[Federal Register Volume 64, Number 206 (Tuesday, October 26, 1999)]
[Proposed Rules]
[Pages 57613-57619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27765]


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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: Supplemental proposed rule; reopening of comment period on 
draft environmental impact statement.

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SUMMARY: The Bureau of Land Management (BLM) announces the reopening of 
the comment period on our

[[Page 57614]]

surface management proposed rule (43 CFR part 3809) and the associated 
draft environmental impact statement (EIS). We are taking this action 
to carry out a provision of a recently enacted law requiring us to 
reopen the comment period on the proposed rule. This action enables the 
public and other interested parties to comment on the proposed rule and 
the draft EIS following publication of a report by the National Academy 
of Sciences (NAS) on hardrock mining on Federal lands. We are 
supplementing the proposed rule with recommendations from the NAS study 
and raising some related topics. And, we are responding to comments on 
our estimate of burden hours associated with the proposed rule.

DATES: Send your comments to reach BLM by February 23, 2000.

ADDRESSES: You may mail comments to Bureau of Land Management, 
Administrative Record, Nevada State Office, PO Box 12000, Reno, Nevada 
89520-0006. You may hand-deliver comments to BLM at 1340 Financial 
Boulevard, Reno, Nevada 89520. 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.''

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 us through the 
Federal Information Relay Service at 1-800/877-8339.

SUPPLEMENTARY INFORMATION:
    I. How Can I Comment on the Proposed Rule and draft EIS?
    II. Why is BLM Reopening the Comment Period?
    III. How Can I Obtain a Copy of the National Academy of Sciences 
Report?
    IV. Which NAS Recommendations Identify Regulatory Gaps?
    V. How Would BLM Regulate the Use of Suction Dredges?
    VI. How Does BLM Define Certain Terms Used in this Subpart?
    VII. Under What Circumstances May an Operator Not Begin 
Operations 15 Business Days After Filing a Notice?
    VIII. How Would BLM Pay for Interim Site Care and Maintenance 
Until We Issue a Reclamation Contract?
    IX. Would BLM Allow State Director Review of Decisions?
    X. How Did BLM Meet its Procedural Obligations?

I. How Can I Comment on the Proposed Rule and Draft EIS?

Electronic Access and Filing Address

    You may view an electronic version of this supplemental proposed 
rule; the February 9, 1999, proposed rule; and the draft EIS on 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, call us directly at 202/452-5030.

Written Comments

    Your written comments on the proposed rule or draft EIS should be 
specific and confined to issues pertinent to the proposed rule, and 
explain the reason for any recommended change. Where possible, you 
should reference the specific section or paragraph of the proposed rule 
or draft EIS that you are addressing. Refer to the February 9, 1999, 
proposed rule (64 FR 6422) or the February 17, 1999 notice of 
availability of the draft EIS (64 FR 7905) for detailed information.
    You need not re-submit comments that you sent us previously. We 
will consider comments submitted during the previous comment period, as 
well as comments submitted during this new comment period, when we 
prepare the final rule and final EIS.
    We are not required to consider, or include in the Administrative 
Record for the final rule, comments that we receive 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 our Nevada State Office (See ADDRESSES) during regular business 
hours (8 a.m. to 4 p.m.), Monday through Friday, except Federal 
holidays. We will also make comments available at our Washington, DC 
office, 1620 L Street, NW, Room 401, during regular business hours (8 
a.m. to 4:30 p.m.), Monday through Friday, except Federal holidays.

Requests for Confidentiality

    Individuals who send us comments on the proposed rule 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. We will honor requests 
for confidentiality on a case-by-case basis to the extent allowed by 
law. We 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.

II. Why is BLM Re-Opening the Comment Period?

    On February 9, 1999, we published in the Federal Register a 
proposed rule to revise the regulations governing mining operations 
involving metallic and some other minerals on public lands administered 
by BLM. See 64 FR 6422. We call these regulations the surface 
management regulations. They are located in subpart 3809 of part 3800 
of Title 43 of the Code of Federal Regulations (43 CFR Part 3800, 
subpart 3809). For this reason, they are also called the ``3809'' 
regulations. The comment period opened on February 9, 1999, and closed 
on May 10, 1999. We issued the notice of availability for the draft 
environmental impact statement (EIS) that analyzes the potential 
impacts of the 3809 regulations on February 17, 1999 (64 FR 7905). The 
comment period on the draft EIS also closed on May 10, 1999.
    In the 1998 Omnibus Consolidated and Emergency Supplemental 
Appropriations Act (Pub. L. 105-277, sec. 120(a)), Congress directed 
BLM to pay for a study by the National Academy of Sciences (NAS) Board 
on Earth Sciences and Resources. The study was to examine the 
environmental and reclamation requirements relating to mining of 
locatable minerals on Federal lands and the adequacy of those 
requirements to prevent unnecessary or undue degradation of Federal 
lands in each State in which such mining occurs. The law directed NAS 
to complete the study by July 31, 1999.
    In the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-
31, sec. 3002), Congress prohibited the Department of the Interior from 
completing its work on the February 9, 1999, proposed rule and issuing 
a final rule until we provide at least 120 days for public comment on 
the proposed rule after July 31, 1999. The NAS has now completed and 
published its study, entitled, ``Hardrock Mining on Federal Lands.'' 
Accordingly, we are reopening the comment period on the proposed rule 
for 120 days. This action will allow the public to comment on the 
proposed

[[Page 57615]]

rule in the context of the NAS report. In addition, we are reopening 
the comment period on the associated draft EIS for the same period.

III. How Can I Obtain a Copy of the National Academy of Sciences 
Report?

    The National Academy of Sciences has posted the report on its 
Internet site. The address is www.nap.edu/catalog/9682.html. You can 
request a paper copy of the report by contacting NAS at National 
Academy of Sciences, Board on Earth Sciences and Resources, 2101 
Constitution Avenue, NW, Washington, DC 20418; telephone: 202/334-2744. 
If you gave BLM an address with your comment on the proposed rule, 
draft EIS, or during the scoping process for the EIS, BLM has already 
arranged for NAS to mail you a copy of the study; you need not request 
another copy.

IV. Which NAS Recommendations Identify Regulatory Gaps?

    The NAS study contains a number of recommendations for the 
coordination of Federal and State regulations to ensure environmental 
protection, increase efficiency, avoid duplication and delay, and 
identify the most cost-effective manner for implementation. Some of the 
recommendations are directed at BLM's regulatory framework. Others are 
aimed at the Forest Service, at changes in laws, or at areas that are 
not regulatory in nature, such as the recommendation to create a 
management information system.
    BLM is carefully considering all of the NAS recommendations and 
seeks public comment on their validity and relevance to the proposed 
rule. Because the baseline for the study was the existing regulatory 
framework rather than the revisions to that framework that we proposed 
on February 9, 1999 (64 FR 6422), some of the NAS recommendations that 
are directed at BLM's regulatory framework overlap with the 3809 
proposed rule.
    In the interest of full and informed public comment on the proposed 
rule, we are including in this supplemental proposed rule those NAS 
recommendations that identify gaps in the existing regulations. This 
notice contains the verbatim text of the 3809-related NAS 
recommendations that identify regulatory gaps, along with explanatory 
material that highlights areas where we are particularly interested in 
receiving public comment. By doing so, we don't prejudge the validity 
of the NAS recommendations, and we reserve the right to adopt, modify, 
or decline to adopt any NAS recommendation. Under the Administrative 
Procedure Act, we must provide the public with adequate notice and an 
opportunity to comment on proposed regulatory changes (5 U.S.C. 553). 
Therefore, we are notifying you that we are considering one or more of 
the NAS recommendations and asking you for comments.
    NAS Recommendation: ``Financial assurance should be required for 
reclamation of disturbances to the environment caused by all mining 
activities beyond those classified as casual use, even if the area 
disturbed is less than five acres.''
    Request for Comments: Our 3809 proposed rule would require a 
financial guarantee for any operation greater than casual use. See 
proposed Sec. 3809.552(a). BLM and the NAS study agree that lack of 
financial guarantee for notice-level operations constitutes a gap in 
the current rules.
    However, the NAS study and the 3809 proposed rule differ concerning 
how financial guarantee amounts should be established. The NAS study 
recommends that we establish ``standard bond amounts'' for certain 
types of activities in specific kinds of terrain, especially for the 
activities of prospectors, small exploration companies, and small 
miners. According to the NAS study, BLM should use these standard bond 
amounts, which would be in the form of a certain number of dollars per 
acre of land disturbed, instead of detailed calculations of bond 
amounts based on the engineering design of a mine or mill. The 3809 
proposed rule would base financial guarantee amounts on the estimated 
reclamation cost as if BLM were to contract with a third party to 
reclaim an operation following the requirements of the reclamation 
plan. See proposed Sec. 3809.552(a).
    We specifically request comments on whether standard bond amounts 
would be preferable to actual-cost financial guarantees. We are 
particularly interested in comments on how the standard amounts should 
be set; that is, should we base them on standard industry cost 
estimating manuals, recent actual cost experience, certified estimates 
from third-party professional engineers, or on something else. The BLM 
regulation that was remanded by the Federal courts in May 1998 set 
minimum standard bond amounts of $1,000 per acre (or fraction thereof) 
for notices and $2,000 per acre (or fraction thereof) for plans of 
operations. We would also like comments on whether and under what 
circumstances departures from the standard bond amounts (up or down) 
are appropriate.
    NAS Recommendation: ``Plans of operations should be required for 
mining and milling operations, other than those classified as casual 
use or exploration activities, even if the area disturbed is less than 
five acres.''
    Request for Comments: This recommendation reflects the NAS 
observation that unnecessary or undue degradation occurs on some 
notice-level mining operations. Our 3809 proposal agrees that this is a 
problem and contained two options for addressing it. Proposed 
Sec. 3809.11 (Alternative 1) would limit use of notices by requiring a 
plan of operations where, among other things, operations involve 
leaching or use of chemicals (proposed Sec. 3809.11(f)) or are in 
national monuments and national conservation areas administered by BLM 
(proposed Sec. 3809.11(j)(7)). Proposed Sec. 3809.11 (``Forest 
Service'' Alternative) would limit use of notices by requiring a plan 
of operations whenever there is ``significant disturbance of surface 
resources,'' regardless of the size of the disturbance.
    The NAS recommendation, if adopted by BLM into the 3809 
regulations, would have the effect of requiring a plan of operations 
for all mining and milling operations regardless of the size of the 
disturbance, thereby limiting notices to exploration activities. This 
approach is somewhat different from the two options in our proposal. We 
are asking the public specifically to comment on incorporating this NAS 
recommendation into the 3809 regulations; that is, whether we should 
limit the use of notices to exploration activities and require plans of 
operations for all other mining and milling operations, regardless of 
the size of the disturbance. We are particularly interested in comments 
on what activities we should consider ``exploration'' and eligible for 
a notice. For example, the NAS study specifically mentions ``bulk 
sampling,'' which it identifies as extraction of 10 to 1,000 tons or 
more of presumed ore, as a kind of advanced exploration activity that 
should generally be authorized by a plan of operations, not a notice.
    In addition to the two options in our proposal and the NAS 
recommendation discussed above, BLM is also considering another option, 
namely, to require an operator to file a plan of operations if BLM 
determines that proposed notice-level operations may adversely affect 
proposed or listed threatened or endangered species or their designated 
critical habitat. This approach would not be as restrictive as the NAS 
recommendation, but would limit the use of notices to a greater degree 
than that allowed under Alternative 1 of the proposed rule. In

[[Page 57616]]

these circumstances, BLM could work to comply with the Endangered 
Species Act through a programmatic agreement with the appropriate 
agency, either the Fish and Wildlife Service or the National Marine 
Fisheries Service. We specifically request comments on this issue.
    NAS Recommendation: ``BLM and the Forest Service should revise 
their regulations to provide more effective criteria for modifications 
to plans of operations, where necessary, to protect the federal 
lands.''
    Request for Comments: NAS based this recommendation on comments it 
received that expressed concern about the ability of BLM and the Forest 
Service to require modifications of plans of operations in light of new 
circumstances or information, such as acid drainage, problems with 
water balance, adequacy of approved containment structures, mine 
closure, or discovery of impacts on wells and springs. We agree with 
this concern that the ability to require operators to make necessary 
modifications is essential to prevent unnecessary or undue degradation, 
and for this reason, we included provisions addressing this issue in 
our 3809 proposal. See proposed Secs. 3809.430 to 3809.432.
    The NAS study also raised the issue of whether our regulations 
should require a periodic review or reopening of plans of operations as 
a way of addressing changes in the operation or new information that 
may arise. We specifically request comments from the public on whether 
we should require this type of periodic review of plans of operations, 
and if so, what the interval between reviews should be, that is, one 
year, two years, five years, or longer.
    NAS Recommendation: ``BLM and the Forest Service should adopt 
consistent regulations that (a) define the conditions under which mines 
will be considered to be temporarily closed; (b) require that interim 
management plans be submitted for such periods; and (c) define the 
conditions under which temporary closure becomes permanent and all 
reclamation and closure requirements must be completed.''
    Request for Comments: NAS based this recommendation on the fact 
that temporary closures as a result of low mineral prices may cause 
environmental problems if appropriate management measures are not 
undertaken. The NAS study takes the position that land management 
agencies need to have the authority to require an operator to close a 
mine properly, rather than allowing it to remain in limbo if poor 
market conditions persist.
    We agree with this concern, and our proposal contains provisions 
applicable to notices and plans of operations that would require an 
operator who stops conducting operations for any period of time to 
maintain public lands within the project area in a safe and clean 
condition, prevent unnecessary or undue degradation, and maintain an 
adequate financial guarantee. See proposed Secs. 3809.334 and 3809.424. 
If the period of non-operation is likely to cause unnecessary or undue 
degradation, these provisions allow BLM to require the operator to take 
all steps necessary to prevent unnecessary or undue degradation and 
require the operator to remove all structures, equipment, and other 
facilities and reclaim the project area. In the case of plans of 
operations, our 3809 proposed rule would allow BLM to review operations 
that are inactive for 5 consecutive years to determine if we should 
terminate the plan of operations and direct final reclamation and 
closure. We also proposed a number of provisions to address abandonment 
of operations and forfeiture of financial guarantee. See, for example, 
proposed Secs. 3809.424(a)(4) and 3809.595 through 3809.599.
    We are interested in receiving public comments on whether we should 
define the conditions under which we will consider mines to be 
temporarily closed, and if so, how. Proposed Secs. 3809. 334(b)(2) and 
3809.424(a)(2) use the term ``extended period of non-operations for 
other than seasonal operations.'' We intended that the field staff have 
some flexibility in applying this concept. An alternative approach 
would be to specify an appropriate period of time after which we would 
consider an inactive operation to be temporarily closed, such as 90 
days, 180 days, one year, or longer.
    With regard to the NAS recommendation that we require an interim 
management plan for periods of temporary closure, we would like public 
comment on whether this requirement would be a significant burden and 
on what should be included in the interim management plan, such as 
security measures to protect the public and wildlife from danger, 
erosion control measures, water treatment plans, waste disposal, 
equipment removal, and the like.
    We would also like public comments on the NAS recommendation that 
we define the conditions under which temporary closure becomes 
permanent and triggers final reclamation and closure. Under proposed 
Sec. 3809.424(a)(3), we would review plans of operations (but not 
notice-level operations) after five consecutive years of inactivity. We 
do not view this proposed provision as precluding us from reviewing 
operations after shorter periods of inactivity, if circumstances 
warrant. Other approaches might include requiring periodic review or 
reopening of plans of operations regardless of whether the operation is 
inactive or not, as discussed above, or using indicators of potential 
future site activity, such as the presence of equipment or maintenance 
work on facilities and structures, to guide us in determining whether a 
temporarily closed operation should be permanently closed.
    NAS Recommendation: ``Federal land managers in BLM and the Forest 
Service should have both (1) authority to issue administrative 
penalties for violations of their regulatory requirements, subject to 
appropriate due process, and (2) clear procedures for referring 
activities to other federal and state agencies for enforcement.''
    Request for Comments: The NAS bases this recommendation on the fact 
that the existing 3809 regulations require BLM field staff to seek a 
court injunction to compel an operator to respond to a notice of 
noncompliance--an often slow and lengthy process. The NAS study takes 
the position that administrative penalties are a credible and 
expeditious means to secure compliance. We agree with the NAS concern, 
and our proposal included provisions outlining enforcement actions and 
administrative penalties. See Secs. 3809.600 through 3809.604 and 
3809.700 through 3809.703. We included due process provisions in our 
appeals section, proposed Sec. 3809.800. We also proposed to address 
the issue of coordination of enforcement efforts with State agencies 
through our Federal/State Agreements provisions. See, for example, 
proposed Secs. 3809.201 and 3809.202.
    We request public comments on whether, in light of the NAS 
recommendation, we should have additional enforcement and penalty 
provisions.
    NAS Recommendation: ``BLM and the Forest Service should plan for 
and assure the long-term post-closure management of mine sites on 
federal lands.''
    Request for Comments: The NAS study based this recommendation on 
the view that current regulatory programs have only recently focused on 
post-closure management needs of mine sites on Federal lands. According 
to the NAS study, Federal land managers and those conducting operations 
on Federal lands

[[Page 57617]]

should address the following management requirements for each site:
     Measures needed to preserve future mineral access;
     Residual public safety hazards and the need for fences, 
signs, and other features that must be periodically checked and 
maintained;
     Measures needed to assure the integrity of closed waste 
units, including the monitoring of tailings pond caps and waste rock 
and leach pad covers and their possible repair because of erosion or 
other failure, and the checking of adit plugs for continued 
effectiveness;
     Long-term environmental monitoring required to assure that 
the site remains stable and does not become a source of off-site 
contamination and the implementation of appropriate corrective 
measures;
     The operation and maintenance of any water treatment 
facilities required to maintain water quality compliance of the site 
over the long term; and
     A financial assurance to ensure implementation of these 
post-closure management requirements.
    The NAS study also highlighted the importance of ensuring funding 
for long-term or perpetual water treatment facilities.
    We agree with this concern, and our proposed rule addresses this 
issue in a number of ways. For example, we are proposing to require 
operators to establish a trust fund or other funding mechanism, where 
BLM identifies the need for it, to ensure continuing long-term 
treatment to achieve water quality standards and for other long-term, 
post-mining maintenance requirements. See proposed Sec. 3809.552(c). 
The 3809 proposal would also put operators and mining claim holders on 
notice that they are jointly and severally liable for obligations that 
accrue while they held their interests, and that relinquishment, 
forfeiture, or abandonment of a mining claim doesn't relieve them of 
their responsibility. See proposed Sec. 3809.116. We also propose that 
bond release wouldn't release mining claimants or operators from their 
reclamation obligation. See proposed Sec. 3809.592. BLM believes that, 
taken together, these proposed provisions would provide funding for, 
and address the issue of responsibility for, long-term post-closure 
management. As the NAS study points out, however, there may be a need 
for additional measures. For this reason, we invite public comment on 
whether the 3809 regulations should incorporate any of the specific 
measures identified by the NAS study and listed above, and require, for 
example, that an operator address them in a post-mine closure plan that 
BLM would have to approve before release of the financial guarantee.

V. How Would BLM Regulate the Use of Suction Dredges?

    This part of the supplemental proposed rule clarifies the intent 
and meaning of the February 9, 1999 proposed rule and discusses two 
additional options for regulating the use of suction dredges. Proposed 
Sec. 3809.11(h) (Alternative 1) contains provisions that would regulate 
the use of suction dredges. We believe, based on several comments we 
received, that confusion may exist about the intent and meaning of 
those proposed provisions. For this reason, we want to clarify that for 
portable suction dredges with an intake diameter of more than 4 inches, 
BLM proposed that an operator would have to submit to BLM a notice or 
plan of operation, whichever is appropriate.
    Under the proposal, if operations involve the use of a portable 
suction dredge with an intake diameter of 4 inches or less, the 
operator would not have to submit to BLM a notice or plan of operations 
if two conditions were met. First, the State would have to give some 
sort of authorization to use the dredge, such as a permit. Second, BLM 
and the State would have to have a written agreement under which BLM 
agrees that the State will authorize the use of dredges. Both 
conditions would have to be met. In cases where a State does not 
regulate suction dredges, an operator would have to submit to BLM a 
notice or plan of operations, whichever is appropriate, regardless of 
the size of the dredge.
    The proposal would continue current policy that use of a portable 
suction dredge is not casual use. The Interior Board of Land Appeals 
has ruled that suction dredges fall within the definition of 
``mechanized earth moving equipment'' at 43 CFR 3809.0-5, which are 
specifically not considered casual use. See Pierre J. Ott, 125 IBLA 
250, and Lloyd L. Jones, 125 IBLA 94. We hope this clarifies what we 
meant in the February 9, 1999, proposal and encourage the public to 
comment on it again.
    Also in response to comments on the proposed rule, we want to 
identify two options that we are considering and request public comment 
on them. We are considering adopting provisions that would enable an 
operator to use a portable suction dredge under a State authorization 
regardless of the size of the dredge. That is, instead of deferring to 
State regulation only when the dredge is under 4 inches, as originally 
proposed, we would allow an operator to use any size dredge if it was 
regulated by the State and the State and BLM have an agreement to this 
effect. This option would constitute a relaxation of the original 
proposal.
    The other option we are considering is to require a plan of 
operations for the use of a portable suction dredge, regardless of 
intake diameter, when the dredge would be used in a waterway that 
supports species of fish that are listed, or proposed to be listed, as 
threatened or endangered under the Endangered Species Act. This option 
is intended to prevent impacts to fish populations and their spawning 
grounds or nests and represents an incremental tightening of the 
original proposal. We request public comment on these two options. A 
final rule could incorporate one or both of these options.

VI. How Does BLM Define Certain Terms Used in This Subpart?

    In our proposed definition of ``casual use,'' we said that casual 
use doesn't include use of motorized vehicles in areas designated as 
``closed'' to off-road vehicles (proposed Sec. 3809.5). This means that 
if an operator planned to use an off-road vehicle in a closed area, the 
operator would have to file a notice or proposed plan of operations, 
whichever is appropriate. We would like to clarify that this wouldn't 
mean that use of off-road vehicles in areas designated as ``open'' or 
``limited'' is totally unrestricted. Use of off-road vehicles is 
regulated under BLM's existing regulations. See 43 CFR part 8340. 
Generally, off-road vehicle use is permitted on those areas and trails 
designated as open to off-road vehicle use; however, any person 
operating an off-road vehicle on those areas and trails designated as 
``limited'' must conform to all restrictions applicable to those areas 
and trails. To make this clear, the final rule could include a cross-
reference to BLM's off-road vehicle regulations.

VII. Under What Circumstances May an Operator Not Begin Operations 
15 Business Days After Filing a Notice?

    Under proposed Sec. 3809.313, an operator couldn't begin operations 
15 business days after filing a notice in certain circumstances, 
including if BLM determines that an on-site visit is necessary 
(proposed Sec. 3809.313(d)). We would like to clarify that if BLM 
determined that a site visit is necessary to determine if a proposed or 
listed threatened or endangered species is present or would be affected 
by the planned operation, we would notify the operator not to begin 
operations until

[[Page 57618]]

the site visit could take place and BLM could make its determination.

VIII. How Would BLM Pay for Interim Site Care and Maintenance Until 
We Issue a Reclamation Contract?

    Proposed Sec. 3809.552 addresses what an individual financial 
guarantee must cover. Based on our experience with recent bond 
forfeitures, we believe it is important to extend the provisions of 
that section to cover situations where interim site care and 
maintenance is necessary while BLM or a State regulator is developing 
and executing third-party reclamation contracts. For example, when an 
operator forfeits a financial guarantee, the site of operations is 
rarely reclaimed. BLM or the State regulatory must arrange for a third-
party contractor to complete reclamation. This process takes time, 
during which site conditions usually deteriorate. We need the ability 
to quickly redeem a portion of the financial guarantee to fund interim 
site care and maintenance until the reclamation contract takes effect 
so as to prevent adverse environmental impacts. This is consistent with 
concerns expressed in the NAS study about mine closures.
    We are including in this reopening notice proposed revisions to 
previously proposed Sec. 3809.552. The revisions would require the 
financial guarantee to cover any interim stabilization and 
infrastructure maintenance costs needed to maintain the area of 
operations in compliance with applicable environmental requirements 
while third-party reclamation contracts are being developed and 
executed. We would also require that the portion of the financial 
guarantee set aside for this purpose be immediately redeemable by BLM. 
See the proposed regulatory language at the end of this notice.
    In addition, recent events at at least one closed mine make it 
advisable to clarify that our current policy is that a surety continues 
to be responsible for obligations that accrue while the surety's bond 
is in effect, unless a suitable replacement bond or other financial 
guarantee would cover those obligations. Even if a surety wishes to 
cancel the bond or other financial guarantee, the surety would remain 
responsible following the cancellation for obligations that accrue 
while the surety held the bond, unless a subsequent bond or other 
financial guarantee covers those obligations.

IX. Would BLM Allow State Director Review of Decisions?

    Section 3809.800(a) of the February 9, 1999, proposed rule would 
allow any person adversely affected by a decision made under the 3809 
regulations to appeal the decision to the Interior Board of Land 
Appeals (IBLA). See 64 FR 6468. The proposal also stated that review of 
a decision by the BLM State Director would take place if consistent 
with part 1840 of Title 43, Code of Federal Regulations. Currently, 
part 1840 does not authorize State Director review.
    It may be in the best interest of operators and other affected 
parties to have the opportunity to pursue a possibly shorter appeals 
avenue than that provided by IBLA. We are proposing adding provisions 
to subpart 3809 that would allow both operators and other adversely 
affected parties the option of appealing first to the BLM State 
Director. This would not be a mandatory step, and a party could proceed 
directly to the IBLA if he or she so chooses. If an appeal is filed 
with the BLM State Director, the State Director would have 7 business 
days from receipt of the appeal to decide whether to consider it. If 
so, the State Director would follow the procedures referenced in part 
1840. If an affected party appeals to the State Director and another 
affected party appeals to IBLA, then the State Director would defer to 
IBLA. Affected parties would have the right to appeal the State 
Director's decision to IBLA. We request comment from the general public 
and the regulated industry on whether allowing the option of appealing 
to the BLM State Director would be beneficial.

X. How Did BLM Meet Its Procedural Obligations?

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires a regulatory agency 
to evaluate each proposed rule and consider alternatives that would 
minimize the rule's impact on small entities (5 U.S.C. 601-612). 
However, the RFA ``does not require that agencies necessarily minimize 
a rule's impact on small entities if there are significant legal, 
policy, factual, or other reasons for the rule's having such an 
impact.'' (The Regulatory Flexibility Act: An Implementation Guide for 
Federal Agencies, U.S. Small Business Administration, Office of 
Advocacy, Washington, DC, 1998, p. 12).
    The RFA permits the head of a federal agency to forego the 
preparation of an initial regulatory flexibility analysis (IRFA) upon a 
written certification that a rule will not have a ``significant 
economic impact on a substantial number of small entities'' (SBA, p. 
22). In addition, ``* * * if an agency is uncertain of the impact, it 
is recommended that the agency err on the side of caution and perform 
an IRFA with the available data and information, and solicit comments. 
* * * Then if appropriate the agency can certify on the final rule'' 
(SBA, p. 23).
    In our February 9, 1999, proposed rule, we determined under the RFA 
that the proposed rule would not have a significant economic impact on 
a substantial number of small entities (64 FR 6449). We reached this 
initial conclusion on the basis of the initial regulatory flexibility 
analysis (IRFA) we prepared for the proposed rule. Under the RFA, an 
agency must publish and make available for public comment an IRFA, 
unless the agency can certify based on a preliminary assessment or 
threshold analysis that the proposed rule will not have a significant 
economic impact on a substantial number of small entities. The IRFA 
describes the impacts of the proposed alternatives on small entities 
and describes any alternatives that would minimize the impact while 
accomplishing the stated objectives. BLM released an IRFA with the 
proposed rule on February 9, 1999. The comment period for this IRFA 
ended May 10, 1999. We are reopening it for 120 days. BLM's analysis of 
the public record developed in connection with the proposed rule will 
help it determine whether or not the final version of the rule will 
have a significant economic impact on a substantial number of small 
entities. A final regulatory flexibility analysis will be prepared if 
it is determined that the final rule will have a significant effect on 
a substantial number of small entities.

Paperwork Reduction Act

    Several commenters on the proposed rule expressed the view that, 
based on their experience with the existing regulations, BLM 
underestimated the paperwork burden associated with the proposed rule. 
It appears from the comments that the commenters assumed that our 
burden estimate included all paperwork burden, both existing and 
proposed, as if no other State or Federal agencies imposed any 
paperwork burden on mining operations.
    We would like to point out that, in accordance with the Paperwork 
Reduction Act and the Office of Management and Budget's instructions 
for estimating paperwork burden, we are estimating only the increment 
of paperwork imposed by the proposed regulations over and above the 
paperwork burden imposed by the existing regulations. We also correctly 
didn't include in our estimate any

[[Page 57619]]

paperwork requirements contained in the proposed rule that would merely 
duplicate paperwork requirements imposed by other agencies, either 
Federal or State. If an operator has to give certain information to a 
State agency, the burden of also supplying that exact same information 
to BLM is relatively small. (Indeed, many of the same commenters noted 
that much of the proposed rule duplicated existing State requirements.)
    Because of this possible misunderstanding, we are re-examining the 
information collection burden that would be imposed by the proposed 
rule. In the near future, we will release a revised paperwork burden 
estimate for public comment.

Other

    The proposals described in this notice fall within the scope of the 
analyses prepared for the proposed rule. Please refer to the discussion 
of how BLM is meeting its procedural obligations contained in the 
proposed rule for further information (Feb. 9, 1999, 64 FR 6422, 6449).

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: October 19, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
    Accordingly, BLM proposes to amend its proposed rule published on 
February 9, 1999 (64 FR 6422) as set forth below:

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

Subpart 3809--Surface Management

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

    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.

    2. In Sec. 3809.552 as proposed at 64 FR 6463, revise paragraph (a) 
by adding a sentence at the end and add paragraph (d) to read as 
follows:


Sec. 3809.552  What must my individual financial guarantee cover?

    (a) * * * The financial guarantee must also cover any interim 
stabilization and infrastructure maintenance costs needed to maintain 
the area of operations in compliance with applicable environmental 
requirements while third-party contracts are developed and executed.
* * * * *
    (d) When BLM identifies a need for it, you must establish that 
portion of the financial guarantee used to conduct site stabilization 
and infrastructure maintenance in a funding mechanism that would be 
immediately redeemable by BLM. BLM would use the funds to maintain the 
area of operations in a safe and stable condition that complies with 
applicable environmental requirements during the period needed for bond 
forfeiture and reclamation contracting procedures.

[FR Doc. 99-27765 Filed 10-25-99; 8:45 am]
BILLING CODE 4310-84-P