[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Rules and Regulations]
[Pages 53218-53220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25430]



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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[WO-660-4120-02-24 1A]
RIN: 1004-AD36


Mining Claims Under the General Mining Laws; Surface Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) is publishing this final 
regulation on bonding requirements for mining claims to comply with a 
Federal District Court order. This final rule is needed to remove 
regulatory provisions that were invalidated by the court and to restore 
the previously existing provisions that are currently in effect as a 
result of the court order. This rule does not affect a pending proposed 
rule regarding changes to Subpart 3809.

EFFECTIVE DATE: October 1, 1999.

ADDRESSES: Inquiries or suggestions should be sent to the Solid 
Minerals Group at Director (320), Bureau of Land Management, Room 501 
LS, 1849 C Street, N.W., Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Richard Deery, (202) 452-0350, or Ted 
Hudson, (202) 452-5042.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 28, 1997 (62 FR 9093), BLM published a final rule 
amending 43 CFR subpart 3809. This final rule amended the bonding 
requirements for unpatented mining claims under the Mining Law of 1872, 
as amended (30 U.S.C. 22 et seq.), and codified the penalties imposed 
by the Sentencing Reform Act of 1989 (18 U.S.C. 3571 et seq.).
    The Northwest Mining Association (NMA) sued the BLM alleging 
violations of the Administrative Procedure Act, 5 U.S.C. 551 et seq., 
and the Regulatory Flexibility Act, as amended, 5 U.S.C. 601 et seq. 
(Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9 (D.D.C. 1998)) 
On May 13, 1998, the court ruled in favor of the NMA, granted its 
motion for summary judgment, and remanded the final rule to the 
Department of the Interior for appropriate action consistent with the 
court's opinion.
    The Department of the Interior did not appeal the decision of the 
District Court. On August 21, 1998, BLM issued an instruction 
memorandum to its field offices instructing them to act under the 
regulations that had been in place until March 31, 1997, the effective 
date of the remanded rule.
    While the litigation was pending, the challenged rule was published 
in Title 43 of the Code of Federal Regulations (CFR), and the old rules 
were removed from the published volumes. The purpose of this final rule 
is to remove from the CFR the judicially invalidated regulatory 
provisions that were promulgated on February 28, 1997, and to restore 
verbatim to the CFR the previous regulatory provisions that were 
removed and/or replaced by that rule, and that now are back in effect 
as a result of the court invalidating the new rulemaking. Absent this 
action, the CFR would contain regulations that are no longer valid, 
potentially confusing those subject to these regulations as to the 
requirements for bonding of hardrock mining operations.
    Under 5 U.S.C. 553(b), the Department of the Interior finds good 
cause to issue this final rule without notice and opportunity for 
public comment. Removing the invalid rule and restoring the previously 
existing rule is required by a final judicial determination. Therefore, 
notice and public comment is unnecessary. Under 5 U.S.C. 553(d), the 
Department also finds good cause, to waive the 30-day period between 
publication of a final rule and its effective date for the same reason.
    This rule has no effect on the proposed rule published on February 
9, 1999 (64 FR 6422), which would comprehensively amend the hardrock 
mining regulations in 43 CFR Subpart 3809. However, that proposed rule 
could make changes to the reinstated bonding regulations, if a final 
rule is issued.

II. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This final rule is not a significant regulatory action and is not 
subject to review by the Office of Management and Budget under 
Executive Order 12866. The rule will not have an effect of $100 million 
or more on the economy. It will not adversely affect in a material way 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The rule does not alter the budgetary effects of entitlements, grants, 
user fees, or loan programs or the right or obligations of their 
recipients; nor does it raise novel legal or policy issues.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. However, because this final 
rule merely restores to the CFR regulations that were in effect before 
March 31, 1997, and proposed regulations are pending that, if adopted, 
will affect this whole subpart, which will be rewritten in plain 
language, we have not rewritten this regulation into plain language.

National Environmental Policy Act

    BLM has determined that this final rule is an administrative 
action. It merely restores regulatory language that was changed or 
removed by a previous final rule that was invalidated by the District 
Court. Therefore, it is categorically excluded from environmental 
review under section 102(2)(C) of the National Environmental Policy 
Act, pursuant to 516 Departmental Manual (DM), Chapter 2, Appendix 1. 
In addition, the proposed rule does not meet any of the 10 criteria for 
exceptions to categorical exclusions listed in 516 DM, Chapter 2, 
Appendix 2. Pursuant to Council on Environmental Quality regulations 
(40 CFR 1508.4) and the environmental policies and procedures of the 
Department of the Interior, the term ``categorical exclusions'' means a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment and that have been found to 
have no such effect in procedures adopted by a Federal agency and for 
which neither an environmental assessment nor an environmental impact 
statement is required.

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 on a substantial number of small entities. 
Although small entities are bound by the regulations being restored by 
this final rule, BLM has determined under the RFA that this rule would 
not have a significant economic impact on a substantial number of small 
entities. The rule is an administrative action restoring to the CFR 
regulations that BLM and industry are currently following. The rule 
makes no changes in

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the procedures that any small entity must follow.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This final rule is not a ``major rule'' as defined at 5 U.S.C. 
804(2) for the reasons stated in the previous two sections.

Unfunded Mandates Reform Act

    This final rule does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year; nor does this rule have a significant or unique 
effect on State, local, or tribal governments or the private sector. 
The rule is an administrative action restoring to the CFR regulatory 
text that was removed or changed by a previous final rule invalidated 
by the District Court. This rule makes no changes in the restored text. 
Therefore, BLM does not need to prepare a statement containing the 
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 
et seq.)

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

    The final rule does not represent a government action capable of 
interfering with constitutionally protected property rights. It is an 
administrative action restoring text removed or changed by a previous 
final rule that was invalidated by a Federal court. 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

    In accordance with Executive Order 12612, BLM finds that the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment. This rule does not change the 
role or responsibilities between Federal, State, and local governmental 
entities, nor does it relate to the structure and role of States or 
have direct, substantive, or significant effects on States.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Department has determined that 
this rule would not unduly burden the judicial system and that it meets 
the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    The Office of Management and Budget has approved the information 
collection requirements in Subpart 3809 under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501 et seq., and has assigned clearance number 
1004-0176. This rule does not impose any additional information 
collection requirements.
    Author: The principal author of this rule is Ted Hudson of the 
Regulatory Affairs Group, Washington Office, Bureau of Land Management.

List of Subjects in 43 CFR Part 3800

    Administrative practice and procedure, Environmental protection, 
Intergovernmental affairs, Mines, Public lands-mineral resources, 
Reporting and recordkeeping requirements, Surety bonds, Wilderness 
areas
    For the reasons stated in the preamble, and under the authorities 
cited below, Part 3800, Subchapter C, Chapter II, Title 43 of the Code 
of Federal Regulations is amended as set forth below.

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAW

    1. The authority citation for part 3800 continues to read as 
follows:

    Authority: 16 U.S.C. 351; 16 U.S.C. 460y-4; 30 U.S.C. 22; 31 
U.S.C. 9701; 43 U.S.C. 154; 43 U.S.C. 299; 43 U.S.C. 1201; 43 U.S.C. 
1740; 30 U.S.C. 28k.

Subpart 3809--Surface Management

    2. Section 3809.1-8 is added to read as follows:


Sec. 3809.1-8  Existing operations.

    (a) Persons conducting operations on January 1, 1981, who would be 
required to submit a notice under Sec. 3809.1-3 or a plan of operations 
under Sec. 3809.1-4 of this title may continue operations but shall, 
within:
    (1) 30 days submit a notice with required information outlined in 
Sec. 3809.1-3 of this title for operations where 5 acres or less will 
be disturbed during a calendar year; or
    (2) 120 days submit a plan in those areas identified in 
Sec. 3809.1-4 of this title. Upon a showing of good cause, the 
authorized officer may grant an extension of time, not to exceed an 
additional 180 days, to submit a plan.
    (b) Operations may continue according to the submitted plan during 
its review. If the authorized officer determines that operations are 
causing unnecessary or undue degradation of the Federal lands involved, 
the authorized officer shall advise the operator of those reasonable 
measures needed to avoid such degradation, and the operator shall take 
all necessary steps to implement those measures within a reasonable 
time recommended by the authorized officer. During the period of an 
appeal, if any, operations may continue without change, subject to 
other applicable Federal and State laws.
    (c) Upon approval of a plan by the authorized officer, operations 
shall be conducted in accordance with the approval plan.
    3. Section 3809.1-9 is revised to read as follows:


Sec. 3809.1-9  Bonding requirements.

    (a) No bond shall be required for operations that constitute casual 
use (Sec. 3809.1-2) or that are conducted under a notice (Sec. 3809.1-3 
of this title).
    (b) Any operator who conducts operations under an approved plan of 
operations as described in Sec. 3809.1-5 of this title may, at the 
discretion of the authorized officer, be required to furnish a bond in 
an amount specified by the authorized officer. The authorized officer 
may determine not to require a bond in circumstances where operations 
would cause only minimal disturbance to the land. In determining the 
amount of the bond, the authorized officer shall consider the estimated 
cost of reasonable stabilization and reclamation of areas disturbed. In 
lieu of the submission of a separate bond, the authorized officer may 
accept evidence of an existing bond pursuant to State law or 
regulations for the same area covered by the plan of operations, upon a 
determination that the coverage would be equivalent to that provided in 
this section.
    (c) In lieu of a bond, the operator may deposit and maintain in a 
Federal depository account of the United States Treasury, as directed 
by the authorized officer, cash in an amount equal to the required 
dollar amount of the bond or negotiable securities of the United States 
having a market value at the time of deposit of not less than the 
required dollar amount of the bond.
    (d) In place of the individual bond on each separate operation, a 
blanket bond covering statewide or nationwide operations may be 
furnished at the option of the operator, if the terms and conditions, 
as determined by the authorized officer, are sufficient to comply with 
these regulations.
    (e) In the event that an approved plan is modified in accordance 
with Sec. 3809.1-7 of this title, the authorized officer shall review 
the initial bond for adequacy and, if necessary, adjust the amount of 
the bond to conform to the plan as modified.
    (f) When all or any portion of the reclamation has been completed 
in

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accordance with the approved plan, the operator may notify the 
authorized officer that such reclamation has occurred and that she/he 
seeks a reduction in bond or Bureau approval of the adequacy of the 
reclamation, or both. Upon any such notification, the authorized 
officer shall promptly inspect the reclaimed area with the operator. 
The authorized officer shall then notify the operator, in writing, 
whether the reclamation is acceptable. When the authorized officer has 
accepted as completed any portion of the reclamation, the authorized 
officer shall authorize that the bond be reduced proportionally to 
cover the remaining reclamation to be accomplished.
    (g) When a mining claim is patented, the authorized officer shall 
release the operator from that portion of the performance bond which 
applies to operations within the boundaries of the patented land. The 
authorized officer shall release the operator from the remainder of the 
performance bond, including the portion covering approved means of 
access outside the boundaries of the mining claim, when the operator 
has completed acceptable reclamation. However, existing access to 
patented mining claims, if across Federal lands shall continue to be 
regulated under the approved plan. The provisions of this subsection do 
not apply to patents issued on mining claims within the boundaries of 
the California Desert Conservation Area (see Sec. 3809.6 of this 
title).
    4. Section 3809.3-1 is amended by revising paragraph (b) to read as 
follows:


Sec. 3809.3-1  Applicability of State law.

* * * * *
    (b) After November 26, 1980, the Director, Bureau of Land 
Management, shall conduct a review of State laws and regulations in 
effect or due to come into effect, relating to unnecessary or undue 
degradation of lands disturbed by exploration for, or mining of, 
minerals locatable under the mining laws.
    5. Section 3809.3-2 is amended by removing paragraph (f) and 
revising paragraph (e) to read as follows:


Sec. 3809.3-2  Noncompliance.

* * * * *
    (e) Failure of an operator to take necessary actions on a notice of 
non-compliance, may constitute justification for requiring the 
submission of a plan of operations under Sec. 3809.1-5 of this title, 
and mandatory bonding for subsequent operations which would otherwise 
be conducted pursuant to a notice under Sec. 3809.1-3 of this title.
    Dated: September 24, 1999.
* * * * *
Sylvia V. Baca,
Acting Assistant Secretary of the Interior.
[FR Doc. 99-25430 Filed 9-30-99; 8:45 am]
BILLING CODE 4310-84-P