 
violation.
    (4) If you are a small entity, BLM will, under appropriate 
circumstances including those described in paragraph (a)(3) of this 
section, consider reducing or waiving a civil penalty and may consider 
ability to pay in determining a penalty assessment.
    (b) A final administrative assessment of a civil penalty occurs 
only after BLM has notified you of the assessment and given you 
opportunity to request within 30 days a hearing by the Office of 
Hearings and Appeals. BLM may extend the time to request a hearing 
during settlement discussions. The Office of Hearings and Appeals will 
issue a penalty assessment that is final.
    (c) If BLM issues you a proposed civil penalty and you fail to 
request a hearing as provided in paragraph (b) of this section, the 
proposed assessment becomes a final order of the Department, and the 
penalty assessed becomes due upon expiration of the time allowed to 
request a hearing.


Sec. 3809.703  Can BLM settle a proposed civil penalty?

    Yes. BLM may negotiate a settlement of civil penalties, in which 
case BLM will prepare a settlement agreement. The BLM State Director or 
his or her designee must sign the agreement.

[[Page 6468]]

Appeals


Sec. 3809.800  What appeal rights do I have?

    (a) Any person adversely affected by a decision made under this 
subpart may appeal the decision under parts 4 and 1840 of this title. 
Review of a decision by the BLM State Director will take place if 
consistent with part 1840 of this title.
    (b) In order for the Department of the Interior to consider your 
appeal of a decision, you must file a notice of appeal in writing with 
the BLM office where the decision was made within 30 days after the 
date you received the decision. All decisions under this subpart go 
into effect immediately and remain in effect while appeals are pending 
unless a stay is granted under Sec. 4.21(b) of this title.
    (c) Your written appeal must contain:
    (1) Your name and address; and
    (2) The BLM serial number of the notice or plan of operations that 
is the subject of the appeal.
    (d) You must submit a statement of your reasons for the appeal and 
any arguments you wish to present that would justify reversal or 
modification of the decision within the time frame specified in part 4 
of this chapter (usually within 30 days after filing your appeal).

[FR Doc. 99-2710 Filed 2-8-99; 8:45 am]
BILLING CODE 4310-84-P