[Federal Register Volume 65, Number 225 (Tuesday, November 21, 2000)]
[Rules and Regulations]
[Pages 69998-70132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29472]



[[Page 69997]]

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Part II





Department of the Interior





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Bureau of Land Management



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43 CFR Part 2090, et al.



Mining Claims Under the General Mining Laws; Surface Management; Final 
Rule

  Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / 
Rules and Regulations  

[[Page 69998]]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2090, 2200, 2710, 2740, 3800 and 9260

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


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 or ``we'') amends its 
regulations governing mining operations involving metallic and some 
other minerals on public lands. We are amending the regulations to 
improve their clarity and organization, address technical advances in 
mining, incorporate policies we developed after we issued the previous 
regulations twenty years ago, and better protect natural resources and 
our Nation's natural heritage lands from the adverse impacts of mining. 
We intend these regulations to prevent unnecessary or undue degradation 
of BLM-administered lands by mining operations authorized under the 
mining laws.

DATES: This rule is effective January 20, 2001.

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. What is the Background of this Rulemaking?
II. How did BLM Change the Proposed Rule in Response to Comments?
III. How did BLM Fulfill its Procedural Obligations?

I. 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 
executive-branch agencies, including the Bureau of Land Management 
(BLM). The Federal Land Policy and Management Act of 1976 (FLPMA), 43 
U.S.C. 1701 et seq., 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. This final rule is 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.'' \1\
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    \1\ Although BLM is responsible for administration of the mining 
laws for lands within the National Forest System, the Secretary of 
Agriculture has responsibility for promulgating rules and 
regulations applicable to surface management of lands within the 
National Forest System. For this reason, none of the regulatory 
changes we are adopting apply to the National Forests. See 36 CFR 
part 228 for regulations governing mining operations on National 
Forests.
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    Under this statutory authority, BLM issued regulations in 1980 to 
protect public lands from unnecessary or undue degradation and to 
ensure that areas disturbed during the search for and extraction of 
mineral resources are reclaimed. See 45 FR 78902-78915, November 26, 
1980. 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. For this reason, they are also called the 
``3809'' regulations.
    We amended the 1980 regulations in 1997 to strengthen the bonding 
requirements, but the 1997 amendments were overturned. Thus, the 1980 
regulations, unchanged for 20 years, remain in place. Please refer to 
the ``Background'' section of the proposed rule for a detailed 
description of our efforts to develop revised regulations (64 FR 6423-
6425, February 9, 1999).
    On February 9, 1999, we published in the Federal Register a 
proposed rule to amend the 3809 regulations. See 64 FR 6422-6468. The 
120-day public comment period 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 proposed changes to 
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 Research Council (NRC) 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 NRC 
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 NRC completed and published 
its report, entitled, Hardrock Mining on Federal Lands (hereafter the 
NRC Report), in late September 1999. Accordingly, we reopened the 
comment period on the proposed rule and the draft EIS for 120 days. See 
64 FR 57613, October 26, 1999. We also supplemented the proposed rule 
with some of the recommendations from the NRC and asked for public 
comment on them.
    In the fiscal year 2000 appropriations bill for the Department of 
the Interior (Pub. L. 106-113, sec. 357), Congress prohibited the 
Secretary from spending money to issue final 3809 rules, except that he 
may issue final rules ``which are not inconsistent with the 
recommendations contained in the [NRC Report] so long as these 
regulations are also not inconsistent with existing statutory 
authorities.'' Congress also added this provision to the Department's 
fiscal year 2001 appropriations bill (Pub. L. 106-291, section 156).
    We received and considered a total of about 2,500 public comments 
during both 120-day comment periods. While many comments merely 
expressed support or opposition for the proposed rule, some comments 
offered useful and constructive suggestions for changes to the proposed 
rule. Where possible and advisable, we made changes to the proposed 
rule to incorporate the suggestions contained in these comments. Part 
II of this preamble describes the substantive changes to the proposed 
rule that we incorporated into this final rule.

Legal Basis for the Final Rule

    This final rule is supported by FLPMA and the Mining Law of 1872, 
as amended (hereafter ``mining laws''). Section 302(b) of FLPMA, 43 
U.S.C. 1732(b), directs the Secretary to manage

[[Page 69999]]

development of the public lands. In addition, the final rule we are 
adopting today carries out the FLPMA directive 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 
public lands.'' See 43 U.S.C. 1732(b). The ``any action necessary'' 
language of this provision shows that Congress granted the Secretary 
broad latitude in the preventive actions that he could take. Congress 
did not define the term ``unnecessary or undue degradation,'' but it is 
clear from the use of the conjunction ``or'' that the Secretary has the 
authority to prevent ``degradation'' that is necessary to mining, but 
undue or excessive. This includes the authority to disapprove plans of 
operations that would cause undue or excessive harm to the public 
lands. Readers should note that the Secretary has delegated to BLM many 
of his management responsibilities under FLPMA and the mining laws.
    The final rule we are adopting today is consistent with the FLPMA 
directive, as well as the general rulemaking authorities of FLPMA and 
the mining laws (43 U.S.C. 1740 and 30 U.S.C. 22 respectively). Other 
portions of this preamble contain discussions of legal authorities for 
this rule in the context of specific sections of the regulations.
    As explained in more detail later in this preamble, we are 
continuing the 3-tiered classification of operations with the attendant 
increasing degree of BLM involvement in review or approval. As mining 
operations increase in size and complexity, BLM's up-front involvement 
should also increase. We are continuing, with necessary refinements, 
the set of outcome-based performance standards that operations must 
comply with to prevent unnecessary or undue degradation. We are 
adopting financial guarantee requirements for exploration and mining 
operations that go beyond ``casual use'' to prevent unnecessary or 
undue degradation caused by failure to fulfill the reclamation 
obligation. We are adopting reasonable and graduated enforcement 
procedures and penalties, which incorporate due process, as a deterrent 
to practices that would result in unnecessary or undue degradation. 
These and other provisions described later in this preamble are focused 
on preventing unnecessary or undue degradation while at the same time 
avoiding, to the extent possible and foreseeable, unintended adverse 
impacts on the ability of mining claimants and operators to explore for 
and develop mineral resources.
    In addition to this preamble, the preamble to the February 9, 1999 
proposed rule (64 FR 6422) and the comment responses in the final EIS 
(Volume 2) also contribute to the basis and purpose of this rule.

Consistency With the NRC Report Recommendations

    In the fiscal year 2000 appropriations bill for the Department of 
the Interior (Pub. L. 106-113, sec. 357), Congress prohibited the 
Secretary from spending money to issue final 3809 rules other than 
those ``which are not inconsistent with the recommendations contained 
in the [NRC Report] so long as these regulations are also not 
inconsistent with existing statutory authorities.'' Comments we 
received during the second comment period indicate that there are 
divergent views on the consistency question. Some commenters appear to 
strongly believe that the ``not inconsistent with'' provision should be 
interpreted as setting strict limits on what we can include in this 
rulemaking. That is, we can promulgate only regulations that conform 
exactly to specific NRC Report recommendations, and no more.
    We do not agree with these comments. The NRC Report, Hardrock 
Mining on Federal Lands (1999), was prepared in response to a 
Congressional directive in our fiscal year 1999 appropriations (Pub. L. 
105-277, sec. 120(a)). Congress asked the NRC to assess the adequacy of 
the existing regulatory framework for hardrock mining on Federal lands. 
Congress did not ask the NRC to analyze our proposed rule, and the NRC 
Report did not do so. As a result, while portions of the NRC Report 
overlap the proposed rule, the study is not coterminous with the 
proposal, and a number of the issues addressed in the proposed rule are 
not covered by the NRC Report recommendations.
    Congress was aware that the NRC Report and our proposed rule were 
not coterminous when Congress was considering the appropriations bill 
in the Fall of 1999. The proposed rule was published in February 1999. 
Congress was also aware of the regulatory recommendations made in the 
NRC Report, which was published on September 29, 1999. The 
appropriations bill did not pass Congress until November 19, 1999. (The 
President signed the bill on November 29, 1999.) Thus, six weeks 
elapsed between the issuance of the NRC Report and Congressional action 
on our appropriations bill. If Congress had intended for this 
rulemaking to be limited strictly to things recommended by the NRC 
Report, it could have said so, but did not. Congress used the ``not 
inconsistent with'' language, which is much less restrictive than other 
possible formulations, such as the rules must be ``limited to'' or 
``restricted to'' or ``must not go beyond'' the recommendations of the 
NRC Report.
    This interpretation of Congress's purpose in the fiscal year 2000 
Interior appropriation is supported by recent Congressional action to 
twice expressly reject language (once in bill text and once in a 
conference report) that would have imposed a greater limitation on the 
Secretary's authority to amend subpart 3809 than the ``not inconsistent 
with'' language of the fiscal year 2000 appropriations rider (Pub. L. 
106-113, section 357). By way of background, on December 8, 1999, the 
Interior Department Solicitor issued an opinion interpreting section 
357. The opinion concluded that the ``not inconsistent with'' language 
of section 357 applied only to the numbered, bold-faced recommendations 
in the NRC Report. The Solicitor also concluded that final rules 
addressing subjects that lie outside the specific NRC Report recommen- 
dations would not be affected by section 357.
    Subsequently, in the second session of the 106th Congress, 
legislative language was added to an agriculture appropriations bill 
that would have limited the final rules to ``only the regulatory gaps 
identified at pages 7 through 9 of the [NRC Report].'' See section 3105 
of S. 2536, as contained in S. Rpt. 106-288. This language would have 
imposed additional limits on the Secretary's authority to amend subpart 
3809. The amendment was dropped and replaced in the conference on the 
current year Interior appropriations bill by the more neutral ``not 
inconsistent with'' language of section 156 of Pub. L. 106-291.
    Similarly, Conference Committee report language to accompany 
section 156 was proposed that would have expressed the committee's 
intent ``for [BLM] to adopt changes to its rules at 43 CFR part 3809 
only if those changes are called for in the NRC report.'' (Reported in 
Public Land News, vol. 25, no. 19, Sept. 29, 2000. Emphasis added.) See 
also 146 Cong. Rec. S10239, statement of Sen. Durbin. This language was 
dropped from the final conference report. See H. Rpt. 106-914, p. 154. 
Although the Conference Report cautioned that re-enactment of the ``not 
inconsistent with'' language in the fiscal year 2000 Interior 
appropriations was not intended to constitute congressional 
ratification of the Solicitor's December 8, 1999 opinion, the 
Conference Report

[[Page 70000]]

does not explain how it interprets section 156 in any way different 
from how the Solicitor interpreted the identical language in section 
357 of the previous year's appropriations.
    Our view of the plain meaning of the ``not inconsistent with'' 
language in both the fiscal year 2000 and 2001 appropriations acts 
remains as the Solicitor described it in his December 8, 1999 opinion 
as follows: To the extent that an NRC Report recommendation and the 
proposed rule overlap, then the final rule must be entirely consistent 
with the recommendation. However, it is reasonable to interpret the 
``not inconsistent with'' language as not applying to parts of this 
final rule related to subjects lying outside the recommendations of the 
NRC Report. In these cases, there can be no question of consistency 
with the NRC Report recommendations because those recommendations are 
silent on an issue or not dispositive of an issue.
    As discussed in more detail later in this preamble, all the 
provisions of this final rule that overlap the recommendations of the 
NRC Report are not inconsistent with the report. Other provisions of 
this final rule, for which there is no corresponding NRC Report 
recommendation, are consistent with the Secretary's statutory authority 
to prevent unnecessary or undue degradation of the public lands and 
other legal authorities supporting the final rule. BLM wishes to 
emphasize that we carefully reviewed the entire NRC Report and gave 
appropriate weight to its entire contents. Even if the ``not 
inconsistent with'' language were construed to mean that these final 
rules could not be inconsistent with the entire NRC Report, BLM 
believes that this final rule would comply.
    A commenter stated that even without the limits placed on BLM by 
the ``not inconsistent with'' language of section 357 of H.R. 3423 (the 
FY 2000 Interior Appropriations bill, which was enacted by reference in 
the Consolidated Appropriations Act, Pub. L. 106-113), neither FLPMA 
nor any other authority grants BLM the power to promulgate the 
regulations as proposed. The commenter stated that in addition to a 
general lack of authority to promulgate the 3809 proposal, Congress's 
specific and direct commands in section 357 further restricting BLM's 
authority to promulgate regulations related to subpart 3809 
independently demonstrate that the proposed regulation is not 
authorized by law.
    BLM disagrees with the comment. As discussed earlier in this 
preamble, BLM has the authority to issue these final regulations. The 
``not inconsistent with'' language of section 357 of H.R. 3423 (and its 
successor, section 156 of Pub. L. 106-291) imposes a separate 
requirement. BLM's underlying statutory authority under FLPMA and the 
mining laws remains intact. Indeed, both section 357 of fiscal year 
2000 Interior appropriations and section 156 of fiscal year 2001 
Interior appropriations recognize that BLM's ``existing statutory 
authorities'' continue to apply to these rules. These rules have been 
reviewed, and changed as necessary, to address the requirements of 
sections 357 and 156. Thus, the final rules are not inconsistent with 
the recommendations contained in the NRC Report.

Record of Decision Under the National Environmental Policy Act

    This preamble constitutes BLM's record of decision, as required 
under the Council on Environmental Quality regulations at 40 CFR 
1505.2. The decision is based on the proposed action and alternatives 
presented in the Final Environmental Impact Statement, ``Surface 
Management Regulations for Locatable Mineral Operations.''
    After considering all relevant issues, alternatives, potential 
impacts, and management constraints, BLM selects Alternative 3 of the 
Final EIS for implementation. Alternative 3 changes the existing 3809 
regulations in several general areas: (1) it changes the definition of 
unnecessary or undue degradation to better protect significant 
resources from substantial irreparable harm, (2) it requires mineral 
operators to file a plan of operations for any mining activity beyond 
casual use regardless of disturbance size, (3) it requires operators to 
provide reclamation bonds for any disturbance greater than casual use, 
(4) it specifies outcome-based performance standards for conducting 
operations on public lands, (5) it provides an improved program from 
enforcement of the regulations in cases of noncompliance, and (6) it 
provides options for Federal-State coordination in implementing the 
regulations. A comprehensive description of Alternative 3 is presented 
in Chapter 2 of the Final EIS. The specific regulation language to 
carry out Alternative 3 follows the preamble discussion.

Alternatives Considered

    BLM considered a full range of program alternatives for development 
of the 3809 regulations. See Chapter 2 of the final EIS for a 
description of how specific issues drove the formulation of the 
alternatives. BLM developed the five alternatives considered in the EIS 
in response to issues raised by the public during the EIS scoping 
period and comments we received on the draft EIS. The alternatives 
ranged from the required ``no action'' alternative, which would have 
retained the 1980 regulations, to Alternative 4, the ``maximum 
protection'' alternative. A fifth alternative, Alternative 5, was added 
to the final EIS in response to comments that BLM should only make 
changes to the 3809 regulations that were specifically recommended in 
the NRC Report. The following is a brief description of the 
alternatives and the rationale behind their formulation:
    Alternative 1, No Action--This alternative would not have changed 
the regulations. Locatable mineral operations would continue to be 
managed under the regulations that BLM promulgated in 1980. This 
alternative served as the baseline for the EIS analysis. The No Action 
alternative encompasses the view expressed by many in industry and 
State governments that changes in the regulations are not needed, and 
that BLM should make non-regulatory changes to improve the way the 
program works prior to proposing any regulatory changes.
    Alternative 2, State Management--The State Management alternative 
would have required rescinding the 1980 regulations and returning to 
the prior surface management program strategy, under which State or 
other Federal regulations governed locatable mineral operations on 
public land. Compliance with these other regulations would have been 
deemed adequate to prevent unnecessary or under degradation under 
Alternative 2. We developed this alternative in response to comments 
that BLM should evaluate ways to encourage mineral development through 
less regulation, and that a BLM regulatory role was not needed since 
the respective State regulatory programs were adequate to protect the 
environment. Consideration of Alternative 2 also served as a benchmark 
for considering the effectiveness of State programs absent a BLM 
regulatory role.
    Alternative 3, Proposed Final Regulations--This alternative 
considered the implementation of the proposed regulations developed by 
the 3809 Task Force. Alternative 3 is the BLM's proposed action and the 
agency's ``preferred alternative.'' The alternative was changed between 
the draft and final EIS in order to incorporate conclusions and 
recommendations from the NRC Report and in response to public comments. 
This alternative represents the preferred regulatory approach of agency 
management and program specialists after considering the results

[[Page 70001]]

of public scoping, comments on the February and October 1999 proposed 
rules, results of the NRC Report, and the effects of other alternatives 
discussed in the EIS.
    Alternative 4, Maximum Protection--The maximum protection 
alternative was developed presuming that the 3809 regulations could not 
change the basic mineral resource allocations made by the mining laws, 
and that the public lands are open to entry, location, and development 
of valuable mineral deposits unless segregated or withdrawn. While a 
total prohibition on mining activity would also achieve maximum 
environmental protection, it would be beyond the scope of the action, 
which is to manage activity authorized by the mining laws in a way that 
prevents unnecessary or undue degradation. A surface management program 
under Alternative 4 would allow BLM to give the highest priority to 
protecting resource values and impose design-based performance 
criteria. We developed this alternative in response to comments that 
stronger environmental requirements were needed, that BLM should have 
total discretion to deny certain mining operations, and that designed-
based performance standards should be developed as a nationwide minimum 
best management practice.
    Alternative 5, NRC Recommendations--Alternative 5, like Alternative 
3, incorporates the recommendations made by the NRC Report. However, 
Alternative 5 limits changes in the regulations to those specifically 
recommended by the NRC. See the NRC Report, especially pages 7 to 9. We 
developed this alternative in response to public comments and a then-
pending budget rider that would have restricted BLM to implementing 
only some of the recommendations of the NRC Report.

Environmentally Preferred Alternative

    Although not selected for implementation, the environmentally 
preferred alternative is Alternative 4, the maximum protection 
alternative. While many of the environmental protection measures 
contained in Alternative 4 were included in the final regulations under 
Alternative 3, the BLM decided not to select Alternative 4 due to its 
adverse economic impact and administrative cost compared to the 
environmental benefit.

Decision Rationale

    BLM has included all practical means to avoid or minimize 
environmental harm in the selected alternative. The following is a 
summary of the rationale for selection of the preferred alternative as 
compared to the other alternatives. A detailed rationale for the 
selection of each regulatory provision is discussed in this preamble.

Definition of ``Unnecessary or Undue Degradation''

    The selected alternative satisfactorily addresses the overall 
program issue of improving BLM's ability to prevent unnecessary or 
undue degradation, as required by FLPMA. The regulations change the 
definition of ``unnecessary or undue degradation'' to clarify that 
operators must not cause substantial irreparable harm to significant 
resources that cannot be effectively mitigated. Clarifying that the 
definition specifically addresses situations of ``undue'' as well as 
``unnecessary'' degradation will more completely and faithfully 
implement the statutory standard, by protecting significant resource 
values of the public lands without presuming that impacts necessary to 
mining must be allowed to occur.
    In comparison, Alternatives 1 and 5 would not protect significant 
scientific, cultural, or environmental resource values of the public 
lands from substantial irreparable harm because they would not change 
the definition of ``unnecessary or undue degradation.'' Alternative 2 
would remove the definition as a regulatory criteria, and BLM would not 
have a reasonable assurance that unnecessary or undue degradation would 
be prevented since BLM would have no role in the review of individual 
projects.
    Although under Alternative 2 operators would have to comply with 
State regulations and other environmental laws, certain resources, such 
as wildlife not proposed or listed as threatened or endangered, 
cultural resources, and riparian areas would not necessarily be given 
appropriate consideration in planning and conducting mineral 
operations.
    Alternative 4 would tie the definition of ``unnecessary or undue 
degradation'' to use of design-based standards and best available 
technology, which BLM does not believe are flexible enough for 
application to the wide variety of mining operations and environmental 
conditions on public lands, resulting in over- or under-regulation of 
some operations.

Performance Standards

    The selected alternative provides performance standards that 
enumerate specific outcomes or conditions, yet do not mandate specific 
designs. This type of performance standard provides BLM with the level 
of detail needed to ensure that all environmental components are 
addressed, and at the same time preserves flexibility to consider site-
specific conditions and allows for innovation in environmental 
protection technology. The performance standards developed under the 
selected alternative often require compliance with, or achievement of, 
the applicable State standard. This facilitates coordination with the 
States and reduces the potential for a single operation to be subject 
to conflicting standards. The final 3809 regulations also provide for 
monitoring programs to be adopted as part of individual project 
approvals to ensure compliance with the necessary mitigating measures. 
The final regulations specify the content requirements of these 
monitoring programs.
    We did not select Alternatives 1 or 5 because they would retain the 
performance standards in the 1980 regulations, which are sometimes too 
vague and subjective, causing them to be applied inconsistently.
    Under Alternative 2, operators would have to comply with the 
performance standards of the State in which their operations are 
located. While BLM has found the standards in many States generally 
adequate in the areas they cover, BLM believes that minimum Federal 
standards are needed for operations on public lands in order to prevent 
unnecessary or undue degradation. Relying on individual State standards 
which may vary widely, which may not address all resources of concern 
to BLM, or which are subject to change or varying application would 
not, in our judgment, allow BLM to prevent unnecessary or undue 
degradation. Therefore, Alternative 2 has not been selected for 
implementation.
    The performance standards under Alternative 4 would be design-based 
and would not be flexible enough to account for the variety of mining 
operations and environmental conditions on public lands. The 
performance standards under Alternative 4 may be overly stringent for 
some operations or possibly not stringent enough in other cases. In 
addition, the NRC report recommended against the adopting of 
prescriptive design-based standards such as those in Alternative 4.

Notice/Plan of Operations Threshold

    BLM's main mechanism for preventing unnecessary or undue 
degradation is review of notices and review and approval of plans of 
operations. The threshold for when to

[[Page 70002]]

file a plan, what it must contain, and how it is reviewed are part of 
this issue. After considering a variety of approaches for setting the 
notice/plan of operations threshold, including the NRC Report 
recommendations, BLM decided the threshold should generally be set 
between exploration and mining. In special category lands, BLM decided 
to set the threshold at any activity greater than ``casual use.'' By 
using these thresholds, the selected alternative will provide for the 
more detailed review and environmental analysis process conducted for a 
plan of operations to be targeted at the activity (mining) most likely 
to create significant environmental impacts. Exploration generally has 
not created major environmental impacts, or does not involve issues 
difficult to mitigate. Casual use generally results in no or negligible 
disturbance of the public lands. The requirement to file a notice for 
operations involving exploration activities, combined with the selected 
alternative's financial guarantee requirements and performance 
standards, will prevent unnecessary or undue degradation.
    BLM has also included other changes to the regulations applicable 
to plans of operations in the selected alternative. We have developed a 
more comprehensive list of content requirements to ensure that critical 
items, such as plans for interim management and environmental baseline 
studies, are not overlooked. We have added a mandatory public notice 
and comment requirement to the process of reviewing proposed plans of 
operations to ensure the public has an opportunity to comment prior to 
approval of plan activity that may impact public resources.
    We did not choose Alternative 1 because the 1980 regulations have 
not functioned well with the notice/plan of operations threshold 
generally set at 5 acres of disturbance. Some small mining operations 
disturbing less than 5 acres have created significant environmental 
impacts or compliance problems. These problems could have been avoided 
or reduced if the operator had submitted a plan of operations and had 
been subject to environmental review under NEPA and BLM approval.
    Alternative 2 would not have addressed this issue satisfactorily. 
While generally all States have some permit review process, most do not 
have a comprehensive review process similar to NEPA. Others may have 
permits geared towards specific media like air or water, which may not 
address concerns such as cultural resources, or may not always include 
a public involvement process.
    Conversely, Alternative 4 would require a plan of operations for 
any activity greater than casual use, including exploration. Use of 
agency resources to process plans of operations for exploration 
projects, which have a low environmental risk, would not be efficient 
and would result in unnecessary delay to the mineral operator. In 
addition, this requirement would not be consistent with the NRC Report, 
which recommended that plans of operations be required for mining and 
milling operations (but not exploration activities), even if the area 
disturbed is less than 5 acres.
    While Alternative 5 has the same notice/plan of operations 
threshold as the selected alternative, it does not have the more 
specific plan of operations content or public notice and comment 
requirements. BLM believes these requirements are necessary for the 
identification and prevention, or mitigation, of environmental impacts 
associated with mining.

Financial Guarantees

    The posting of a financial guarantee for performance of the 
required reclamation is a major component of the regulatory program 
under all the alternatives considered. The selected alternative 
requires that all notice-and plan-level operators post a financial 
guarantee adequate to cover the cost as if BLM were to contract with a 
third party to complete reclamation according to the reclamation plan, 
including construction and maintenance costs for any treatment 
facilities necessary to meet Federal and State environmental standards. 
BLM decided to require financial guarantees for all notices and plans 
of operations because of the inability or unwillingness of some 
operators to meet their reclamation obligations. At present, the 
potential taxpayer liability for reclamation of unbonded or underbonded 
disturbances conducted under the 3809 regulations is in the millions of 
dollars. BLM has decided that to protect and restore the environment 
and to limit taxpayer liability, financial guarantees for reclamation 
should be required at 100 percent of the estimated cost for BLM to have 
the reclamation work performed. This includes any costs that may be 
necessary for long-term water treatment or site care and maintenance.
    The 1980 regulations (Alternative 1) do not contain financial 
guarantee requirements adequate to achieve this level of protection. 
Under the 1980 regulations, notice-level operators are not required to 
provide a financial guarantee for reclamation, and financial guarantees 
for plan-level operations are discretionary. A number of notice-level 
operations have been abandoned by operators, leaving the reclamation 
responsibilities to BLM. In addition, the existing regulations are 
silent on the need to provide bonding for any necessary water treatment 
or site maintenance. BLM believes it is necessary to specify this 
requirement to eliminate any argument about requiring such resource 
protection measures.
    Alternative 2 would rely on State financial guarantee programs. 
While BLM intends to work with the States under the selected 
alternative to avoid double bonding, relying exclusively on State 
bonding may not provide adequate protection of the public resources. 
Not all states require a financial guarantee for all disturbance at 100 
percent of the estimated reclamation cost.
    Alternative 4 requires financial guarantees for reclamation of all 
disturbance at 100 percent of the estimated reclamation costs. 
Alternative 4 would also require bonding for undesirable events, 
accidents, failures, or spills. BLM believes it would be overly 
burdensome on the operator to require a financial guarantee for the 
remediation of events with a low probability of occurrence and has 
therefore not selected the Alternative 4 financial guarantee 
provisions. Such potential problems are best addressed by a thorough 
review of the operating plans and the development of contingency 
measures, which are part of the selected alternative.
    Alternative 5 would impose financial guarantee requirements similar 
to the selected alternative. However, under Alternative 5, the 
procedural requirements for establishing the amount of a financial 
guarantee are more limited than those followed under the selected 
alternative. For example, there is no public notification before 
release of the financial guarantee, as there is in the selected 
alternative. BLM believes these procedures are of value in arriving at 
a final reclamation financial guarantee amount and has therefore not 
selected the Alternative 5 financial guarantee requirements.

Enforcement

    The selected alternative contains a program for enforcement of the 
regulations through issuance of enforcement orders and use of civil and 
criminal penalties where appropriate. It has been developed in response 
to the cumbersome enforcement provisions of the existing regulations 
which often necessitate involvement of the U.S. Attorney to pursue 
noncompliance

[[Page 70003]]

actions. BLM believes the selected alternative's enforcement program 
will improve operator compliance while reducing the administrative 
burden on the government. This approach is also part of Alternative 5.
    Relying exclusively on the States' enforcement programs under 
Alternative 2 may have limited utility in achieving Federal land 
management or reclamation objectives. Conversely, State enforcement in 
such delegated programs as air quality or water quality may be more 
effective than BLM enforcement action. The selected alternative 
provides for cooperation with the State in order to quickly resolve 
noncompliance in these delegated programs areas.
    Alternative 4 contains a requirement for mandatory enforcement. 
This means when a violation is observed in the field, the BLM inspector 
must issue a noncompliance and must assess a penalty. Resolution of the 
problem in the field with the operator must be preceded by the notice 
of noncompliance. The problem with this approach is that there may be 
extenuating circumstances that an inspector should consider before 
taking an enforcement action, or it may be possible to resolve the 
violation in the field without issuing a notice of noncompliance. We 
have not selected this mandatory enforcement provision. BLM believes 
the regulatory approach to compliance in Alternative 4 may actually 
hinder the resolution of compliance problems by providing an incentive 
for their concealment.

Federal/State Coordination

    Most of the mineral activity under the 3809 program occurs in the 
Western states. These States have regulatory programs applicable to 
mineral operations in the form of either specific regulations that 
apply to mining, overall environmental protection regulations for a 
specific resource such as water quality, or both. How the BLM surface 
management program is coordinated with the State programs is an issue 
that crosses all elements of the alternatives considered. After 
consultation with the States, consideration of BLM resource protection 
needs, and evaluation of the various alternatives, BLM has selected the 
Federal/State coordination approach in Alternative 3 for 
implementation.
    Alternative 3 provides a combination of Federal/State agreements 
that can be used to coordinate efforts, reduce duplication, and improve 
resource protection while not overly burdening the operator. The 
selected alternative provides for two types of Federal/State 
agreements, those that provide for joint administration of the program, 
and those in which BLM defers part or all of the program to the State 
(with BLM retaining minimum involvement). BLM selected this alternative 
to provide flexibility for the BLM field offices to develop their own 
Federal/State program specific to their States' operating and 
regulatory environment. By also incorporating State performance 
standards into the BLM performance standards, as described above, this 
alternative facilitates coordination between BLM and the State 
regulatory agencies when it comes to development and implementation of 
Federal/State agreements.
    While the 1980 regulations (Alternative 1) provide for Federal/
State agreements, they do not provide for BLM to concur in the State's 
approval of each plan of operations or in the approval, release, or 
forfeiture of a financial guarantee. BLM believes that retaining at 
least a concurrence role in these actions is the minimum required to 
prevent unnecessary or undue degradation of the public lands.
    Alternative 2 would leave review, approval, and enforcement for 
mineral operations to the respective State programs. Total reliance on 
State regulation may not be adequate to protect all the public land 
resources from unnecessary or undue degradation. BLM as a land manager 
has to meet a comprehensive requirement to protect all the resources on 
public lands from unnecessary or undue degradation. A State regulatory 
agency would not be able to provide the resource protection required 
for public lands without BLM involvement in the review, approval and 
compliance processes. In addition, this would be a burden on the State 
for which BLM would not be able to provide compensation. For these 
reasons, we didn't select Alternative 2.
    BLM didn't select Alternative 4 because it would assert Federal 
control over operations without any effort to coordinate with State 
activities. Such an approach could lead to conflicting, or at least 
confusing, standards for operators, and duplication of effort. 
Independent BLM standards would be difficult to administer because of 
the intermingling of private and public land that occurs at many mining 
operations. Alternative 4 could result in situations where two 
different performance requirements apply within the same operating area 
depending upon the land status. Nor does Alternative 4 result in 
substantial environmental benefits. Where the States have developed 
performance standards for mineral operations, they are generally 
considered adequate for operations on public lands. Where there are 
regulatory gaps in State standards or programs, development of a 
specific BLM requirement is warranted.
    Federal/State coordination under Alternative 5 would not differ 
greatly from the 1980 regulations. Alternative 5 would provide 
procedures for referral of enforcement actions to the State. However, 
it would not provide for retention of a minimal level of involvement by 
BLM in individual project approvals or financial guarantees. BLM 
believes this minimal level of participation is needed to meet its 
obligation to prevent unnecessary or undue degradation. For these 
reasons, BLM has not selected Alternative 5.

Consistency With the NRC Report

    Since release of the NRC Report, ``Hardrock Mining on Federal 
Lands,'' the last two Congressional appropriations acts have contained 
a requirement that any final 3809 regulations must be ``not 
inconsistent with'' the recommendations in the NRC Report. The 
Department of the Interior Solicitor has interpreted the key phrase 
``not inconsistent with'' to mean that so long as the final rule does 
not contradict the specific recommendations of the NRC Report, the rule 
can address whatever subject areas BLM determines are warranted to 
improve the regulations and meet the FLPMA mandate to prevent 
unnecessary or undue degradation of the public lands. This 
Congressional requirement places some management constraints on the 
selection of a final alternative for implementation. Of the five 
alternatives in the Final EIS, only Alternatives 3 and 5 would clearly 
not be inconsistent with the recommendations in the NRC Report.
    The ``No Action'' Alternative would retain the 1980 regulations, 
but would clearly be inconsistent with the recommendations of the NRC 
Report. The NRC report identified specific gaps in the regulations and 
made six recommendations for regulatory changes. See the NRC Report, 
pages 7-9. BLM could not now decide that the existing regulations were 
adequate without being inconsistent with the NRC recommendations and 
violating the applicable Congressional mandate.
    Selection of Alternative 2 would be inconsistent with most of the 
NRC recommendations. Alternative 2 does not provide reclamation bonding 
for all disturbance greater than casual use, does not provide for a 
plan of operations for all mining activity, does not provide for clear 
procedures for modifying plans of operations, and does not require 
interim management plans. The NRC report clearly recommends regulatory

[[Page 70004]]

changes that are inconsistent with the decreased BLM role inherent in 
Alternative 2.
    Regulations developed under Alternative 4 would be more stringent 
than those suggested by the NRC and therefore inconsistent the NRC 
recommendations. The Alternative 4 requirement to file a plan of 
operations for all activity greater than casual use would be 
inconsistent with the NRC finding that exploration involving less than 
5 acres of disturbance should be allowed under a notice. The use of 
design-based standards and mandatory pit backfilling under Alternative 
4 would be inconsistent with the NRC recommendation that BLM use 
performance-based standards. It is also not in harmony with a 
discussion (which was not incorporated in a specific recommendation) of 
the NRC Report which suggested that pit backfilling should be 
determined on a case-by-case basis.
    Neither Alternative 3 nor Alternative 5 would be inconsistent with 
the NRC recommendations. Both alternatives would incorporate the NRC 
recommendations into the 3809 regulations. The main difference between 
these two alternatives is that Alternative 5 limits the changes in the 
regulations to the specific NRC recommendations, while Alternative 3 
includes both the changes recommended by NRC and additional regulatory 
changes to address issues identified by BLM. These additional changes 
reflect the Secretary's judgment as to what is required to prevent 
unnecessary or undue degradation of the public lands, and since they 
are not addressed in the NRC Report, are not inconsistent with it. 
Selection of Alternative 3 does not preclude BLM from pursuing the NRC 
recommendations for non-regulatory changes in the surface management 
program.
    Additional discussion of the consideration of EIS alternatives and 
of how the NRC Report and Congressional budget rider affect the final 
rule adopted today can be found in other portions of the preamble and 
in the responses to comments in the Final EIS.

Summary of Rule Adopted

    This part of the preamble describes in general terms some of the 
major features of the final rule. A reader who is interested in a quick 
overview of the final rule may find this part useful. However, if you 
are looking for a detailed description of the final rule, you should 
look at the section-by-section analysis which appears later in this 
preamble.
    The final rule continues, with some modification, BLM's three-tier 
classification scheme for mining operations on Federal lands. For 
activities that ordinarily result in no or negligible disturbance of 
the public lands or resources (``casual use''), a person would not have 
to notify BLM or seek our approval. In certain situations, described 
later in this preamble, persons conducting activities on the public 
lands must contact BLM in advance so that we may determine that the 
proposed activities, both individually and cumulatively with other 
activities, will not result in more than negligible disturbance. For 
exploration operations disturbing less than 5 acres and some kinds of 
bulk sampling, the operator would have to notify BLM 15 calendar days 
in advance of initiating operations. For all mining operations and for 
exploration operations disturbing more than 5 acres, the operator would 
have to submit a plan of operations and receive BLM's approval.
    The final rule continues BLM's authority to enter into agreements 
or memoranda of understanding with States for joint Federal/State 
programs. The final rule also provides for Federal/State agreements in 
which BLM would defer to State administration of some or all of the 
surface management regulations. These agreements enable BLM and the 
States to coordinate activities to the maximum extent possible and 
avoid duplication of effort. Federal/State agreements currently in 
effect would be reviewed for consistency with this final rule. Existing 
agreements could continue in effect during the review period. If the 
review results in a BLM finding of no inconsistency, existing 
agreements could continue.
    In the final rule provisions applicable to notices, BLM continues 
its goal of reviewing notices in 15 calendar days. The final rule 
explicitly provides that BLM can require a prospective notice-level 
operator to modify a notice. Existing notices can continue under the 
current operator for two years, or longer, if the notice is extended. 
BLM is not requiring financial guarantees for existing notices until 
they are extended or modified. When a notice expires, all disturbed 
areas must be reclaimed.
    For plans of operations, which are required for all mining, even if 
the disturbed area is less than 5 acres, the final rule expands the 
list of items that an operator must include in a plan. However, BLM 
will require less information about smaller and simpler mining 
operations. We are adding a 30-day public comment period on plans of 
operations. Existing and pending plans of operations may continue to be 
regulated under the plan content and performance standards of the 
previous surface management regulations. The list of performance 
standards applicable to plans of operations is expanded to explicitly 
include many items that were implicit in the previous performance 
standards. The final rule applies to modifications of existing plans of 
operations that add a new facility. Modifications to existing 
facilities would not necessarily come under the final rule if the 
operator demonstrates it is not practical to do so.
    The final rule requires financial guarantees for all notices and 
plans of operations. Each existing plan of operations has 180 days from 
the effective date of the final rule to post the required financial 
guarantee if any existing financial guarantee doesn't satisfy this 
subpart. Acceptable forms of financial guarantee include bonds, 
marketable securities, and certain kinds of insurance. Corporate 
guarantees will no longer be accepted, although existing corporate 
guarantees are not affected by the final rule. At the time of final 
financial guarantee release, BLM will either post in the local BLM 
office or publish a notice in a local newspaper and accept comments 
from the public for 30 days.
    The final rule sets forth BLM's goal of inspecting certain 
operations, including those using cyanide leaching technology, at least 
four times each year. In the procedures for ensuring compliance with 
the 3809 regulations, BLM can issue a variety of orders--from requiring 
an operator to take specified action within a specified time frame to 
requiring an immediate suspension of operations. The final rule 
provides for administrative civil penalties of up to $5,000 for each 
violation. Affected parties have the right to appeal a BLM decision 
under this subpart to the State Director and to the Interior Board of 
Land Appeals. The final rule also allows BLM to schedule public visits 
to mines on public lands if a visit is requested by a member of the 
public.

II. How did BLM Change the Proposal in Response to Comments?

    In this preamble, we respond to the significant comments we 
received from the public and other interested parties on the February 
9, 1999, and October 26, 1999, proposed rules (64 FR 6422 and 64 FR 
57613, respectively). Interested readers should also refer to the final 
EIS for additional responses to comments.

[[Page 70005]]

General Comments

    Many commenters questioned the need for changes to BLM's surface 
management regulations. ``If it ain't broke, don't fix it,'' was a 
common refrain. Other commenters asserted that BLM had failed to 
justify the proposed changes or to point out the exact problems the 
revisions are designed to solve. Other commenters argued that 
sufficient regulations governing mining activities on Federal lands are 
already in place, either at the State or Federal level. The NRC Report 
indicated that the overall structure of Federal and State laws and 
regulations is generally effective (p. 5). Many commenters perceived 
this general conclusion by the NRC to obviate any regulatory changes. 
Some commenters felt that the proposed regulatory changes were 
unnecessary because they would duplicate the provisions of existing 
State regulatory programs. Other commenters suggested BLM use other 
mechanisms, such as policy changes or better implementation of existing 
regulations, as the means to address problems. On the other hand, many 
commenters argued for strengthening the 3809 regulations to provide 
adequate protection for communities and the environment and to ensure 
that the mining industry does not burden taxpayers with the costs of 
cleaning up environmental degradation of the public lands.
    Congress has expressly directed the Secretary, in managing the 
public lands, to prevent unnecessary or undue degradation of the public 
lands. This final rule represents the Secretary's judgment of the 
regulations required to prevent unnecessary or undue degradation.
    Some of the regulations adopted today are designed to address real-
world, on-the-ground environmental problems caused by exploration and 
mining operations on the public lands. For example, provisions that 
increase or amplify the information that an operator must include in a 
proposed plan of operations are intended to address unanticipated 
problems that occur after BLM has approved a plan of operations, such 
as dewatering of springs, acid seeps and drainages, failure or slumping 
of waste or tailings piles, and so on. Some of the regulations adopted 
today address the recommendations for filling regulatory gaps included 
in the NRC Report. For example, the final rule requires financial 
guarantees for all notice- and plan-level operations. See 
recommendation number 1 (p. 93). Some of the regulations adopted today 
are designed to clarify and streamline administrative processes. For 
example, we are adopting changes to the regulations governing review of 
notices to clarify the circumstances under which BLM will need longer 
than 15 days to review a notice. Some of the changes we are adopting 
today are designed to make information easier to find in the 
regulations, and once found, easier to understand. For example, we have 
broken up the regulations into more and shorter sections. This 
increases the amount of information that is printed in the table of 
contents of subpart 3809, making it easier to find specific information 
without having to read through non-relevant sections. In summary, all 
the changes we are adopting today are necessary for one or more reasons 
and are aimed at preventing unnecessary or undue degradation, either 
directly or indirectly.
    Although BLM recognizes that many States have programs in place to 
regulate the operations covered by this rule, BLM has a non-delegable 
responsibility to manage the public lands in a way that prevents 
unnecessary or undue degradation. These rules are intended to establish 
a Federal floor for such regulation, but to do so in a manner that will 
not unnecessarily intrude where other regulatory schemes are working 
properly.

Sections 3809.1 to 3809.116  General Information

Section 3809.1  What Are the Purposes of This Subpart? and Section 
3809.2  What Is the Scope of This Subpart?

    The final rule at Sec. 3809.1 describes the purposes of this 
subpart, which are to (1) prevent unnecessary or undue degradation of 
public lands by operations authorized by the mining laws and (2) 
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.
    The final rule states at Sec. 3809.2 that this subpart applies to 
all operations authorized by the mining laws on public lands where the 
mineral interest is reserved to the United States, including Stock 
Raising Homestead lands as provided in final Sec. 3809.31(c). It also 
states that this subpart lists the lands to which the regulations do 
not apply and includes a reference to the patented mining claims in the 
California Desert Conservation Area that are subject to the regulation. 
Additionally it describes the mineral commodities subject to the 
regulation and those excluded from the operation of the mining laws by 
statute.
    The preamble discussion of Secs. 3809.1 and 3809.2 in the proposed 
rule consolidated several sections and covered a wide range of subjects 
on which we received comments during the scoping process. First, the 
discussion noted that the language of the proposed rule did not include 
previous language that expressed the Departmental policy to encourage 
development of Federal mineral resources and reclamation of disturbed 
lands, a deletion made in the interest of brevity.
    The preamble to the proposed rule also briefly mentioned the 
November 7, 1997 Solicitor's Opinion [M-36988] regarding the proper 
acreage ratio for mining claims and mill sites and its implementation 
via the existing 3809 regulations. This final rule does not contain 
provisions expressly addressing that opinion. It should be noted, 
however, that approval of a plan of operations under this subpart 
constitutes BLM approval to occupy public lands in accordance with its 
provisions whether or not associated mining claims on millsites are 
determined invalid. Such authority is provided by section 302(b) of 
FLPMA. See also the preamble discussion of final Sec. 3809.100, below.
    The language in these sections and the accompanying preamble 
discussion prompted comments. We received comments on removal of some 
of the objectives language, implying that the exclusion of the language 
was not based on a search for brevity, but was in fact based on the 
desire to have BLM field personnel forget the Departmental policy when 
implementing the regulations. We received comments demanding reform or 
repeal of the mining law as well as comments supporting the mining law 
and demanding an end to BLM's administrative reform or repeal of the 
law. There were comments both pro and con regarding the continued 
utility of mining law, mineral patenting and payment of royalties. 
Other commenters expressed concern about the proposed rule's apparent 
extension of BLM's surface management jurisdiction to unclaimed lands. 
We received comments on royalties and taxes, patenting costs, liability 
and the moratorium on processing patent applications. Lastly we 
received comments on recent policy changes and the new regulations.

Changes to the Proposal

    The language of this section is a slight revision of the original 
language contained in the 1980 regulations. We have added a sentence to 
final

[[Page 70006]]

Sec. 3809.2(a) to specify that when public lands are sold or exchanged 
under 43 U.S.C. 682(b) (the Small Tracts Act \2\), 43 U.S.C. 869 (the 
Recreation and Public Purposes Act), 43 U.S.C. 1713 (sales) or 43 
U.S.C. 1716 (exchanges), minerals reserved to the United States 
continue to be segregated from the operation of the mining laws unless 
a subsequent land-use planning decision expressly restores the land to 
mineral entry, and BLM publishes a notice to inform the public. We 
added this sentence to clarify that this final rule does not restore 
land that has been removed from mineral entry under the mining laws 
because of disposal of the surface by sale or exchange (that is, non-
Federal surface over Federal minerals). As proposed, subpart 3809 could 
have had this effect because section 209(a) of FLPMA, 43 U.S.C. 
1719(a), and BLM's land resource management regulations (43 CFR 
Secs. 2091.2-2(b), 2091.3-2(c), 2201.1-2(d), 2711.5-1, and 2741.7(d)) 
state that public lands with reserved minerals are closed, segregated, 
or removed from the operation of the mining laws until the Secretary 
issues regulations addressing such lands. If the 3809 proposed rule has 
been put in final as proposed, it could have been considered as the 
issuance of regulations referred to in the land resource management 
rules, and thus could have removed the regulatory barriers contained in 
those regulations.
---------------------------------------------------------------------------

    \2\ Although the Small Tracts Act was repealed by FLPMA, and 
therefore new conveyances are not being made, tracts previously 
conveyed under that Act contain minerals that were reserved to the 
United States.
---------------------------------------------------------------------------

    We have added a second sentence of section 3809.2(a), however, to 
prevent the issuance of these rules from automatically restoring all 
such lands to mineral entry under the mining laws, and maintaining the 
status quo pending future BLM action. The lands will continue to remain 
removed from operation of the mining laws until subsequent land-use 
planning decisions expressly restore the land to mineral entry, and BLM 
publishes a notice to inform the public. Because the addition of this 
sentence in the final rule makes the references to future regulations 
in BLM's land resource management rules superfluous, we have removed 
those references in this rulemaking as technical conforming changes.
    The reason for this change is as follows: Keeping lands with 
reserved minerals removed from mineral entry under the mining laws 
indefinitely pending the issuance of rules in the future (as was the 
status under the former land resource management rules) is not a 
reasoned approach to land-use planning. Conversely, promulgation of 
subpart 3809 rules is not an appropriate basis for generally restoring 
all such lands throughout the country to mineral entry. BLM believes 
strongly that site-specific conditions need to be factored into the 
determination whether to restore areas currently removed from mineral 
entry under the mining laws. Such considerations are best addressed in 
land-use decisions that will be subject to public participation. Thus, 
although these rules remove the regulatory bars in the former land 
resource management rules which prevented public lands with reserved 
minerals from being restored to mineral entry under the mining laws, 
they allow such restoration to occur on an area-specific basis only 
after subsequent land-use planning decisions occur, and BLM notifies 
the public.
    As a conforming change, we deleted the references to the Small 
Tracts Act and the Recreation and Public Purposes Act from what was 
proposed as Sec. 3809.2(b).
    We have also added a sentence to final Sec. 3809.2(d) to clarify 
that the final regulations do not apply to private land unless the 
lands were patented under the Stock Raising Homestead Act or are a 
post-FLPMA mineral patent in the California Desert Conservation Area. 
The same sentence states that BLM may collect information about private 
land that is near to, or may be affected by, operations authorized 
under this subpart for purposes of analysis under the National 
Environmental Policy Act of 1969.

Consistency With the NRC Report Recommendations

    Final Secs. 3809.1 and 3809.2 are not inconsistent with the NRC 
Report recommendations because those recommendations don't address the 
issues of the purposes and scope of subpart 3809.

Comments and Responses

    Commenters asserted that as the 1872 Mining Law was written over 
100 years ago it is ``out of date,'' ``anachronistic,'' ``antiquated,'' 
and a ``subsidy.'' Other comments pointed out that the law was written 
during a period favorable to resource development and that time had 
changed, thus the law needed to change. The general sentiments 
expressed by these commenters favored outright repeal/reform of the 
mining law.
    Repeal or reform of the mining laws is not within the jurisdiction 
of the agency. While the Administration has and continues to support 
reform of the mining laws, that process must be undertaken by the 
Congress and not the Executive branch. Further, BLM agrees that some of 
the past practices carried out under the mining laws have had 
undesirable environmental results. That is the very reason that the 
regulations being published today were developed. BLM further notes 
that the flexibility demonstrated by the mining laws and laws like 
FLPMA allows BLM to incorporate a greater degree of environmental 
protection within its own regulations, in addition to any imposed by 
other agencies under the environmental protection laws.
    Some commenters praised the 1872 Mining Law for more than 100 
years' service as ``effective,'' ``fair,'' ``resilient'' and perhaps 
more efficient them most other Federal programs. Several comments 
accused the BLM and the Secretary of attempting to administratively 
effect a ``back-door'' reform or repeal of the mining laws, stating 
that it is not BLM's job to re-write the laws and that job belongs to 
the Congress. Other commenters noted the legal constraints on the 
mining laws, including the environmental protection laws, yet the law 
continued to effectively function.
    BLM responds that it is not attempting to effect a ``back-door'' 
reform of the mining laws. BLM agrees with the comment that the reform 
of the mining laws is the job of the Congress and the Administration 
will continue working with the Congress to get common sense reforms. 
BLM also agrees with the commenter who noted the legal constraints that 
apply to operations conducted under the mining laws. In developing 
these regulations BLM has been careful to incorporate where appropriate 
references to the environmental protection statutes that apply to 
operations under the mining laws.
    One commenter objected strenuously to the removal of language 
contained in previous Sec. 3809.0-2. BLM consolidated several sections 
of the regulations in the interest of clarity and brevity. The 
commenter asserts this is an attempt to divert attention away from the 
rights granted to the miner under the mining laws during the 
application of the regulations.
    BLM disagrees with the assertion that the change is intended to 
divert attention away from the miner's rights. BLM personnel are aware 
that miners may have property rights in their claims, but generally 
speaking, their rights may be regulated to prevent unnecessary or undue 
degradation.
    Commenters objected to the proposed removal of previous 
Sec. 3809.0-6, which recognized the declaration of policy in section 
102 of FLPMA that the ``public

[[Page 70007]]

lands be managed in a manner which recognizes the Nation's need for 
domestic sources of minerals * * * from the public lands including 
implementation of the Mining and Mineral Policy Act of 1970 * * *'' 43 
U.S.C. 1701(a)(12). One commenter characterized BLM's duty as ``to 
encourage development of Federal mineral resources.'' The commenters 
also stated that the proposed regulations conflict with the 1970 Mining 
and Mineral Policy Act and the 1980 National Materials Policy Research 
and Development Acts, because they would not only inhibit most small-
scale operations, but also keep new people from wanting to get into 
prospecting and mining to begin with. Commenters asserted that BLM 
appears intent on reducing the level of mineral activity on the public 
lands through the creation of an unnecessary and redundant scheme, and 
that BLM is not in compliance with FLPMA unless it takes into account 
the impacts of cumulative regulations that apply to supplying the 
Nation's need for domestic sources of minerals. The commenters 
concluded that if BLM truly intends to fulfill its statutory obligation 
to encourage development of Federal mineral resources, then this 
language is an important part of the rules and should be retained.
    BLM disagrees with the comments. Section 102(a) of FLPMA contains a 
number of diverse policies, including implementation of the Mining and 
Minerals Policy Act of 1970 (section 102(a)(12)) and protection of the 
environment and other resources on public lands (section 102(a)(8)). 
All of these policies, however, cannot be maximized on each parcel of 
public lands. BLM has made a reasoned effort to reconcile these 
policies and to meet its statutory responsibilities. The reference to 
the Mining and Minerals Policy Act has been removed from subpart 3809 
because it is not necessary for regulatory purposes. This does not 
change any of the statutory requirements of FLPMA or the Mining and 
Minerals Policy Act. BLM is still subject to the requirements of these 
acts and of other acts such as the National Environmental Policy Act 
(NEPA) and the Endangered Species Act (ESA). It is neither necessary 
nor appropriate to present a complete listing of all applicable acts in 
the regulations, or all the policies set forth in the 13 paragraphs of 
section 102(a) of FLPMA.
    BLM understands that the final regulations, which are based in part 
on the NRC Report recommendations that all mining operators obtain a 
BLM-approved plan of operations and submit financial guarantees, may 
have an impact on the small miner who works on an individual basis. We 
have found, however, that the small, notice-level mining operations 
create a disproportionate share of the abandonment and compliance 
problems. A 1999 survey of BLM field offices showed over 500 abandoned 
3809 operations where BLM was left with the reclamation responsibility. 
Most of these were notice-level operations. BLM believes, as did the 
NRC, that these changes to the 3809 regulations are necessary to 
address this problem, prevent unnecessary or undue degradation, and to 
provide for environmentally responsible mineral operations.
    Several commenters observed that royalties and taxes should be 
imposed on operations subject to these regulations. Other commenters 
observed that any royalty or tax must be enacted by Congress. While the 
Administration has and will continue to support a fair return to the 
taxpayer for the miner's use of Federal mineral resources, BLM agrees 
with the commenters that observed that the creation of such taxes and 
royalties is the sole province of the Congress.
    A commenter observed that an agency cannot end the patenting 
process, which allows mining companies to obtain public land for a 
fraction of its value as that requires congressional action. Some 
commenters objected to the low purchase price paid by mining claimants 
for their mineral patents. One commenter suggested there had been a 
recent inversion in land prices for mineral lands (formerly high 
compared to non-mineral lands, but now low) versus non-mineral land 
(formerly low relative to mineral lands and but now high) seeming to 
imply the need for a change. Another commenter suggested that the price 
of a patent be indexed to account for inflation since 1872. Another 
commenter observed that patented land reduces liability to BLM, aids in 
protecting mining-related improvements, and should be ``restored,'' 
albeit at fair market prices. Other commenters raised national security 
concerns in supporting the patent provisions of the mining laws. Other 
commenters argued that the process to get a patent is neither quick nor 
cheap and costs significantly more than the purchase price. These same 
commenters objected to the amount of time required to complete the 
Secretarial review process.
    BLM agrees with the commenters who note that congressional action 
is required to end the patenting process. BLM also agrees with the 
comments regarding the low prices for mineral patents and that the 
purchase price should be changed. The Administration will continue to 
support congressional action that will end patenting once and for all. 
BLM does not agree that the patent process is the only way to protect 
mining related improvements. For example, BLM's regulations at 43 CFR 
3715 create a specific process to deal with trespass and damage to 
mining improvements. As to the amount of time and expense in pursuing 
the patent process, and in particular the amount of time required by 
the Secretarial review process, BLM agrees that the process is 
expensive and time consuming, but because the patent gives away what 
could be very valuable Federally owned resources for a nominal fee, 
care in reviewing patent applications is warranted. BLM notes also that 
a patent is not required to mine a valuable mineral deposit found in 
Federal lands.
    Commenters observed that BLM already had authority to write 
policies that made the existing regulations more effective and cited 
several examples. These commenters asserted that the development of 
policy was the proper way to address and solve problems rather than to 
undertake wholesale modification of the existing regulations. One 
commenter supported incorporation of the cyanide and acid drainage 
policies into the new regulations. Several commenters pointed to BLM's 
development of the use and occupancy ``policy'' as having resolved a 
``significant'' problem.
    BLM's authority to develop policies that extend and improve 
implementation of regulations is limited by the Administrative 
Procedure Act (APA). When policies go beyond simply explaining or 
otherwise implementing an existing set of regulatory standards, the APA 
requires that they be published as rules. BLM's amended bonding rules 
set aside by the court in Northwest Mining Association v. Babbitt (No. 
97-1013, D.D.C. May 13, 1998) incorporated parts of earlier bonding and 
cyanide policies. These final regulations incorporate elements of the 
bonding, cyanide, and acid drainage policies. The use and occupancy 
``policies'' (43 CFR 3715) originated out of a commitment in 1990 to 
initiate a separate rulemaking to provide field managers with a set of 
tools to manage legal occupancy and terminate illegal mining claim 
occupancy. As such, they predated the initiation of this rulemaking in 
1991 and did not flow from that review, as claimed by one commenter.
    BLM is fully aware that approvals of plans of operations on 
unclaimed lands are not based on property rights under the mining laws, 
and that approval of a

[[Page 70008]]

plan of operations under subpart 3809 does not create property rights 
where none previously existed. The purpose of the regulations is to 
prevent unnecessary or undue degradation, not to adjudicate or convey 
rights under the mining laws.
    One commenter stated that subpart 3809 does not properly 
incorporate FLPMA's requirement of suitability analysis, which is the 
multiple-use mandate that governs BLM activities on the public land and 
regulatory activities. The commenter stated that FLPMA requires the BLM 
to balance competing resources to determine what is in the best 
interests of the American people. To do this, BLM needs to determine 
the benefits of a proposed activity and balance that against the 
impacts on other competing activities, including water quality, 
recreation, wildlife habitat, and so forth. Also, FLPMA has an eye 
toward preserving public land resources for future generations. The 
commenter asserted that this mandate alone suggests that the BLM should 
do everything it can to protect public land values for future 
generations, such as requiring the most up-to-date technology to not 
minimize, but prevent, undue degradation of the public land. Given the 
concessions that BLM appears to be making to the mining industry, 
according to the commenter, the agency should require the most up-to-
date, best available technology to control all threats to public land 
values. That approach is underlined by FLPMA's attention to preserving 
land value for future generations.
    BLM does not accept the commenter's suggestion. BLM uses the land-
use planning process under section 202 of FLPMA to determine the long-
term management of lands, balance competing resource concerns, and 
decide if any areas should be withdrawn (determined unsuitable) from 
operation of the mining laws to protect other resources. Once an area 
is identified for withdrawal from the mining laws, a withdrawal is 
processed under section 204 of FLPMA. The 3809 regulations are applied 
where the area is open to operation of the mining laws, or if closed, 
where there are valid existing rights. The regulations are not intended 
to be a vehicle for suitability determinations. BLM has added a 
requirement in the final regulations to the definition of unnecessary 
or undue degradation that protects certain significant resources from 
substantial irreparable harm that cannot be mitigated if identified 
during review of a specific proposal. However, this does not replace 
the need for comprehensive land-use planning or mineral withdrawals to 
make broad-based ``multiple use'' determinations about how to manage 
the public lands.
    BLM also disagrees that FLPMA's multiple use mandate requires 
mining operations to apply the ``best available technology.'' Once it 
has been determined that an area will be used for mining operations, a 
certain level of mining-related impacts is inevitable, and the land 
will not necessarily be available for all other uses.

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

    BLM has adopted Sec. 3809.3 as proposed. Final Sec. 3809.3 
clarifies situations where State and Federal laws or regulations 
relating to the conduct of mining operations may conflict. The final 
rule provides that if State laws or regulations conflict with subpart 
3809 regarding operations on public lands, the operator must follow the 
requirements of subpart 3809. The rule also states that there is no 
conflict if the State law or regulation requires a higher standard of 
protection for public lands than this subpart. The final rule 
incorporates the Supreme Court's ruling in the Granite Rock case 
(California Coastal Commission et al. vs. Granite Rock Co., 480 U.S. 
572, 581 (1987)) and the 1980 final rule preamble position regarding 
preemption into the regulations (45 FR 78908, Nov. 26, 1980).
    There were many general comments on State conflicts and preemption. 
Most of the comments on this provision were concerned about the 
revisions from the previous rule and the negative impacts on Federal/
State relationships. Most of the commenters that expressed concern over 
the proposed regulations urged that BLM not change the previous 
regulations. Although there were no specific comments that expressly 
and specifically supported the proposal, there were general comments 
that expressed concern that State laws are not strict enough to protect 
public lands and BLM should not abdicate its stewardship 
responsibilities by deferring to State regulations. Many commenters 
expressed concern that this section would create confusion, especially 
at sites with mixed public and private lands.
    Other commenters expressed concern that the effect of this section 
will be to diminish the States' roles as co-regulators on Federal lands 
within their borders. Another commenter stated that ``this one-sided 
approach to the preemption issue would abdicate Congress's direction to 
BLM to ``encourage development of federal resources.'' State agencies 
expressed concern that this section would harm existing Federal/State 
relationships. Commenters noted that this provision and the provisions 
regarding Federal and State agreements would effectively cause the 
States to change State programs.
    Another commenter added that ``This provision coupled with the 
proposed provisions of the Federal/State relationship (Secs. 3809.201 
to 3809.204) and the proposed performance standards (Sec. 3809.420) 
will have a preemptive effect on State Laws. Preemption of State laws 
is not contemplated by FLPMA and will cause a host of problems.'' 
Commenters from the State agencies requested that BLM specifically 
indicate in the regulations and the draft EIS where there is conflict 
with specific state laws. Commenters also disagreed that the new 
provision is consistent with the decision in the Granite Rock case. One 
commenter indicated that any State provision ``that is so stringent 
that it effectively precludes mining or substantially interferes with 
mining on the public lands is preempted, because it would run afoul of 
the provisions of the Mining Law.''
    One commenter asked whether BLM would enforce the newly enacted 
Montana constitutional amendment banning cyanide leach processes from 
new mining operations, noting that it far exceeds the BLM standards and 
the Alternative 4 in the draft EIS.
    Commenters also asserted that the proposed rules' provisions 
regarding preemption and Federal/State conflict cannot be reconciled 
with the NRC Report recommendations and that the existing regulatory 
relationships work and need not be replaced by the BLM regulations. One 
commenter noted that the requirements of this section ``would take over 
administration of the programs previously handled by the states.''
    Final Sec. 3809.3 provides that no conflict exists if the State 
regulation requires a higher level of environmental protection. BLM 
disagrees that this final rule will significantly affect Federal/State 
relationships or diminish State roles as co-regulators. Under the final 
rule, States may apply their laws to operations on public lands. It is 
expected that conflicts will not be common occurrences. In most cases, 
satisfying the State requirements will also satisfy BLM's requirements. 
Satisfying the BLM requirements will also satisfy the State 
requirements. BLM intends to coordinate with the appropriate State 
agencies to avoid duplication of efforts. A conflict occurs only when 
it is impossible to comply

[[Page 70009]]

with both Federal and State law at the same time. If a conflict were to 
occur, the operator would have to follow the requirements of subpart 
3809 on public lands. In this case, the State law or regulation is 
preempted only to the extent that it specifically conflicts with 
Federal law.
    BLM expects to avoid conflicts in part through cooperation with 
States using the agreements under final Secs. 3809.200 through 
3809.204. In some situations, a State may choose to strengthen its 
regulations to be consistent or functionally equivalent to this 
subpart.
    BLM disagrees with the comments that the preemptive effect of the 
rule violates FLPMA. One purpose of subpart 3809 is to establish a 
minimum level of protection for public lands. This is within the BLM's 
authority under FLPMA. States may continue to assert jurisdiction over 
mining operations on the public lands. As final Sec. 3809.3 provides, 
it is only where a conflict with these rules exists that State law will 
be preempted. This is consistent with the U.S. Constitution and Federal 
law. As the United States Supreme Court stated:

    ``Absent consent or cession a State undoubtedly retains 
jurisdiction over federal lands within its territory, but Congress 
equally surely retains the power to enact legislation respecting 
those lands pursuant to the Property Clause [of the Constitution]. 
And when Congress so acts, the federal legislation necessarily 
overrides conflicting state laws under the Supremacy Clause [of the 
Constitution].'' We agree * * * that the Property Clause gives 
Congress plenary power to legislate the use of the federal land on 
which Granite Rock holds its unpatented mining claim. The question 
in this case, however, is whether Congress has enacted legislation 
respecting this federal land that would preempt any requirement that 
Granite Rock obtain a California Coastal Commission permit. To 
answer this question, we follow the pre-emption analysis by which 
the Court has been guided on numerous occasions: ``[S]tate 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, state law is still 
pre-empted to the extent it actually conflicts with federal law, 
that is, 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.''

California Coastal Commission v. Granite Rock Co., 480 U.S. 572, 580-
581 (quoting other cases, and omitting citations). Final Sec. 3809.3 
and the other rules cited by the commenter implement the principle 
enunciated by the Supreme Court for situations, such as FLPMA, 
involving areas where Congress has not entirely displaced State 
regulation. A further analysis of the preemptive effect of these rules 
appears in the preamble to the February 9, 1999 proposed rule at 64 FR 
6427.
    Although most of subpart 3809 should not conflict with State laws 
or regulations, one possible specific case where the regulations may 
conflict with State requirements is final Sec. 3809.415(d), which 
requires avoiding substantial irreparable harm to significant 
scientific, cultural, and environmental resource values that cannot be 
mitigated. For instance, this requirement could address an issue which 
is related to the Secretary's trust responsibility for impacts to 
adjoining or nearby Native American lands. Some States may not have 
similar requirements. Even such a conflict is expected to be rare as 
historically most resource conflicts have traditionally been mitigated 
on the public lands.
    There are also certain situations where the State law or 
regulations may provide a higher standard of protection than subpart 
3809, such as the restriction on cyanide leaching-based operations 
approved by voters in Montana. In this situation, the State law or 
regulation will operate on public lands. BLM believes that this is 
consistent with FLPMA, the mining laws, and the decision in the Granite 
Rock case.
    Final Sec. 3809.3 is not inconsistent with the recommendations of 
the NRC Report, none of which expressly addresses preemption of State 
law. The report recognized that the overall regulatory structure 
``reflects the unique and overlapping Federal and state 
responsibilities'' (p. 90) and also addressed the mechanism for 
protecting valuable resources and sensitive areas (p. 68). BLM believes 
that this represents an acknowledgment of the Department of the 
Interior's responsibilities in regard to FLPMA where the States may not 
have analogous coverage.

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

    In developing the final rule, BLM has streamlined and clarified 
language in final Secs. 3809.5 (definitions) and 3809.420 (performance 
standards) to address concerns raised by commenters about circular 
definitions and clarity of regulatory language. Definitions of several 
terms have been modified based on public comment. The concept of 
appropriate technology has been retained in final Sec. 3809.420, but 
the term ``most appropriate technology and practice'' has been dropped 
from final Secs. 3809.5 and 3809.420 to reduce confusion. The BLM has 
made no attempt to define terms used in the National Research Council 
Report unless specifically related to terms in the 3809 regulations and 
pertinent to this regulatory effort.
    FLPMA authorizes the Secretary of the Interior to ``prevent 
unnecessary or undue degradation of the public lands.'' BLM believes 
that this broad authority provides for performance standards and 
related definitions. Many definitions included in the final rule are 
derived directly from FLPMA, CEQ regulations, or long-standing and 
publicly available Bureau policy. As such, the BLM believes the 
definitions to be consistent with Federal law and regulation, and not 
inconsistent with the recommendations of the NRC Report.
    There were numerous requests to define terms such as ``feasible,'' 
``significant,'' ``necessary,'' and ``substantial.'' BLM has chosen to 
rely on established definitions of these words in order to ensure 
greatest understanding of the terms rather than to introduce a specific 
regulatory definition. In addition, changes have been made in the 
language of the performance standards and elsewhere in the regulations 
to make these terms more clearly understood in the regulatory context.

``Casual Use''

    This final rule defines ``casual use'' as activities ordinarily 
resulting in no or negligible disturbance of the public lands or 
resources. In paragraph (1) of the final definition, we give examples 
of things that we generally consider to fall within the definition of 
``casual use,'' and in paragraph (2), we give examples of things that 
we don't consider to be ``casual use.'' Changes to the proposed rule in 
response to comments include adding a number of examples of what is 
``casual use'' and eliminating the terms ``hobby or recreational 
mining'' and ``portable suction dredges.'' We also made a clarifying 
change related to when the use of motorized vehicles is not ``casual 
use.'' These changes are discussed below.
    A commenter felt that the BLM should focus more on mining 
operations of less than five acres in size instead of on numerous 
changes in the definition of ``casual use.'' One commenter indicated 
that BLM needs to revise the definition of ``casual use'' to be 
consistent with NRC Report Recommendations 1, 2, and 3. A few 
commenters said that BLM should assure that the definition of ``casual 
use'' is similar to the Forest Service definition.

[[Page 70010]]

    Many commenters felt that BLM should develop a detailed list of 
what ``casual use'' is to ensure that there is no confusion in anyone's 
mind about when an activity is considered casual use and when it falls 
under a notice. Other commenters indicated the current definition 
needed to be strengthened to ensure protection of public lands and 
resources, particularly riparian areas. One suggested that the amount 
of area to be disturbed should be specifically defined.
    Many commenters stated that the current definition of ``casual 
use'' had worked well for nearly 20 years and did not need to be 
changed. One commenter indicated that the NRC Report supported BLM 
retaining the definition of ``casual use.'' Other commenters stated 
that the existing definition of casual use provides adequately for 
prospecting and recreational mining according to BLM's own data. Some 
commenters objected to the expansion of items not be to considered 
``casual use.''
    The final rule definition of casual use is based on the existing 
definition. We have modified it to address situations that have arisen 
since the 1980 regulations were published. We have included examples of 
activities that are generally considered casual use, and examples of 
activities that are not considered casual use. For instance, the term 
``occupancy,'' as defined in 43 CFR 3715.0-5, is not considered 
``casual use.'' Similarly, the final rule clarifies that surface 
disturbance from operations in areas where the cumulative effects of 
the activities result in more than negligible disturbance is not casual 
use.
    Some commenters stated the proposed definition was too restrictive 
and recommended that ``casual use'' should include not only hand tools, 
but also other equipment used by recreational miners. Several 
commenters felt that some mechanized equipment should be allowed under 
casual use. Several commenters stated that casual use has always 
included the use of mechanized equipment. Several commenters felt that 
the changes in the definition of casual use could be interpreted by 
some offices in a way that would result in elimination of prospecting 
and recreational mining on public lands. Others raised a concern that 
the revised definition of casual use will preclude geochemical sampling 
and will adversely affect mineral exploration.
    Others expressed a general concern about the proposed provision 
that would have required hobby and recreational miners to file a 
notice, instead of operating under casual use, where the cumulative 
effect of their operations results in more than negligible disturbance. 
Some commenters expressed the view that active prospecting is virtually 
excluded without the ability to conduct these activities as casual use.
    It is not the intention of the BLM to unduly restrict mineral 
prospecting and exploration on the public lands. Revisions in the final 
rule are intended in part to address concerns on the part of some 
members of the public about cumulative impacts to the environment 
resulting from multiple operations in a single area. The requirement 
for operations above the ``casual use'' level to file a notice or plan 
of operations and obtain a financial guarantee is intended to provide 
an increased measure of environmental protection for public land and 
resources. On the other hand, exploration techniques involving 
negligible surface disturbance will not require a notice or financial 
guarantee. See also the preamble discussion of final Sec. 3809.31(a).
    Based on the number and substance of comments about the description 
of activities that cause negligible surface disturbance, the definition 
of casual use was expanded in this final rule to include geology-based 
sampling and non-motorized prospecting activities.
    The public comments on suction dredging and its impacts covered a 
broad range. One commenter stated that the proposed regulations are 
contrary to the NRC finding that States adequately regulate suction 
dredging under their own permitting. Another commenter stated that BLM 
does not acknowledge the NRC finding that BLM appropriately regulates 
small suction dredge operations under current regulations. The same 
commenter, as well as others, felt that BLM should allow at least some 
suction dredge activities under casual use. Other commenters stated 
that suction dredging should be regulated by State fish and game 
departments.
    Some members of the public indicated that suction dredging should 
not be handled as a casual use because of associated environmental 
impacts. Some commenters did not view the damage caused by suction 
dredging to be a major environmental concern. Another commenter 
indicated that the major impacts (in California) from suction dredging 
were associated with abandoned junk, long-term camping, sewage and 
waste management, and interference with other public land users.
    Several commenters felt that the BLM should give more credence to a 
U.S. Geological Survey study on the Forty Mile River in Alaska that 
found no adverse impacts to water quality from suction dredges with an 
intake diameter of 10 inches. Many commenters, from different states, 
indicated that 4", 5", and 6" (intake diameter) on suction dredges have 
essentially the same impacts, and in the view of these commenters are 
not environmentally damaging.
    In response to the comments, and to be consistent with the NRC 
Report discussion, the final definition of ``casual use'' allows small 
portable suction dredges to qualify on a case-by-case basis as ``casual 
use.'' BLM believes that this approach is also consistent with IBLA 
case law because the cases holding that suction dredging is not 
``casual use'' were dependent upon the specific facts and circumstances 
at issue in those cases.
    Some commenters feel the complete exclusion of chemicals from 
casual use operations is unrealistic and too far-reaching. They 
recommend that only ``hazardous'' chemicals to land or water be 
prohibited. Other commenters expressed the concern that the definition 
of casual use should not include small miners because they might not 
have the expertise to use chemicals properly.
    BLM's intent in defining ``casual use'' as not including the use of 
chemicals does not apply to the use of small amounts of gasoline, oil, 
or similar products in connection with small operations, but is 
intended to address concerns about the use of cyanide and other 
leachates. We did not create an exception to this provision for small 
miners (some of whom the commenter alleged might not have the expertise 
to use chemicals properly) because the issue here is the impact of 
harmful chemicals on the environment, not the size of the operation or 
the sophistication of the operator.
    Many commenters supported the use of truck-mounted drilling 
equipment under casual use when no new road construction or surface 
disturbance would be required.
    BLM recognizes the desire of those conducting mineral exploration 
using truck-mounted drilling equipment to maximize their access to 
drill sites on public lands with minimum regulation. However, the BLM 
believes that drilling activities should be conducted under a notice or 
a plan to increase consideration of potential impacts to the 
environment, including, but not limited to riparian areas, cultural 
resource sites, and wildlife habitat. Therefore, BLM has not included 
truck mounted drilling activities under casual use.
    Several members of the public commented that there is no provision 
in

[[Page 70011]]

the mining laws for recreational mining, and that it should not be 
regulated under subpart 3809. Others recommended that the term 
``recreational mining,'' if used at all, should be defined in BLM's 
recreation management regulations (43 CFR 3840). Several commenters 
indicated that recreational prospecting is generally allowed in most 
States, and should not be constrained on BLM-administered lands.
    Many commenters indicated that recreational or weekend miners will 
not be able to prospect and extract minerals if they are required to 
operate under the notice rather than the casual use provisions. Several 
suggested that they would not be able to afford the cost of filing a 
notice and obtaining a bond. Another view, expressed by one commenter, 
identified a concern that small miners might lack the expertise to 
properly use chemicals or afford a bond.
    The public provided a range of perspectives relative to the impacts 
of ``hobby or recreational mining.'' Many commenters expressed concern 
about recreational mining being included in the category of casual use 
because it allowed for uncontrolled use of public lands with associated 
impacts.
    Another commenter stated that if there are inappropriate impacts to 
the land by weekend recreational miners, stiffer fines are a more 
appropriate response than a broad-scale restriction of land use. One 
commenter prefers designations or constraints to be included in the 
regulations rather than in the land-use plans. Another felt that BLM 
should identify areas in land-use plans where hobby or recreational 
mining could occur. Some commenters felt that all recreation and hobby 
mining should be casual use.
    The BLM recognizes that some weekend prospectors and recreational 
miners may now be required to obtain a notice rather than operate under 
the casual use provision. However, it is BLM's intent that all 
operations which cause more than negligible surface disturbance should 
be conducted under a notice or a plan to ensure appropriate review of 
environmental concerns and development of appropriate mitigation.
    Numerous members of the public stated that the term, ``recreational 
mining,'' should be more clearly defined or deleted. Some commenters 
felt that the lack of definition of recreational mining will lead to 
inconsistent interpretation of what it includes.
    Many commenters recommended changing the definition to include some 
version of the following: ``The term casual use should include the 
following activities: use of metal detectors, gold spears, and other 
battery-operated devices for sensing the presence of minerals, battery-
operated and motorized high bankers, hand, battery operated, and 
motorized drywashers, and motorized gold concentrating wheels.''
    One individual commented that the definition of ``casual use'' 
should be modified to state ``Nonprofit organizations or societies, 
hobbyists, and recreational miners are classified as casual use as long 
as they do not use motorized tools.'' Many commenters expressed concern 
that the new definition of casual use could eliminate rock hounding. 
Others made general statements that the definition is too restrictive. 
Numerous members of the public felt there should be a provision for 
collection of mineral specimens with hand tools, hand panning and 
motorized sluices. Others commented that the definition of casual use 
should include sampling of rocks and soils.
    The BLM concurs with the recommendations made by the public to 
include various types of sampling, and various types of prospecting 
activities and equipment in the definition of casual use to clarify its 
intent that these types of activities are acceptable under the 
definition of casual use as long as they create no or negligible 
surface disturbance. The definition has been modified to address this 
concern. The BLM did not however, elect to include high bankers and 
other similar equipment in this definition in order to address concerns 
about the surface disturbing impacts of this type of equipment.
    A proposed paragraph (2) of the ``casual use'' definition would 
have indicated that use of motorized vehicles in areas designated as 
closed to ``off-road vehicles'' (ORV), as defined in 43 CFR 8340.0-5 is 
not ``casual use.'' Under BLM's existing ORV regulations, ORV use may 
be completely prohibited (a ``closed area'') or restricted at certain 
times, in certain areas, or to certain vehicular use (a ``limited 
area''). We are concerned that the language of the proposal may be 
interpreted to mean that only motorized vehicle use in ``closed areas'' 
exceeds the ``casual use'' threshold. In reality, we intended the 
language to also mean that motorized-vehicle use that conflicts with 
the use restrictions in a ``limited area'' exceeds the ``casual use'' 
threshold. Therefore, we have made a clarifying change to the final 
rule to indicate that use of motorized vehicles in areas when 
designated as closed (either permanently or temporarily) is not 
``casual use.''

``Exploration''

    Although not explicitly requested by the public in comments, the 
BLM has added a new term, ``exploration,'' to the definitions. The 
final rule embraces the concept that exploration activities will be 
covered under a notice, unless they exceed five acres unreclaimed 
surface disturbance in a calendar year, and any mining activities will 
be covered by a plan of operations. The definition of ``exploration'' 
was included to help differentiate when an operator should file a 
notice and when an operator should file a plan of operations and is 
necessary to implement the NRC Report recommendations.

Military Lands

    A few commenters said that BLM needs to define the term, ``military 
lands,'' and clarify to what extent subpart 3809 applies to minerals on 
military lands that are also under the jurisdiction of BLM.
    Public Law 106-65 extended the withdrawals for Fort Greely, Alaska; 
the Yukon Range of Fort Wainwright, Alaska; Nellis Air Force range, 
Nevada; Naval Air Station Fallon Range, Nevada; McGregor Range of Fort 
Bliss, New Mexico; and Barry M. Goldwater Range, Arizona. The mining 
language in the prior Public Law 99-606 withdrawal for these ranges was 
carried forward into Public Law 106-65.
    Public Law 99-606 provided for land-use planning on these military 
ranges. The BLM has completed land-use plans on all lands addressed by 
Public Law 99-606 except for Bravo-20 Range at the Naval Air Station at 
Fallon, Nevada. No lands were found suitable to open to entry under the 
mining or mineral leasing laws, except at McGregor Range, in New 
Mexico. Public Law 106-66 calls for the update of these land-use plans. 
No implementing regulations for these public laws have been promulgated 
to date. The responsibilities of the BLM would be outlined at such time 
as these regulations are developed.

``Minimize''

    According to one commenter, the proposed definitions of 
``minimize'' is fundamentally at odds with the NRC Report because NRC 
assumes mining will change the landscape. Other commenters thought this 
definition should be deleted because it is confusing and is defined 
differently than the commonly understood meaning of the word 
``minimize.'' Several commenters stated that ``minimize'' is not 
synonymous with ``eliminate'' or ``avoid.'' The precise meaning of some

[[Page 70012]]

terms within the definition--``most'' and ``practical level''--were 
unclear to some commenters. Several commenters raised the concern that 
the second sentence in the proposed regulations has significantly 
reduced the BLM's flexibility from the current 3809 rules.
    BLM is in agreement with the NRC that mining changes the landscape. 
However, it is the view of the BLM that the NRC Report recommendations 
do not preclude appropriate attempts to reduce or avoid impacts to 
public land and resources. BLM has modified the second sentence of the 
proposed definition of ``minimize'' to reduce confusion and increase 
flexibility of the authorized officer in evaluating proposed mining 
operations. Rather than stating that ``minimize'' ``means'' to avoid or 
eliminate, the final rule clarifies that in certain instances ``it is 
practical'' to avoid or eliminate particular impacts. In this context, 
``practical'' is not based on what a particular company can afford, but 
rather on technologies and practices reasonably considered to be cost-
effective.
    By changing the final rule in this manner, BLM will still define 
the term ``minimize'' as it is used in a number of the performance 
standards in final 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 might determine 
that avoiding or eliminating specific impacts can be achieved 
practically. BLM would determine the lowest practical level of a 
particular impact on a case-by-case basis.

``Mining Claim''

    The final definition is unchanged from the proposal. A commenter 
suggested that the definition of ``mining claimant'' should be included 
in this subpart, rather than including just a cross reference to 
existing 43 CFR 3833.0-5. The definition should include any citizen or 
entity in the United States. The definition should be similar to the 
current definition.
    BLM has referenced the definition in 43 CFR 3833.0-5 to promote 
consistency in definition of terms across Title 43 of the Code of 
Federal Regulations. The definition provides for citizens of the United 
States to hold mining claims.

``Mitigation''

    The final definition is unchanged from the proposal. A commenter 
asserted that the term should be deleted from the regulation unless BLM 
can show specific statutory authority for mitigation. In the 
commenter's opinion, BLM has no authority to require compensatory 
mitigation. Several commenters raised the question of when compensation 
is appropriate and whether BLM has the statutory authority to require 
it. Some commenters indicated that the definition of ``mitigation,'' 
which comes from the Council on Environmental Quality definition, 
should be eliminated because in that context it was used for analytical 
purposes rather than regulatory purposes, as in this case. Some 
commenters felt that the revised definition, included in the draft 
rule, gives the BLM too much latitude without a standard for 
comparison.
    Section 302(b) and 303(a) of FLPMA, 43 U.S.C. 1732(b) and 1733(a), 
and the mining laws, 30 U.S.C. 22, provide BLM the authority for 
requiring mitigation. Mitigation measures fall squarely within the 
actions the Secretary can direct to prevent undue or unnecessary 
degradation of the public lands. An impact that can be mitigated, but 
is not, is unnecessary. Section 303(a) of FLPMA directs the Secretary 
to issue regulations with respect to the ``management, use, and 
protection of the public lands * * *'' In addition 30 U.S.C. 22, allows 
the location of mining claims subject to regulation. Taken together, 
these statutes clearly authorize the regulation of environmental 
impacts of mining through measures such as mitigation. The final rule 
does not require compensatory mitigation. However, many companies are 
currently voluntarily completing compensatory mitigation, and it is 
clearly an available form of mitigation.
    BLM believes it is appropriate to retain the Council on 
Environmental Quality's government-wide definition of ``mitigation'' as 
it appears in 40 CFR 1508.20. An operator who must ``mitigate'' damage 
to wetlands or riparian areas under final Sec. 3809.420(b)(3), or who 
must take appropriate mitigation measures for a pit or other 
disturbance, would have to take mitigation measures, which includes the 
measures listed in the definition. BLM will approach mitigation on a 
mandatory basis where it can be performed on site, and on a voluntary 
basis, where mitigation (including compensation) can be performed off 
site. For example, if, because of the location of the ore body, a 
riparian area must be disturbed, mitigation can be required on the 
public lands within the area of mining operations. If a suitable site 
for riparian mitigation can't be found on site, the operator, with 
BLM's concurrence, may voluntarily choose to mitigate the impacts to 
the riparian area off site.

``Most Appropriate Technology and Practices'' (MATP)

    The final rule does not contain a definition of MATP. A commenter 
stated that the only statement in the proposed definition of MATP or in 
the explanation of the proposed rule regarding cost is that ``MATP 
would not necessarily require the use of the most expensive technology 
or practice.'' The commenter asserted that this statement not only 
fails to address how BLM would consider cost, but suggests that BLM 
could require the use of the most expensive technology or practice for 
a mine regardless of whether the mine meets performance standards by 
using a less expensive technology. The commenter asserted that if BLM 
claims authority to require use of a particular technology under such 
circumstances, the proposed rules would clearly violate FLPMA, the 
general mining laws, and the Mineral Development Act. The commenter 
stated that requiring the use of a costly technology that may make 
mining impossible or uneconomical in order to achieve minimal or no 
environmental benefits would ignore FLPMA's limit on BLM's authority 
only to prevent ``unnecessary'' and ``undue'' degradation of public 
lands, would impair the rights of locators and claims located under the 
general mining laws in violation of 43 U.S.C. 1732(b), and would 
contravene Congress' policy and intent for BLM to manage public lands 
in a manner that recognizes the Nation's need for domestic sources of 
minerals and to implement the Mining and Minerals Policy Act of 1970, 
as set forth in 43 U.S.C. 1701(a)(12). The commenter also stated that 
the proposed rules provide no explanation of how BLM will reconcile its 
proposed authority to impose technology-based requirements with its 
legal authority and obligations under FLPMA.
    BLM disagrees that a statement included to assure operators they 
would not have to use the most expensive technology could be 
interpreted to mean they would be required to use the most expensive 
technology or practice regardless of whether the mine meets performance 
standards. The term ``MATP'' has been deleted from the final 
regulations because BLM concluded it was confusing and circular, and 
did not add to the protection provided by the performance standards. In 
its place, we added a requirement to the performance standards that 
requires operators to use equipment, devices and practices that will 
meet the performance standards. The purpose of this requirement is not

[[Page 70013]]

for BLM to specify that an operator use any particular technology, but 
instead to assure that the methods an operator proposes to employ are 
technically feasible for meeting the performance standards.
    Some commenters stated that the NRC Report indicated that existing 
State and Federal laws are okay with respect to technology. Others 
indicated that there was no specific statutory authority for requiring 
most appropriate technology and practices. Still others felt the BLM 
should abandon the concept of MATP in favor of best available 
technology (BAT). There was considerable agreement from numerous 
commenters that the definition proposed in the draft regulations was 
unclear, confused, difficult to enforce, ambiguous, and circular. Even 
commenters who liked the concept of MATP over BAT were critical of the 
BLM's definition. A few commenters raised a concern about whether this 
definition would be in conflict with State law or technical standards.
    BLM agrees with concerns raised about the term ``most appropriate 
technology and practices.'' The term has been deleted from the 
definitions in the final rule. Final Sec. 3809.420(a)(1) incorporates 
the requirement to use equipment, devices, and practices that will meet 
the performance standards of subpart 3809.

``Operations''

    Several members of the public stated that the definition of 
``operations'' needs to clarify that FLPMA only gives the BLM authority 
to regulate activities on Federal public lands. Another commenter 
indicated that the definition needs to include any facility that is 
used for the beneficiation of ore. One commenter expressed a concern 
that including ``reclamation'' in the definition of ``operations'' 
might cause confusion. Another commenter asserted that the definition 
of ``operations'' should be defined to include geologic-based or hobby 
activities such as rock hounding, hobby mining, fossil collecting, 
caving, and other similar activities.
    In the final rule, BLM did not modify the definition except to add 
a reference to exploration. The definition is intended to be broad in 
scope to address ``cradle to grave'' activities authorized under the 
mining laws on the public lands. Therefore, reclamation is included in 
the definition of operations. The definition clearly states that it 
applies to activities on public lands. The BLM may request information 
about activities on adjacent or near by private lands because a 
proposed operation may occur on mixed ownership, or environmental 
analysis requirements under the National Environmental Policy Act may 
require that BLM have a complete picture of the proposed operation. The 
definition adopted today covers all activities under the mining laws 
which occur on public lands as casual use or under a notice or a plan 
or operations, including the hobby activities mentioned by the 
commenter.
    Several commenters opposed applying subpart 3809 to unclaimed land, 
asserting that the proposal improperly treats such lands as having 
valid claims and would codify the industry position. The commenters 
stated that a decision to allow mining on such lands is discretionary 
and not based on property rights and that BLM should make decisions 
regarding mining operations on unclaimed lands based on FLPMA's 
multiple-use mandate rather than treating operations on such lands as 
equivalent to operations on lands where operators have property rights 
under the mining laws. Thus, the commenters concluded that 43 CFR 
subpart 2920 should apply, not subpart 3809. Subpart 2920 does not 
authorize the exclusive and permanent use of public lands. Commenters 
stated that increased costs associated with subpart 2920 might result 
in lower grade ores not being mined. Commenters inquired whether BLM's 
interim directive would be extended when it expired in September 1999?
    BLM has carefully considered the relationship between FLPMA and 
rights under the mining laws. In these regulations, BLM has decided 
that it will approve plans of operations on unclaimed land open under 
the mining laws if the requirements of subpart 3809 are satisfied, and 
the other considerations that attach to a Federal decision, such as 
Executive Order 13007 on Indian Sacred Sites, are also met. This 
continues the scheme that existed under the previous rules and 
recognizes that in certain situations acreage authorized under the 
mining laws may be insufficient to conduct large-scale operations.
    Other commenters noted the inclusion of unclaimed land within the 
reach of regulation. They perceived this as a proposed expansion of the 
ambit of the mining laws and were opposed to any such expansion.
    BLM disagrees with the commenters' interpretation of the mining 
laws. Lands are open to the right to prospecting and if successful, 
location of mining claims. The sequence of activity set out in the text 
of the law itself (exploration, then discovery, followed by claim 
location) presupposes that activities will be carried out on unclaimed 
land. The same goes for land that has been improperly claimed, for 
example, with millsites in excess of applicable limits. The inclusion 
of unclaimed land within an area of operations subject to these 
regulations is carried over from the original November 26, 1980 
rulemaking. That rulemaking, at 45 FR 78903, addressed similar comments 
received on that rulemaking's definition of ``mining operations'' and 
noted, ``One does not need a mining claim to prospect for or even mine 
on unappropriated Federal lands.'' BLM is simply carrying forward the 
older definition with only minor modifications. Nothing about the law 
or the regulations has changed, and the right to use unappropriated 
Federal lands to engage in reasonably incident uses remains unaffected.

``Operator''

    Several commenters stated that it was beyond BLM's authority to 
include in the definition of ``operator'' all persons who own a mining 
claim or otherwise have an interest in a claim. A commenter felt the 
definition of ``operator,'' when combined with the new provisions for 
joint and several liability are contrary to NRC Report Recommendation 
7, which concerns promoting clean up of abandoned mine sites adjacent 
to new mine areas without causing mine operators to incur additional 
environmental liabilities. According to one commenter, the proposed 
definition of ``operator'' is similar to the approach taken under the 
Surface Mining Control and Reclamation Act (30 U.S.C. 1201 et seq.), 
but there is no authority for this approach in FLPMA.
    We evaluated the proposed definition in the context of public 
comments but did not change it. The definition of ``operator'' adopted 
today incorporates a ``material participation'' test for determining 
whether a parent entity or an affiliate is an ``operator'' under this 
subpart. As discussed in the preamble to the proposed rule (64 FR 
6428), this test is in accord with reasoning contained in the Supreme 
Court decision in the Best Foods case. See U.S. v. Best Foods et al., 
118 S. Ct. 1876. The authority for the definition derives from FLPMA, 
and BLM bases the definition on participation, not affiliation. BLM 
disagrees that the definition of ``operator'' is inconsistent with NRC 
Report Recommendation 7 because subpart 3809 applies to active 
operations, not to cleaning up previously abandoned mines.

[[Page 70014]]

``Project Area''

    The final definition is unchanged from the proposal. Numerous 
commenters stated that there is no legal basis for the definition as 
proposed in the draft rule. According to many commenters, the proposed 
definition suggests that BLM is attempting to manage private land and 
State land. Others said that this term needs to be unambiguously 
defined to show how it will apply to all mineral ownerships. Commenters 
felt this to be especially important because they believe enforcement 
provisions say the mineral owner is financially liable for the actions 
taken by the operator. Several commenters said the definition should 
apply only to Federal public land. Clarification is needed, according 
to more than twenty commenters, on how BLM intends to deal with 
adjacent private lands.
    Several commenters who had concerns about the intent of BLM with 
regard to private land within a project area tied their concerns to the 
relationship of joint and several liability to the project area and the 
definition of ``operator.''
    At least one State has raised a concern about the relationship of a 
project area as defined by the BLM, for regulatory purposes, and an 
area defined by a state for similar purposes, but defined differently. 
Others raised concerns that mines should not be able to expand mine 
waste dumps by using surrounding public land.
    In the final rule, BLM has clarified its intentions relative to the 
definition of ``project area'' in final Sec. 3809.2(d). It is BLM's 
intent to regulate operations on public lands managed by the Secretary 
of the Interior through the BLM. However, BLM may collect and evaluate 
information from private lands for the purpose of analysis under the 
National Environmental Policy Act.
    The ``project area'' concept is used to facilitate defining an area 
of operations for the purpose of analysis and decision-making. This 
will not preclude an individual State from using its own means of 
defining a project area. Differences between BLM and a State can be 
worked out through cooperative agreement or other means. Since the 
location and management of mine waste is part of the plan of operations 
and associated environmental analysis, these should be considered 
during the processing of the plan of operations or the notice and 
should be within the established project area for a given mine.

``Public Lands''

    Many commenters indicated that the draft rule definition of 
``public lands'' caused considerable confusion and consternation about 
BLM's intent with regard to private land and State land. Several 
commenters raised concerns about the applicability of the regulations 
to the Stock Raising Homestead Act lands where the surface is private 
and the mineral estate is Federal.
    Others questioned BLM's authority to regulate activities on Stock 
Raising Homestead Act lands without the consent of the land owner. 
Others indicated that the 1993 amendments to the Stock Raising 
Homestead Act were not cited as an authority in the proposed 
regulations and that the proposed means of handling Stock Raising 
Homestead Act lands are not consistent with the 1993 amendments.
    The definition of public lands included in the final rule replaces 
the definition of Federal lands in the existing 3809 regulations. This 
definition is taken from FLPMA and used throughout this subpart for the 
sake of consistency. Therefore the definition was not modified from the 
proposed to the final rule. ``Public land,'' as defined in FLPMA and in 
this regulation, means land or interest in land owned by the United 
States and administered through the Secretary of the Interior by the 
BLM. Public land does not mean State land or private land. See final 
Sec. 3809.2(d) which addresses the scope of these regulations.
    Under provisions of the Stock Raising Homestead Act of 1916 (43 
U.S.C. 299), coal and other minerals were reserved to the United 
States. Individuals were allowed to enter on these private lands to 
locate and develop these mineral deposits so long as they did not 
injure, damage or destroy the permanent improvements of the entry man, 
and are required to compensate the entry man or patentee for all damage 
to crops caused by the prospecting or development activities. The 
inclusion of these Stock Raising Homestead Act lands under the revised 
3809 rule does not change the statutory requirements established in 
1916 or in the subsequent 1993 amendments which clarified requirements 
for minerals operations on these lands. It is the intent of the final 
rule and BLM's ongoing rulemaking on Stock Raising Homestead Act lands 
(43 CFR 3814) to provide specific requirements for mineral exploration 
and development of the Federal mineral estate to ensure consistency and 
equity for both those conducting prospecting and development operations 
on Federal minerals.
    A commenter stated that when BLM restated the definition of 
``public lands'' in FLPMA, the BLM failed to include the first 
paragraph of 43 U.S.C. 1702: ``Without altering in any way the meaning 
of the following terms as used in any other statute, whether or not 
such statute is referred to in, or amended by this Act, as used in this 
Act * * *''
    We don't believe that repeating the lead-in statement is necessary. 
It simply says that if the same terms are used in other legislation, 
that these definitions do not alter their meaning in those other 
statutes. Since the 3809 regulations are promulgated under FLPMA, it is 
the FLPMA definition of public lands that applies.

``Reclamation''

    The final definition of the term ``reclamation'' is unchanged from 
the proposal. Public comments on the definition addressed a variety of 
concerns. Several commenters felt that the definition of 
``reclamation'' needed to retain the concept of ``reasonable 
reclamation'' from the existing regulations. Another commenter 
indicated the definition was too onerous because the terms used were 
problematic--terms like ``applicable performance standards'' and 
``achieve conditions required by BLM.'' Several commenters sought 
clarification about the requirement for regrading and reshaping to 
conform to surrounding landscape. They felt this requirement to be 
open-ended. The requirement to provide for post-mining monitoring, 
maintenance or treatment raised the question in a few commenters' minds 
about whether this implied that backfilling would be required. Other 
commenters did not think an operation should be authorized or allowed 
if post-closure treatment was required. One commenter recommended 
removal of the words ``placement of a growth medium'' because this is a 
``how'' standard, not a performance standard.
    Another member of the public expressed the concern that 
``reclamation'' should be defined as something that is ongoing, not 
just at the end of the project. The definition should state that the 
performance standards for reclamation will be deemed as met when 
requirements in the plan of operations or notice have been met. Another 
comment was that the reclamation definition references 43 CFR 3814 
relative to reclamation requirements under the Stock Raising Homestead 
Act (SHRA), but these regulations have not been promulgated.
    BLM has carefully considered the concerns expressed by the public 
about the proposed definition, but did not

[[Page 70015]]

change it in the final rule. Reclamation means measures required by BLM 
in this subpart to meet applicable performance standards and achieve 
conditions at the conclusion of surface-disturbing operations. These 
phrases are needed to make it clear that every performance standard 
doesn't apply to every operation and that each operation will be 
required to meet site-specific conditions, some of which will be 
specified in the closure plan. Concurrent reclamation is required in 
final Sec. 3809.420(a)(5). Reclamation is deemed satisfactory on a plan 
or a notice when it meets the standards established in the accepted 
notice or the approved plan of operations.
    The final rule does not retain the presumption of backfilling 
included in the draft rule. There is no intent or requirement in the 
final rule that regrading or reshaping means backfilling. Post-closure 
monitoring, maintenance and treatment will be addressed at least twice 
in the life cycle of a mining operation. To the extent possible at the 
time a notice or a plan of operations is filed, needs for post-closure 
activities should be identified and included in the initial plan or 
notice. In addition, at the time of mine closure, the requirements for 
subsequent management and maintenance of the site will be evaluated. 
The more information provided by operators at the beginning of the 
process, the less ``open-ended'' the process will be. The definition 
also provides a generic list of the components of reclamation. As 
explained above, the reference to the Stock Raising Homestead Act is 
part of another rulemaking that BLM is currently working on. The 
separate reference to the SHRA is necessary because that Act has its 
own definition of the term ``reclamation.''

``Riparian Area''

    The definition of ``riparian area'' adopted today identifies 
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 definition gives examples of riparian areas and excludes 
ephemeral streams or washes that do not exhibit the presence of 
vegetation depending upon free water in the soil. Final Sec. 3809.420 
requires an operator to avoid locating operations in riparian areas, 
where possible; minimize unavoidable impacts; and mitigate damage to 
riparian areas. It also requires an operator to return riparian areas 
to proper functioning condition, or at least the condition that pre-
dated operations, 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 Manual, Dec. 10, 1993).
    Commenters felt the definition of ``riparian area'' should be 
deleted unless BLM can show specific statutory authority for riparian 
management on all lands. The NRC recommended that BLM issue guidance 
but leave the regulation (of wetlands) to the Environmental Protection 
Agency (EPA) or the Corps of Engineers. Further, commenters stated that 
BLM does not have authority over non-jurisdictional wetlands or non-
wetlands habitat. The requirement to avoid, minimize, or provide 
compensatory mitigation was felt to have major effect on Alaska placer 
miners. Some commenters also requested that ``proper functioning 
condition'' be defined.
    BLM's definition of riparian area has been in use since 1987. BLM's 
statutory authority for protection of riparian areas is derived from 
FLPMA. Section 302(b) and 303(a) of FLPMA, 43 U.S.C. 1732 (b) and 1733 
(a), and the mining laws, 30 U.S.C. 22, provide BLM the authority for 
requiring protection of riparian areas. Protection of riparian areas 
falls squarely within the actions the Secretary can direct to prevent 
unnecessary or undue degradation of the public lands. An impact that 
can be mitigated, but is not, is unnecessary. Section 303(a) directs 
the Secretary to issue regulations with respect to the ``management 
use, and protection of the public lands * * *'' In addition, 30 U.S.C. 
22 allows the location of mining claims subject to regulation. Taken 
together, these statutes clearly authorize the regulation of 
environmental impacts of mining through measures such as protection of 
riparian areas.
    The final rule is not attempting to usurp jurisdiction of either 
the Corps of Engineers or the EPA relative to wetlands. The intent of 
this subpart is to provide appropriate environmental protection for one 
of the critical resources on public lands--riparian areas. The policy 
for protection of riparian areas has been in place in BLM internal 
guidance for more than 13 years. We believe that including this 
guidance as part of the rulemaking makes the policy more accessible to 
the public.
    The final rule does not require compensatory mitigation. However, 
many companies are currently voluntarily completing compensatory 
mitigation, and it is clearly an available form of mitigation.

``Unnecessary or Undue Degradation''

    The first three paragraphs of the final definition of ``unnecessary 
or undue degradation'' are substantially the same as the February 9, 
1999 proposal. BLM added a fourth paragraph, discussed below, in 
response to comments and to a concern expressed in an NRC Report 
recommendation. More than seventy commenters from diverse publics felt 
the proposed definition to be unclear, vague, ambiguous, circular, 
inflexible, and/or duplicative of existing State and Federal laws. A 
similar number of commenters felt the current definition is working 
well and recommended retention of the current language and the current 
``prudent operator'' concept.
    Concern was expressed by some commenters about new terms that were 
introduced in the definition that were not defined. Many commenters 
felt that the proposed definition was moving the BLM from an 
unnecessary or undue degradation standard provided for in section 
302(b) of FLPMA to a ``California Desert'' standard of no degradation 
taken from section 601(f) of FLPMA.
    Some commenters noted significant additional costs the new 
definition would impose on industry. Others expressed belief that 
whether or not a mining company could afford appropriate environmental 
protection measures should not be the determining factor as to whether 
those measures are required.
    Several commenters felt that there should be a specific list of 
actions or situations that would constitute unnecessary or undue 
degradation. One commenter said that BLM should take the dictionary 
definition of ``undue'' (inappropriate or unwarranted) and apply that 
definition to these regulations. Many commenters were frustrated by the 
lack of clear language giving BLM the authority to deny a plan of 
operations or reject a notice. One commenter stated that any operation 
resulting in permanent post-closure water treatment should be deemed 
unnecessary or undue degradation. A few commenters supported the 
inclusion of Best Available Technology and Practice into the concept of 
undue or unnecessary degradation. Many commenters felt the draft 
regulations fell far short of steps that should be taken to prevent 
undue or unnecessary degradation of the public lands. Some commenters 
felt that the draft regulations don't provide for accountability of BLM 
line managers. Concern was expressed by some commenters that the 
definition of ``unnecessary or undue degradation''

[[Page 70016]]

needs to reference the impacts of mining operations on other resources 
on and off of the mining property.
    Several commenters preferred that BLM retain the ``prudent 
operator'' concept, currently incorporated into the undue or 
unnecessary degradation standard. Several commenters felt the provision 
of the prudent operator concept for comparison of similar operations to 
determine what is reasonable and prudent was beneficial and valuable. 
According to other commenters, use of the prudent operator standard 
allows the required flexibility for the BLM to make reasoned decisions 
based on experience and sound judgement. A few commenters stated that 
narrowing defining unnecessary degradation in terms of ``failure to 
do'' reduces needed flexibility in real-world regulatory situations. 
Some commenters felt the current prudent operator standard gives the 
BLM too much latitude and makes it difficult to hold the authorized 
officer accountable. Other commenters have combined the concept of the 
prudent operator, used in the current 3809 regulations, and the 
``prudent man'' concept established by case law developed subsequent to 
passage of the 1872 Mining Law. Comments generally supported the 
retention of both concepts.
    Commenters asserted that FLPMA grants BLM only limited license to 
regulate mining on public lands. The commenters stated that Congress 
realized that mining on public lands, which it sanctions expressly in 
the 1872 Mining Law, necessarily causes some impacts, and thus did not 
completely prohibit all such impacts or empower BLM to do so in its 
stead. Rather, it charged BLM with preventing ``unnecessary or undue 
degradation'' of public lands, which the commenters characterize as a 
decidedly limited mandate. The commenters stated that FLPMA does not 
grant BLM the authority to prevent all degradation of public lands, but 
only to prevent degradation beyond that which a prudent miner causing 
necessary or appropriate degradation would cause. The commenters 
concluded that many of the provisions in the proposal overstep this 
critical limitation.
    BLM disagrees with the comments. BLM has not attempted to prevent 
all degradation as the commenters contend. Such an effort would not be 
practical in any reasonable regulatory scheme. However, since 
``unnecessary or undue degradation'' was not defined in FLPMA, the 
agency has the discretion to define it through a regulatory program 
that considers mining technology, reclamation science, and site 
specific resource concerns. The ``prudent miner'' standard commenters 
advocate does not appear in FLPMA, is unnecessarily subjective, and 
need not be retained in the BLM rules. Also, contrary to the 
commenters' assertions, BLM derives authority for subpart 3809 from the 
mining laws and sections of FLPMA other than the one sentence referred 
to by the commenters.
    A commenter asked why after stating that ``Despite the urging of 
certain commenters, BLM is not proposing additional regulations to 
implement the ``undue impairment'' standard of section 601(f) of 
FLPMA'' (64 FR 6427), BLM then included such regulations in the 
proposal.
    Contrary to the commenter's assertion, BLM has not added 
regulations specifically to implement the ``undue impairment'' standard 
of section 601(f) of FLPMA, related exclusively to the California 
Desert Conservation Area (CDCA). What was done in the proposed and 
final rule is continue the previous rule's cross-reference to the 
section 601(f) standard in the definition of ``unnecessary or undue 
degradation.'' BLM will continue to apply the standard on a case-by-
case basis, as is currently being done. The agency continues to believe 
that such an approach will provide the necessary level of protection 
for the enumerated resources in the CDCA.
    BLM has changed the final definition of the term ``unnecessary or 
undue degradation'' in response to numerous comments, and in response 
to a discussion in the NRC Report that called for clarification of 
BLM's policy. The revised definition of ``unnecessary or undue 
degradation'' in the final rule eliminates the current reference to the 
prudent operator standard because the BLM believes it to be too 
subjective and vague. Instead the definition defines ``unnecessary or 
undue degradation'' in terms of failure to comply with the performance 
standards of final 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. ``Unnecessary or undue 
degradation'' would also mean activities that are not ``reasonably 
incident to prospecting, mining, or processing operations as defined in 
existing 43 CFR 3715.0-5.'' Based on public comments about the need for 
BLM to have explicit regulatory authority to deny a proposed mining 
operation because of the potential for irreparable harm to other 
resources, we have introduced an additional threshold for undue and 
unnecessary degradation. As described in the following discussion, we 
have also made it clear in the regulation that BLM can deny a proposed 
mining operation under certain conditions in order to provide 
protection of significant resources. We believe the definition included 
in the final rule is more comprehensive, straightforward, and easily 
measured than the prudent operator rule.
    Commenters stated that the BLM's proposed unnecessary or undue 
degradation definition, by continuing to reject implementation of the 
``undue degradation'' standard of FLPMA, may tie the agency's hands 
when occasions arise when a common-sense application of the statutory 
``undue degradation'' standard would enable the BLM to avoid the 
immense damage to many valuable resources of the land which a gigantic, 
unreclaimed open pit mine would cause in a particular location.
    BLM agrees with this comment and has modified the final rule 
accordingly. In the final regulations the definition of ``unnecessary 
or undue degradation'' has been modified with the addition of paragraph 
(4) to address when degradation is ``undue.'' The requirement is that 
operations not result in substantial irreparable harm to significant 
resource values that cannot be effectively mitigated. This provision 
must be applied on a site specific basis and would not necessarily 
preclude development of a large open pit mine.
    With this clarifying change, these final rules will allow BLM to 
disapprove a proposed plan of operations to protect significant 
scientific, cultural, or environmental resource values on the public 
lands from substantial irreparable harm that cannot be mitigated and 
which would not otherwise be prevented by other laws. The rule 
accomplishes this by adding a paragraph (4) to the proposed definition 
of ``unnecessary or undue degradation'' to include conditions, 
practices or activities that (a) occur on mining claims or millsites 
located after October 21, 1976 (or on unclaimed lands) and (b) result 
in substantial irreparable harm to significant scientific, cultural, or 
environmental resource values of the public lands, which cannot be 
effectively mitigated. An accompanying change is being made in final 
Sec. 3809.411(c)(3), which will require BLM, should it decide to 
disapprove a plan of operations based on paragraph (4) of the 
definition of ``unnecessary or undue degradation'' to include written 
findings supported by a record that clearly demonstrates each element 
of paragraph (4).
    The revised regulation contains important limits to assure that BLM 
will

[[Page 70017]]

disapprove proposed plans of operations only where necessary to protect 
valuable resources that would not otherwise be protected. First, final 
paragraph (4) applies only to protect significant scientific, cultural, 
or environmental resource values of the public lands. These are the 
same values Congress intended to protect under FLPMA, as described in 
section 102(a)(8). See 43 U.S.C. 1701(a)(8). Thus, the subparagraph 
will not apply unless BLM determines that these public land resource 
values are significant at a particular location. Second, BLM must also 
determine that mining will cause substantial irreparable harm to the 
resources. A small amount of irreparable harm to a portion of the 
resource will not trigger the protection. The harm must be substantial. 
Third, the harm may not be susceptible of being effectively mitigated. 
If the harm can be mitigated, the paragraph will not apply. Fourth, BLM 
must document, in written findings based on the record, that all of the 
elements of the definition have clearly been met. These findings, and 
BLM's conclusion, will be reviewable upon appeal. In addition, 
subparagraph (4) will apply only to operations on mining claims or 
millsites located after the enactment of the undue degradation standard 
in FLPMA (or on unclaimed lands, if any, on which an operator proposes 
to conduct operations).
    This revision was generated in part by a concern expressed in the 
NRC Report (p. 7). The NRC panel examined the adequacy of existing laws 
to protect lands from mining impacts, and observed that the variety of 
existing environmental protection laws governing mining operations

may not adequately protect all the valuable environmental resources 
that might exist at a particular location proposed for mining 
development. Examples of resources that may not be adequately 
protected include springs, seeps, riparian habitat, ephemeral 
streams, and certain types of wildlife. In such cases, the BLM must 
rely on its general authority under FLPMA and the 3809 regulations 
to prevent ``unnecessary or undue degradation.'' Because the 
regulatory definition of ``unnecessary or undue'' at 3809.0-5(k) 
does not explicitly provide authority to protect such valuable 
resources, some of the BLM staff appear to be uncertain whether they 
can require such protection in plans of operation and permits. Some 
resources need to be protected from all impacts, while other 
resources may withstand other impacts with associated mitigation. 
BLM should clarify for its staff the extent of its present authority 
to protect resources not protected by specific laws, such as the 
Endangered Species Act.

NRC Report at p. 121 (emphasis added). Many commenters echoed the NRC 
concern and urged that the final rules unequivocally assert BLM's 
authority to disapprove plans of operation when mining would harm the 
public lands. Many specifically asserted that BLM should use the 
``undue'' degradation portion of Section 302(b) of FLPMA as the basis 
for BLM's authority.
    BLM agrees with the NRC that the extent of BLM's authority to 
protect valuable environmental resources which are not adequately 
protected by other specific laws needs to be clarified in the 
definition of ``unnecessary or undue degradation.'' In addition to 
following the NRC Report's suggestion to add protection for valuable 
``environmental'' resources, the final rule will also include 
protection for ``scientific'' and ``cultural'' resource values on the 
public lands. Scientific and cultural resources are plainly within the 
ambit of the unnecessary or undue degradation standard. FLPMA itself 
recognizes protection of cultural and scientific resources as an 
important component of public land management. See, e.g. 43 U.S.C. 
1702(a) and (c). BLM has concluded that the clarification should 
appropriately appear in regulatory text, in addition to guidance 
manuals as the NRC suggests, to better inform the regulated industry 
and the public.
    FLPMA section 302(b) requires that the Secretary, by regulation or 
otherwise, take whatever action is necessary to prevent ``unnecessary 
or undue'' degradation of the public lands. The conjunction ``or'' 
between ``unnecessary'' and ``undue'' speaks of a Secretarial authority 
to address separate types of degradation--that which is ``unnecessary'' 
and that which is ``undue.'' That the statutory conjunction is ``or'' 
instead of ``and'' strongly suggests Congress was empowering the 
Secretary to prohibit activities or practices that the Secretary finds 
are unduly degrading, even though ``necessary'' to mining. Commentators 
agree that the ``undue degradation'' standard gives BLM the authority 
to impose restrictive standards in particularly sensitive areas, ``even 
if such standards were not achievable through the use of existing 
technology.'' Graf, Application of Takings Law to the Regulation of 
Unpatented Mining Claims, 24 Ecology L.Q. 57, 108 (1997); see also 
Mansfield, On the Cusp of Property Rights: Lessons from Public Land 
Law, 18 Ecology L.Q. 43, 83 (1991). Further support for that 
interpretation is found in the fact that, in the 105th Congress, a 
mining industry-supported bill introduced in the Senate would have, 
among other things, changed the ``or'' to ``and.'' S. 2237, 105th Cong. 
(1998); see 144 Cong. Rec. S10335-02, S10340 (September 15, 1998). See 
also Utah v. Andrus, 486 F. Supp. 995, 1005 n.13 (D. Utah 1979) 
(quoting brief of the American Mining Congress).
    The definition of ``unnecessary or undue degradation'' in the 
previous regulations focused generally on those impacts which are 
necessary to mining, and allowed such impacts to occur (except for the 
incorporation of other legal standards in the definition). The previous 
regulations sought to prevent disturbance ``greater than what would 
normally result'' from a prudent operation. The Interior Board of Land 
Appeals (IBLA) has read the regulations this way. See Bruce W. 
Crawford, 86 IBLA 350, 397 (1985) (the previous regulatory definition 
``clearly presumes the validity of the activity but asserts that 
[unnecessary or undue degradation] results in greater impacts than 
would be necessary if it were prudently accomplished''); see also 
United States v. Peterson, 125 IBLA 72 (1993); Kendall's Concerned Area 
Residents, 129 IBLA 130, 140 (1994). While BLM could have adopted (and 
indeed might have been obliged to adopt) more stringent rules in order 
to ensure prevention of ``undue degradation,'' it previously chose to 
circumscribe only harm outside the range of degradation caused by the 
customary and proficient operator utilizing reasonable mitigation 
measures.
    As commenters pointed out, however, the focus on impacts that are 
necessary to mining does not adequately address the ``undue'' 
degradation Congress was concerned about in FLPMA section 302(b), and 
does not account for irreparable impacts on significant environmental 
and related resources of the public lands that cannot be effectively 
mitigated.
    Thus, the BLM has concluded that degradation of, in the words of 
the NRC Report, those ``resources [that] need to be protected from all 
impacts,'' is appropriately considered ``undue'' degradation. 
Clarifying that the definition specifically addresses situations of 
``undue'' as well as ``unnecessary'' degradation will more completely 
and faithfully implement the statutory standard, by protecting 
significant resource values of the public lands without presuming that 
impacts necessary to mining must be allowed to occur.
    BLM recognizes that the ``unnecessary or undue degradation'' 
standard does not by itself give BLM authority to prohibit mining 
altogether on all public lands, because Congress clearly

[[Page 70018]]

contemplated that some mining could take place on some public lands. 
See, e.g., 43 U.S.C. 1701(12) (policy statement that the public lands 
``be managed in a manner which recognizes the Nation's need for 
domestic sources of minerals * * * including implementation of the 
Mining and Minerals Policy Act of 1970 * * * as it pertains to the 
public lands \3\); 43 U.S.C. 1702(c) (the multiple uses for which the 
public lands should be managed include ``minerals''). Therefore, 
``undue degradation'' under section 302(b) must encompass something 
greater than a modicum of harmful impact from a use of public lands 
that Congress intended to allow. See Sierra Club v. Clark, 774 F.2d 
1406, 1410 (9th Cir. 1985). The question is not whether a proposed 
operation causes any degradation or harmful impacts, but rather, how 
much and of what character in this specific location. The definition 
adopted today will allow BLM to address these concerns.
---------------------------------------------------------------------------

    \3\ The Mining and Mineral Policy Act, 84 Stat. 1876, 30 U.S.C. 
23a, expresses United States policy as encouraging the development 
of domestic minerals in an efficient, wise, and environmentally 
sound way.
---------------------------------------------------------------------------

    A number of commenters mentioned a recent legal opinion by the 
Interior Department Solicitor that addressed the standards for 
approving plans of operation in the California Desert Conservation Area 
(CDCA). Regulation of Hardrock Mining (December 27, 1999). That opinion 
focused on the ``undue impairment'' standard set forth in 43 U.S.C. 
1781(f), which applies only in the CDCA. Under FLPMA section 601(f), 
BLM can prevent activities that cause undue impairment to the scenic, 
scientific, and environmental values or cause pollution of streams and 
waters of the CDCA, separate and apart from BLM's authority to prevent 
unnecessary or undue degradation. The IBLA has agreed that BLM's 
obligation to protect the three enumerated CDCA values from ``undue 
impairment'' supplements the unnecessary or undue degradation standard 
for CDCA lands. See Eric L. Price, James C. Thomas, 116 IBLA 210, 218-
219 (1990). Thus, BLM decisions with respect to development proposals 
in the CDCA are governed by both the ``undue impairment'' standard of 
subsection 601(f) and the ``unnecessary or undue degradation'' standard 
of section 302(b), as implemented by the subpart 3809 regulations.
    Although BLM's mandate to protect the ``scenic, scientific, and 
environmental values'' of lands within the CDCA from undue impairment 
is distinct from and stronger than the prudent operator standard 
applied by the previous subpart 3809 regulations on non-CDCA lands, 
application of the CDCA's undue impairment standard for proposed 
operations in the CDCA is likely to substantially overlap the undue 
degradation portion of the definition of ``unnecessary or undue 
degradation'' adopted today.

Section 3809.10--How Does BLM Classify Operations?

    Final Sec. 3809.10 classifies operations in three categories: 
casual use, notice-level, and plan-level. For casual use, an operator 
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 final 
Sec. 3809.31(b). For plan-level, an operator must submit a plan of 
operations and obtain BLM's approval before beginning operations.
    The word ``generally'' was deleted in final Sec. 3809.10(a) to 
reflect the fact that casual use on public lands does not require 
notification to BLM. We deleted the language in proposed 
Sec. 3809.11(a) from the final rule and moved the requirement to 
perform reclamation for casual use disturbance to final Sec. 3809.10(a) 
for clarity. See final Sec. 3809.31(a) and (b) for certain specific 
situations requiring persons proposing certain activities to notify BLM 
in advance.
    Two commenters pointed out that proposed Sec. 3809.11(a) required 
casual use disturbance to be ``reclaimed,'' and wanted to know which 
reclamation standards apply. We changed the requirement in final 
Sec. 3809.10(a) to include the word ``reclamation,'' which is defined 
under Sec. 3809.5, rather than continue to use the phrase ``you must 
reclaim'' that appeared under proposed Sec. 3809.11(a). The applicable 
standards depend on the nature of the disturbance and may be found in 
final Sec. 3809.420. Wording was added to final Sec. 3809.10(a) to 
clarify that if operations do not qualify as casual use, a notice or 
plan of operations is required, whichever is applicable. A commenter 
was concerned about a portion of proposed Sec. 3809.11(a) that would 
have alerted the public to BLM's intent to monitor casual use 
activities. The commenter indicated that with no notification 
requirements, it is not clear how BLM would monitor casual use 
operations. While BLM intends to monitor casual use operations in the 
course of our normal duties, we agree with the comment and did not 
include it in the final rule.

Section 3809.11--When do I Have to Submit a Plan of Operations?

    Final Sec. 3809.11 lists instances when an operator would need to 
submit a plan of operations to BLM. We received several comments asking 
us to revise the table in proposed Sec. 3809.11 to avoid duplicating or 
summarizing the definitions in 3809.5 and to eliminate ambiguity. 
Commenters also stated they found the table was difficult to follow. 
The table in proposed Sec. 3809.11 has been eliminated from the final 
rule. The information formerly contained in that table has been 
reorganized and edited, and, now appears under final Secs. 3809.11, 
3809.21 and 3809.31.
    As indicated under final Sec. 3809.11(a), a plan of operations will 
be required for all operations greater than casual use, including 
mining and milling, except as described under final Secs. 3809.21 and 
3809.31

Consistency With NRC Report Recommendation 2

    NRC Report Recommendation 2 provides: ``Plans of operation 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 5 acres.'' NRC Report p. 95. The intent of 
Recommendation 2 is to require BLM plan approval for all mining and 
milling activities, while allowing exploration to occur under notices 
and allowing casual use to occur without notices or plans.
    BLM has adopted the system the NRC Report recommends. Mining and 
processing require BLM plan approval; casual use can proceed without a 
notice or plan; generally exploration activities disturbing less than 
five acres may proceed under a notice, with certain exceptions. The 
exceptions include those contained in the previous 3809 rules, plus a 
few others. Previous exceptions included:
    (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) Lands in the King Range Conservation Area.
    The final rule would add the following new exceptions:

[[Page 70019]]

    (1) National Monuments and any other National Conservation Areas 
administered by BLM;
    (2) Any lands or waters known to contain Federally proposed or 
listed threatened or endangered species or their proposed or designated 
critical habitat; and
    (3) Bulk sampling over 1,000 tons.
    A proposed exception not adopted would have been for activities in 
all areas segregated in anticipation of a mineral withdrawal and all 
withdrawn areas.
    Commenters asserted that NRC Report Recommendation 2 does not 
provide for exceptions, and to be consistent with that recommendation, 
the final rule must provide that all exploration activities on less 
than 5 acres be allowed to proceed under notices.
    BLM disagrees with the comment. BLM believes that NRC intended that 
exceptions for sensitive areas continue. The NRC was aware of the 
previous exceptions for sensitive areas,\4\ and it did not question 
BLM's authority or wisdom in carving out certain areas to require plans 
even for exploration (more than casual use). It did not state the 
previous exceptions should be eliminated, and did not address whether 
BLM should include further exceptions to account for additional 
sensitive areas and resources.
---------------------------------------------------------------------------

    \4\ The Sidebar 1-3 on p. 20 of the NRC Report describes the 
various categories of mining activities on BLM lands, including 
casual use, notice level operations, and plans of operation. 
Although the description of notice level operations does not mention 
special areas, the description of plans of operations specifically 
states that a plan of operations is required when an operator 
disturbs more than 5 acres a year ``or when an operator plans to 
work in an area of critical environmental concern or a wildneress 
area.'' Thus, although it did not enumerate each exception, the NRC 
expressly recognized the BLM although it did not enumerate each 
exception, the NRC expressly recognized the BLM system of requiring 
plan approval for operation in sensitive areas.
---------------------------------------------------------------------------

    The NRC Report did state ``mine development, extraction, and 
mineral processing require considerable engineering design and 
construction activities, whereas, apart from the design of roads to 
minimize erosion and impact on sensitive areas, exploration requires 
little, if any, engineering and construction (emphasis added).'' NRC 
Report, p. 95. The reference to ``impacts on sensitive areas,'' when 
discussing exploration, without a statement that BLM should drop 
previous exceptions for such areas, supports the inference that the NRC 
endorsed exceptions for sensitive areas.
    Moreover, the NRC Report states that its objective, in urging the 
Forest Service to allow exploration on less than five acres under 
something like a notice rather than a plan (Recommendation 3), is ``to 
allow exploration activities to be conducted quickly when minimal 
degradation is likely to occur.'' NRC Report, p. 98 (emphasis added). 
Adding areas to the category that require plans is just modifying BLM's 
judgment as to when minimal degradation is likely to occur.
    Thus, inclusion of the previous exceptions where exploration 
requires plans of operations, and the new exception for additional 
sensitive areas, including National Monuments, National Conservation 
Areas, and areas containing Federally listed or proposed threatened or 
endangered species or their proposed or designated critical habitat, 
are not inconsistent with the NRC Report Recommendation 2.
    In particular, the addition of BLM-administered National 
Conservation Areas and National Monuments are logical extensions of the 
sensitive-area exceptions to the previous rules. The addition of 
National Conservation Areas administered by BLM is a logical extension 
of the exception for the King Range Conservation Area, which was the 
only conservation area BLM administered when the previous rules were 
adopted. Similarly, in 1981, BLM did not administer any National 
Monuments, but now we do, and their inclusion is also appropriate.
    The bulk sampling exception in the final rule also is not 
inconsistent with the NRC Report Recommendation 2 because of the 
statement in the NRC Report discussion of Recommendation 2 that ``a 
plan of operations should generally be required for activities 
involving bulk sampling.'' NRC Report, p. 96.
    The proposed exception that would have required plan approval in 
advance of exploration activities in segregated and withdrawn areas, 
without some kind of indication that such areas are sensitive, has not 
been adopted so as not to be inconsistent with NRC Report 
Recommendation 2.
    Many commenters felt that, to be consistent with the NRC Report, 
any mining disturbance greater than casual use should require a plan of 
operations. As discussed above, these comments were adopted in the 
final rule.
    Many other commenters wrote that the current casual use/notice/plan 
threshold is adequate and should be retained. They believe the 
threshold protects the environment and reduces costs of exploration for 
operators. These comments were not adopted. Retaining the above-
described threshold would be inconsistent with NRC Report 
Recommendation 2.
    A mining association commented that mining or milling operations, 
which will cause a significant impact, even if related to 5 acres or 
less, shouldn't be required to submit a plan of operations for 
approval. BLM would be inconsistent with the NRC Report recommendation 
if it were to adopt the alternative suggested in this comment. In light 
of this and the decision to adopt the NRC Report recommendation, the 
suggested change has not been made.
    A commenter felt that the NRC did not evaluate the adverse impact 
that NRC Report Recommendation 2 would have on the vast majority of 
miners who have complied with existing regulations. Another commenter 
did not support the recommendation because it would automatically 
exclude some operations under a notice that would not have a 
significant impact on the environment. Several commenters felt that BLM 
should adopt the NRC Report recommendation that exploration be allowed 
under notices, while mining requires plan of operations, but should 
leave further details to agency guidance. They felt that the criteria 
for distinguishing between ``exploration'' and ``mining,'' may vary 
from state to state. One commenter suggested that BLM not require all 
mining operations to be conducted under plans of operations, retaining 
the notice level for placer and lode mines that do not use toxic 
chemicals or create acid-rock drainage. One mining industry commenter 
felt it unnecessary to require plans of operations for mining in light 
of the proposed financial assurance requirements for notices. Another 
commenter proposed that any activity requiring construction equipment 
or engineering design should need a plan of operations in light of the 
NRC Report. Mechanized drilling equipment, off-highway vehicles and 
bulldozers should also require a plan of operations. These comments 
were not accepted because they are inconsistent with NRC Report 
Recommendation 2 and because requiring BLM approval for all mining will 
help assure the prevention of unnecessary or undue degradation.
    Several commenters asserted that the lowering of the threshold for 
notices or plans of operations seems to be in conflict with the 1970 
Mining and Mineral Policy Act and the 1980 National Materials and 
Minerals Policy Research and Development Acts. BLM disagrees with the 
comment. We believe we have balanced the mandate of FLPMA to prevent 
unnecessary or undue degradation of the public lands with the above-
mentioned mineral policy acts that promote

[[Page 70020]]

environmentally sound development of the nation's mineral resources.
    Final Sec. 3809.11(b) specifies that bulk samples of 1,000 tons or 
more require a plan of operation to be submitted for prior approval by 
BLM. The discussion following NRC Report Recommendation 2 indicated 
that bulk sampling could be considered as advanced exploration rather 
than mining: ``Because an exploration project must advance to a 
considerable degree before bulk sampling is done and because bulk 
sampling can require the excavation of considerable amounts of 
overburden and waste rock, the Committee believes a plan of operations 
should generally be required for activities involving bulk sampling.'' 
NRC Report p. 96.
    A mining association agreed in their comments with the NRC Report 
findings that some bulk sampling efforts may cross the line from an 
exploration to a mining activity, although they indicate that this is 
not universally true. The commenter asserted that bulk sample activity 
to remove less than 100 tons of material cannot be compared to one that 
requires 10,000 tons for testing, which they assert is the known range 
in size of such activities. They believe that while a bulk sample 
proposal under a notice deserves scrutiny, the final determinations 
should be made on a case-by-case basis.
    A commenter urged BLM to use caution in deciding whether to exclude 
bulk sampling from notice-level operations, suggesting that the NRC 
Report was referring to activity that involves the ``excavation of 
considerable amounts of overburden and waste rock'' to get to layers 
where the bulk samples will be taken. The commenter agreed that 
sampling of that nature gets to be so extensive as to require a plan of 
operations, but felt that other activities that might nominally qualify 
as bulk sampling, such as ones that do not first involve the removal of 
considerable amounts of overburden, can properly be treated as 
exploration activity subject to the notice-level program. The commenter 
indicated that such sampling involves far less disturbance than the 
activities identified by NRC, and, in any event, the land from which 
the bulk samples are taken must still be reclaimed. For these reasons, 
the commenter urged that, in case of bulk sampling, BLM should focus 
not on the amount of earth sampled, but rather the sampling method.
    BLM recognizes that bulk sampling is not easy to define. Bulk 
samples vary in many ways, including size and weight, as acknowledged 
in the NRC Report. The Report discussion on sampling clearly indicates 
the NRC believes not all sampling programs would require a plan of 
operations, but that plans of operations would generally be required. 
In considering the NRC discussion, BLM does not believe that drilling 
should be considered as a bulk sampling method since NRC characterized 
bulk samples as excavations from shallow open pits or small underground 
openings. We have chosen a threshold at the upper limit of the NRC 
discussion on bulk sampling, that is, bulk samples of 1,000 tons or 
more will trigger the requirement for a plan of operations. (See final 
Sec. 3809.11(b)). We believe this implements NRC Report Recommendation 
2 in a way that does not unduly constrain exploration (see NRC Report 
Recommendation 3), yet provides a clear ``cutoff'' that can be verified 
by BLM field personnel.
    Final Sec. 3809.11(c) requires a plan of operations for surface 
disturbance greater than casual use (even if an operator will cause 
surface disturbance on 5 acres or less of public lands) in those 
special status areas listed under final Sec. 3809.11(b) where 
Sec. 3809.21 does not apply. The final rule incorporates changes in the 
language from proposed Sec. 3809.11(j).
    Final Sec. 3809.11(c)(6) has been modified from proposed 
Sec. 3809.11(j)(6). The proposed rule included areas specifically 
identified in BLM land-use or activity plans where BLM has determined 
that a plan of operations would be required to review effects on 
unique, irreplaceable, or outstanding historical, cultural, 
recreational, or natural resource values, such as threatened or 
endangered species or their critical habitat. Final Sec. 3809.11(c)(6) 
now requires a plan of operations for surface disturbance greater than 
casual use on lands or waters known to contain Federally proposed or 
listed threatened or endangered species or their proposed or designated 
critical habitat unless BLM allows for other action under a formal 
land-use plan or threatened or endangered species recovery plan. We 
deleted all other requirements transferred to this section from 
proposed Sec. 3809.11(j)(6).
    This change was made for several reasons. First, we modified the 
definition of ``unnecessary or undue degradation'' in final Sec. 3809.5 
to include conditions, activities, or practices that result in 
substantial irreparable harm to significant scientific, cultural, or 
environmental resource values of the public lands that cannot be 
effectively mitigated. Second, we retained language specific to 
threatened or endangered species in recognition of the consultation 
requirements of the ESA. In the final rule, we clarified that the 
reference to ``threatened or endangered species or their critical 
habitat'' in the proposed rule means Federally proposed or listed 
threatened or endangered species or their proposed or designated 
critical habitat. The ESA requires BLM to enter into formal 
consultation with the Fish and Wildlife Service (FWS) or National 
Marine Fisheries Service (NMFS) on all actions that may affect a listed 
species or its habitat. Also, BLM must request a formal conference with 
FWS or NMFS on all actions that may affect a proposed species. Thus, it 
is BLM's longstanding policy to manage species proposed for listing and 
proposed critical habitat with the same level of protection provided 
for listed species and their designated critical habitat, except that 
formal consultations are not required. BLM Manual Chapter 6840.06(B), 
Rel. 6-116, Sept. 16, 1988.
    BLM has concluded that the areas identified in final 
Sec. 3809.11(c)(1) through (5), plus areas containing proposed or 
listed threatened or endangered species or their designated critical 
habitat, provides a necessary degree of specificity as to when BLM will 
require a plan of operations. The proposed language did not provide the 
degree of certainty that is needed for an operator to attempt to 
proceed with BLM approval.
    The final rule also acknowledges that in some cases, under an 
endangered species recovery plan, notice-level operations may be 
allowed. The final rule doesn't affect those situations, and notice-
level operations could be conducted in those areas if allowed under the 
land-use plan or recovery plan.
    As discussed above, we deleted proposed Sec. 3809.11(j)(8), 
regarding areas segregated or withdrawn from the final rule based on 
the requirement not to be inconsistent with the NRC Report.
    Two commenters wanted BLM to revise language that now appears in 
final Sec. 3809.11(c)(3) to state that an Area of Critical 
Environmental Concern (ACEC) triggers this provision only when the 
establishment of the ACEC considered and evaluated existing mineral 
rights and mineral potential. BLM disagrees with the comment. ACEC's 
are designated through BLM's land use planning process and are subject 
to public comment prior to designation. This provides the public the 
opportunity to provide comments on mineral rights and mineral 
potential. However, the impacts related to a specific mining proposal 
are better evaluated on a case-by-case basis at the time mining is 
proposed. Submittal of a

[[Page 70021]]

plan of operations to BLM for approval will assure that a proposed 
operation accounts for and minimizes adverse impact to the ACEC.
    Two commenters were concerned about the language now appearing in 
final Sec. 3809.11(c)(5). They indicate that most mining claims, held 
by small miners, are located either within areas closed to off-road 
vehicles or within areas proposed to be closed to off-road vehicles. As 
such, almost all small miners will be required to prepare a plan of 
operations for any level operation on their claims. The requirement is 
restricted to areas designated as ``closed'' to off-road vehicle use. 
It does not apply to proposed closures. This requirement remains 
unchanged from previous Sec. 3809 regulations in effect since 1981.
    We received numerous comments on proposed Sec. 3809.11(j). One 
commenter urged BLM to include riparian areas under proposed 
3809.11(j), as in the Northwest Forest Plan. Using the new performance 
standards, including the protection of riparian areas and wetlands 
found in final Sec. 3809.420(b)(3), we believe that riparian areas will 
be adequately protected. The comment was not incorporated into the 
final rule.
    Two mining industry commenters opposed the requirement for a plan 
of operations for operations affecting proposed threatened and 
endangered species or designated critical habitat, due to the 
uncertainty and delays to the permitting process that they would 
anticipate, as well as the additional work load it would cause. BLM 
appreciates the commenters' concern, but under the ESA, BLM must insure 
that any action authorized, funded, or carried out by the agency is not 
likely to jeopardize the continued existence of any threatened or 
endangered species or result in the destruction or adverse modification 
of habitat of such species, including any species proposed to be listed 
or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species.
    Several commenters asked that we delete the phrase ``unique, 
irreplaceable, or outstanding historical, cultural, recreational, or 
natural resource values'' from proposed Sec. 3809.11(j)(6), since this 
may be too subjective and any public lands could meet these criteria. 
Some commenters believed that the result of defining ``special status 
areas'' by those criteria would be to establish ad hoc designations of 
ACEC's as to mining without following the procedures of 43 CFR 1610.7-
2. Other commenters wanted us to delete the term ``activity plans.'' 
The phrases referred to above have been deleted from the final rule for 
the reasons discussed above.
    Several commenters consider the term ``special status areas,'' used 
in final Sec. 3809.11(c) to be very broad, and would effectively remove 
many areas from exploration. Others felt it expanded BLM authority to 
create such areas. BLM disagrees with these comments. The term is 
intended to be a general description for the lands listed in that 
section that have special designations, and does not in and of itself 
impart any special status to these lands. Each area in the list is 
comprised of land designations created under separate laws that are 
already in existence. Operations on lands in this list would be subject 
to restrictions applicable to each designation.
    One commenter indicated that proposed 3809.11(j)(6) is too narrow 
an approach under BLM's responsibility to prevent unnecessary or undue 
degradation, and BLM must retain authority to require plans of 
operations for exploration based on the need to protect affected 
resources. BLM has not accepted this comment. We believe that affected 
resources will be adequately protected from operations following the 
procedures of this rule, including the performance standards and the 
requirement to prevent unnecessary or undue degradation. Moreover, a 
general authority to require plans of operation for exploration could 
be construed to be inconsistent with NRC Report Recommendation 2.
    A commenter stated that proposed Sec. 3809.11(j)(6) should be 
stricken because it is tantamount to a bureaucratic withdrawal 
authority for which no legal authority currently exists, and is 
contrary to FLPMA. The commenter stated the Congressional intent to 
establish sensitive areas is set forth in section 103(a) of FLPMA (43 
U.S.C. 1702(a)), defining ``areas of critical environmental concern'' 
(ACEC) as areas where ``special management attention is required * * * 
to protect and prevent irreparable damage to important historic, 
cultural, or scenic values, fish and wildlife resources, or other 
natural systems or processes, or to protect life and safety from 
natural hazards.'' The commenter stated that the ACEC definition is no 
different than what the BLM cites in proposed section 3809.11(j)(6) as 
the basis for ``areas specifically identified in BLM land-use or 
activity plans,'' and that BLM is usurping the authority to create ACEC 
for an unauthorized expansion of the power of its land-use plans. The 
commenter concluded that proposed section 3809.11(j)(3) captures ACEC 
as a proper basis for requiring a higher standard of review, consistent 
with the intent of Congress, and that no expansion of that authority is 
justified.
    BLM disagrees in part with the comment. Proposed 
Sec. 3809.011(j)(6) would not have withdrawn an area from operation of 
the mining laws; it would have served as a threshold for when a plan of 
operations must be filed instead of a notice. BLM agrees the paragraph 
contains substantial overlap with the ACEC areas which were listed in 
proposed Sec. 3809.011(j)(3). In the final regulations, BLM has 
replaced proposed Sec. 3809.011(j)(6) with a different threshold 
standard. Final Sec. 3809.11(c)(6) requires a plan of operations in 
areas that contain Federally proposed or listed threatened or 
endangered species or their proposed or designated critical habitat.
    A commenter objected to requiring BLM approval for operations in 
National Monuments because operations in National Monuments are under 
the provisions of the Mining in the Parks Act and already require 
approval by the National Park Service. BLM disagrees with the comment. 
BLM now has eight National Monuments under its administration. These 
monuments are not a part of the National Park System and, therefore, 
the Mining in the Parks Act does not apply.
    BLM has determined that the language in proposed Sec. 3809.11(f) is 
unnecessary for the final rule, in light of NRC Report Recommendation 
2. That recommendation requires plans of operations for all mining and 
milling-related operations even if the area disturbed is less than 5 
acres. See preamble discussion regarding final Sec. 3809.11 and NRC 
Report recommendation above. Leaching or storage, addition, or use of 
chemicals in milling, processing, beneficiation, or concentrating 
activities that were identified in proposed Sec. 3809.11(f) are now 
covered under final Sec. 3809.11(a), requiring plans of operations. 
Therefore, we deleted the language in proposed Sec. 3809.11(f) from the 
final rule.
    We received numerous comments on proposed Sec. 3809.11(f), mostly 
detailing concerns about eliminating flexibility when requiring plans 
of operations for uses described in that section. NRC Report 
Recommendation 2 and the resultant changes in the final regulations 
described above render these comments moot.

Proposed Section 3809.11 (``Forest Service'' Alternative)

    BLM did not adopt in this final rule proposed Sec. 3809.11 
(``Forest Service'' Alternative) which would have based the notice/plan 
threshold on whether a

[[Page 70022]]

proposed operation would cause ``significant disturbance of surface 
resources.'' BLM believes that to effectively prevent unnecessary or 
undue degradation of the public lands, the agency should review and 
approve all proposed mining operations, including conducting reviews 
under the National Environmental Policy Act. In addition, a significant 
disturbance standard is subjective and open to varying degrees of 
interpretation. That is, what constitutes significant disturbance in 
the opinion of one BLM field office may not in the opinion of another. 
This subjectivity might unfairly result in an operation under the 
jurisdiction of one BLM field office needing only to file a notice 
while a similar operation under the jurisdiction of another office 
having to obtain approval for a plan of operations. In contrast, the 
notice/plan threshold BLM is adopting, which is based on the type of 
operation, that is, exploration versus mining, allows far less room for 
interpretation and variance, and presumably fewer inequitable outcomes.
    A principal reason for not adopting the Forest Service alternative 
is to conform to the mandate of Congress. As described earlier in this 
preamble, Congress has directed BLM to issue final 3809 rules that are 
not inconsistent with the recommendations of the NRC Report. The Forest 
Service alternative significantly differs from the NRC Report 
recommendation that BLM require a plan of operations for all mining and 
for all exploration operations disturbing more than five acres. The NRC 
Report bases the notice/plan threshold on the type of operation, while 
the Forest Service alternative bases the threshold on a subjective 
judgment of the level of anticipated disturbance. Under the Forest 
Service alternative, a mining operation that, in the judgment of the 
BLM field manager, would not cause ``significant disturbance of surface 
resources'' could proceed under a notice. Since this result could not 
occur under the NRC-recommended threshold, the Forest Service 
alternative is not consistent with the NRC Report recommendation. We 
believe Congress has limited our discretion here.
    Comments on the Forest Service alternative ran about four to one 
against its adoption. Some commenters who supported the Forest Service 
alternative did so because they believed it would provide a consistent 
approach to Federal agency administration of the mining laws. Other 
commenters asserted that the surface resources on the BLM public lands 
deserve the same level of protection as do the National Forest lands. 
One commenter felt that adoption of the Forest Service alternative 
would be less confusing in those mineralized areas that occur on both 
BLM lands and National Forests. One commenter compared the Forest 
Service alternative favorably to proposed Sec. 3809.11 (Alternative 1) 
due to a perception that the Forest Service alternative would provide 
greater protection to non-special status areas, that is, those areas 
not listed in proposed Sec. 3809.11(j). One commenter indicated we did 
not provide a meaningful basis for reasoned comment on this issue. 
Finally, a commenter perceived an advantage in the Forest Service 
alternative because it places the burden of deciding whether a notice 
or plan is needed on the government as opposed to the operator.
    As discussed above, BLM believes that Congress has precluded the 
agency from adopting the Forest Service alternative. Nevertheless, 
while adopting the Forest Service alternative would provide a 
consistent approach on paper, as discussed above, there is no assurance 
of consistency in application. BLM lands and National Forest lands are 
managed under different authorities-FLPMA for BLM and the National 
Forest Management Act (16 U.S.C. 1600) for the National Forests. Thus, 
the level of protection afforded BLM lands may not be the same as that 
afforded National Forest lands. The final rule allows for an 
appropriate degree of variance in protection based on the specific 
resources in any given location. BLM agrees with the comment that 
having the same regulations as the Forest Service could, in certain 
circumstances, reduce confusion, but believe that this benefit may be 
offset by the potential harm inherent in uneven application of the 
significant disturbance standard. While BLM agrees that the Forest 
Service alternative, depending on how ``significant disturbance'' is 
interpreted, might provide a greater level of protection to non-special 
areas than Alternative 1, the final rule BLM is adopting is more 
protective than either alternative. Finally, the regulatory approach 
BLM is adopting in this final rule eliminates much of the uncertainty 
about whether an operation should submit a notice or obtain approval of 
a proposed plan of operations. Under the final rule, all mining 
operations and all exploration operations disturbing more than five 
acres must obtain approval of a proposed plan of operations.
    Comments opposing the Forest Service alternative included those 
which considered the significant disturbance standard to be too vague, 
too open to varying interpretations, as creating uncertainty as to 
which operations it would apply, and as having significant potential 
for disagreement between the operator and BLM over whether a planned 
operation would create significant disturbance. Some commenters felt 
that the significant disturbance standard goes beyond FLPMA's statutory 
directive to prevent unnecessary or undue degradation. Several 
commenters who identified themselves as exploration geologists believed 
that adoption of the Forest Service alternative would result in 
elimination of the use of notices for small exploration operations. If 
so, the commenters felt that their business would be adversely 
affected. Another commenter felt that elimination of notices for placer 
mining in Alaska would create a hardship for small miners who would not 
be able to meet the requirements for filing a proposed plan of 
operations. Other commenters opposed the Forest Service alternative 
because they felt it would consume more of BLM's already thinly spread 
resources potentially causing administrative delays and increase costs 
due to NEPA compliance requirements.

Section 3809.21  When Do I Have To Submit a Notice?

    Final Sec. 3809.21 is a new section, which incorporates changes 
from proposed Sec. 3809.11(b). Final Sec. 3809.21(a) requires that an 
operator submit a complete notice at least 15 calendar days before 
commencing exploration disturbing the surface of 5 acres or less of 
public lands on which reclamation has not been completed.
    The 5-acre threshold for notices has been retained for exploration 
operations in most instances. See final Sec. 3809.21(a) and the 
preamble discussion under Sec. 3809.11(a) for information on how we are 
implementing NRC Report Recommendation 2. We received many comments 
indicating that small operators count on the 5-acre exclusion for rapid 
yet responsible evaluation of a large number of projects to make its 
discovery. They point out that such operators may not have the finances 
for lengthy permit procedures and time delays, as does a major mining 
company. Without the 5 acre threshold, they feel that future 
exploration would be done almost exclusively by the largest of the 
mining companies.
    Two comments were received asking us to define ``unreclaimed'' as 
used in proposed Sec. 3809.11(b) and proposed Sec. 3809.11(c). Other 
commenters indicated that BLM should not regard the notice threshold as 
``unreclaimed surface disturbance of 5 acres or less.'' The term 
``unreclaimed surface

[[Page 70023]]

disturbance of 5 acres or less'' has been changed in Sec. 3809.21(a) in 
order to clarify the requirement. By specifying ``public lands on which 
reclamation has not been completed,'' we intend to incorporate the 
definition of the term ``reclamation'' in final Sec. 3809.5. This means 
reclamation must meet applicable performance standards outlined in 
final Sec. 3809.420, and such reclamation must be accepted by BLM 
before release of an applicable financial guarantee. Once reclamation 
has been completed to these standards, BLM believes such lands may be 
treated as if never disturbed when considered in determining acreage 
for submittal of a notice.
    One commenter asked us to clarify under proposed Sec. 3809.11(b) 
how an operator is responsible to reclaim previous disturbance by 
another operator. As with proposed Sec. 3809.11(b) and (c), and the 
final rule, the operator is liable for prior reclamation obligations in 
a project area if conditions described under final Sec. 3809.116 are 
met. If an operator believes that BLM should not hold it responsible 
for past reclamation obligations, he/she should contact BLM before 
causing additional surface disturbance to determine if BLM is taking 
any action against previous operators or mining claimants at the 
disturbed site.
    Many commenters urged BLM to revise proposed Sec. 3809.11(b) to 
retain the existing requirement for BLM to act within 15 calendar days. 
They pointed out that extending the review period to 15 business days 
would delay exploration activities. They felt that operators need 
flexibility and speed for notice-level exploration projects, and that 
timing of exploration activities is often critical. They wanted us to 
streamline the processing of notices as much as possible and avoid 
delays. They felt streamlining the process would be consistent with the 
NRC Report. Other commenters asked us to clarify what is meant by 
``business days'' since government business days do not coincide with 
industry business days. Two commenters felt the 15-business-day review 
period in proposed rule given the BLM to review notices is too short to 
ensure adequate investigation by the agency. Thirty days was suggested. 
We changed the final rule to use calendar days rather than business 
days. We did this in light of the NRC Report recommendations, in order 
to minimize impacts on exploration activities and small operators, and 
public comments.

Section 3809.31  Are There Any Special Situations That Affect What 
Submittals I Must Make Before I Conduct Operations?

    Final Sec. 3809.31 is derived from proposed Sec. 3809.11 
(Alternative 1). Final Sec. 3809.31(a) is based on proposed 
Sec. 3809.11(e), which would have required the representative of any 
group, such as a mining club, that is involved in any recreational 
mining activities to contact BLM at least 15 days before initiating any 
activities. The purpose of the contact would have been to allow BLM to 
determine whether to require the group to file a notice or a plan of 
operations.
    The language in proposed Sec. 3809.11(e) has been deleted from the 
final rule. We received many comments from rock collectors and clubs 
indicating the proposed rule was vague regarding when a notice or plan 
of operations would be required for recreational mining activities by a 
group. Other commenters strongly felt that recreational- and mineral 
collecting groups should not be singled out and have to submit a notice 
or a plan of operations. They indicated that it is an unreasonable 
requirement and, in some cases, mineral-collecting groups could not 
afford the financial guarantees, which they felt are unnecessary for 
those who use hand tools.
    Final Sec. 3809.31(a) differs from the proposal in response to 
comments. Under the final rule, the BLM State Director may establish 
specific areas where the cumulative effects of casual use by 
individuals or groups have resulted in, or are reasonably expected to 
result in, more than negligible disturbance. In these areas, any 
individual or group intending to conduct activities under the mining 
laws must contact BLM 15 calendar days before beginning activities. BLM 
would use the 15-day period to determine whether the individual or 
group must submit a notice or plan of operations. BLM will notify the 
public of the boundaries of these specific areas through Federal 
Register notices and postings in local BLM offices.
    As discussed earlier in the preamble discussion of the definition 
of ``casual use,'' BLM received many comments on whether, and if so, 
how to regulate recreational mining activities; whether recreational 
mining should be considered casual use; how to handle casual use 
activities that cumulatively cause adverse impacts; and what activities 
are encompassed by the term ``recreational mining activities.'' After 
carefully considering the public comments and the interrelationships of 
the various issues raised by the commenters in response to proposed 
Sec. 3809.11(e), BLM has decided that our regulatory framework will 
ultimately be more effective in preventing unnecessary or undue 
degradation if we focus not on the purpose of the activities occurring 
on public lands, the types of groups involved, and the definitions of 
``casual use'' and ``recreational mining,'' but rather on the impacts 
associated with the activities carried out under the mining laws on 
public lands.
    To that end, we are adopting a regulation that avoids trying to 
discern the motivations of people who go upon the public lands (that 
is, commercial motive versus recreational motive), treats all 
individuals and groups in a similar manner (imposes no special 
requirements solely on mining clubs), and allows weekend miners and 
others who cause no or negligible disturbance to continue their 
customary activities, while at the same time giving BLM a way to 
regulate the cumulative effects of ``casual use'' activities. BLM field 
managers know which areas under their jurisdiction are popular with the 
general public for small-scale panning, washing, prospecting, rock 
collecting, and other mining-related activities. In some cases, such as 
when dozens or hundreds of ``rock hounds'' gather for a weekend outing, 
activities that if carried out individually would be ``casual use'' can 
cause a much greater level of disturbance. The final rule gives the BLM 
manager a way to sensibly regulate activities based on existing or 
anticipated impacts to the public lands.
    Final Sec. 3809.31(b) incorporates changes to the language 
appearing under proposed Sec. 3809.11(h) addressing the use of suction 
dredges. The reference in proposed Sec. 3809.11(h) to an ``intake 
diameter of 4 inches or less'' was deleted from the rule. We retained 
language that relies on State regulation. When the State requires an 
authorization for the use of suction dredges and the BLM and the State 
have an agreement under final Sec. 3809.200 addressing suction 
dredging, we will not require a notice or plan of operations unless 
otherwise required by this section. In addition, clarifying language 
and cross-references were added under final Sec. 3809.31(b)(1) and (2). 
See also the preamble discussion of Sec. 3809.201(b).
    Due to public comment and the recommendations in the NRC Report, 
the proposed rule was modified to remove the four inch or less diameter 
intake on suction dredges and to allow some small portable suction 
dredges to qualify on a case-by-case basis as

[[Page 70024]]

``casual use.'' This is consistent with the discussion in the NRC 
Report. With the removal of the reference to the four inch diameter, 
final Sec. 3809.31(b)(1) reads, ``If your operations involve the use of 
a suction dredge, the State requires an authorization for its use, and 
BLM and the State have an agreement under Sec. 3809.200 addressing 
suction dredging, then you need not submit to BLM a notice or plan of 
operations, unless otherwise provided in the agreement between BLM and 
the State.'' It will take some time for BLM and individual States to 
create new agreements that address suction dredging. In the period 
between the effective date of this final rule and a Federal/State 
agreement addressing suction dredging, those persons wishing to conduct 
operations involving suction dredging must contact BLM first, as 
provided in final Sec. 3809.31(b)(2), outlined below.
    BLM has considered technical information, such as studies about its 
impact on water quality in evaluating impacts of suction dredging. 
Suction dredge operations may affect benthic (bottom dwelling) 
invertebrates; fish; fish eggs and fry; other aquatic plant and animal 
species; channel morphology, which includes the bed, bank, channel and 
flow of rivers; water quality and quantity; and riparian habitat 
adjacent to streams and rivers. Because of the potential for impacts to 
these resources, final Sec. 3809.31(b)(2) requires the public, before 
using a suction dredge, to contact BLM to determine whether the 
proposed user must submit to BLM a notice pursuant to final 
Sec. 3809.21 or a plan of operations pursuant to final Secs. 3809.400 
through 3809.434, or whether their activities are considered ``casual 
use.''.
    Final Sec. 3809.31(b) reflects commenters' concerns over the size 
of intake diameter as well as requests to use State standards. It will 
be advantageous to State agencies, BLM and suction dredge operators for 
an agreement addressing suction dredges to be reached between the State 
and BLM where the State already regulates suction dredging. This will 
avoid duplication of permit requirements and streamline permit 
processing while protecting the environment.
    We received many comments regarding the 4-inch intake diameter for 
suction dredges that appeared in proposed Sec. 3809.11(h). Many 
commenters felt that suction dredges with an intake diameter of 4" or 
less (in some comment letters, 5-to-8 inches or less) should be 
considered casual use and not require a notice or a plan of operations. 
Other commenters stated that it was not clear how the 4" intake 
threshold was determined by BLM. Many commenters felt that BLM should 
adopt State requirements, including intake size, and not be more 
stringent than the State. One commenter believed the proposed rule 
required a notice or plan of operations for any dredging activity, 
regardless of how insignificant. Another commenter suggested replacing 
the 4" nozzle threshold with language that identifies surface-
disturbing activities as the threshold for notice level use. Two 
commenters believed that high value fish and wildlife habitats could be 
adversely impacted with a 4" suction dredge intake. One commenter 
recommended that standards be required for suction dredging concerning 
cumulative impacts and stream status. A commenter stated that BLM 
should consider a broader range of values that could be impacted when 
assessing whether to regulate portable suction dredges under 4 inches 
in diameter. The commenter felt that suction dredge operators should, 
at a minimum, be required to obtain an individual National Pollution 
Discharge Elimination System (NPDES) permit. Another commenter wanted 
to avoid the contradiction that small suction dredges are not 
considered casual use yet do not follow requirements for notices or 
plans of operations. The commenter felt that BLM should define small 
dredges as recreational or casual use and not require bonding or 
notices unless the operators have a record of causing problems or non-
compliance.
    A mining association commented that it didn't believe the NRC 
wanted small-scale dredging operations, those that use a nozzle size of 
8 inches or less, to be categorized as a mining operation. In addition, 
the commenter felt that very small industrial mineral mines or placer 
operations (other than the small dredges discussed above) that use only 
simple sorting methods should not automatically be required to submit a 
plan of operations. Such determinations, they believe, should be made 
on a case-by-case basis.
    In the final rule, BLM has provided case-by-case flexibility for 
small portable suction dredges to qualify as casual use, and has 
removed the size reference that was in the proposal. BLM has not 
adopted the commenter's suggestion that small industrial minerals mines 
or placer operations should not have to submit plans of operations. As 
discussed earlier in this preamble, all mining operations will have to 
submit plans of operations.
    Several commenters concluded that the language now in final 
Sec. 3809.31(b) would conflict with the NRC Report discussion under 
Recommendation 2. One commenter stated that such activities are 
properly managed under state or local authority. Another commenter felt 
that if the proposed rule is finalized, the proposed alternative that 
would ``allow an operator to use any suction dredge if it was regulated 
by the State and the State and BLM have an agreement to that effect'' 
should be adopted as the least burdensome alternative.
    The NRC Report stated that ``BLM and the Forest Service are 
appropriately regulating these small suction dredging operations under 
current regulations as casual use or as causing no significant impact, 
respectively.'' Although the IBLA has ruled on this issue on a number 
of occasions (See Pierre J. Ott, 125 IBLA 250, and Lloyd L. Jones, 125 
IBLA 94.), BLM concludes it is justified in allowing some small 
portable suction dredges to qualify as casual use, depending on the 
level of impacts.\5\ Given the discussion in the NRC Report that 
endorses the way BLM currently regulates suction dredging, we believe 
that the NRC did not intend in its Recommendation 2 to require plans of 
operations for suction dredging operations.
---------------------------------------------------------------------------

    \5\ The final rule is not intended to overrule either the Ott or 
Jones IBLA case, which were based upon the facts therein at issue, 
particularly the Jones case which analyzes the level of potential 
impacts from the operation. See Jones at 125 IBLA 96-97. It does 
depart from the position taken in the Ott and Jones IBLA cases 
insofar as the final rule allows certain small suction dredges to 
constitute casual use even though suction dredging operations 
involve the use of mechanized earth-moving operations. Under the 
final rule, the test for whether a small suction dredge operation 
can be classified as casual use focuses on the level of impacts, 
that is, whether the activity will result in greater than negligible 
disturbance instead of focusing only on whether mechanized earth-
moving equipment is used, as these cases do.
---------------------------------------------------------------------------

    The final rule will allow most suction-dredging operations to be 
regulated by State regulatory agencies so long as they have a 
permitting program that is the subject of an agreement with BLM under 
final Sec. 3809.200. In the absence of State agreements, BLM will 
evaluate the expected impacts from suction dredges on a case-by-case 
basis. If such impacts will be negligible, the proposed suction 
dredging operations would qualify as casual use. We find that final 
Sec. 3809.31(b) is not inconsistent with Recommendation 2 of the NRC 
Report.
    A commenter stated that since suction dredging takes place in 
rivers and streams, and not on the land, it should be under State 
authority and regulation, not BLM regulation. A few other commenters 
also raised the question of BLM's jurisdiction over mining activities 
in navigable rivers and

[[Page 70025]]

streams. We generally agree that it is appropriate for States to 
regulate activities within navigable waters on BLM land. Even in such 
cases, BLM believes it has the authority to protect the public lands 
above high-water mark from such operations. Moreover, BLM generally 
retains authority to regulate activities on non-navigable waters on 
public lands. BLM intends to regulate activities in streams on the 
public lands based on the use of the public lands to enter the streams 
and because, for the most part, such streams have not been determined 
to constitute ``navigable waters.'' In most cases, there has been no 
determination of whether waters on public lands are navigable or non-
navigable. We believe we have provided for appropriate State regulation 
of suction-dredging activities in final Sec. 3809.31(b).
    BLM concurs with comments that recreational mining and hobby mining 
are not classifications provided for in the mining laws. Accordingly, 
the term ``hobby or recreational mining'' is removed from the 
definition of casual use. It is BLM's intent that the casual use 
definition will continue to include exploration and prospecting that 
cause no or negligible disturbance. The final rule may require a notice 
be filed with the BLM if exploration or prospecting would cause more 
than negligible disturbance. BLM intends for the States to assume 
jurisdiction over suction dredging through State-specific agreements 
with BLM. Such agreements providing for State regulation in lieu of BLM 
involvement should reduce the number of jurisdictional questions.
    Final Sec. 3809.31(d) incorporates the language from proposed 
Sec. 3809.11(i) regarding operations on lands patented under the Stock 
Raising Homestead Act. We received no comments on the proposal and are 
adopting it without substantive change in this final rule.
    We added final Sec. 3809.31(e) to account for situations involving 
public lands where the surface has been conveyed by the United States 
with minerals both reserved to the United States and open under the 
mining laws. The final rule provides that where a proposed operation 
would be located on lands conveyed by the United States which contain 
minerals reserved to the United States, the operator must submit a plan 
of operations under final Sec. 3809.11 and obtain BLM's approval or a 
notice under final Sec. 3809.21. This provision clarifies how this 
subpart applies in circumstances involving minerals reserved to the 
United States where the surface is not Federally owned. The reason for 
requiring a plan of operations for all mining in this situation is to 
ensure that the impacts of the proposed operation on all potentially 
affected resources are fully considered, particularly where Federally 
listed or proposed threatened or endangered species or their designated 
critical habitat are present. In reviewing a plan of operations, BLM 
intends to accommodate any agreement between the operator and the 
surface owner as long as the agreement does not cause unnecessary or 
undue degradation of public lands resources and is not likely to 
jeopardize proposed or listed threatened or endangered species or their 
designated critical habitat.

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

    This section governs the circumstances under which operations may 
be conducted on segregated or withdrawn lands. The subject of 
operations on segregated or withdrawn lands is not addressed by the NRC 
Report recommendations, and this section is therefore not inconsistent 
with those recommendations.
    Final Sec. 3809.100(a) requires a mineral examination report before 
BLM will approve a plan of operations or allow notice-level operations 
to proceed on an area withdrawn from the operation of the mining laws. 
It also allows BLM the discretion to require a mineral examination 
report before approving a plan of operations or allowing notice-level 
operations to proceed in an area that has been segregated under section 
204 of FLPMA (43 U.S.C. 1714) for consideration of a withdrawal. Final 
Sec. 3809.100(b) allows BLM to approve a plan of operations before a 
mineral examination report for a claim has been prepared in certain 
limited circumstances, including taking samples or performing 
assessment work. It also allows a person to conduct exploration under a 
notice only if it is 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.
    These two paragraphs differ from the proposed rule, which only 
addressed plans of operations in withdrawn or segregated areas. The 
final rule allows operators to conduct exploration in segregated or 
withdrawn areas under notices, which would not have been allowed under 
proposed Sec. 3809.11(j)(8). See earlier discussion of final 
Sec. 3809.11. Final Sec. 3809.100(a) and (b) have been modified from 
the proposal to include notices, as well as plans of operations. The 
final rule recognizes that operations are allowable in areas segregated 
or withdrawn from the mining laws only to the extent that a person has 
valid existing rights to proceed, regardless of whether a person 
intends to proceed under a plan or a notice. Thus, the final rule 
allows BLM to protect genuine valid existing rights (by requiring a 
determination that such rights exist) while at the same time protecting 
areas that have been withdrawn or are being proposed to be withdrawn 
from operation of the mining laws. Limited activities are allowed 
before completion of a mineral exam, including 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 performing any minimum necessary annual 
assessment work under 43 CFR 3851.1.
    Final Sec. 3809.100(c) allows BLM to suspend the time limit for 
responding to a notice or acting on a plan of operations when we are 
preparing a mineral examination report under final paragraph (a) of 
this section. The proposed rule would have allowed BLM to suspend the 
time limit for responding to a notice only for operations in Alaska. We 
deleted this provision because we decided not to adopt proposed 
Sec. 3809.11(j)(8) for lack of consistency with the NRC Report. See the 
discussion under Sec. 3809.11 earlier in this preamble.
    Final Sec. 3809.100(d) requires an operator to cease all 
operations, except required reclamation, if a final departmental 
decision declares a mining claim to be null and void. We received a 
number of comments on this section, and we discuss them below.
    One commenter stated that when BLM conducts an examination in a 
withdrawn or segregated area to assess valid existing rights (VER), BLM 
does not impose time periods on itself in making recommendations on the 
validity of the claims. BLM will make a diligent effort to schedule VER 
examinations as soon as possible. The examination process will be 
greatly expedited if mining claimants promptly make their pre-
withdrawal or pre-segregation discovery data available for the BLM 
examiner.
    One commenter recommended that if BLM cannot complete a VER 
determination in a withdrawn or segregated area within 30 business 
days, the plan of operations should be automatically approved. BLM 
disagrees with the comment. VER determinations may, as discussed 
further below, be complex. The test for discovery of a valuable mineral 
deposit, for example, is very fact-based. BLM will act as

[[Page 70026]]

expeditiously as possible, but an arbitrary time limit is not 
practical.
    One commenter was concerned that BLM is intending to unlawfully 
apply a ``comparative disturbance test'' to determine the validity of 
mining claims--similar to the ``comparative value test'' that has 
recently been in dispute in the United Mining Case. See ``Decision Upon 
Review of U.S. v. United Mining Corp., 142 IBLA 339'' (Secretarial 
decision dated May 15, 2000). BLM disagrees with the comment. There are 
no provisions in subpart 3809 for a ``comparative disturbance test.'' 
BLM is not addressing the standards for determining the validity of 
mining claims in this rulemaking.
    One commenter asked, concerning VER examinations, how can anyone 
but the miner decide if a deposit is economically feasible? The law has 
long been well-established that determinations of VER, including 
whether a valuable mineral deposit has been discovered are not 
subjective decisions to be made by the miner. BLM mineral examiners are 
geologists and mining engineers who are trained in sampling, 
interpreting, and evaluating mineral deposits to determine whether or 
not, in their professional opinion, a discovery of a valuable mineral 
has been made. If that assessment is yes and the other requirements for 
valid claims are met, the plan of operations will be approved if all 
other requirements of the 3809 regulations are met. If the answer is 
no, then BLM will initiate a contest proceeding alleging that no 
discovery has been made. The contest proceeding affords the claimant 
full due process and opportunity to be heard and make his or her case. 
The mining claimant and BLM will appear before an administrative law 
judge who will decide for the mining claimant or BLM. The mining 
claimant may appeal an adverse decision to the Interior Board of Land 
Appeals and then to Federal courts.
    A valuable mineral deposit has been discovered where minerals have 
been found in such quantity and quality as to justify a person of 
ordinary prudence in the further expenditure of his labor and means 
with a reasonable prospect of success in developing a valuable miner. 
Chrisman v. Miller, 197 U.S. 313 (1905). This so-called ``prudent 
person'' test has been augmented by the ``marketability test'', which 
requires a showing that the mineral may be extracted, removed, and 
marketed at a profit. United States v. Coleman, 390 U.S. 599 (1968). In 
addition, where land is closed to location and entry under the mining 
laws, subsequent to the location of a mining claim, the claimant must 
establish the discovery of a valuable mineral deposit at the time of 
the withdrawal, as well as the date of the hearing. Cameron v. United 
States, 252 U.S. 450 (1920); Clear Gravel Enterprises v. Keil, 505 F.2d 
180 (9th Cir. 1974).
    A commenter asked why it is necessary to put the VER for withdrawal 
or segregation in this regulation. Both the Forest Service and BLM 
already generally do, as a matter of policy, require VER examinations 
when operations are proposed on lands that have been withdrawn or 
segregated. In response, BLM believes that this policy should be 
embodied in regulations so that all affected interests are fully aware 
of it, and to assure that mining operations don't proceed in segregated 
or withdrawn areas unless valid existing rights are present.
    One commenter suggested that validity determinations should be 
required on all lands; including lands no withdrawn or segregated, 
before plans are approved. BLM disagrees with the comment. We are 
responsible for closely reviewing data submitted in a plan of operation 
to ensure that plans for extraction of the mineral deposit make sense. 
For example, we would not approve a plan of operations for an open-pit 
gold mine if no data were submitted outlining where the gold 
mineralization lies. However, if a plan of operations appears to be of 
marginal or questionable profitability, the BLM manager has the 
prerogative to request a validity exam before that plan is approved. 
Generally speaking, however, BLM will not require validity examinations 
when plans of operations are submitted on lands open to location under 
the mining laws. On segregated lands, BLM will examine the purpose of 
the segregation to determine whether a validity exam is necessary to 
protect the lands.
    A commenter asserted that miners cannot afford the cost of validity 
examinations. BLM's response is that when we initiate VER 
determinations on lands that have been withdrawn or segregated, the BLM 
absorbs the cost of this examination under current policy. However, the 
mining claimant will have some associated costs, especially if the 
mining claimant must defend his/her asserted discovery in a contest 
proceeding. Although not part of this rulemaking, BLM is considering 
regulations that would enable the agency to recover the costs of 
conducting validity examinations.
    One commenter suggested that segregation ought not be enough to 
trigger disapproval of a plan of operations. Lands should be available 
until the formal FLPMA withdrawal process has been completed. BLM 
disagrees with this comment. The final rule gives the BLM manager 
discretion to approve plans of operations on land under the 
``segregated'' category or first to require a validity examination. 
That decision will be made based on the magnitude of disturbance under 
the proposed activities, measured against the purpose of the 
segregation.
    Another commenter asserted that the Secretary of the Interior does 
not have the right to deny access and locations for lands that are 
merely segregated. BLM disagrees with the comment. Segregated lands are 
closed to the operation of the mining laws, if so stated in the 
segregation notice. From this standpoint, there is no difference 
between ``segregated'' lands and ``withdrawn'' lands during the period 
of the segregation (ordinarily two years under FLPMA section 402). Both 
are closed to the operation of the mining laws. That is, no valid claim 
or discovery can be made after the effective date of either the 
withdrawal or the segregation.
    One commenter observed that it appears that a VER determination on 
lands withdrawn or segregated is discretionary and recommended that it 
be mandatory. BLM disagrees in part with the comment. The VER 
determination is mandatory for lands that are withdrawn. However, for 
lands segregated, BLM has discretion to approve the plan of operations 
as long as the proposal is not inconsistent with the purposes of the 
segregation. See the discussion earlier in this preamble.
    One commenter stated, ``When an applicant proposes uses on lands 
that do not contain valid claims, the BLM may not approve a use of the 
public land where such use is adverse to the public interest or where 
such use would effectively result in the exclusive use of that land by 
the holder of the permit.'' In response, BLM believes that section 
302(b) of FLPMA, 43 U.S.C. 1732(b), authorizes BLM, in its discretion, 
to approve mineral exploration and development regardless of whether 
there is a valid mining claim or millsite in the area. For example, BLM 
may approve an exploration activity on a mining claim even when it is 
not valid; that is, there is not yet a discovery of a valuable mineral. 
The purpose of the exploration is, of course, to try to make a 
discovery. If the lands have already been withdrawn, however, it is too 
late to make a discovery and the activity would be denied.

[[Page 70027]]

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

    This section is unchanged from the proposed rule and requires a 
mineral examination report before anyone begins operations for minerals 
that may be ``common variety'' minerals. There is an exception to the 
report requirement under which BLM will allow operations to remove 
possible common variety minerals if the operator establishes an escrow 
account for the appraised value of the minerals removed.
    In the proposed rule preamble (64 FR 6430, Feb. 9, 1999), we 
indicated we would make a conforming change to 43 CFR 3601.1-1 to 
reflect BLM's authority to allow disposal of common variety materials 
from unpatented mining claims with a written waiver from the mining 
claimant. This final rule does not include that conforming change 
because we have separately proposed changes to our minerals materials 
regulations. See proposed Sec. 3601.14, which corresponds to 43 CFR 
3601.1-1 (65 FR 55863-55880, Sept. 14, 2000).
    The topics covered by this section are not addressed by the NRC 
Report recommendations, and thus are not inconsistent with those 
recommendations. We received a number of comments on this section, and 
we discuss them below.
    A commenter observed that when BLM examines a mining claim to 
determine the locatability of what may be a common variety, it not only 
has to check for its ``special and unique'' characteristics, but it 
must also ensure that the mineral deposit is of sufficient quantity and 
quality to satisfy the ``prudent man'' test. BLM agrees with the 
comment. We must ensure that the mineral deposit of non-metallic 
minerals is locatable under the mining laws rather than salable under 
the Materials Act of 1947, 30 U.S.C. 601 et seq. In accordance with the 
Surface Resources Act of 1955, 30 U.S.C. 612, only uncommon varieties 
of sand, stone, gravel, pumice, pumicite, or cinders are locatable. 
Please refer to 43 CFR 3711.1 for a more detailed explanation of the 
common variety requirements. Court cases have further refined this 
test. See, for example, McClarty v. Secretary of the Interior, 408 F2d 
907 (9th Cir 1969). Once BLM determines that a mineral deposit consists 
of a locatable mineral, we will evaluate whether a discovery exists and 
whether other requirements for a valid claim are satisfied.
    In one commenter's opinion, the limited activities permitted in 
proposed Sec. 3809.101(b) may not be sufficient to allow a mineral 
report to reach a conclusion whether the deposit is one of an uncommon 
variety. In response, BLM will allow sampling and testing sufficient to 
determine whether the mineral is special and unique. Tests may also be 
done for comparative purposes on other similar mineral deposits that 
may be used for the same purpose. These tests and the requirements of 
McClarty will be documented in the mineral examination report.
    One commenter favored a mineral examination if there is any doubt 
as to the common versus uncommon nature of the mineral. BLM generally 
agrees that the locatability of a specific deposit must be determined 
based on the individual circumstances involved.
    A commenter said that although the draft EIS states that the 
``present policy is to process the 3809 action and collect potential 
royalties in escrow while a determination is made on the locatable 
versus salable nature of the material,'' the proposed rule did not 
specifically acknowledge this. BLM agrees in part with the comment. 
Before subpart 3809 was revised, BLM's policy was to encourage an 
escrow account when the common vs. uncommon nature of the mineral was 
questionable. However, in the event the operator did not cooperate, 
subpart 3809 did not expressly address whether BLM may delay approval 
of a plan of operations while an examination was under way. This final 
rule gives BLM the express authority to delay approval until escrow is 
agreed to, or an examination is made.
    A commenter recommended that the proposed rule should delete the 
entire section dealing with special provisions for common variety 
minerals. BLM disagrees with the comment. It is not in the public 
interest to delete this requirement. We must ensure that the mineral 
deposit of non-metallic minerals is locatable under the mining laws 
rather than salable under the Material Act of 1947 before approving a 
plan of operations under subpart 3809. In accordance with Public Law 
167 (the Surface Resources Act of 1955), only uncommon materials of 
sand, stone, gravel, pumice, pumicite, or ciders are locatable. As 
stated in an earlier comment and answer, the test for that 
determination is outlined in McClarty v. Secretary of the Interior. In 
the event the material is asserted to be an exceptional clay, BLM will 
refer to, among others, the U.S. v. Peck, 29 IBLA 357, 84 ID 137 
(1977).
    One commenter asked BLM to clarify that an operator could use 
common variety road-building material for his operation or common 
variety reclamation material to fulfill the unnecessary or undue 
degradation standards. BLM agrees that if use of the common variety 
mineral material is reasonably incident to an operation authorized 
under subpart 3809, the operator may use that material on the mining 
claim at no charge, if that removal is a part of the plan of operations 
that is approved by BLM.
    A commenter was concerned that under proposed Sec. 3809.101(d), BLM 
would have authority to sell common material from an unpatented mining 
claim like the Forest Service is doing now. This could result in 
placing gold-bearing gravels on roads, thus wasting a resource. BLM 
responds that under the final rule, removal of common material from an 
unpatented mining claim by a BLM contractor or permittee would only 
occur after a review of the common material to be sold, to ensure the 
removal would not interfere with a mining claimant's operation or his 
or her mineral resource. Obtaining a waiver from the mining claimant 
would assure that such interference would not occur. A recent 
Solicitor's Opinion discussed this issue. See Disposal of Mineral 
Materials from Unpatented Mining Claims (M-36998, June 9, 1999).
    One commenter asked what is a mineral report, how is it initiated, 
what are the qualifications for doing a mineral examination and 
associated report and who reviews the report? In response, there are 
formal procedures and strict guidelines for the mineral examination, 
and BLM requires certification by BLM of mineral examiners and 
reviewers. These are found in BLM Manual 3895 and the Handbook for 
Mineral Examiners (1989 edition) and can be reviewed in the local BLM 
office.
    In one commenter's opinion, the discussion related to common 
variety minerals is confusing since common variety minerals are not 
``locatable'' under 3809. BLM agrees that common variety minerals are 
not locatable. However, there are mining claimants who still attempt to 
remove common varieties under the auspices of the mining laws and 
associated 3809 regulations. This final rule addresses this practice. 
By law, common variety minerals are sold under contract by BLM, and the 
agency must receive market value upon sale.
    One commenter asserted that BLM should be liable for any economic 
losses resulting from a review of whether minerals are common variety, 
if the minerals are subsequently found to be locatable. BLM disagrees 
with the comment. If the mining claimant ultimately prevails, any money 
put in

[[Page 70028]]

escrow would be returned to the mining claimant together with any 
accrued interest.
    In one commenter's opinion, the right to ``occupy'' public land in 
the pursuit and development of mineral deposits exists separate and 
apart from the claim location and patenting provisions of the mining 
laws. Therefore, BLM may not promulgate a regulation that limits 
operations under the 3809 regulations to valid claims. BLM agrees. The 
3809 regulations cover operations whether or not valid claims exist. If 
an operator files a plan of operations on lands withdrawn or 
segregated, but not encumbered with a mining claim, BLM will reject 
that plan of operations. Mining claims cannot be located and operations 
conducted on lands withdrawn or segregated from operation of the mining 
laws, except for valid existing rights.

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

    Final Sec. 3809.116 is adopted with a number of changes from the 
proposal to clarify BLM's intent, and to respond to comments. A number 
of commenters asserted that the proposed rule exceeded BLM's authority, 
and that liability should be proportional. In the final rule BLM has 
more carefully delineated who is responsible for obligations created by 
operations, and has included examples in an effort to reduce ambiguity. 
This is not an area addressed by the NRC Report recommendations, and 
thus, is not inconsistent with those recommendations.
    The final rule separates proposed Sec. 3809.116(a) into two 
subparagraphs. Final Sec. 3809.116(a)(1) specifies that mining 
claimants and operators (if other than the mining claimant) are jointly 
and severally liable for obligations under subpart 3809 that accrue 
while they hold their interests. This would, for instance, include 
claimants who lease their claims to operators while keeping an 
overriding royalty or other purely monetary interest. Maintaining joint 
and several liability better protects the public lands in cases where 
one of multiple involved entities refuses to or cannot satisfy its 
obligations, for example, as a result of bankruptcy.
    The final rule is more specific than the proposal and states that 
joint and several liability, in the context of subpart 3809, means that 
the mining claimants and operators are responsible together and 
individually for obligations, such as reclamation, resulting from 
activities or conditions in the areas in which the mining claimants 
hold mining claims or mill sites or the operators have operational 
responsibilities. The italicized text is new and clarifies BLM's intent 
regarding limitations on responsibilities. To illustrate further, the 
final rule includes the following three examples:

    Example 1. Mining claimant A holds mining claims totaling 100 
acres. Mining claimant B holds adjoining mining claims totaling 100 
acres and mill sites totaling 25 acres. Operator C conducts mining 
operations on a project area that includes both claimant A's mining 
claims and claimant B's mining claims and millsites. Mining claimant 
A and operator C are each 100 percent responsible for obligations 
arising from activities on mining claimant A's mining claims. Mining 
claimant B has no responsibility for such obligations. Mining 
claimant B and operator C are each 100 percent responsible for 
obligations arising from activities on mining claimant B's mining 
claims and millsites. Mining claimant A has no responsibility for 
such obligations.

    The first example illustrates that each mining claimant is 100 
percent responsible for obligations resulting from activities occurring 
on his or her mining claims, but has no responsibilities for activities 
on someone else's mining claims. The operator is 100 percent 
responsible for all operations in the areas where it conducts 
operations.

    Example 2. Mining claimant L holds mining claims totaling 100 
acres on which operators M and N conduct activities. Operator M 
conducts operations on 50 acres. Operator N conducts operations on 
the other 50 acres. Operators M and N are independent of each other 
and their operations do not overlap. Mining claimant L and operator 
M are each 100 percent responsible for obligations arising from 
activities on the 50 acres on which operator M conducts activities. 
Mining claimant L and operator N are each 100 percent responsible 
for obligations arising from activities on the 50 acres on which 
operator N conducts activities. Operator M has no responsibility for 
the obligations arising from operator N's activities.

    The second example illustrates that an operator is jointly and 
severally responsible with the mining claimant for obligations arising 
from areas in which it conducts operations, and not for obligations 
arising from areas in which it has no involvement.
    Example 3. Mining claimant X holds mining claims totaling 100 
acres on which operators Y and Z conduct activities. Operators Y and 
Z each engage in activities on the entire 100 acres. Mining claimant 
X, operator Y, and operator Z are each 100 percent responsible for 
obligations arising from all operations on the entire 100 acres.

    The third example illustrates that the mining claimant and all 
operators are jointly and severally responsible for obligations arising 
from all operations on areas where they either hold claims or conduct 
activities. It should be noted that mining claimant obligations include 
off-claim reclamation or repair stemming from activities on the claims. 
Similarly, operator responsibility extends to off-site reclamation or 
repairs resulting from activities or conditions in the areas where the 
operator is conducting activities.
    Final Sec. 3809.116(a)(2) provides that in the event obligations 
are not met, BLM may take any action authorized under subpart 3809 
against either the mining claimants or the operators, or both.
    Final Sec. 3809.116(b) specifies that relinquishment, forfeiture or 
abandonment does not relieve a mining claimant's or operator's 
responsibility under subpart 3809 for obligations that accrued or 
conditions that were created while the mining claimant or operator was 
responsible for operations conducted on that mining claim or in the 
project area. In other words, an entity cannot just walk away from 
unsatisfied obligations under subpart 3809. Final Sec. 3809.116(c) 
provides that transfer of a mining claim or operation does not relieve 
a mining claimant's or operator's responsibility under this subpart for 
obligations that accrued or conditions that were created while the 
mining claimant or operator was responsible for operations conducted on 
that mining claim or in the project area until BLM receives 
documentation that a transferee accepts responsibility for the 
previously accrued obligations, and BLM accepts a replacement financial 
guarantee that is adequate to cover both previously accrued and new 
obligations. In other words, a mining claimant or operator can transfer 
responsibility to an transferee or assignee upon acceptance by the 
transferee or assignee and the posting of an adequate financial 
guarantee.
    Editorial changes were made from the proposal in paragraphs (b) and 
(c). These include adding the words ``that accrued'' after the word 
``obligations'' in both paragraphs, and making clear that the 
transferee must agree to accepting previously accrued obligations 
before the transferor is no longer responsible. These changes are 
consistent with the intended meaning in the proposal.

    Final Sec. 3809.116(a)(1) is consistent with and a restatement of 
BLM's previous position which has been in the BLM Manual since 1985. 
See BLM Manual Chapter 3809--Surface Management, Release 3-118, July 
26, 1985. It is supported by both FLPMA and the mining laws. Mining 
claimants

[[Page 70029]]

are the ones who hold rights under the mining laws to develop and 
produce Federal minerals on public lands. Such rights, however, are 
limited by the responsibility under FLPMA to prevent unnecessary or 
undue degradation of the public lands, and their liability reflects 
that continuing responsibility. Mining claimants cannot divest 
themselves of the statutory responsibilities associated with holding 
mining claims or millsites by entering into contractual arrangements 
with operators to develop and produce minerals from their mining 
claims. Operators on mining claims and mill sites on the public lands 
derive their development and production rights from mining claimants, 
and for this purpose are the agents of the mining claimants.
    Operators are also independently responsible for their own 
activities on public lands, regardless of their ties to mining 
claimants. Approval of a plan of operations (and activities under a 
notice) allows surface disturbance of the public lands, conditioned 
upon compliance with statutory and regulatory requirements, including 
the requirement to prevent unnecessary or undue degradation. If a 
person's activities disturb the public lands, that disturbance is his 
or her responsibility. Entities that reap the benefits from mineral 
development and production should certainly bear the associated costs. 
As discussed earlier in this preamble, the term ``operator'' includes 
any person who manages, directs or conducts operations at a project 
area, including a parent entity or an affiliate who materially 
participates in such management, direction, or conduct. Thus all 
persons directly involved with operations and who benefit directly from 
those operations, are responsible for those operations.
    Commenters asserted that the financial guarantee posted with a plan 
of operations is sufficient to assure satisfaction of claim obligations 
and thus there is no need for joint and several liability. BLM agrees 
that the financial guarantee should be adequate to assure satisfaction 
of claim obligations. There is no guarantee however, that this will 
always be the case in every situation, even when the financial 
guarantee is calculated in advance to be sufficient to cover all 
reclamation costs. A statement of responsibility is necessary to make 
it clear who will be responsible in the event that obligations remain 
following forfeiture of a financial guarantee.
    Commenters stated that liability among operators should be 
proportional. BLM agrees in part. The final rule specifies that 
liability of an entity should be limited to obligations that accrue or 
conditions, to the extent it can be reasonably ascertained, that result 
from activities carried out during those periods of time when that 
entity (mining claimant or operator) has an interest in the claims or 
operations. Also, under the final rule, obligations of mining claimants 
are limited to those obligations that result from activities within 
their mining claims or mill sites, because the exercise of their rights 
over mining is limited to activities within their claim boundaries. 
Also, the final rule provides that operator obligations derive only 
from activities or conditions on areas for which they materially 
participated in the management, direction, or conduct of operations. As 
mentioned above, obligations include off-site reclamation resulting 
from activities on claims or in the project area.
    BLM disagrees, however, that responsibility within a specific area 
should be split proportionately among the persons responsible for that 
area. Although operators and claimants can, among themselves, divide 
their responsibilities, they should all be jointly and severally 
responsible to BLM for the satisfaction of obligations associated with 
the operations on public lands.
    BLM emphasizes that final Sec. 3809.116 applies to and explains 
obligations under FLPMA and the mining laws. It is not intended in any 
way to affect obligations or responsibilities under any other statutes, 
such as the Clean Water Act, the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA), or the Resource Conservation 
and Recovery Act (RCRA).
    A commenter asserted that establishing joint and several liability 
for ``parent entities and affiliates'' would seriously chill mining on 
Federal lands administered by BLM. The commenter stated that investors 
in mining operations rely upon existing principles of corporate law and 
liability in evaluating their investments. The proposed liability rules 
would seriously affect the risk that investors, such as joint ventures, 
would undertake by participating in a mining project.
    BLM disagrees with both the characterization of the rule and the 
alleged impact. The final rule does not make ``parent entities and 
affiliates'' responsible because of those relationships. Parent and 
affiliate entities are responsible if they materially participate in 
the management, direction, or conduct of the operations. The 
responsibility derives from their own actions, not through the 
structure of the relationship. Parent entities or affiliates that do 
not materially participate are not responsible under this rule. Such 
responsibility is not new and should not discourage future investment.
    A commenter asserted that imposing liability upon mining claimants 
would expose small mining claimants to full liability for the actions 
of operators, seriously chilling the willingness of claimants to option 
or lease claims to operators for mineral development. The commenter 
stated that some industry members have estimated that this provision in 
the proposed rules by itself could reduce mining claim activity by 
fifty percent. If so, the commenter continued, then BLM's estimate of 
the impacts of the proposed rules is seriously underestimated because 
it fails to account for the impact of this proposed rule change. BLM 
disagrees with the comment. Mining claimant liability is not a new 
concept. Such liability has always existed under the mining laws, and 
this has been expressly set forth in the BLM Manual since 1985.
    A commenter stated that BLM has no authority to create a joint and 
several liability scheme. BLM disagrees with the comment. As explained 
above, BLM has authority under the mining laws and FLPMA. Moreover, 
this rule is not a new concept, but merely a clarification of already 
existing responsibilities.
    A commenter stated that as a practical matter, the proposal 
disregarded the fact that many mining operations involve many different 
mining claimants, and that if each owner has to obtain assurances 
sufficient to protect against the unlikely imposition of joint and 
several liability, it is unlikely that most operations could obtain 
adequate bonding.
    BLM has revised the final rule to clarify the extent of mining 
claimant responsibilities. BLM recognizes that liability may be complex 
in situations involving multiple claimants, but expects that in most 
instances operators and claimants will agree among themselves as to who 
will have the initial responsibility for performing reclamation and 
satisfying reclamation obligations. BLM also disagrees that this 
provision will make it more difficult to obtain adequate financial 
guarantees. Final Sec. 3809.116 does not increase the obligations to be 
covered by the financial guarantee. Instead it explains who will be 
responsible if the financial guarantee is not sufficient.

[[Page 70030]]

Sections 3809.200 to 3809.204  Federal/State Agreements

    Final Secs. 3809.200 to 3809.204 address Federal/State agreements, 
including the kinds of agreements that BLM and the State may make 
(Sec. 3809.200); the content of the agreements (Sec. 3809.201); the 
conditions necessary for BLM to defer part or all of this subpart to a 
State (sections 3809.202 and 3809.203); how existing agreements relate 
to this subpart; and which regulations apply during the review of 
existing agreements (Sec. 3809.204).
    FLPMA section 303(d), 43 U.S.C. 1733(d), provides that the 
Secretary of the Interior is authorized to cooperate with State 
regulatory officials in connection with the administration and 
regulation of the use and occupancy of the public lands. These 
regulations provide for agreements or memoranda of understanding to 
implement this statutory provision and meet the intended purposes of 
FLPMA. Cooperation with the States and the avoidance of duplication are 
important purposes of these regulations, and are necessary for BLM to 
carry out its responsibilities, especially for operations which are on 
both private and public lands. Such cooperation is good management and 
common sense.

Section 3809.200  What Kinds of Agreements May BLM and a State Make 
Under This Subpart?

    BLM has renumbered proposed Sec. 3809.201 as final Sec. 3809.200. 
We made no changes to the text. We made this change in section numbers 
in response to a comment that some sections of the proposed regulations 
lacked ``logical organization.''
    Final Sec. 3809.200 specifies that to prevent unnecessary 
administrative delay and to avoid duplication of administration and 
enforcement, BLM and a State may make two kinds of agreements: One that 
provides for a joint Federal/State program; and another that provides 
that, in place of BLM administration, BLM may defer to State 
administration of some or all of the requirements of subpart 3809, 
subject to the limitations in Sec. 3809.203.
    Under the first type of agreement, provided for at 
Sec. 3809.200(a), BLM and States may coordinate actions to avoid 
duplication, but each agency retains its own authorities and 
regulations. The previous regulations at Sec. 3809.3-1 authorized this 
type of agreement, and BLM has been implementing these agreements for 
many years. BLM believes that cooperation fostered by this type of 
agreement greatly aids in the management of the public lands. Final 
Sec. 3809.200(a) will continue to allow most of the joint agreements 
and memoranda of understanding that BLM and the States have been 
utilizing primarily to avoid duplication.
    Under the second type of agreement, provided for at final 
Sec. 3809.200(b), BLM may, in lieu of BLM administration, defer to the 
States part or all of the regulation of mining operations under State 
laws, regulations, policy and practices. Under this kind of agreement, 
BLM retains certain responsibilities that are inherent in Federal 
public land management under FLPMA, and may not be delegated. These 
include concurrence on the approval of each plan of operations and 
responsibility for other Federal laws, such as the National 
Environmental Policy Act and the Endangered Species Act. The effect is 
to allow State management of the programs with the minimum oversight 
necessary to carry out Federal law.
    Under the final rule, a State could enter into one or both types of 
agreements. For example, a State could request that BLM defer to State 
administration of a part of the program, such as bonding, while the 
other parts of the program would be cooperatively administered by BLM 
and the State. Final Sec. 3890.200 allows a State and BLM to tailor a 
State program to the particular strengths of that State. The minimum 
national requirements established by subpart 3809 give assurance to 
operators and the public that a basic consistency and fairness will 
exist under either kind of State/Federal agreement.
    Final Sec. 3809.200(b) references section 3809.202 and 3809.203, 
which contain the conditions and limitations for those situations where 
a State may request to have part or all of a program in this subpart 
deferred to State administration.
    Some commenters asked that section 3809.200(b) not be adopted. BLM 
did not accept those comments. BLM believes that deferral to State 
regulatory programs can be an effective way to minimize duplication and 
promote cooperation among regulators, so long as FLPMA's purpose of 
avoiding unnecessary or undue degradation is also achieved. Deferral 
may sometimes not be appropriate, but BLM believes it is an option that 
should be available when circumstances warrant. We believe the final 
rule contains sufficient checks and balances on the deferral process, 
including public comment, to avoid deferral to State whose regulatory 
programs are not consistent with the 3809 subpart.

Section 3809.201  What Should These Agreements Address?

    BLM included final Sec. 3809.201 in this rule in response to 
comments requesting BLM to clarify what Federal/State agreements should 
include. Final Sec. 3809.201(a) recommends that Federal/State 
agreements provide for maximum possible coordination to avoid 
duplication and to ensure that operators prevent unnecessary or undue 
degradation of public lands. It also recommends that agreements 
consider, at a minimum, common approaches to the review of plans of 
operations, including effective cooperation regarding NEPA; performance 
standards; interim management of temporary closure; financial 
guarantees, inspections; and enforcement actions, including referrals 
to enforcement authorities.
    In part, these additions address the NRC Report recommendations. 
NRC Report Recommendation 6 urges clear procedures for referring 
activities to other Federal and State agencies for enforcement. NRC 
Report Recommendation 10 urges effective cooperation by agencies 
involved in the NEPA process. These recommendations may be satisfied 
through Federal/State agreements.
    Final Sec. 3809.201(a) also contains a general requirement for 
regular review or audit of Federal/State agreements. Commenters 
suggested that such audits be included. A regular review, established 
cooperatively by BLM and a State and included in the agreement, would 
assist in ensuring that such agreements will be kept up-to-date. The 
section provides BLM and the State the flexibility to develop such 
provisions tailored to each agreement's situation.
    Final Sec. 3809.201(b) addresses agreements that allow States to 
regulate suction dredging in lieu of BLM, as provided in final 
Sec. 3809.31(b). It responds to a concern expressed by a commenter that 
allowing States, instead of BLM, to regulate suction dredging, 
eliminates the Federal action that would otherwise trigger the 
requirements of section 7 of the Endangered Species Act (ESA). The 
concern was that without a Federal action, sufficient assurances will 
not exist to protect Federally listed or proposed threatened or 
endangered species or their proposed or designated critical habitat.
    Accordingly, to assure that such protection does exist, final 
Sec. 3809.201(b) provides that if an agreement between BLM and a State 
is intended to satisfy the requirements of Sec. 3809.31(b) regarding 
suction dredge activities (so that the State may regulate suction

[[Page 70031]]

dredges in place of BLM), the agreement must require a State to notify 
BLM of each application to conduct suction dredge activities within 15 
calendar days of receipt of the application by the State. The agreement 
must also specify that BLM will inform the State whether Federally 
proposed or listed threatened or endangered species or their proposed 
or designated critical habitat may be affected by the proposed 
activities and any necessary mitigating measures. Under final 
Sec. 3809.201(b), BLM does not have to approve each suction dredge 
application. Rather, BLM must conduct any necessary consultation or 
conferencing with the appropriate agency (either the U.S. Fish and 
Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS)) 
and provide the necessary information to the State. To the extent that 
a State receives multiple suction dredge applications for a particular 
river or stream, BLM may work with the State (and the FWS or NMFS) to 
develop programmatic measures that would cover all or some operations 
in that body of water. We also added a sentence to the end of paragraph 
(b) to make it clear that operations may not begin until BLM has 
completed any necessary consultation or conferencing under the ESA.

Section 3809.202  Under What Conditions Will BLM Defer to State 
Regulation of Operations?

    BLM is adopting final Sec. 3809.202 substantially as proposed. It 
establishes the procedures that BLM will use to review and approve a 
request to defer to State regulations of operations. The procedures of 
final Sec. 3809.202 assure that agreements that authorize the deferral 
of the regulation of mining operations to the States will result in the 
prevention of unnecessary or undue degradation of the public lands.
    To have part or all of the program deferred, a State must show that 
its provisions are consistent with the subpart 3809 requirements. The 
final rules explain how BLM will determine consistency with subpart 
3809 requirements. BLM will compare State standards with subpart 3809 
on a provision-by-provision basis. The final rules provide that non-
numerical standards need to be functionally equivalent to BLM 
counterparts; numerical State standards need to be the same as any 
numerical BLM standard; and BLM will construe State environmental 
protection standards that exceed the corresponding Federal standard to 
be consistent with the Federal standard.
    This section does not provide for a delegation of the Secretary's 
authority under FLPMA. States will act under State laws and regulations 
which are consistent with the requirements of subpart 3809. The process 
of determining whether State laws and regulations are consistent with 
subpart 3809 includes an opportunity for public comment and an 
opportunity to seek review of the State Director's decision. Because of 
the decision's policy implications, a State Director's decision may be 
appealed to the Assistant Secretary for Land and Minerals Management, 
and not the Department's Office of Hearings and Appeals because of the 
sensitive policy implications of the decision.
    There were many comments on specific requirements of the conditions 
and limitations regarding deferral. Commenters suggested clarifying 
many of the specific definitions, conditions and limitations in 
proposed Secs. 3809.202 and 3809.203. Several questioned the meaning 
and clarity of the terms ``functionally equivalent'' and 
``consistency'' in the proposal. One commenter questioned if any State 
could comply with the term ``functionally equivalent.''
    BLM reviewed the comments on the need for making specific changes, 
such as providing further guidance on consistency and defining 
``functionally equivalent.'' The rules already explain how consistency 
will be determined. BLM will determine functional equivalency on a 
provision-by-provision basis, as compared to the corresponding BLM 
provision.
    Commenters stated that this provision would require substantial 
changes to existing State programs. BLM disagrees with the comment. 
First, nothing in this rule requires a State to do anything. The 
sufficiency of the State program comes under review only if a State 
requests BLM to defer administration of portions of its mining program, 
States programs may remain in place. When BLM receives a deferral 
request, BLM will determine whether State provisions are functionally 
equivalent to the corresponding BLM rule. BLM's analysis of State laws 
and regulations and its review of the comments indicate that many 
States have statutory, regulatory, and policy requirements that are 
functionally equivalent to parts or much of the subpart 3809 
regulations. Although some State provisions may require upgrading, BLM 
does not anticipate wholesale deficiencies.
    One commenter stated that time frames for State review should be no 
longer than those required for BLM. Another asked if ``days'' meant 
business days or calendar days. BLM declines to adopt the commenter's 
suggestion with regard to State time frames. In most instances, 
operators are already functioning under State time frames, which have 
been adopted to accommodate State resources. BLM does not intend to 
interfere with such time frames in its rules. With regard to time 
frames in subpart 3809, BLM made the ``days'' requirement consistent 
throughout the regulations to mean calendar days.
    Commenters suggested that BLM consider adding to subpart 3809 
provisions for conditional State program approval. These provisions 
would be analogous to those that apply to conditional approval of State 
programs under the Surface Mining Control and Reclamation Act (30 
U.S.C. 1201 et seq.). See 30 CFR 732.13(j). BLM agrees that this 
comment has merit. The rules do not preclude conditional approval as a 
possible decision under section 3809.202. As BLM reviews of State 
programs occur, BLM will determine whether agreements containing 
conditional deferrals are warranted.
    BLM has edited final Sec. 3809.202(b)(2)(ii) to remove unnecessary 
text without changing the meaning or intent of the proposed 
regulations.
    Commenters urged BLM to conserve its resources by deferring to the 
States all or portions of the proposed regulations. One commenter 
stated that the proposal has the potential to provide for less costly, 
more effective permitting and enforcement. Commenters urged BLM to 
delegate the entire program to the State without retaining ultimate 
approval authority. A commenter stated that BLM can best minimize or 
avoid duplication with deferrals and agreements with State programs. 
Another commenter asserted that the proposed regulations should adopt a 
presumption that State requirements are adequate.
    BLM disagrees with the comment that it defer to the States and not 
finalize portions of subpart 3809. The BLM has a nondelegable 
responsibility under FLPMA to assure that the public lands are managed 
properly and that unnecessary or undue degradation not occur. BLM would 
not satisfy its responsibilities by a general deferral to State 
regulation without determining the adequacy on a State-specific basis, 
and without retaining the specific regulatory responsibilities set 
forth in section 3809.203. BLM agrees that Federal/State agreements and 
MOUs can minimize duplication. BLM disagrees, however, that it has a 
basis for a general presumption that State regulations are adequate. 
The basis for the State regulations may or may not be similar

[[Page 70032]]

to the prevention of ``unnecessary or undue degradation'' standard that 
governs this rulemaking.
    Several commenters said the proposal was illegal as there are no 
statutes that allow for State assumption of administration or primacy 
for hard rock mining on public lands. BLM does agree that the Secretary 
has no authority to adopt this approach. FLPMA section 303(d), 43 
U.S.C. 1733(d), allows States to ``assist in the administration and 
regulation of use and occupancy of the public lands.'' This rule is not 
a delegation of Federal authority. It is a recognition by BLM that in 
certain cases the Federal regulatory role may be exercised more 
efficiently while still satisfying FLPMA's mandate to prevent 
unnecessary or undue degradation of the public lands.
    Commenters stated BLM did not have the expertise to make decisions 
as to how much to defer to States. BLM disagrees with the comment. Its 
professionals will be able to make the judgments necessary to decide 
whether deferrals are allowable. This will be an open process, with the 
opportunity for all segments of the public to submit comments and 
information and appeal State Director decisions on such matters.
    One commenter suggested that deferral to the States would result in 
BLM being ``subservient to the political maneuvering of State 
government officials that might not have the best interests of the land 
in question. This should not happen.'' Several commenters stated that 
the provisions for deferral should be deleted. BLM disagrees with the 
comments. The comments appear to reflect a complete distrust of the 
State regulatory processes that BLM does not share. In any event, BLM 
will need to concur on each approved plan of operations.
    Commenters noted that the States have no trust obligation to Native 
Americans and that deferral of authority to the States would be a 
dereliction of BLM's trust obligation. BLM disagrees with the comment. 
BLM concurrence is required on each approval of a plan of operations. 
Such concurrence will allow for the consideration of trust 
responsibilities to Native Americans in appropriate circumstances.
    One commenter asserted that the proposed provision is a ``passing 
the buck'' strategy that increases the States' exposure to risk and 
protects the BLM from accusations of mismanagement and violation of the 
public's trust. BLM disagrees with the comment. BLM and the States will 
each maintain a level of responsibility for decisions under its 
jurisdiction. BLM understands it remains ultimately responsible for 
protecting the public lands from unnecessary or undue degradation under 
the final rule.
    Commenters asserted that the deferral of programs to the State 
constitutes an unfunded mandate to the States without any provision of 
resources to carry out the programs. One commenter noted that there is 
no Federal money available to the States to implement the program. One 
commenter suggested that the provision in proposed Sec. 3809.201 be 
revised to indicate how BLM will reimburse a State for assuming BLM 
work under an agreement.
    BLM disagrees that the rules impose unfunded mandates. There is no 
legal requirement in this final rule or anywhere else that the States 
assume some of BLM's responsibilities under subpart 3809. Although 
Section 303(d) of FLPMA authorizes the Secretary to reimburse States 
for expenditures incurred in assisting in the administration and 
regulation of use and occupancy of the public lands, no reimbursements 
may occur without Congressional appropriation. Congress has 
appropriated no funds for this purpose.

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

    BLM is also adopting final Sec. 3809.203 as proposed. It sets forth 
the limitations on any agreement deferring to State regulation of some 
or all operations on public lands. The limitations are an important way 
to assure that operators comply with subpart 3809 and that unnecessary 
or undue degradation of the public lands does not occur.
    Final Sec. 3809.203(a) requires BLM to concur with each State 
decision approving a plan of operations. The existence of a Federal 
action on the approval of each plan of operations triggers the 
applicability of NEPA (which is particularly important in those States 
that don't have an equivalent environmental impact assessment process) 
and those other Federal responsibilities that attach to Federal 
actions, such as the National Historic Preservation Act and the 
Executive Order protecting sacred sites. Although BLM understands that 
some commenters question the need for BLM to retain the concurrence 
role, BLM views this as important to carrying out its mandate to 
protect the public lands from unnecessary or undue degradation. The 
concurrence responsibility will also apply to plan modifications which 
are subject to the same procedures as plans.
    Some commenters stated that BLM should consider programmatic 
concurrence and basically provide for blanket approvals. BLM did not 
change the provision regarding concurrence on plans of operation 
because such concurrence is important in providing the appropriate 
degree of assurance under FLPMA that unnecessary or undue degradation 
will be prevented. These are Federal lands and it is a mandate of 
Federal law that the Secretary of the Interior must prevent such 
unnecessary or undue degradation. Although concurrence is required for 
each plan of operations, the final rule allows the State and BLM some 
flexibility in determining, as part of an agreement, how to provide 
this concurrence while still eliminating as much duplication as 
possible.
    Several commenters addressed the issue of the National 
Environmental Policy Act and its relationship to final Secs. 3809.200 
through 3809.204. One commenter noted that a State should have a State 
NEPA-like program in place before BLM considers deferring part of a 
program. One comment proposed revising Sec. 3809.203 to provide that 
States prepare the NEPA compliance. One commenter stated BLM should 
ensure that any State-written findings are included in the NEPA 
document. The Federal EPA strongly recommended that where a State takes 
the lead on the surface management program, the Federal/State agreement 
require that a State be a cooperating agency on the NEPA document. EPA 
did support BLM deferral of programs to States with laws similar to the 
Federal NEPA. In addition, NRC Report Recommendation 10 addresses 
Federal/State cooperation in the NEPA process. Recommendation 10 states 
that ``all agencies with jurisdiction over mining operations should be 
required to cooperate effectively in the scoping, preparation, and 
review of environmental impact assessments for new mines. Tribes and 
non-governmental organizations should be encouraged to participate and 
should participate from the earliest stages.''
    BLM believes its final rule properly allocates the NEPA 
responsibility. Under it, BLM retains responsibility for NEPA 
compliance in any deferral and the State and BLM may decide who will be 
the lead in any plan review process. Complying with NEPA remains a 
Federal responsibility although the Council on Environmental Quality 
may allow BLM and a State to coordinate the NEPA process. See 40 CFR 
1501.5 and 1506.2. After review of the comments, BLM did not change the 
requirements in final Sec. 3809.203. BLM agrees that any State findings 
need to be considered in the NEPA process. After review of the NRC 
Report recommendation, BLM

[[Page 70033]]

revised final Sec. 3809.201 to recommend that Federal and State 
agreements should address NEPA to provide for effective cooperation in 
scoping, preparation, and review.
    Final Sec. 3809.203(b) clarifies that BLM will remain responsible 
for all land-use planning and for implementing other Federal laws 
relating to the public lands for which BLM is responsible.
    Commenters stated that land-use planning on public lands could not 
be restricted by a State. Commenters also stated that BLM should not 
relinquish its obligations to balance the uses of the public lands and 
to determine if mining is an appropriate use of the land. BLM has not 
changed the final rule in response to these comments. The final rule 
involves no relinquishment by BLM of its land-use planning 
responsibilities.
    Final Sec. 3809.203(c) makes it clear that BLM may enforce the 
requirements of subpart 3809 or any term, condition, or limitation of a 
notice or an approved plan of operations, regardless of the nature of 
its agreement with a State, or actions taken by a State. The retention 
of such authority is made express to eliminate any question about 
whether BLM maintains enforcement jurisdiction where needed. BLM 
believes that by working cooperatively with States, however, 
enforcement protocols can be established under which many problems can 
be resolved through State or other Federal agency action, without the 
need for BLM enforcement.
    A commenter stated that because State decisions also require BLM 
approval and that BLM may initiate independent enforcement, this 
provision allowing deferrals to States was largely meaningless. BLM 
disagrees with the comment. BLM concurrence on each plan and BLM 
enforcement authority does not make State deferrals meaningless. States 
may take the lead on the information gathering and analysis associated 
with each plan of operations and, as long as the State has a sound 
basis for determining that the requirements of this subpart have been 
met, BLM is not required to duplicate State efforts before concurring. 
Similarly, States may take the lead enforcement role for violations on 
public land and a State's effort may be sufficient to achieve 
compliance with this subpart without BLM having to exercise its 
enforcement authority.
    Final Sec. 3809.203(d) sets forth limits related to financial 
guarantees. BLM revised the proposal to include a requirement for BLM 
to concur with forfeiture of a financial guarantee. The proposed 
regulations addressed BLM concurrence only for approval and release. 
BLM concurrence for bond forfeiture was added because of our experience 
with recent forfeitures where there were bankruptcies, to ensure that 
BLM and the State maintain close coordination where such situations 
occur on the public lands. BLM believes the decision whether to declare 
a bond forfeiture on Federal land is a responsibility it should not 
delegate under FLPMA.
    Final Secs. 3809.203(e) and (f) relate to BLM oversight of Federal/
State agreements and termination of such agreements. They are unchanged 
from the proposal.

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

    Final Sec. 3809.204 describes the effect of the revised subpart 
3809 on existing Federal/State agreements. It clarifies that 
promulgation of subpart 3809 does not cancel Federal/State agreements 
or memoranda of understanding (MOAS) in effect on the effective date of 
these rules. (An existing agreement may, however, be terminated at any 
time under its own terms--this rule does not preclude such action.) As 
was proposed, BLM and States will review existing agreements and MOAS 
to determine whether revisions will be required to comply with subpart 
3809. The period for the review and any necessary revisions will be one 
year from the effective date of these rules. BLM and a State could use 
the review time to determine if the basic relationships in that State 
should remain or should be changed.
    In the proposed rule preamble, BLM requested comments on whether 
one year would be sufficient time to review and revise existing 
agreements and MOAS. BLM received comments advocating several different 
options; this issue was also discussed with State representatives at a 
meeting BLM held with the States. Several comments indicated that one 
year was too short a period to review existing agreements and revise 
them if necessary.
    BLM expects that most existing agreements will be successfully 
reviewed within the one-year time frame. BLM agrees, however, that in 
some instances a one-year review period may be too short. The final 
rule adds Sec. 3809.204(b) to provide that the BLM State Director may 
extend the review period one year at a time for a second or third year 
if each extension is specifically requested by the State Governor or 
his or her delegate. At the end of the review period (and any 
extensions of that period), BLM will terminate existing agreements and 
MOAS if the review and any necessary revisions have not occurred.
    In general, the new regulations will apply during the review 
period, except as specified in final Sec. 3809.204(c). Final 
Sec. 3809.204(c) was added to clarify how subpart 3809 applies during 
the review period in specific (and rare) situations where an existing 
agreement allows a State to administer portions of the program in a 
manner inconsistent with the new regulations. In most States, existing 
agreements provide for close coordination and avoidance of duplication 
with BLM, without any deferral by BLM. In those few situations where a 
State currently administers part of the previous rules, such as in 
Montana for bonding and in Colorado for notices, those specific parts 
of the program will be administered under the applicable section of the 
previous rules until the review is completed or the agreement is 
terminated. State administration refers to those situations where BLM 
has deferred its authority to the State and allows the State to be 
responsible for administering a specific part of the program, such as 
bonding on Federal lands.
    Final Sec. 3809.204(c) does not allow those portions which are 
currently administered by a State to continue past the deadlines in 
final Sec. 3809.204(a) and (b); those specific parts must comply with 
subpart 3809 or be terminated. If a State wishes to continue to have 
BLM defer to State administration of portions of the program, the State 
must follow the procedures of final Sec. 3809.202.
    One commenter stated that there should be public review of existing 
Federal/State agreements; another commenter suggested that public 
review should be by State invitation only. These final rules do not 
provide for public review of existing agreements. If BLM and a State 
enter into a process to provide for BLM to defer to State 
administration of a portion of the regulations, then the procedures of 
section 3809.202 will be followed, including the opportunity for public 
participation.

Consistency With the NRC Report Recommendations

    The regulations related to Federal/State agreements are not 
inconsistent with the NRC Report recommendations. The NRC Report 
provided recommendations on actions needed to coordinate Federal and 
State requirements and programs. The Report noted that memoranda of 
understanding are the links between the Federal and State agencies, but 
did not make any specific recommendations regarding the

[[Page 70034]]

content or requirements of such agreements.
    The NRC Committee on Hardrock Mining on Federal Lands, which 
prepared the report, noted that strong Federal and State coordination 
is needed and such coordination can be used to supplement and 
complement the respective agency programs. Close Federal and State 
cooperation remains a major purpose of these final regulations. The 
regulations more clearly identify the roles and authorities of the BLM 
with respect to State agencies. Final Secs. 3809.202 and 3809.203 
provide the framework for a State to assume administration of part or 
all of the BLM program on public lands, consistent with FLPMA. Close 
Federal and State cooperation remains a major purpose of these 
regulations. The regulations also provide the opportunity to tailor 
agreements or memoranda of understanding to address various statewide 
conditions, and allow the BLM and the State to determine what will work 
best regarding site conditions in that State.
    Although no one recommendation of the NRC Report addressed the 
contents of Federal/State agreements, the regulations do address the 
concerns identified in the NRC Report related to Federal/State 
coordination. BLM added a provision in section 3809.201(a) for BLM and 
the State to address effective NEPA coordination in any Federal and 
State agreement, in support of NRC Report Recommendation 10. Also, 
maintaining a Federal concurrence on each plan of operation is 
consistent with NRC Report Recommendation 9 because it will assure that 
NEPA will be used to evaluate each permitting decision. In addition, 
under the added language of section 3809.201(a), BLM expects that 
Federal/State agreements will address enforcement referrals, as 
suggested by NRC Report Recommendation 6.

General Comments Related to Federal and State Coordination

    BLM received many comments on Federal and State coordination and 
agreements. Many of the same comments that were directed to Federal and 
State coordination and agreements were also applied to other sections 
of the regulations, such as performance standards and bonding.
    General comments ranged widely, from recommending deleting these 
sections on Federal/State agreements to leaving the previous sections 
in place. Several commenters asserted that State laws are not strict 
enough to protect public lands; that BLM should maintain a baseline 
national program that applies to all States and that BLM should not 
abdicate its stewardship responsibilities by deferring programs to the 
States. On the other hand, many commenters asserted that State laws are 
effective in protecting the environment; Federal and State coordination 
is excellent and there is no need to change existing agreements. 
Several commenters asserted that the proposed regulations would create 
new conflicts with Federal and State relationships. State agencies and 
the Western Governor's Association questioned the need for new BLM 
regulations and changes to the existing Federal/State agreements.
    General comments on the NRC Report, ``Hardrock Mining on Federal 
Lands'' also ranged widely. Commenters stated that the Report concluded 
that the existing Federal/State relationships work and need not be 
replaced by new BLM regulations. One commenter stated, ``The NRC Report 
also confirms that BLM should not tinker with the existing and 
successful Federal/State partnerships that govern hardrock mining on 
the public lands.'' Other commenters noted that many states already 
have requirements in place to address many of the regulatory gaps 
identified by the NRC Report. On the other hand, commenters stated that 
the study is ``unreasonable'' and contrary to Congressional direction.
    BLM has considered these comments and, on balance, decided to 
continue the basis approach of the proposed rules. BLM is not 
abdicating its responsibilities under FLPMA. If a State wishes BLM to 
defer administration of certain portions of subpart 3809, the rules are 
designed to allow States to use State counterpart provisions which are 
functionally equivalent to the subpart 3809 rules. Where no deferral 
exists, the general nature of the Federal performance standards, 
including the absence of numeric standards in the Federal rules, will 
make it possible for both the Federal and State provisions to apply 
without major difficulty and for Federal and State partnerships to 
continue successfully.
    BLM believes that its rules should contain comprehensive 
performance standards, as suggested in NRC Report Recommendation 9, and 
that the existence of particular provisions in State laws and 
regulations does not substitute for needed Federal regulatory 
provisions. Although the final rules contain a comprehensive set of 
performance standards to serve as a baseline for environmental 
protection, they are intended to be outcome based and general so that 
they will mesh easily with existing State standards which address the 
same topics. This will reduce the likelihood of conflicting standards, 
will foster Federal/State cooperation, and will allow continuation of 
existing Federal/State agreements and MOUs.
    Whether or not the NRC Report met Congressional requirements is up 
to Congress to determine. We note, however, that the Congress has 
directed these final rules not be inconsistent with the NRC Report 
recommendations. BLM has reviewed the NRC Report, has included it in 
the administrative record, and has considered its contents carefully in 
preparing this final rule.
    BLM received numerous comments related to adequacy of State 
programs and to duplication of effort between State programs and these 
regulations. Many comments addressed Federal and State programs and 
other parts of the regulations such as performance standards together.
    Many commenters asserted that particular State programs were 
effective in protecting the environment and these programs prevented 
duplication of efforts. One commenter noted, ``all of the western 
states have detailed regulatory programs, covering environmental 
impacts and reclamation requirements. The Western states are on record 
in the context of the 3809 rule-making process that the existing 
regulatory system is working well.'' Most of the Western States' 
regulatory agencies and the Western Governor's Association provided 
extensive comments on these themes. There were several comments from 
State legislative and county commissioners and committees; one comment 
from the Nevada Legislature's committee on public lands supported the 
position of the Western Governor's Association that ``the current 3809 
regulations are working well on the ground.'' In regard to the 
coordination between the State programs and BLM, most comments noted 
that relationships were good. One commenter in reference to BLM and the 
State mining regulatory agency said, ``Both agencies worked well 
together, developing a plan to protect and mitigate against 
environmental degradation by employing existing state and federal 
regulations.'' Another commenter noted that the proposed regulations 
would increase the overlap of jurisdiction and level of duplication. 
Several commenters recommended maximizing the States' roles. Many 
commenters questioned the need for changing the regulations and one 
commenter added ``where if it's not broke, don't fix it.''
    There were also commenters who asserted that State surface mining 
laws are not strict enough to protect public lands and that strong 
Federal standards

[[Page 70035]]

are needed. A commenter noted that, ``the bulk of Western states have 
negligible environmental standards.'' One comment from the California 
legislative Senate Committee on Environmental Quality urged 
strengthening the existing 3809 regulations, rather than allow State 
governments to regulate mining activities on Federal lands. Several 
commenters pointed out deficiencies or shortcomings in certain State 
programs which were included in the proposed regulations. One commenter 
noted that States do not address Native American issues. Another 
commenter noted that their State mining regulatory law was very weak 
and every year the legislative attempts to reduce its funding. One 
commenter noted that several States do not have provisions for bonding 
of small exploration or mining operations of less than five acres. One 
commenter noted that certain States refrain from vigorously enforcing 
their own regulations.
    The NRC Report identified specific national regulatory ``gaps,'' 
such as financial assurance for mining activities less than five acres 
and long-term post-closure management of mine sites on Federal lands. 
Not all States have such requirements and a consistent national 
baseline of requirements for public lands is needed by BLM, which 
manages hardrock mining on public lands from Alaska to Arizona.
    This final rule is intended to modernize the 3809 regulations and 
correct their shortcomings, such as lack of bonding of all operations 
on the public lands. The need for the regulations has been established 
in many studies, reports, public meetings, and discussions since the 
rules were first adopted in 1980. One of the main goals of this effort 
is to ensure that FLPMA's purpose of preventing unnecessary or undue 
degradation is achieved, while minimizing duplication and promoting 
cooperation among regulatory agencies. BLM believes this final rule 
meets these objectives. These regulations provide a national baseline 
or floor of regulatory requirements, which in cooperation with the 
State programs should provide a sound and consistent foundation to 
assure the public that exploration and mining on the public lands are 
being properly managed to prevent unnecessary or undue degradation as 
required by Federal law. Additionally, these regulations also address 
the specific regulatory gaps identified by the NRC Report. Although 
many States have excellent mining regulatory programs, BLM must manage 
the public lands in a manner that satisfies the Federal 
responsibilities set forth in FLPMA.
    Several commenters noted that the previous regulations provided 
that the BLM shall conduct a review of State laws and regulations 
related to unnecessary or undue degradation of lands disturbed by 
exploration or mining. The preamble to the previous regulations 
indicated that this review would occur in three years. Several 
commenters asserted that until the BLM completes this review and 
analyzes the State programs in the EIS and parts of the regulations the 
``ability to rationally revise the 3809 regulations is fundamentally 
and fatally flawed.'' Several commenters also asserted that BLM did not 
provide for cooperation with State regulatory programs and did not 
consult with the States.
    BLM acknowledges that a comprehensive, systematic review of all 
State laws did not take place prior to the start of the events leading 
to this rulemaking process. BLM has, however, coordinated extensively 
with State agencies and organizations, such as the Western Governor's 
Association, and has since reviewed each of the State programs for the 
States involved.
    BLM disagrees with the comment that it was obligated to conduct a 
comprehensive, systematic review of all State laws before it could 
undertake this rulemaking. BLM has a lengthy and comprehensive 
administrative record that fully demonstrates a sufficient basis and 
purpose for the revisions. For example, in 1989, a BLM Mining Law 
Administration Program task force addressed significant issues in the 
Mining Law Program, including adequacy of standards, the 5-acre 
threshold and the State relationships regarding bonding. In 1991, BLM 
published an advance notice of proposed rulemaking for possible 
amendments to the 3809 regulations. Public discussions regarding the 
regulations and need for changes were held in several States. This 
initiative was put on hold by BLM because Congress was considering 
reform of the mining laws. Then on January 6, 1997, Secretary Babbitt 
directed BLM to restart this rulemaking and directed that, among other 
things, ``[c]oordination with State regulatory programs should be 
carefully addressed.'' During the rulemaking process, BLM held 19 
public scoping meetings in 12 cities. BLM also met with State agencies 
and the Western Governor's Association many times, as well as with 
various State, county and local committees and commissions. Public 
hearings on the proposed regulations were held in thirteen States and 
the District of Columbia. The draft EIS also addressed the affected 
environments and programs of the States. Alternative 2 of the draft EIS 
analyzed deferral of exploration and mining on public lands to the 
States. BLM believes that it has adequate information regarding state 
laws and programs and that it has conducted an extensive coordination 
and outreach effort regarding the rulemaking.

Sections 3908.300 to 3809.336  Operations Conducted Under Notices

    This portion of the final rule (Secs. 3809.300 through 3809.336) 
governs operations conducted under notices. It is based primarily on 
previous Sec. 3809.1-3. We use two tables: One covers applicability of 
this subpart to existing notice-level operations (See final 
Sec. 3809.300.). This is a transition section to address notices in 
existence when this final rule becomes effective. The other table 
governs when an operator may begin operations after submitting a notice 
(See final Sec. 3809.313.). For the sake of simplicity, we have not 
used a separate set of performance standards applicable only to 
notices. Instead, final Sec. 3809.320 simply references the plan-level 
performance standards of final 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 final Sec. 3809.420 later in this preamble. Notices have 
two-year expiration dates, unless extended. This will 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?

    Final Sec. 3809.300 is in the form of a table that clarifies how 
this final rule applies to existing notice-level operations. We use 
tables here and elsewhere in this subpart to reduce complexity and to 
make it easier for the reader to understand the requirements of subpart 
3809. This section allows operators identified in an existing notice 
already on file with BLM on the effective date of this final rule to 
continue operations for two years. After 2 years, the notice can be 
extended under final Sec. 3809.333. New operators will have to conduct 
operations under subpart 3809. If a notice has expired, the operator 
will have to immediately reclaim the project area or promptly submit a 
new notice or plan of

[[Page 70036]]

operations under this subpart. Final Sec. 3809.300(a) adds a statement 
that BLM may require a modification of an existing notice under 
Sec. 3809.331(a)(1).
    Final Sec. 3809.300(c) contains new language about situations where 
an operator modifies an existing notice after the effective date of the 
final rule. Final Sec. 3809.300(c)(1) specifies that if an operator 
modifies an existing notice after the effective date of the final rule, 
and the modified operations remain within the outline of the original 
acreage described in the notice, then operations may continue for 2 
years after the effective date of the rule, or longer if the operator 
extends the notice under Sec. 3809.333. The rule also explains that BLM 
may require an operator to modify the notice under Sec. 3809.331(a)(1). 
The operator under a modified notice must also comply with the 
financial guarantee requirements of Sec. 3809.503.
    Final Sec. 3809.300(c)(2) requires that operations on any 
additional acreage described in a modification to an existing notice be 
subject to the provisions of subpart 3809, including Sec. 3809.11 and 
Sec. 3809.21, and provides that BLM may require approval of a plan of 
operations before the additional surface disturbance may begin. For 
example, a plan of operations may be required if the additional acreage 
to be disturbed results in cumulative surface disturbance of greater 
than 5 acres under an exploration project.
    Final Sec. 3809.300(d) replaces proposed Sec. 3809.300(c). The 
language has been modified to clarify that an operator with an expired 
notice must either submit a new notice under Sec. 3809.301, submit a 
plan of operations under Sec. 3809.401, whichever is applicable, or 
immediately commence reclamation of the project area.
    One commenter suggested we clarify in Sec. 3809.300(a) that all 
notices will expire after 2 years, and then the final rules will apply. 
We have modified final Sec. 3809.300(a) to clarify that the intent of 
the section is to have all existing notices expire two years from the 
effective date of this final rule. The operator under an existing 
notice may extend the notice beyond two years, and this final rule may 
not necessarily apply to an existing notice that is extended. That is, 
under final Secs. 3809.300(c), 3809.331(a), and 3809.333, an operator 
may extend an existing notice in two-year increments subject to the 
terms of the existing notice and the previous regulations if the 
operator doesn't make ``material changes'' to the operation. The term 
``material changes'' is defined in final Sec. 3809.331(a)(2).
    Other commenters wanted BLM to delete both the two-year limitation 
in proposed Sec. 3809.300(a) and all of proposed Sec. 3809.300(b). In 
addition, some commenters felt the two-year term for notices was too 
short and wanted to have a five-year term for notices. These commenters 
asserted that a two-year term would require too frequent re-application 
for approval of notices and would be inconsistent with the NRC Report 
recommendations. We should point out that BLM reviews, but doesn't 
``approve,'' notices. We disagree with the commenters' suggested 
deletions and assertion. The two-year term for notices in this final 
rule will bring notice-level operations that extend beyond the acreage 
covered by the original notice under the performance standards of this 
final rule (Sec. 3809.320) within a reasonable time frame. The NRC 
Report recommendation does not address the transition for existing 
notices. Under this final rule, it is being applied to all new mining 
and exploration.

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

    Final Sec. 3809.301 lists notice-filing and content requirements. 
Two commenters suggested we use a tax identification number instead of 
a Social Security number in the operator information required under 
proposed Sec. 3809.301(b)(1). We agree and have made that change in the 
final rule, as well as under final Sec. 3809.401(b)(1). One commenter 
pointed out that notice-content requirements should not include the 
dates that operations will begin and when reclamation will be 
completed, since these are never exactly known. We agree and have 
changed final Sec. 3809.301(b)(2)(iv) accordingly by asking for the 
expected dates that operations will commence and reclamation will be 
completed. We have also specified ``calendar'' days under final 
Sec. 3809.301(d) for clarity.
    A few commenters said they are not opposed to requiring bonding, a 
reclamation plan and reclamation cost estimate for notice-level 
operations as required in final Sec. 3809.301(b)(3) and (b)(4). They 
believed that these safeguards are more than sufficient to prevent 
unnecessary or undue degradation to public lands.
    Several commenters suggested adding a requirement [to proposed 
Secs. 3809.301(b), 3809.312, and 3809.313] for an operator to advertise 
planned operations in a local newspaper, not commencing operations 
until 30 days after publication. This would allow the public to file 
written objections. A commenter suggested adding language to proposed 
Sec. 3809.311 which would allow any person with an adversely affected 
interest to file written objections to a notice within 30 days of 
advertising planned operations. We did not adopt these comments since 
we believe they would not be consistent with NRC Report Recommendation 
3 dealing with expeditious handling of exploration activities.
    A few commenters said they should not have to provide a reclamation 
cost estimate under proposed Sec. 3809.301(b)(4), since BLM would 
review and modify a reclamation plan in most cases. We do not agree 
with these comments and we have included the requirement in this final 
rule. The burden should be on the operator, who is the proponent of the 
activities requiring reclamation, to provide his or her best estimate 
of reclamation costs.

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

    Final Sec. 3809.311 outlines actions BLM takes when it receives a 
notice. Based on numerous comments discussed in this preamble under 
final Sec. 3809.21, we changed final Sec. 3809.311(a) from 15 
``business'' days as proposed to ``calendar'' days from the time that 
we receive a notice to review it. Final Sec. 3809.311(c) was changed to 
use 15 calendar days as well. If BLM determines that a submitted notice 
is incomplete, we will inform the operator of what additional 
information would be needed to comply with final Sec. 3809.301. The 15-
calendar-day review period commences upon BLM's receipt of each 
submittal (or re-submittal) of a notice. Where feasible, BLM will try 
to perform its review of the revised notice in a shorter time frame. We 
received final Sec. 3809.311(c) to clarify that BLM's review of any 
additional information submitted by a prospective notice-level operator 
will continue until either the notice is complete or we determine that 
an operator may not proceed due to the inability to prevent unnecessary 
or undue degradation.
    Several commenters wanted BLM to review notices for completeness in 
time frames ranging from 5 calendar days to 20 business days. We have 
not accepted this comment since we believe the 15-day calendar review 
period should include completeness review. If BLM staff determines that 
a notice is incomplete in less time, we will notify the operator as 
soon as possible. Another commenter asked us to clarify the standards 
BLM will use to see if a notice is complete under 3809.311(a). The 
standards for completeness are

[[Page 70037]]

listed in final Sec. 3809.301, as stated in the final rule.
    One State Game and Fish department commented that they would like 
to review proposals, regardless of acreage, where there is concern 
about fish and wildlife resources, or limited, high-value wildlife 
habitats such as riparian zones and wetland habitats. During the 
notice-review process, BLM will make every effort to coordinate with 
State regulators. Federal/State agreements described under final 
Sec. 3809.200 could be used to create a mechanism for such 
coordination.

Section 3809.312  When May I Begin Operations After Filing a Complete 
Notice?

    Consistent with the changes in the review period in other sections 
as compared to the proposed rule, and based on public comment, final 
Sec. 3809.312 specifies that an operator will be able to commence 
operations 15 calendar days after BLM receives a complete notice from 
that operator and after the operator provides a financial guarantee 
that meets the requirements of subpart 3809. The operator may commence 
sooner if BLM informs the operator that it has completed its review and 
the financial guarantee requirements are met. This section also alerts 
the operator that operations may be subject to approval under 43 CFR 
part 3710, subpart 3715, which governs occupancy of public lands.
    Several commenters indicated that BLM should be required to inform 
the operator when a notice is complete and operations can commence. 
Other commenters said that the final rule should require that BLM 
notify an operator that it has completed its notice review. These 
comments have not been incorporated in the final rule. The notice 
system is designed to allow an operator to commence operations unless 
BLM notifies the operator of BLM's concerns regarding compliance with 
this rule. A commenter suggested that new Sec. 3809.312(e) be added 
that would notify operators that they may be subject to additional 
requirements imposed by State regulation, and that operators must be in 
compliance with such requirements before commencing operations. The 
comment was not adopted. This requirement is already covered under the 
definition of ``unnecessary or undue degradation'' in final 
Sec. 3809.5. See also final Sec. 3809.3. In addition, State law applies 
by its own terms. One commenter felt that the 15-business-day time 
frame proposed for notice review would not be realistic since an 
operator would be required to provide a financial guarantee before 
commencing operations. In practice, an operator must have a financial 
guarantee in place at least 15 days before, or soon after, filing a 
notice in order to commence operations 15 days after filing a notice.
    One commenter believed that notice-level operations should not be 
required to furnish a financial guarantee, as required under proposed 
Sec. 3809.312(c), if no cyanide or leaching is proposed. This comment 
has not been incorporated into the final rule. We believe it would be 
inconsistent with NRC Report Recommendation 1, and that financial 
guarantees are needed to assure the reclamation of any greater-than-
negligible surface disturbance.

Section 3809.313  Under What Circumstances May I Not Begin Operations 
15 Calendar Days After Filing My Notice?

    Final Sec. 3809.313 outlines, in table format, cases in which BLM 
may extend the time to process a notice. Consistent with the changes in 
the review period in other sections as compared to the proposed rule, 
final Sec. 3809.313 specifies 15 calendar days rather than business 
days. We have added a statement to final Sec. 3809.313(d) that BLM will 
notify the operator if the agency will not conduct an on-site visit 
within 15 calendar days of determining that a visit is necessary, 
including the reasons for the delay.
    Several commenters believed that BLM would be able to extend the 
15-business-day review period for a notice indefinitely under proposed 
Sec. 3809.313 due to the ambiguous proposed language of that section. 
We have limited the amount of time BLM can extend its review under 
final Sec. 3809.313(a) to an additional 15 calendar days. We believe 
this limitation, combined with use of calendar days instead of business 
days as in the proposed rule, will serve to expedite BLM's review. BLM 
acknowledges that the review period could be extended beyond 30 days 
under final Sec. 3809.313(b), (c), and (d) until BLM concerns are 
satisfied.

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

    Final Sec. 3809.320 requires that notice-level operations meet all 
applicable performance standards listed in proposed Sec. 3809.420. BLM 
is adopting this section as proposed. See the discussion of performance 
standards later in this preamble under Sec. 3809.420.

Section 3809.330  May I Modify My Notice?

    Final Sec. 3809.330 clarifies that an operator may modify an 
existing notice to reflect proposed changes in operations. BLM is 
adopting this section as proposed. BLM will review the modification 
under the same time frames proposed in Sec. 3809.311 and Sec. 3809.313. 
This provision addresses confusion over whether a notice may be 
modified. The previous regulations were silent on this topic.
    Two commenters stated that proposed Sec. 3809.330 does not define 
how an incomplete notice modification impacts the existing notice. 
Final Sec. 3809.330(b) specifies that modified notices will be handled 
under the procedures of final Sec. 3809.311, which addresses incomplete 
notices.

Section 3809.331  Under What Conditions Must I Modify My Notice?

    As proposed, final Sec. 3809.331 requires an operator to 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. Where an operator plans to make material 
changes, the operator would have to submit the modification 15 calendar 
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.
    The proposal would have defined ``material changes'' as ``the 
addition of planned surface disturbance up to the threshold described 
in Sec. 3809.11, undertaking new drilling or trenching activities, or 
changing reclamation.'' In response to a comment that this language was 
not clear, we changed the language in the final rule. Under final 
Sec. 3809.331(a)(2), ``material changes'' are ``changes that disturb 
areas not described in the existing notice; change your reclamation 
plan; or result in impacts of a different kind, degree, or extent than 
those described in the existing notice.''
    We received two comments stating that it was unclear how proposed 
Sec. 3809.331(a)(1) would apply to private lands. Although BLM doesn't 
directly regulate activities on private lands, BLM is under a duty in 
FLPMA to manage the public lands to protect them from unnecessary or 
undue degradation, and in some cases this may require taking steps to 
protect the public lands from

[[Page 70038]]

impacts caused by activities on private lands.
    Two commenters indicated that it was unclear how much time BLM 
would give an operator to comply with Sec. 3809.331(a)(1) if BLM 
requires modification of a notice. The length of time that BLM requires 
to modify a notice will depend on site-specific conditions. The time 
requirements and the reasons for the modifications will be spelled out 
in an appealable decision letter sent to the operator from the BLM. A 
commenter indicated we should revise proposed Sec. 3809.331(a)(1) to 
require documentation of unnecessary or undue degradation that BLM had 
found. Normal case processing in BLM includes documentation in case 
files of our findings. This ensures a good written record upon which 
the local BLM manager can base decisions and findings. The comment has 
not been incorporated into the final rule.

Section 3809.332  How Long Does My Notice Remain in Effect?

    Final Sec. 3809.332 provides for an effective period of 2 years for 
a notice, unless extended under Sec. 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. 
An operator's obligation to meet all applicable performance standards, 
including reclamation, would not terminate until the operator has in 
fact satisfied the obligation. The word ``complete'' was added before 
``notice'' in final Sec. 3809.332 to ensure that only complete notices 
are ``grandfathered'' under subpart 3809.
    Several commenters indicated that two years is a reasonable period 
for a notice to be effective, however, the responsibility for an 
operator to reclaim operations should be independent of the validity of 
the affected mining claim(s). We agree that reclamation 
responsibilities remain until reclamation is completed, regardless of 
the validity of mining claims within the project area. No change has 
been made in the final rule to reflect these comments.
    We received several comments asserting that notices should expire 
in 4 to 5 years. BLM believes such changes are unwarranted. An operator 
may file an extension under final Sec. 3809.333 to keep records 
current. Additional extensions are allowed. See preamble discussion 
under Sec. 3809.333 below.
    Several commenters stated that BLM has not demonstrated that an 
inability to clear expired notice records has resulted in unnecessary 
or undue degradation and that it would be inappropriate to clear 
records since reclamation may not be completed for a considerable time 
in the future at a project area. This provision remains in the final 
rule as it will help BLM clear its records of notices for which no 
activity has ever occurred on the ground. Reclamation obligations will 
continue for the operator until reclamation is completed as required, 
regardless of the disposition of the notice.

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

    Final Sec. 3809.333 contains a provision to allow notices to be 
extended beyond the 2-year effective period specified in final 
Sec. 3809.332. This provision would accommodate notice-level operations 
that cannot be completed within 2 years. We received one comment asking 
that we clarify that notices would be extended only if there is an 
acceptable financial guarantee as provided under Sec. 3809.503. We have 
incorporated a reference to Sec. 3809.503 in this subsection of the 
final rule.
    We received several comments regarding whether the 2-year time 
period is adequate for extension of notices. The comments ranged from 
agreeing that the 2-year time frame is adequate, to comments that it is 
too short. Others stated that notice renewals should not be required if 
operations do not change. We believe the 2-year period for notice 
extensions will be adequate since notices may be extended more than 
once with minimal additional paperwork.
    One commenter wished us to indicate that the only reason a notice 
extension might not ensue is in the instance of noncompliance, and in 
that case, the operator would be notified by BLM. BLM declines to adopt 
the suggestion. Although BLM will notify operators in noncompliance of 
the reasons for the noncompliance and steps needed to correct it, the 
existence of the noncompliance will not automatically preclude 
extension of the notice.
    One commenter suggested that language be added to Sec. 3809.330(a) 
and to Sec. 3809.333 that would require public notification for notice 
modifications and extensions respectively. We have not incorporated 
this comment in the final rule. We believe adding such public 
notification requirements would be inconsistent with NRC Report 
Recommendation 3 concerning the expeditious handling of notices.

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

    Final Sec. 3809.334 clarifies that during periods of temporary 
cessation, the operator must take all steps necessary to prevent 
unnecessary or undue degradation as well as maintain an adequate 
financial guarantee. BLM is adopting this section as proposed. BLM will 
require in writing that the operator take such steps if the agency 
determines that unnecessary or undue degradation would be likely to 
occur.
    A State regulator commented and agreed with the need for interim 
site stabilization during temporary cessations of operations under 
proposed Sec. 3809.334. Several commenters were concerned that BLM 
provide written documentation of any finding under proposed 
Sec. 3809.334(b) that temporary cessation of operations will likely 
cause unnecessary or undue degradation. BLM's findings, on a case-by-
case basis, will be spelled out in an appealable decision letter sent 
to the operator from the BLM.
    One commenter asserted that proposed Sec. 3809.334 would 
inadequately address unnecessary or undue degradation caused by 
improper storage and containment of hazardous materials and remediation 
of contaminated soils. BLM disagrees with the comment. The performance 
standards applicable under Sec. 3809.320 as well as the continued 
requirement to prevent unnecessary or undue degradation adequately 
address these concerns.
    Several commenters asked that the final rule define ``period of 
time'' as used in proposed Sec. 3809.334(a) and ``extended period of 
non-operation'' as used in proposed Sec. 3809.334(b)(2). We did not 
incorporate these comments into the final rule. Regardless of the 
``period of time'' that passes, at all times, an operator must meet the 
requirements of final Sec. 3809.334(a). BLM will take actions necessary 
to ensure the prevention of unnecessary or undue degradation. The term 
of an ``extended period of non-operation'' will be determined by BLM on 
a case-by-case basis, after considering the sensitivity of the resource 
values in the project area.

Section 3809.335  What Happens When My Notice Expires?

    Final Sec. 3809.335 describes what must occur when a notice expires 
and is not extended. BLM is adopting this section as proposed. The 
operator must cease operations, except reclamation, and promptly 
complete reclamation as described in the notice. The operator's 
responsibility to complete reclamation continues beyond notice 
expiration, until such responsibilities are satisfied. This provision 
helps address the problem of abandoned operations by

[[Page 70039]]

clearly establishing the operator's responsibilities.
    One commenter suggested that a third option be added to proposed 
Sec. 3809.335(a) which would allow an operator to provide written 
notice to BLM of the intent to extend the notice per Sec. 3809.333. The 
commenter reasoned that if an operator misses the extension deadline, 
but intends to operate, he/she should not be forced to reclaim. 
Operators who face this situation would not be in compliance with 
Sec. 3809.333, which requires they notify BLM in writing on or before 
the expiration date of their desire to conduct operations for 2 
additional years. We wrote Sec. 3809.333 in this way in order to avoid 
long periods of time after a notice expires for reclamation to be 
completed, and to prevent unnecessary or undue degradation from 
occurring. If a notice expires, Sec. 3809.335(a) ensures that 
reclamation is promptly completed. If an operator inadvertently misses 
a notice-extension deadline, he/she must immediately submit a new 
notice and provide adequate financial guarantee as required under 
Sec. 3809.301, then follow Sec. 3809.312. Quick submittal of a new 
notice will ensure the prevention of unnecessary or undue degradation 
and continuity of operations. A complete, new notice must be submitted 
before BLM initiates forfeiture of the operator's existing financial 
guarantee.

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

    Final Sec. 3809.336(a) describes what characteristics BLM uses to 
determine if it considers an operation to be abandoned. Final 
Sec. 3809.336(b) specifies that BLM may, upon a determination that 
operations have been abandoned, initiate forfeiture of an operator's 
financial guarantee. BLM is adopting this section as proposed. BLM may 
complete reclamation if the financial guarantee is found to be 
inadequate, with the operator and all other responsible persons liable 
for the cost of reclamation.
    Several commenters pointed out that since exploration is typically 
intermittent, notice-level operations may appear to be ``abandoned'' at 
some time during the two-year notice term. We have included criteria in 
final Sec. 3809.336 that is designed to inform the public of indicators 
of abandonment. BLM will strive to contact operators in cases where it 
is not clear whether operations have been abandoned. Our major concerns 
are that unnecessary or undue degradation be prevented and that 
operators maintain public lands within the project area, including 
structures, in a safe and clean condition.
    Other commenters suggested that we revise proposed Sec. 3809.336(a) 
to require BLM to provide an appealable determination that the project 
area has been abandoned. Any written decision that BLM sends to an 
operator may be appealed as specified under final Sec. 3809.800.

Sections 3809.400 through 3809.424  Operations Conducted Under Plans of 
Operations

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

    Proposed Sec. 3809.400 described how the new regulations would 
apply to existing and pending plans of operations. If an operator had 
an existing approved plan of operation before the effective date of the 
regulations, then the operations would not be subject to the new 
performance standards. If the plan of operations was pending (not yet 
approved) then BLM proposed a distinction on how the new regulations 
would be applied based upon how much NEPA documentation had been 
completed. If an environmental assessment (EA) or EIS had been 
released, the plan content and performance standards did not apply. If 
an EA or draft EIS had not yet been released, then all portions of the 
final regulations would have applied to the plan of operations.
    BLM received considerable comments expressing concern that release 
of the EA or draft EIS was not an appropriate threshold. The concern 
was that by the time of document release the operator had invested 
considerable time and resources in the development of a plan of 
operations. There was also concern that plans of operations just days 
away from release of the NEPA documents to the public would be caught 
with having to go back and redesign plans to meet the new performance 
standard and supply additional information to meet the content 
requirements. Furthermore, the operator had no control over when BLM 
would release the NEPA document and should not be punished for actions 
beyond its control. It was suggested that instead BLM chose a simpler 
cutoff for existing and pending plans of operations. It was suggested 
that if the plan of operations had been submitted to BLM before the 
effective date of the regulations, it would fall under the existing 
3809 regulations for plan content and performance standards.
    BLM was persuaded by these comments and has changed final 
Sec. 3809.400 to provide that any plan of operations submitted prior to 
the effective date of the final regulations would be able to use the 
plan content requirements and performance standards in the previous 
regulations. All other provisions of the final regulations, such as the 
posting of financial assurances and penalties for noncompliance would 
still apply. BLM believes this is appropriate as it protects the 
investment operators have made in preparing their plans of operations 
and supporting NEPA documents, yet provides BLM with the financial 
assurance that reclamation will be completed and that enforcement 
actions can be taken to remedy any future noncompliance, should it 
occur. The revised text in Sec. 3809.400 of the final regulations has 
been rewritten to reflect these changes in three paragraphs. The 
proposed table in this section has been deleted. Parallel changes have 
also been made in final Sec. 3809.434 regarding pending modifications 
to plans of operations for new or existing mine facilities.
    This section of the regulations dealing with existing and pending 
plans of operations is not inconsistent with the NRC Report 
recommendations. The NRC Report recommendations did not specifically 
address how existing operations should transition into any change in 
the regulations, but they did recommend that all operations on public 
lands provided adequate financial assurance and were subject to BLM 
enforcement authority. This section of the regulations meets those NRC 
Report objectives.

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

    Final Sec. 3809.401 describes where a plan of operations has to be 
filed and what information it must contain. Final Sec. 3809.401(a) 
states that the plan of operations must be filed in the local BLM 
office with jurisdiction over the land involved. This is an intentional 
change from the previous regulations which required the plan of 
operations to be filed in the BLM District Office with jurisdiction 
over the lands involved. BLM has reorganized, and in some areas there 
are no longer three tiers of administration with a District Office. The 
intent of the regulations is to now make sure the plan of operations is 
filed in the local BLM field office responsible for day-to-day 
management of the lands involved.
    No detailed comments were received on this paragraph of the 
regulations. Part of the following paragraph (proposed 
Sec. 3809.401(b)) has been

[[Page 70040]]

moved into final paragraph (a) for purposes of clarity as explained 
below.
    Final Sec. 3809.401(a) is not inconsistent with the recommendations 
of the NRC Report. The NRC Report did not address where a plan of 
operations should be filed. The NRC Report did recommend that a more 
timely permitting process be developed. By not requiring the plan of 
operations to be on a particular form, BLM saves operators time and 
resources by allowing them to provide copies of information they may 
already have assembled to meet other agencies' filing requirements.

Section 3809.401(b)

    This section of the regulations lists all the content requirements 
for a complete plan of operations. The section is broken into five 
major paragraphs covering: operator information, description of 
operations, reclamation plan, monitoring plan, and the interim 
management plan.
    A plan of operations is not considered complete until the 
information required under final Sec. 3809.401(b) has been provided in 
enough detail for BLM to determine that the plan of operations would 
prevent unnecessary or undue degradation. The language on the 
demonstration in proposed paragraph (b) has been moved to final 
paragraph (a) because it is not a content requirement but rather 
defines the end result of the plan review process.
    There were many general comments on this section that said the 
content requirements were too detailed or were too open ended, and did 
not specify why BLM needed this level of detail. In response, BLM has 
revised the regulations to specify that the level of detail must be 
sufficient for BLM to determine that the plan of operations would 
prevent unnecessary or undue degradation. BLM has also deleted the word 
``fully'' from the proposed paragraph and instead will have the level 
of detail be driven by the needs of the individual review process.
    This approach is not inconsistent with the NRC Report or its 
recommendations which emphasized the variety of mining operations and 
environmental settings and contained a general caution against one-
size-fits-all requirements.

Operator Information

    The proposed regulations would have required the operator to supply 
basic identification information including, name, address, phone 
number, Social Security Number or corporate identification number, and 
the serial number of unpatented mining claims involved. The proposed 
regulations would also have required the operator, if a corporation, to 
designate a corporate point of contact, and to notify BLM within 30 
days of any change in operator. BLM has adopted the proposed language 
with the changes described below.
    Comments received on this paragraph questioned the legality and 
purpose in requiring the operator to supply a Social Security number. 
The purpose of the requirement is for the BLM to be able to 
definitively identify the operator responsible for the operation and 
reclamation of the site. The final provision has been changed to 
require a taxpayer identification number, as suggested by some 
commenters. A notice or plan of operations would not be considered 
complete without information sufficient to identify the responsible 
operator.
    This requirement is not inconsistent with the NRC Report 
recommendations. While NRC did not specifically address operator 
identification, it did recommend that operators be held accountable for 
meeting the requirements of the regulations through improved 
enforcement provisions. The requirement that operators responsible for 
compliance be identifiable is not inconsistent with this 
recommendation.

Description of Operations and Reclamation

    Final Sec. 3809.401(b)(2) and (3) require the operator in a plan of 
operations to describe its proposed operating plans and associated 
reclamation plans. These sections of the regulations specify much of 
the information that many operators are providing today under the 
existing regulations. Items required include, where applicable; a 
description of the equipment, devices or practices that will be used; 
maps showing the location of mine facilities and activities; 
preliminary or conceptual designs and operating plans for processing 
facilities and waste containment facilities; water management plans, 
rock characterization and handling plans; quality assurance plans; 
spill contingency plans; a general schedule of operations from start 
through closure; plans for access roads and support services; drill-
hole plugging plans; regrading and reshaping plans; mine reclamation 
plans including information on the practicality of mine pit 
backfilling; riparian and wildlife mitigation; topsoil handling and 
revegetation plans; plans for the isolation and control of toxic, acid-
forming or other deleterious materials; plans for removal of support 
facilities; and plans for post-closure management. Again, this 
information is only required to the extent it is applicable to the 
operation. For example, a plan of operations for exploration drilling 
would not be required to provide information on mine pit reclamation 
since it would not involve the excavation of a pit.
    Many commenters were concerned that the information required was 
too detailed and was not needed by BLM to meet its mission of 
preventing unnecessary or undue degradation--that operators would waste 
time and resources redesigning plans after the approval decision had 
been made. Other commenters were concerned that BLM was requiring the 
operator to provide a final plan of operations before the review 
process had even begun, and suggested that BLM should let the NEPA 
process decide what information was needed in the plan of operations. 
Several commenters stated that BLM should be able to require any 
information needed to evaluate the plan of operations. One commenter 
was concerned that BLM's use of ``preliminary designs'' indicated BLM 
would approve plans that were not final.
    BLM has carefully considered these comments. BLM believes that the 
content requirements for plans of operations essentially put into 
regulation the process that is currently being implemented by most BLM 
field offices. By describing these in the regulations themselves, BLM 
intends to improve consistency among field offices and provide 
operators more precise information on what is expected in a plan of 
operations. The purpose of the information requirements is to obtain a 
plan of operations that describes what the operator proposes to do in 
enough detail for BLM to evaluate impacts and determine if it will 
prevent unnecessary or undue degradation. The required level of detail 
will vary greatly by both type of activity proposed and environmental 
resources in the project area. On large EIS-level projects scoping may 
actually start before a plan of operations is submitted, through 
discussion with BLM staff on the anticipated issues and level of 
details expected. A certain level of detail is needed to begin public 
scoping. In the initial plan submission it is up to the operator to 
determine what level of detail to include in the plan. BLM will then 
advise the operator if more detail is required, concurrent with 
conducting the scoping under NEPA. By conducting the NEPA issue 
identification process (scoping) concurrent with the plan completeness 
review, both BLM and the operator can identify the appropriate level of 
detail for the plan of operations

[[Page 70041]]

that addresses agency and public concerns.
    In response to the comment on use of preliminary designs in plan 
review, it should be noted that many plans of operations are expected 
to present preliminary or conceptual designs for mine facilities that 
must eventually be highly engineered prior to construction. During plan 
review, BLM typically requests information about such facilities in 
order to ascertain location, size, general construction, operation, 
environmental safeguards, and reclamation. The level of detailed 
required is highly variable and site specific, but must be enough that 
the agency can evaluate whether the facility is not going to result in 
unnecessary or undue degradation of the public lands. An approved plan 
of operations allows for the mine facility to be constructed within the 
parameters outlined in such preliminary designs. Since the operator 
does not know what BLM's decision will be regarding plan approval, or 
conditions of approval, it may wait until the approval decision is 
issued before committing the often significant amount of resources 
necessary to prepare final detailed construction engineering drawings 
and specifications. For example, an operator may propose a tailings 
impoundment of a certain size and location, but the environmental 
analysis may evaluate several alternative locations or disposal 
methods. In this case, it may not be advisable for the operator to 
prepare final designs for an impoundment that may never be constructed. 
Once the preferred alternative is selected, the plan of operations 
approval decision could then require the operator to submit final 
approved engineering designs (and later ``as-built'' reports) in order 
to verify that the plan of operations, as approved, would be followed. 
Final Sec. 3809.411(d)(2) had been added to clarify this process.
    BLM has revised the final regulations to eliminate the word 
``detailed'' from the proposed descriptions of operations and 
reclamation in order to let the issues of a specific plan of operations 
determine the appropriate level of detail. This does not mean the 
operator may not eventually be required to provide detailed 
information, just that it may not be immediately necessary to have such 
a level of detail in the initial plan of operations submitted for BLM 
review. Likewise, the term ``conceptual'' has been added to final 
Sec. 3809.401(b)(2)(ii) to clarify that detailed final engineering 
designs are not required at the initial step in the review process. 
Under final Sec. 3809.401(b)(3)(iii), an information requirement has 
been added on mine pit backfilling. This is in response to a discussion 
in the NRC Report suggesting that the advisability of requiring pit 
backfilling ought to be considered on a case-by-case basis. This 
information will allow BLM to consider pit backfilling on an individual 
basis, without being subject to a presumption that backfilling should 
occur.
    Final Sec. 3809.401(b)(3)(viii) has been edited to clarify that 
acid materials, as referred to in the proposed regulations, means acid-
forming materials. Several commenters also questioned what was meant by 
``deleterious materials.'' ``Deleterious material'' is material with 
the potential to cause deleterious effects if not handled properly. 
This could include material which generates contaminated leachate, is 
toxic to vegetation, and/or poses a threat to human health or wildlife. 
The term is broader and more inclusive than material with the potential 
to produce acid drainage.
    Final Sec. 3809.401(b)(3)(ix) has been edited to clarify that 
stabilization in place, rather than removal, may be appropriate for 
some facilities at reclamation. This is consistent with the definition 
of ``reclamation'' at final Sec. 3809.5.
    The plan of operations content requirements related to the 
operating and reclamation phases of an operation are not inconsistent 
with NRC Report recommendations. NRC Report Recommendation 9 encourages 
BLM to continue to base permitting decisions on the site-specific 
evaluation process provided by NEPA. The process set out in the final 
rule does just that. Also, the NRC Report recommendation for a more 
timely permitting process would be facilitated by providing prospective 
operators with a comprehensive list of requirements that may be 
applicable to their operations. While many of these requirements are 
not new, they have not been clearly articulated under the existing 
regulations. The final regulations would help operators put together a 
plan of operations that would allow BLM to initiate a substantive 
evaluation earlier than is presently occurring.

Monitoring Plan

    Final Sec. 3809.401(b)(4) requires operators to provide monitoring 
plans as part of the plan of operations. Monitoring plans must meet the 
following objectives: demonstrate compliance with the approved plan of 
operations and other Federal or State environmental laws and 
regulations, provide early detection of potential problems, and supply 
information that will assist in directing corrective actions should 
they become necessary. Where applicable, the operator 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.
    Many commenters were concerned that monitoring plans could not be 
developed until after the plan of operations was approved and facility 
locations and outfalls were known. Other commenters felt that 
monitoring plans would duplicate or conflict with similar State or 
other Federal monitoring requirements.
    In response, BLM anticipates that certain portions of the plan of 
operations may change as a result of the NEPA review process, including 
monitoring programs. However, BLM requires information on all aspects 
of the plan of operations, including monitoring programs, to determine 
whether they will prevent unnecessary or undue degradation. This means 
basic information is required up front on what resources will be 
monitored where and how, and what corrective measures would be 
triggered by what monitoring results. The purpose of the NEPA process 
is to identify shortcomings in such plans and develop corrective 
measures (mitigation) in those plans. BLM does not agree that 
development of monitoring programs should be deferred until after the 
plan of operations has been through NEPA analysis. A monitoring 
program, tied to corrective action triggers, can serve to mitigate many 
environmental impact concerns and should be developed simultaneously 
with the plan of operations. BLM acknowledges that many existing State 
or Federal monitoring programs, where present, would satisfy most 
monitoring needs. The final regulation text has been revised to make it 
clear that monitoring plans should incorporate existing State or other 
Federal monitoring requirements to avoid duplication.
    Other commenters were concerned that by requiring monitoring the 
BLM was attempting to regulate resources such as water quality and air 
quality that have not been delegated to BLM. States or other Federal 
agencies regulate water quality and air quality by establishing 
discharge limits and monitoring them to determine compliance with set 
numeric levels. BLM is not attempting to duplicate these regulatory 
programs under this subpart, but BLM is required to regulate mining 
activity under FLPMA to prevent unnecessary or undue

[[Page 70042]]

degradation of all resources of the public lands, including those 
protected by other authorities. In order to evaluate the impact of 
mining operations, and the effectiveness of mitigation in preventing 
unnecessary or undue degradation, it is important to have the 
information that monitoring provides. Requiring monitoring plans under 
this subpart does not give BLM any additional authority beyond what it 
already has under FLPMA to prevent unnecessary or undue degradation, 
but rather allows BLM to ensure operations are following the approved 
plan and to identify the need for any modifications should problems 
develop.
    Finally, independent of the provisions of this subpart, BLM must 
ensure that its actions (both direct activities and activities it 
authorizes) comply with all applicable Federal, State, tribal and local 
air quality laws, statutes, regulations, standards, and implementation 
plans. See the pertinent portions of FLPMA, 43 U.S.C. 1712(c)(8), 
1732(c), and 1765(a)(iii), and the Clean Air Act, 42 U.S.C. 7418(a) and 
7506(c). Therefore, BLM may conduct, or require authorized users to 
conduct, appropriate air quality monitoring to demonstrate such 
compliance.
    The monitoring requirements in the final regulations are not 
inconsistent with the NRC Report recommendations. NRC did not make any 
recommendations to limit monitoring, and in fact acknowledged that 
continued monitoring after mine closure would be necessary and may need 
to include monitoring of surface and groundwater.

Interim Management Plans

    New Sec. 3809.401(b)(5) has been added to the final regulations. We 
added this section in response to NRC Report Recommendation 5, which 
says that BLM should require interim management plans for periods of 
temporary closure. This provision of the final regulations is not 
inconsistent with other NRC Report recommendations. This paragraph 
requires operators to provide plans for the interim management of the 
project area during periods of temporary closure. The new text requires 
that interim management plans include, where applicable: measures to 
stabilize excavations and workings; measures to isolate or control 
toxic or deleterious materials; provisions for the storage or removal 
of equipment, supplies and structures; measures to maintain the project 
area in a safe and clean condition; plans for monitoring site 
conditions during periods of non-operation; and a schedule of 
anticipated periods of temporary closure during which the operator 
would implement the interim management plan, including provisions for 
notifying BLM of unplanned or extended temporary closures.
    Some commenters did not see the need for an interim management plan 
in each plan of operations because it would be a significant burden on 
the operator, and it was only speculative that an operation may be 
suspended. It was also commented that an interim management plan 
prepared as part of the plan of operations probably wouldn't be 
adequate to address the environmental concerns at some future temporary 
closure.
    BLM believes that interim management plans do not pose a 
significant burden to operators if prepared as part of the plan of 
operations. An operator, in planning to mine, should also be able to 
plan under what conditions they might temporarily not mine, and how 
they would manage the site to prevent unnecessary or undue degradation 
during the temporary closure. If conditions change at temporary 
closure, the interim management plan can be modified to address the new 
conditions or circumstances.
    BLM considered requiring interim management plans to be submitted 
only upon temporary closure, but concluded that preparing and 
processing an interim management plan as a modification under 
Sec. 3809.431 would impose a greater burden than if it was done as part 
of the initial plan of operations. In addition, deferring preparation 
of interim management plans until a temporary closure was imminent 
would not provide the up front planning needed to consider the issues 
associated with temporary or seasonal closures. Final Sec. 3809.424(a) 
has also been revised to require operators to follow the interim 
management plan if they stop conducting operations and to modify the 
interim management plan if it does not cover the circumstances of the 
temporary closure.

Section 3809.401(c)

    Final Sec. 3809.401(c) says that BLM may require the operator to 
provide operational or baseline environmental information needed by BLM 
to conduct the environmental analysis as required by NEPA. This is a 
separate requirement from the information needed under final 
Sec. 3809.401(b) to have a complete plan of operations. Presently, many 
operators are already providing information needed to support the NEPA 
analysis, and this regulation would formalize that arrangement. For 
other operators, especially those who could file a notice under the 
previous regulations, this would represent a significant burden, but 
BLM believes it is appropriate for the operator to be responsible for 
providing this information to have their proposed plan of operations be 
favorably acted upon.
    Many commenters were concerned with one aspect of this provision, 
that the information provided could include that applicable to private 
as well as public lands. Some commented that the requirement suggests 
BLM intends to regulate non-public lands. Others were concerned BLM was 
using NEPA authority to regulate mining when it should be used as an 
analysis and disclosure process.
    Final Sec. 3809.2(d), discussed earlier in this preamble, has been 
added to make clear that BLM is not intending to exercise regulatory 
authority over private lands. However, NEPA requires that any 
environmental analysis conducted under that statute describe the 
environmental effects on all lands, regardless of ownership, that would 
result from the BLM approval action for the public lands portion of a 
project. BLM agrees that NEPA is a procedural statute that does not set 
substantive requirements operators must achieve. However, the NEPA 
regulations do require BLM to describe impacts to all resources, 
including those over which BLM may not have regulatory authority, or 
for which BLM shares regulatory authority with other agencies and to 
address mitigating measures for those impacts.
    Several commenters were concerned about the substantial additional 
burden that the information requirements would pose for many mine 
operators, but then stated that the information was being collected 
anyway to meet State or other Federal requirements and was duplicative. 
BLM agrees with the comments that much of the information is already 
being collected by the operator; therefore we don't agree that it 
constitutes a substantial additional burden for the operators of large 
mines.
    Another commenter suggested that the quality and quantity of 
baseline studies should be determined in the NEPA scoping process, and 
that as written, this requirement to supply information is an open-
ended invitation for uneven or arbitrary and capricious action by BLM 
to request data that it thinks would be ``nice to have,'' and that BLM 
should not pass on the cost of ``basic inventory'' or ``nice to have'' 
data to an owner/operator unless the owner/operator is given financial 
credit equal to the cost of the data collection.

[[Page 70043]]

    BLM does not believe that final Sec. 3809.401(c) provides an open-
ended request for ``nice to have data.'' The provision specifically 
links baseline data needs to the NEPA process. Scoping, as part of the 
NEPA process, would be used to identify issues associated with the 
operator's proposal and to determine the baseline data needs. This 
would serve to keep the data requirements tied to the issues identified 
for the individual plan of operations under consideration. That is also 
the reason BLM has not required set minimum amounts or durations of 
data collection as suggested by some commenters.
    Requiring baseline operational and resource information under final 
Sec. 3809 401(c) is not inconsistent with NRC Report recommendations. 
To the contrary, we believe it may facilitate the implementation of NRC 
Report Recommendation 9 regarding use of the NEPA evaluation process, 
NRC Report Recommendation 10 regarding early interagency NEPA 
coordination, NRC Report Recommendation 14 regarding long-term post-
closure site management, and NRC Report Recommendation 16 regarding a 
more timely permitting process. Early communication with the operator 
on information collection needs will result in a more efficient 
permitting process.

Section 3809.401(d)

    Final Sec. 3809.401(d) says that at a time specified by BLM, the 
operator must submit an estimate of the cost to fully reclaim the 
operations as required by Sec. 3809.552. This section was made separate 
from the completeness requirements for a plan of operations because it 
does not make sense for the operator to provide this information until 
the final reclamation plan is known with some certainty.
    BLM received several comments on this section that stated BLM 
should be required to set a specific time limit on how long BLM will 
have to review the reclamation cost estimate and a time line for the 
operator so he knows when the cost estimate is due.
    In response, we have added language to final Sec. 3809.401(d) to 
the effect that BLM will review the cost estimate and notify the 
operator either of any deficiencies or additional information needed or 
that we have determined the final amount on which the financial 
assurance is based. We did not set a specific time limit on how long we 
have to review the information because of the variability of the plan 
approval process. For example, some of the reclamation costs are based 
on mitigation measures developed through the NEPA process, which may be 
far from complete when the operator submits the estimate.
    A reclamation cost estimate can represent a significant amount of 
time and engineering resources. BLM believes operators should prepare 
the cost estimate when the plan of operations review process is nearly 
finished, not at the time the operator submits the initial proposed 
plan of operations. This way changes to the reclamation plan resulting 
from the NEPA analysis can be incorporated into the cost estimate, 
saving the operator resources.
    This section of the regulations is not inconsistent with NRC Report 
recommendations. The first recommendation in the NRC Report was to 
require financial assurance for all disturbance greater than casual 
use. The NRC went on to suggest the establishment of standard bond 
amounts for certain types of activities in certain terrain. The BLM 
agrees with the use of standard bond amounts for certain activities, 
but does not believe they should be included in the regulations. As 
long as the regulations require that bond amounts be adequate to cover 
all the reclamation costs, standardized bond calculation approaches 
that meet this objective can be developed in local policy and guidance 
documents where regional cost structures can be taken into account. 
Reclamation cost estimates can rely on BLM guidance documents, but may 
need to be modified to account for site-specific circumstances.

Section 3809.411  What Action Will BLM Take When It Receives My Plan of 
Operations?

    Final Sec. 3809.411 contains the review process BLM will follow 
when it receives a plan of operations. In general, the process involves 
reviewing the plan for completeness; conducting the necessary 
environmental analysis, interagency consultation and public review; 
making a determination on whether the plan would prevent unnecessary or 
undue degradation; identifying any changes in the plan that must be 
made to prevent unnecessary or undue degradation; and issuing a 
decision to either approve, approve as modified or not approve the plan 
of operations.
    Comments on this section expressed concern with the time it would 
take to process a plan of operations. Commenters also expressed concern 
over the purpose and utility of a public review process specific to the 
financial guarantee amount, although some commenters endorsed the 
public review process for reclamation bonding. Other comments were 
concerned with the situations where the regulation states that BLM 
``must disapprove'' a plan of operations, which, when coupled with the 
completeness requirements, they argued would create endless appeals. 
Comments were made regarding the difficulty of bonding for perpetual 
water treatment and that plans involving perpetual water treatment 
should be denied. Other commenters questioned what was meant by a 
complete plan of operations and by adequate baseline information. 
Specific comments follow:
    A comment specifically asked on proposed Sec. 3809.411(a), what BLM 
meant by the term ``complete.'' In response, a ``complete'' plan of 
operations is one that contains a complete description of the plan, 
using the applicable information content listed in Sec. 3809.401(b), in 
enough detail that BLM can conduct a NEPA analysis on the plan and make 
a determination as to whether it would cause unnecessary or undue 
degradation.
    One comment expressed serious concerns regarding delays in agency 
actions. The commenter stated that BLM's proposal would essentially 
eliminate the limited time deadlines which now exist in the current 
3809 rules. After 18 years of experience, the commenter asserted, BLM 
should need less time to review plans, not more because, this commenter 
felt, delay in the permitting process is one of the most significant 
impediments to continued domestic mining investment and recent 
experiences with BLM approvals for plans of operations have shown 
increasingly longer periods of time to obtain approval of the plans. 
The commenter suggested that meaningful regulatory time frames for plan 
review should be specified, such as 90 days where only an environmental 
assessment is required, and 18 months where an environmental impact 
statement is prepared.
    In response, BLM notes that even under the existing regulations it 
may not be possible to complete review of a non-EIS-level plan of 
operations within the suggested 90 days. Many of the time frames BLM 
must follow, and the delays sometimes encountered, are related to 
coordination with other agencies or with completing mandatory 
consultation processes which cannot be placed under preset time 
restrictions. While BLM has gained much experience in processing plans 
that has facilitated plan processing, to a considerable extent the 
efficiencies created by this experience has been offset by the fact 
that more technically complex issues, such as acid drainage, often 
require careful and comprehensive review, and by the additional 
coordination efforts

[[Page 70044]]

needed to interact with other agencies. BLM believes that under these 
circumstances the best way to expedite the process is for the final 
regulations to identify the information requirements for the operator, 
require BLM to provide the operator with a list of any deficiencies 
within 30 days, provide for interagency agreements with the States to 
reduce overlap, and to consult with operators early in the mine 
planning process on the required information and level of detail that 
would be needed to meet the requirements of the regulations.
    Several commenters were concerned with proposed Sec. 3809.411(c) 
which requires that ``BLM must disapprove, or withhold approval of, a 
plan of operations if it (1) does not meet the content requirements of 
3809.401.'' They commented that there is no conceivable legal or policy 
reason why BLM would want its regulations to require that it ``must 
disapprove'' a plan. That language can only constrain the agency's 
discretion, and on appeal, IBLA's. One commenter stated that this 
proposed language, combined with the detailed plan content 
requirements, creates fertile ground for appeals by opponents to mining 
projects. On appeal, BLM may be required to defend not only the 
substance of its decision, but its decision on the completeness of 
every aspect of the plan of operations, including the level of detail 
of the project description and design, and the long list of plans 
required by proposed Sec. 3809.401.
    BLM has reworded the particular sentence of concern under final 
Sec. 3809.411 to remove the ``must disapprove'' phrase, although it 
remains clear that BLM may still disapprove a plan of operations 
because it is incomplete. It should also be noted that a decision by 
BLM that a plan of operations is ``complete'' does not mean BLM has 
determined it is adequate to prevent unnecessary or undue degradation. 
A ``complete'' plan is only one where the operator has merely described 
their proposal in enough detail that BLM is able to analyze the plan to 
determine whether it would prevent unnecessary or undue degradation. It 
is only after the complete plan has been analyzed, and any additional 
mitigation developed that might be needed to prevent unnecessary or 
undue degradation, that BLM may issue an approval decision on the 
adequacy of the plan to prevent unnecessary or undue degradation. Upon 
appeal, the decision under review would be whether the plan of 
operations ``as approved'' will prevent unnecessary or undue 
degradation. BLM does not intend that its determination that a proposed 
plan of operations is complete is appealable to the Interior Board of 
Land Appeals. Only final decisions on whether plans are adequate to 
prevent unnecessary or undue degradation are appealable.
    Another comment was that proposed Sec. 3809.411 seemed to require 
compliance with all of the information requirements of proposed 
Sec. 3809.401 before the plan is ``complete,'' and before the BLM can 
initiate the substantive review process, including NEPA review. The 
commenter questioned whether this was BLM's intent, for it requires the 
operator to submit documentation in a needless level of detail and 
requires BLM's employees to review plans and information that can be no 
more than hypothetical.
    BLM wants operators to understand that it is their responsibility 
to provide a sufficient level of detail up-front to BLM on their 
proposed plan of operations so that the potential for unnecessary or 
undue degradation can be evaluated. The review process is ongoing and 
begins when the operator initially submits a plan of operations. 
However, lack of information on what the operator is proposing will 
only delay the review and approval process. BLM has added a mechanism 
in final Sec. 3809.411(d)(2) which allows for the incorporation of 
additional levels of implementation detail that may result from review 
of the plan by BLM or by other agencies.
    A comment was made on proposed Sec. 3809.411(c)(2) which may 
require BLM to disapprove operations that are in an area segregated or 
withdrawn from the operation of the mining laws. The commenter felt 
that segregation is not enough to trigger disapproval of a plan of 
operations, that lands should be accessible under the mining laws until 
the formal FLPMA withdrawal process has been followed. And that to do 
anything different would violate FLPMA's congressional mandate.
    BLM disagrees with this comment. FLPMA is clear that areas 
segregated from operation of the mining laws, in anticipation of a 
withdrawal, are legally not available for locatable mineral entry. The 
only mining activity that can be allowed in these areas are those 
associated with mineral discoveries made on valid mining claims prior 
to the segregation order and which therefore have prior existing 
rights. The final regulations at Sec. 3809.411(d)(3)(ii) reference 
Sec. 3809.100 which provides for a determination that the operator 
holds prior existing rights to mineral development over the segregation 
or withdrawal.
    EPA commented that the proposed regulations should be changed to 
fully integrate the input from EPA and State environmental agencies 
prior to plan of operations approval. EPA stated that under current 
procedures, after a final EIS is issued, the mining company submits its 
draft operating plan to BLM for approval. There is no formal 
requirement that BLM secure certification from State environmental 
agencies or the EPA that all applicable environmental permits have been 
secured prior to plan approval. Such a process would assure that the 
mining companies have met with and secured the entire range of permits 
needed to comply with environmental regulations.
    The EPA comment does not accurately reflect the current process. A 
proposed plan of operations is submitted prior to preparation of the 
EIS. It is this proposed plan that constitutes the proposed action of 
the NEPA document. As a result of NEPA review, the plan may be modified 
by conditions of approval needed to prevent unnecessary or undue 
degradation. We hope and expect that interagency agreements developed 
with the States under Sec. 3809.201 would address coordination of State 
environmental permits with the plan of operations approval. Final 
Sec. 3809.411(a)(3) has an added requirement that BLM consult with the 
States to ensure operations are consistent with State water quality 
standards. Final Sec. 3809.411(d)(2) has been added to provide for the 
incorporation of other agency permits into the final plan of 
operations.
    Commenters raised the issue that the BLM's approval of a plan of 
operations is a ``federal licence or permit'' and requires a Clean 
Water Act section 401 certification (or waiver of certification) from 
the State to be valid as long as a discharge is anticipated by the plan 
of operations.
    BLM agrees with the comment, but does not need to amend subpart 
3809 to comply with section 401 of the Clean Water Act. BLM will not 
approve a plan of operations under subpart 3809 until any necessary 
certification has been obtained by the operator or waived under section 
401 of the Clean Water Act. A section 401 certification is required for 
any plan of operations where discharges into navigable waters are 
anticipated. BLM does not consider this a new requirement because 43 
CFR 3715 already makes uses and occupancies under the mining laws 
subject to all necessary advance authorizations under the Clean Water

[[Page 70045]]

Act. See 43 CFR 3715.3-1(b) and 3715.5(b) and (c). If the State, 
interstate agency, or EPA, as the case may be, fails or refuses to act 
on a request for certification within six months after receipt of such 
request, the certification requirements will be considered waived. In 
such circumstances, BLM will follow EPA rules at 40 CFR 121.6(b) and 
notify the appropriate EPA Regional Administrator that there has been a 
failure of the State to act on the request for certification within a 
reasonable period of time after receipt of the request.
    Several commenters asked how proposed Sec. 3809.411(d), which 
requires BLM to accept public comment on the amount of financial 
guarantee and proposed Sec. 3809.411(a)(4)(vi), which states BLM may 
not approve a plan of operations until it completes a review of such 
comments, would work. If the intent of this section is that BLM will 
respond to these comments as well, according to this comment, this 
should be stated in the regulations, but the commenters also noted that 
these requirements will add extensive time to the BLM review process 
and increase BLM's workload without increasing the effectiveness of 
BLM's surface management regulations. According to this comment, BLM 
and the States have expertise in setting financial assurance, and the 
public does not have the necessary knowledge or training to comment on 
financial guarantees prior to plan approval and is not likely able to 
add anything to that process. It was suggested that if public comments 
are believed to be appropriate, they should be solicited in the same 
manner and according to the same time frame applicable to other issues 
in the NEPA process.
    In response, BLM has changed the proposed regulations to eliminate 
the specific public comment period on the financial guarantee amount. 
BLM believes soliciting comments on the merits of the operating and 
reclamation plans is more useful than obtaining comments strictly on 
the reclamation cost calculations, and is therefore requiring a 
mandatory 30-day minimum public comment period for all plans of 
operations. This comment period could, and typically would, be 
conducted as part of the NEPA process. Comments could also be provided 
at this time on the financial guarantee amounts, to the extent cost 
estimates are available during the comment period. In any event, 
financial guarantee information would still be available to the public 
so that they can comment on what BLM may require in the way of 
financial guarantees to ensure the public doesn't bear the cost of 
required reclamation. For example, the public may suggest mitigation 
measures that, if incorporated into the reclamation plan, would affect 
the financial guarantee amount. BLM will respond to comments made on 
the reclamation cost estimate at the same time and manner as they 
respond to comments made on the NEPA analysis of the plan of 
operations.
    Commenters on proposed Sec. 3809.411(c) were concerned that the 
section does not identify what options an applicant has if the plan of 
operation is denied or disapproved.
    In response, this section has been modified and moved to final 
Sec. 3809.411(d)(3). The BLM decision on the plan of operations would 
advise the operator of corrective actions that must be taken in order 
for the plan to be approved, or of the specific rationale behind a 
decision that the plan of operations could not be approved because it 
would cause unnecessary or undue degradation of the public lands, 
including substantial irreparable harm to significant resources that 
could not be mitigated. The BLM decision would also advise the operator 
of the appeals process if it disagreed with the decision and wanted to 
appeal it to the State Director or IBLA.
    One commenter said that BLM has the authority to, and should, 
prevent all offsite impacts due to mining whether these impacts be 
caused by actual surface disturbance, wind blown pollution, mine 
dewatering, acid drainage, or anything else. Mining proponents should 
not be allowed to externalize their costs over hundreds of square miles 
of surrounding public lands (as occurs in northern Nevada due to 
dewatering drawdown). Onsite impacts should be limited to surface 
excavation and be totally reclaimed.
    In response, BLM's authority is to take any action necessary to 
prevent unnecessary or undue degradation to public lands. This includes 
lands within and outside of the project area. However, it should be 
noted that impacts from mining operations and many other activities on 
public lands cannot be confined exclusively to the area of direct 
surface disturbance. Impacts to many resources transcend the direct 
disturbance boundary due to the nature of the effect. Visual impacts 
can often be seen for miles. Noise from operations can be heard a good 
distance from the project area. Wildlife may be displaced. Impacts to 
such resources as water and air will extend beyond the immediate 
disturbance due to the establishment of compliance points and mixing 
zones by other regulatory agencies. Due to the nature of mining, these 
situations will occur even with model operations that are in compliance 
with all applicable laws and regulations. The decision BLM must make 
upon plan review is to determine if the impacts would constitute 
unnecessary or undue degradation, and if so, decide what measures must 
be employed to prevent it from occurring.
    Some comments expressed concern that BLM would be duplicating 
existing State and Federal programs and that this would have the effect 
of extending the time required for approval of plans of operations and 
permitting.
    BLM is not trying to duplicate other Federal or State programs, but 
to incorporate their requirements into the review process to make it 
more comprehensive. This is not a substantial change from the current 
practice of working with the States or other Federal agencies on joint 
reviews. MOUs developed under the regulations that provide for the 
State to have the lead role may actually expedite the permitting 
process.
    Several comments were concerned that proposed Sec. 3809.411 takes 
away the 30-day response time the BLM has to reply to a miner's plan of 
operations. This could allow the BLM to delay action on a proposed plan 
and possibly cost the miner a whole season. The commenter stated that 
by removing the 30-day response time, the BLM has a new tool for 
stopping a proposed operation without the actual denial of a plan of 
operations. Comments were made that the present time frames by which 
BLM had to approve a non-EIS level plan of operations should be 
retained.
    BLM does not believe mandatory time frames for the plan review and 
NEPA analysis can be realistically set due to the uncertainty 
associated with many mining technical issues and the need for 
interagency coordination and consultation. BLM has committed in final 
Sec. 3809.411(a) to respond within 30 calendar days to an operator's 
proposed plan of operations as to the completeness of the plan. After a 
complete plan of operations is received and the environmental analysis 
prepared, there is a 30-day public comment period. BLM acknowledges it 
could take several months to review and approve even a mine plan where 
there do not appear to be any substantial resource conflicts. The 
operator should anticipate this review time and submit its proposed 
plan enough in advance that activity can begin when scheduled. It 
should also be noted that for seasonal activity, a plan of operations 
does not necessarily have to be filed with BLM every year. A single 
plan of operations

[[Page 70046]]

that describes the seasonal nature of the activity and the overall 
duration of the plan would be sufficient. For example, a plan could 
state that mining would occur from May 1st through September 1st every 
year for the next 5 years. Final Sec. 3809.401(b)(5) has been added to 
the regulations to assist operators with development of interim 
management plans for plans of operations that involve seasonal 
activity.
    EPA commented that it was concerned with the perpetuation of 
current procedures that do not promote cross-referencing between the 
final EIS and the operations plan. Past experience has shown that 
mining companies often change key design and operating features in the 
operations plan that were not noted (or were given little analysis) in 
the final EIS. Not linking the EIS process with the operations plan 
process allows the introduction of features that were not adequately 
evaluated or publicly disclosed and which could potentially increase 
environmentally risks at the site. EPA believes that the proposed 
regulations should include a process to ensure that major mine design 
features noted in the operations plan are fully evaluated in the final 
EIS. If there are significant changes in the mine plan after the final 
EIS is complete, a supplemental NEPA document should be prepared. Also, 
EPA suggests that the recommendations noted in the final EIS regarding 
mitigation measures be cross checked in the operations plan to assure 
that mitigation approaches committed to by BLM in the EIS process are 
included in the operations plan.
    BLM believes the final regulations address the problems perceived 
by EPA. First, under the existing regulations, operators are required 
to follow their approved plans of operations. If an operator doesn't 
follow the approved plan of operations, it is a compliance problem, not 
a NEPA problem, and is best addressed through improved enforcement. The 
proposed regulations specifically provide that failure to follow the 
approved plan of operations constitutes unnecessary or undue 
degradation. Final Sec. 3809.601(b) provides that BLM may order a 
suspension of operations for failure to comply with any provision of 
the plan of operations. Mitigating measures needed to prevent 
unnecessary or undue degradation, developed during the NEPA process, 
are required as conditions of approval. The final regulations at 
Sec. 3809.411(d)(2) provide a mechanism to require the operator to 
incorporate these mitigating measures into the plan of operations. If 
operators want to change their operations they have to file a 
modification under final Sec. 3809.431(a) and undergo a review and 
approval process similar to the initial plan of operations approval, 
including any necessary NEPA compliance.
    One commenter repeatedly commented on various aspects of the 
proposed regulations that BLM needs to assure that the final 
regulations are consistently used in the same way by both BLM and the 
Forest Service.
    The Forest Service has responsibility for surface management 
impacts of mining activities on National Forest Lands. BLM has 
developed the final regulations it believes best meet BLM management 
needs and are not inconsistent with the recommendations in the NRC 
Report.
    One commenter was specifically concerned with the problems and 
inherent risks in estimating a bond for perpetual water treatment. The 
commenter stated that if the bond is insufficient to meet the costs of 
operating and maintaining the treatment facility, it will almost 
certainly be the public that is obligated to meet the deficit, or to 
bear the cost of degraded water quality if treatment is discontinued or 
degraded. There is also a potential burden on the mine operator in that 
if the amount bonded is overestimated, the profitability of the mine 
can be negatively affected. When bonds are established, an agency makes 
assumptions not only about the long-term replacement and operating 
costs of a treatment plant, but also about the average inflation over 
the period of time covered by the bond and the average return-on-
investment the bond amount will generate over its lifetime. According 
to the commenter, as anyone who follows the financial markets knows too 
well, there is a considerable amount of instability and risk in both of 
these assumptions Typically, changing either the inflation rate or the 
rate for return-on-investment by a single percentage point will cause a 
huge change on the required bond amount. With a bond for perpetual 
treatment, ultimately the public bears the risk of these assumptions. 
In addition, predicting what costs might be, what other problems might 
arise, and whether the vehicle chosen to provide financial assurance 
all involved a considerable amount of uncertainty. Second, there is a 
risk that the financial vehicle used for the bond may not be available 
or viable when it is required for treatment. Financial institutions, 
and even government institutions, have a finite life. If these 
institutions change significantly, or fail, the potential for damage 
from water pollution is still there.
    In response, BLM acknowledges the difficulty in calculating an 
adequate financial guarantee for long-term, continual, or perpetual 
water treatment. A sufficient margin of safety for the public and the 
environment must be built into the cost assumptions, even though that 
may increase the financial guarantee amount and add to the operator's 
cost. That is a problem inherent in proposing an operation in an area 
that requires perpetual water treatment to prevent unnecessary or undue 
degradation. It would then be up to the operator to decide whether to 
proceed with the project in view of the significant financial guarantee 
that would have to be provided. In BLM's view, the alternative of not 
acknowledging that long-term water treatment is a possibility, and 
bonding accordingly, presents even greater public risks given the low 
reliability of present predictive modeling techniques.
    Additional comments on long-term water treatment urged that the 
best policy is to deny any application for a mine that includes a 
requirement for long-term water treatment. The commenters asserted that 
the long-term risk to the public, who is the ultimate guarantor for any 
long-term cleanup, is too great, and that by doing so, BLM would be 
best able to ``assure long-term post-closure management of mines sites 
on federal lands'' as stated by NRC Report Recommendation 14. This 
commenter also asserted that it is possible to design most mines to 
preclude conditions that will require long-term water treatment by 
using operating and reclamation procedures to minimize the 
contamination of water. Commenters also asserted that if it is not 
possible to design preventative measures into the mine, then the mine 
should not be permitted to open.
    BLM did consider an alternative that would not approve plans of 
operations that involved long-term or perpetual water treatment. BLM 
decided that it is difficult at best to accurately assess the post-
closure treatment needs of a mine up front, which could be decades 
before actual closure would take place. BLM was concerned that adopting 
such a restriction might, paradoxically, result in less analysis and 
disclosure by the proposed operator of information relevant to 
potential water quality impacts, and lead operators to be over 
optimistic about, and place greater reliance than may be warranted by 
the facts on, source control measures. BLM agrees that mine design and 
operation should focus on pollution prevention measures, and the 
regulations are written to stress this preference. Similarly, the use 
of some treatment

[[Page 70047]]

systems is desirable even in cases where pollution prevention measures 
have reduced contaminant loads significantly. BLM did not want to rule 
out the use of combined pollution prevention techniques such as source 
control with treatment programs. This is a difficult issue and is, in 
our judgment, a close call, but ultimately BLM believes that site-
specific factors should drive the decision on the acceptability of 
perpetual treatment both in terms of its ability to prevent unnecessary 
or undue degradation under the new definition which considers 
significant irreparable harm, and its potential cost to the operator in 
terms of the financial assurance that will be required to operate these 
systems in perpetuity.
    Several comments were received on the regulations regarding how the 
recent Solicitor's Opinion on millsite acreage limits may impact plan 
of operations approval. Some commenters objected that the 3809 
regulations might be used where there was mine waste placement in 
excess of the millsite acreage limits in the mining laws as explained 
in that opinion. Other commenters endorsed the relationship presented 
in the proposed regulations, stating that the millsite ratio was 
immaterial to the review and approval of a plan of operations. These 
commenters also argued that if BLM intends a change in these principles 
from the proposed regulations, it cannot make such changes in a final 
3809 rule without having to re-propose its 3809 proposal, because no 
alternative to the existing system for establishing one's land and 
claim position is studied in the EIS or noticed for comment, nor is 
even the idea of such a change in the regime for operating a hardrock 
mine on BLM lands noticed for comment.
    The final rules are consistent with the February 9, 1999, proposed 
rule. Under these final rules, BLM will not disapprove plans of 
operations based on the ratio of mill site acres to the number of 
mining claims. The 3809 regulations govern the surface management of 
operations conducted under the mining laws, and are intended to assure 
that operations do not result in unnecessary or undue degradation. 
Under the mining laws, operations may be conducted on lands without 
valid mining claims or mill sites, as long as such lands are open under 
the mining laws. It must be clearly understood, however, that persons 
who conduct operations on lands without valid claims or mill sites do 
not have the same rights associated with valid claims or sites. This 
means that BLM's decision whether to approve such activities under 
section 302(b) of FLPMA, 43 U.S.C. 1732(b) is not constrained or 
limited by whatever rights a mining claimant or mill site locator may 
have, and thus is of a somewhat different and more discretionary 
character than its decision where properly located and maintained 
mining claims are involved. For example, an operator doesn't have a 
properly located or perfected mill site would not be able to rely upon 
a property right under the mining laws to place a tailings pile on 
unclaimed land. Such situations will be evaluated on a case-by-case 
basis in accordance with BLM policy.
    Some commenters stated that the issue of land manager discretion 
must be made clear in order to meet FLPMA standards and that BLM needs 
the authority to consider other competing resource values and also the 
history of mining companies. Bad environmental records should lead to 
denial of permits to some companies. To protect public lands, land 
managers should have the right and be expected to weigh other uses and 
be able to deny mining proposals, including operations that would cause 
unnecessary or undue degradation. The commenters suggested that the 
final regulations need to provide land managers with discretion to deny 
mining permits for these reasons. Commenters also stated that small 
mines must not be exempt from FLPMA standards.
    Final Sec. 3809.411(d)(3) provides that BLM may deny a plan of 
operations that would result in unnecessary or undue degradation, or 
revoke a plan of operations under final Sec. 3809.602 for failure to 
comply with an enforcement order or where there is a pattern of 
violations. The regulations can't provide total discretion to land 
managers in making decisions on proposed operations involving properly 
located and maintained mining claims because of the rights these 
claimants may have under the mining laws. The regulations do provide 
for denial of a plan of operations if BLM determines the plan of 
operations would cause unnecessary or undue degradation. This includes 
creating substantial irreparable harm to significant resources that 
cannot be effectively mitigated. Small operators have never been exempt 
from the FLPMA standard to prevent unnecessary or undue degradation.
    Changes have been made in final Sec. 3809.411 for organizational 
purposes, editorial purposes, and to change procedural requirements for 
plan review and approval.
    Final Sec. 3809.411(a) has been changed to 30 calendar days from 
business days for the initial plan of operations review. Proposed 
Sec. 3809.411(a)(3) has been deleted because BLM will not be able to 
approve a plan within 30 days due to the addition of a minimum 30-day 
public comment period for each plan of operations prior to approval.
    In final Sec. 3809.411(a)(3)(iii), we have added a reference to the 
Magnuson-Stevens Fishery Conservation and Management Act, under which 
BLM may also have to conduct consultation. On October 11, 1996, the 
Sustainable Fisheries Act (Pub. L. 104-297, 16 U.S.C. 1801 et seq.) 
became law which, among other things, amended the habitat provisions of 
the Magnuson Act. The re-named Magnuson-Stevens Act calls for direct 
action to stop or reverse the continued loss of fish habitat. Toward 
this end, Congress mandated the identification of habitat essential to 
managed species and measures to conserve and enhance this habitat. The 
Act requires Federal agencies to consult with the Secretary of Commerce 
regarding any activity, or proposed activity, authorized, funded, or 
undertaken by the agency that may adversely affect essential fish 
habitat. The National Marine Fisheries Service has promulgated 
regulations to carry out the Magnuson-Stevens Act. The regulations 
governing Federal agency consultation are found in 50 CFR 600.920. This 
change makes it clear that these pre-existing statutory and regulatory 
requirements apply to operations on Federal lands under the mining 
laws.
    On BLM managed public lands, ``essential fish habitat'' refers to 
those waters and substrate necessary to salmon for spawning, breeding, 
feeding, or growth to maturity. For the purpose of interpreting the 
definition of ``essential fish habitat'': ``waters'' includes aquatic 
areas and their associated physical, chemical, and biological 
properties that are used by salmon and may include aquatic areas 
historically used by salmon where appropriate; ``substrate'' includes 
sediment, hard bottom, structures underlying the waters, and associated 
biological communities; ``necessary'' means the habitat required to 
support a sustainable fishery and the managed species' contribution to 
a healthy ecosystem; and ``spawning, breeding, feeding, or growth to 
maturity'' covers a species' full life cycle. See 62 FR 66531, Dec. 19, 
1997.
    Final Sec. 3809.411(a)(3)(vi) replaces the BLM review of public 
comments on the amount of the financial guarantee with a review of 
public comments on the plan of operations itself consistent with final 
Sec. 3809.411(d).
    BLM has added final Sec. 3809.411(a)(3)(ix) to the final

[[Page 70048]]

regulations. This provision provides for BLM to complete consultation 
with the State when needed to make sure that the plan of operations 
approved by BLM will be consistent with State water quality standards. 
This allows for measures need to meet applicable water quality 
standards to be incorporated into the plan of operations, limiting the 
need for later modification to the plan of operations.
    BLM has replaced proposed Sec. 3809.411(d) with final 
Sec. 3809.411(c). This paragraph replaces the requirement for public 
review on the amount of the financial assurance with a 30-day minimum 
public review period on the plan of operations. BLM believes soliciting 
comments on the merits of the operating and reclamation plans are more 
useful than obtaining comments strictly on the reclamation cost 
calculations themselves. BLM intends that the comment period can be 
conducted as the public comment period on the NEPA document, either the 
EA or draft EIS, prepared for a specific plan of operations. 
Reclamation cost estimates, to the extent they are available, would be 
included in the NEPA documents, but would not be the focus of public 
review and would not be reviewed using a separate comment period. All 
reclamation cost calculations would still be available for public 
inspection. All comments received would be handled under the NEPA 
process.
    Final Sec. 3809.411(d) has been added to clarify the decisions BLM 
may make with regard to a plan of operations. BLM may approve the plan 
as submitted, approve it subject to modification to prevent unnecessary 
or undue degradation, or not approve it for the reasons listed in final 
Sec. 3809.411(d)(3).
    Aside from the organizational changes for purposes of clarity, two 
changes in this paragraph are substantial. The second sentence in final 
Sec. 3809.411(d)(2) has been added which states: BLM may require an 
operator to incorporate into the plan of operations other agency 
permits, final approved engineering designs and plans, or other 
conditions of approval from the review of the plan of operations filed 
under Sec. 3809.401(b). This additional sentence is to acknowledge that 
plans may be approved subject to the satisfactory completion of final 
design work, obtaining other necessary permits, or completion of 
specific mitigation plans or studies. The benefit of this provision for 
the operator is that it lets the operator preserve engineering and 
technical resources until the operating parameters have been set by the 
plan approval. The benefit to BLM and other agencies is that it 
requires the plan of operations to be updated upon completion of the 
review to incorporate all relevant agencies' requirements in a single 
comprehensive document.
    The other substantial change is in final Sec. 3809.411(d)(3)(iii) 
where it provides for BLM to disapprove a plan of operations that would 
result in unnecessary or undue degradation. We have added language to 
describe how BLM would document disapproval of a plan of operations 
that would cause unnecessary or undue degradation under paragraph (4) 
of the final definition of ``unnecessary or undue degradation'' in 
Sec. 3809.5. The added text states that, ``If BLM disapproves your plan 
of operations based on paragraph (4) of the definition of `unnecessary 
or undue degradation' in Sec. 3809.5, BLM must include written findings 
supported by a record clearly demonstrating each element of paragraph 
(4) including that approval of the plan of operations would create 
irreparable harm; how the irreparable harm is substantial in extent or 
duration; that the resources substantially irreparably harmed 
constitute significant scientific, cultural, or environmental 
resources; and how mitigation would not be effective in reducing the 
level of harm below the substantial or irreparable threshold.'' 
Paragraph (4) of the definition of ``unnecessary or undue degradation'' 
states, in part, ``* * * conditions, activities, or practices that * * 
* result in substantial irreparable harm to significant scientific, 
cultural, or environmental resource values of the public lands that 
cannot be effectively mitigated.'' Any decision to deny the plan of 
operations must be supported by documentation showing how all four 
criteria have been met. It is BLM's intent that a plan of operations 
would be denied on this basis only in exceptional circumstances.
    The final regulations in section 3809.411 are not inconsistent with 
the NRC conclusions and recommendations. We discussed earlier in this 
preamble how the paragraph (4) provision responds to the NRC Report 
recommendation that BLM clarify its authority to protect valuable 
resources that may not be protected by other laws. See the preamble to 
the definition of ``unnecessary or undue degradation.'' The NRC Report 
recommended that BLM plan for, and implement, a more timely permitting 
process, while still protecting the environment; and that BLM involve 
all agencies, Tribes, and non-governmental organizations in the 
earliest stages of the NEPA process. The requirements of final 
Sec. 3809.411 and information description in final Sec. 3809.401(b) 
establish a process where the operator is advised early as to the 
needed contents in the plan of operations, and the information required 
to support the NEPA analysis. This should facilitate plan review. The 
process will also provide for public comment on all plans of 
operations, and for consultation with the other State and Federal 
regulatory agencies, surface managing agencies, and Tribes. This early 
involvement by other parties, should they chose to participate, would 
reduce the potential for last minute surprises or delays in the 
approval process.
    The NRC Report also recommended that BLM develop procedures that 
will enable the agency to identify during the plan of operations review 
process, the kinds of post-mining requirements that are likely to 
arise, and to incorporate these into the approved plan of operations. 
BLM has accomplished this in the final regulations by requiring: (1) In 
Sec. 3809.401(b)(3) that plans of operations address post-closure 
management; (2) in Sec. 3809.411(d)(2) the incorporation of other 
agency plans and permit requirements (including closure requirements), 
into the approved plan of operations; (3) in Sec. 3809.420(a)(3) that 
operations comply with applicable land use plans; and (4) in 
Sec. 3809.431(c) that plan modifications be submitted prior to mine 
closure to address unanticipated events, conditions or information.

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

    Final Sec. 3809.412 describes when an operator may conduct 
operations under a plan of operations. It lists two criteria: (1) BLM 
must have approved the plan of operations; and (2) the operator must 
have provided the required financial guarantee.
    BLM has edited this section for clarity to remove the reference to 
the financial guarantee required under proposed Sec. 3809.411(d) since 
that section merely requires an estimate of the guarantee amount. The 
reference has been replaced with one to final Sec. 3809.551, which 
provides options for the financial guarantee instrument and associated 
requirements.
    BLM received several comments on proposed Sec. 3809.412 suggesting 
that BLM should notify the operator when the operator may begin 
operations.
    When BLM issues a decision to the operator under final 
Sec. 3809.411(d), notifying them of the approval of their plan of 
operations, BLM would also state in that decision when operations may 
begin. This notification would list any deficiencies that must be 
satisfied

[[Page 70049]]

prior to initiating operations. The purpose of final Sec. 3809.412 is 
to advise the operator that under no circumstances may operations begin 
until the plan of operations has been approved and the financial 
guarantee provided. This section of the regulations explicitly 
precludes operators from conducting operations under a plan of 
operations without BLM approval and an adequate reclamation bond. This 
is not inconsistent with NRC Report Recommendation 1 that financial 
assurance should be required for the reclamation of all disturbances 
greater than casual use.

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

    Final Sec. 3809.415 lists the items operators must do to prevent 
unnecessary or undue degradation on public lands while conducting 
operations. It parallels the elements in the definition of 
``unnecessary or undue degradation'' at final Sec. 3809.5.
    BLM received several comments on this section. One comment was that 
tying prevention of unnecessary or undue degradation in proposed 
Sec. 3809.415(a) to complying with the terms and conditions of your 
approved plan of operations would open the door for BLM to prescribe 
any terms and conditions without being limited to the objective of 
preventing unnecessary or undue degradation. Another was that the rules 
should be crafted so that compliance with an approved plan of 
operations is sufficient to demonstrate compliance with any performance 
standards.
    In response, as final Sec. 3809.411(d) states, any terms or 
conditions BLM places on a plan of operations approval would be those 
needed to meet the performance standards in Sec. 3809.420. Compliance 
with the performance standards is part of preventing unnecessary or 
undue degradation. However, while BLM intends that compliance with an 
approved plan of operations would be adequate to meet the performance 
standards, this may not always be the case. Conditions or circumstances 
that were not anticipated during initial plan approval may eventually 
occur, requiring that operations be modified in order to meet the 
performance standards and prevent unnecessary or undue degradation.
    One comment asked BLM to (1) clarify what level of incremental 
activity they want to judge for unnecessary or undue degradation under 
proposed Sec. 3809.415(b) and (2) change ``reasonably incident'' to 
``logically incident''.
    The requirement to prevent unnecessary or undue degradation applies 
to all levels of locatable mineral activity on public lands, casual use 
activities, notice-level activities and to plans of operations. All 
activities conducted under casual use, notices or plans must be 
reasonably incident to prospecting, mining, or processing operations. 
Activities that are not reasonably incident to these operations must be 
authorized under agency authorities other than the 3809 regulations. 
The term ``reasonably incident'' comes from Public Law 167, codified at 
30 U.S.C. 612, and from the regulations at 43 CFR 3715. BLM needs to 
retain this term to maintain consistency with the applicable legal 
standards.
    One comment expressed concern that proposed Sec. 3809.415(c) did 
not include the White Mountains National Recreation Area. The commenter 
asserted that this is an example of the flawed character of the 
proposed regulations and illustrated a lack of consideration given to 
the special environmental conditions that apply in Alaska, the State 
with the largest amount of public and other Federal lands.
    BLM provided the list in proposed Sec. 3809.415(c) to present 
examples of areas where certain levels of protection are required by 
specific law or statute above the requirements in the 3809 regulations. 
It was not intended to be an exhaustive list of all areas where such 
requirements exist. The local BLM Field Offices are responsible for 
identifying such areas under their management when they administer the 
3809 regulations. Operators are responsible for knowing if they are 
operating or proposing to operate in such areas.
    The final regulations add Sec. 3809.415(d) which says, ``You 
prevent unnecessary or undue degradation while conducting operations on 
public lands by * * * (d) Avoiding substantial irreparable harm to 
significant scientific, cultural, or environmental resource values of 
the public lands that cannot be effectively mitigated.'' This addition 
was made to parallel the change made in the definition of ``unnecessary 
or undue degradation'' with the addition of paragraph (4) in the final 
regulations at Sec. 3809.5.
    Final Sec. 3809.415 is not inconsistent with the NRC Report 
recommendations. The report noted that the current regulatory 
definition of ``unnecessary or undue degradation'' does not explicitly 
provide authority to protect valuable or sensitive resources that are 
not protected by other laws, and the NRC recommended that BLM 
``communicate the agency's authority to protect valuable resources that 
may not be protected by other laws.'' See the NRC Report at pp. 120-22; 
see also at p. 69. The NRC recommended that this be done through 
``guidance materials'' and ``staff training,'' but we have decided it 
is more fair to the public and the regulated industry, and overall more 
effective, to communicate this through these regulations. The explicit 
listing of requirements that must be taken to prevent unnecessary or 
undue degradation in the final regulations will address the NRC concern 
with the previous definition.

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

    Final Sec. 3809.420 explains which performance standards apply to a 
notice or plan of operations. The previous regulations at Sec. 3809.2-2 
provided general performance standards in areas such as performing 
reclamation and complying with all applicable State and Federal 
environmental requirements. Due to confusion in implementing this 
portion of the previous regulations in the field, BLM determined that 
additional performance standards (which are incorporating some policies 
that BLM had already put into effect without amending the earlier 
regulations) and a clearer explanation of the standards, would assist 
both operators and BLM in defining and preventing unnecessary or undue 
degradation.
    BLM considered developing performance standards that would specify 
the design and operating requirements for exploration, mining and 
reclamation components. These requirements would serve as minimum 
national standards that would specify how all operations had to be 
designed, constructed, and operated. We decided this approach is 
impractical and inflexible given the range of environmental conditions 
on the public lands and the wide variety of exploration and mining 
activities and for inconsistency with the NRC Report.
    The approach selected for final Sec. 3809.420 is to focus on the 
outcome of accomplishments that the operator must achieve. These 
``outcome-based'' performance standards put minimal emphasis on how the 
operator conducts the activity, so long as the desired outcome is met. 
This approach allows the operator maximum flexibility, encourages 
innovation, and fosters the development of low-cost solutions. In 
implementing final Sec. 3809.420 BLM will

[[Page 70050]]

review each notice or proposed plan of operations to determine if it is 
reasonably likely to meet each outcome-based performance standard, but 
BLM won't require any specific design to be used. The approach we have 
selected is consistent with a recommendation in the NRC Report that BLM 
continue to use comprehensive performance-based standards rather than 
using rigid, technical prescriptive standards.
    The NRC Report also suggested that some changes to the previous 
rules are warranted. The NRC emphasized that BLM as a land manager on 
the public's behalf stands in a different relationship to the land and 
its resources from other landowners and from regulators who focus on 
specific environmental media. The Federal land managers have a mandate 
to ensure long-term productivity of the land, protection of an array of 
uses and potential future uses, and management of the Federal estate 
for diverse objectives. This relationship means that the term 
``regulator does not fully describe BLM and Forest Service 
responsibilities when dealing with mining activities on Federal lands. 
It also means that these agencies are not merely landholders. They are 
both landholders and regulators, with set statutory management 
standards. Further they must serve a constituency almost always 
described in national terms--``the nation's need,'' ``all Americans,'' 
``future generations.'' NRC Report at p. 40. The NRC Report also noted 
that, in general, the presence of multiple regulatory programs helps to 
assure that large-scale mining on Federal lands is subject to 
substantial scrutiny.
    The performance standards are divided into three groups: General 
Performance Standards, Environmental Performance Standards and 
Operational Performance Standards. This was done to distinguish the 
broad performance standards--such as concurrent reclamation and 
conformance to the applicable land use plan--from the environmental 
performance standards that are specific to certain media such as air 
and water; as well as from the operational performance standards which 
describe what operational components a project must achieve.
    Proposed Sec. 3809.420 was modified in response to comments; 
primarily to provide added flexibility to operators. Requirements to 
``prevent'' the introduction of noxious weeds, and ``prevent'' erosion, 
siltation and air pollution were replaced with requirements to 
``minimize'' these things. This was done in response to public comments 
that pointed out an operator cannot always prevent impacts from 
occurring. ``Minimize'' means to reduce the impact to the lowest 
practical level. During its review of plans of operations, BLM may 
determine that it is practical to avoid or eliminate particular impacts 
altogether.
    BLM added the phrase ``where economically and technically 
feasible'' or the phrase ``where technically feasible'' to make it 
clear to BLM and operators when economic and/or technical feasibility 
would be considered in achieving certain performance standards. See, 
for example, final Secs. 3809.420(b)(3)(ii) and 3809.420(b)(4)(ii).
    To acknowledge the fact that some States delegate certain 
environmental requirements to local governments, we added language to 
say that where delegated by the States, operators must comply with 
local governments laws and requirements. We dropped the concept of Most 
Appropriate Technology and Practices from proposed Secs. 3809.5 and 
3809.420. Instead, in final Sec. 3809.420(a)(1), we clarified that 
operators must utilize equipment, devices and practices that will meet 
the performance standards. We also added language ``to minimize impacts 
and facilitate reclamation'' to final Sec. 3809.420(a)(2) to clarify 
the purpose of this requirement.
    In our continued effort to clarify that BLM is not usurping the 
States authority to regulate water resources, BLM dropped the 
requirement from proposed Sec. 3809.420(b)(2)(i)(B) Surface water to 
handle earth materials and water in a manner that minimizes the 
formation of acidic, toxic, or other deleterious pollutants of surface 
water systems'' and removed the same language from proposed 
Sec. 3809.420(b)(2)(ii)(B) Groundwater. In addition, at both proposed 
Sec. 3809.420(b)(2)(C), now final Sec. 3809.420(b)(2)(B), and 
Sec. 3809.420(b)(2)(ii)(B) Groundwater, we eliminated the words 
``Manage excavations and other disturbances'' and inserted the words 
``conduct operations'' in their place to clarify that all aspects of 
operations have to comply with these requirements.
    A commenter asserted that BLM's regulatory authority under FLPMA 
does not extend to water quality or water quantity issues. The 
commenter reasoned as follows: FLPMA grants BLM the authority to 
prevent ``unnecessary or undue degradation of the public lands.'' 
Public lands under FLPMA must be owned by the United States and 
administered by BLM. The United States does not hold title to navigable 
waters, and thus, navigable waters generally are not included within 
the definition of public lands. Consequently, because the United States 
does not own the navigable waters lying within the States, BLM lacks 
the statutory authority to promulgate regulations under FLPMA managing 
the quality of such waters. The commenter stated that BLM's previous 
regulations correctly deferred water quality regulation to applicable 
environmental protection statutes and regulations. With regard to water 
quantity, the commenter stated that BLM has long recognized that it 
must defer to and comply with state water right laws with respect to 
matters of water use and allocation.
    BLM disagrees in part with the comment. The final rules do not 
establish water quality standards. BLM does have the authority, 
however, to regulate operations conducted on public land to prevent 
unnecessary or undue degradation, and may appropriately give 
consideration given to the effects an operation may have on water 
quality and quantity. FLPMA, at section 102(a)(8), states in part that, 
``the public lands be managed in a manner that will protect the quality 
of * * * water resource * * * values * * *'' 43 U.S.C. 1701(a)(8). In 
general, BLM relies on operator compliance with State or Federal water 
quality standards to meet this objective. BLM can also require 
operators to incorporate protective measures for water resources into 
their operating and reclamation plans.
    BLM agrees that the 3809 regulations do not apply to operations on 
State land, such as on certain beds of waters that were navigable at 
statehood. But the legal rules for determining ownership of the beds of 
waterbodies are complex, and in many situations throughout the public 
lands, it has never been determined who owns the beds of particular 
waterbodies. For one thing, whether particular watercourses were in 
fact navigable at statehood has never been adjudicated. Furthermore, 
the U.S. not only generally owns the beds of waterbodies that were not 
navigable at statehood, but also owns the beds of waterbodies that were 
navigable at statehood, if the U.S. had reserved the lands for Federal 
purposes prior to statehood. See, for example, United States v. Alaska 
(521 U.S. 1, 117 S. Ct. 1888 (1997)). Finally, even where States do own 
the beds of navigable waters on public lands, operators usually must 
use public land above and adjacent to the high water mark as part of 
their operations. Such use is subject to the 3809 regulation and 
requires plan approval, which may be withheld unless the plan of 
operations includes measures necessary to protect the public lands from 
any activities conducted by

[[Page 70051]]

the operator. As to matters of water use and allocation, this final 
rule respects established systems of State law that allocate water 
rights.
    A commenter stated that by focusing on ``degradation * * * of the 
public lands,'' Congress consciously tasked BLM with managing the 
surface impacts of mining and that Congress did not authorize BLM to 
regulate or limit the effects of mining on ground water, surface water, 
or other environmental media. The commenter asserted that Congress did 
not ignore the need for environmental protections on the public lands, 
but it empowered BLM to incorporate State and other Federal 
environmental laws into its regulatory program, which the commenter 
asserted is what BLM has done in the 20 years that the 3809 regulations 
have been on the books. The commenter concluded that in the proposed 
rule BLM is seeking to tread heavily in environmental areas Congress 
said were off limits.
    BLM disagrees with the comment that unnecessary or undue 
degradation does not consider the effects of mining on ground water, 
surface water, or other environmental media. FLPMA section 102(a)(8) 
states in part that, ``the public lands be managed in a manner that 
will protect the quality of * * * ecological, * * * environmental, air, 
* * * [and] water resource * * * values * * *'' The FLPMA mandate to 
prevent unnecessary or undue degradation includes degradation of water 
resources or of any other resource located upon the public lands. BLM 
has the authority to regulate operations conducted on public land with 
consideration given to the effects an operation may have on any of 
these resources. In part, BLM relies on operator compliance with State 
or Federal media-specific standards and programs to meet this 
objective. However, BLM can also require operators to incorporate 
protective measures for environmental media into their operating and 
reclamation plans. Federal law requires BLM to ensure that its actions 
(both direct activities and authorized activities) comply with all 
applicable local, State, tribal and Federal air and water quality laws, 
regulations, standards and implementation plans. See FLPMA sections 
202(c)(8), 302(c), and 505(a)(iii), Clean Air Act sections 118(a) and 
176(c) and Clean Water Act section 313(a). Therefore, BLM may require 
operators to conduct operations to avoid or limit impacts to air and 
water resources or require them to conduct appropriate air and water 
quality monitoring to demonstrate compliance.
    The final rules contain a revegetation performance standard, 
Sec. 3809.420(b)(5), which required operators to use native species for 
revegetation when they are available and to the extent technically 
feasible. We added the ``when available'' language in recognition of 
the fact that at the present time, sources for seeds of native species 
cannot keep up with demand. When we use the term ``native species'' in 
this final rule, we mean to give the term the same definition of 
``native species'' found in Executive Order 13112, entitled ``Invasive 
Species,'' dated February 3, 1999. Under the Executive Order and this 
final rule, ``native species'' means, with respect to a particular 
ecosystem, a species that, other than as a result of an introduction, 
historically occurred or currently occurs in that ecosystem.
    There are occasions when non-native plant material may need to be 
used in revegetation of an area, but we also added language to the 
final rule to specify that in a situation where an operator uses non-
native species, the non-native species should not be invasive, nor 
inhibit re-establishment of native species. For example, operators 
often use a seed mixture of non-native annual and native plant material 
for revegetation because the non-native seed will germinate quickly to 
hold the soil in place and keep invasive species from encroaching into 
the disturbed site. (Native species usually take longer to germinate 
and become established.) This would be allowable under the final rule 
if the non-native species would gradually give way as the native 
species become established on the site. Another example is when a seed 
bank of native species exists in the soil of a site being revegetated. 
Under the final rule, an operator could plant short-lived, non-native 
species to hold the soil in place until the native species reestablish 
themselves from the on-site seed bank.
    In the final rule, we changed the heading of the proposed fish and 
wildlife performance standard, Sec. 3809.420(b)(6) to read, ``Fish, 
wildlife, and plants'' to clarify that it also covers plants. In final 
Sec. 3809.420(b)(6)(ii), we clarified that the reference to 
``threatened or endangered species and their habitat'' in the proposed 
rule means Federally proposed or listed threatened or endangered 
species or their proposed or designated critical habitat. The ESA 
requires BLM to enter into formal consultation with the FWS or the NMFS 
on all actions that may affect a listed species or its habitat. BLM 
must request a formal conference with FWS or NMFS on all actions that 
may affect a proposed species. Thus, it is BLM's longstanding policy to 
manage species proposed for listing and proposed critical habitat with 
the same level of protection provided for listed species and their 
designated critical habitat, except that formal consultations are not 
required. BLM Manual Chapter 6840.06(B), Rel. 6-116, Sept. 16, 1988. 
Also, to maintain consistency with final Sec. 3809.420(b)(6)(iii) and 
to clarify that any actions to prevent impacts to threatened or 
endangered species are required, BLM added the word ``any'' so the 
final reads, ``You must take any necessary measures to protect 
Federally proposed or listed threatened or endangered species, both 
plants and animals, and their proposed or designated critical habitat 
as required by the Endangered Species Act.''
    BLM lengthened the time requirement of 20 business days in proposed 
Sec. 3809.420(b)(7)(ii) to 30 calendar days in final 
Sec. 3809.420(b)(7)(ii) to give time required to ``evaluate the 
discovery and take action to protect, remove, or preserve the 
resource.''
    At final Sec. 3809.420(c)(3)(ii) and (iii), which is the 
performance standard for acid-forming, toxic, or other deleterious 
materials, BLM added migration control so final Sec. 3809.420(c)(3)(ii) 
now reads, ``If you cannot prevent the formation of acid, toxic, or 
other deleterious drainage, you must minimize uncontrolled migration of 
leachate (migration control).'' Final Sec. 3809.420(c)(3)(iii) reads, 
``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 and migration control, and you 
may rely on them only after all reasonable source and migration control 
measures have been employed.''
    At final Sec. 3809.420(c)(7), concerning pit reclamation, BLM 
removed the presumption for pit backfilling, in response to public 
comments and the discussion in the NRC Report. Final 
Sec. 3809.420(c)(7)(i) now reads, ``Based on the site-specific review 
required in Sec. 3809.401and the environmental analysis of the plan of 
operations, BLM may determine the amount of pit backfilling required, 
taking into consideration economic, environmental, and safety 
concerns.'' Final Sec. 3809.420(c)(7)(ii) was modified from the 
proposed rule for clarity to read, ``You must apply mitigation measures 
to minimize the impacts created by any pits or disturbances that are 
not completely backfilled.'' These changes regarding pit backfilling 
are consistent

[[Page 70052]]

with current BLM management practices.
    A commenter asserted that BLM does not have the authority to impose 
regulations that will eliminate environmental impacts if those 
regulations also limit the opportunity to develop mining claims on 
public lands. The commenter stated that this issue was addressed in the 
final EIS for the previous 3809 regulations, where the Department of 
the Interior explained why it was not adopting an alternative that 
would have imposed stricter environmental standards. The commenter 
asserted that, while BLM has the authority to take ``any action 
necessary to prevent unnecessary or undue degradation of the public 
lands,'' the word ``necessary'' places a limit on BLM's authority. The 
commenter stated that the proposed rule would expand the BLM's 
regulatory role beyond that authorized by FLPMA, and would 
fundamentally change BLM from a land management agency with 
jurisdiction shared with the States into an EPA-like agency, setting 
Federal environmental standards that in turn drive standards on 
Federal, State and private lands. The commenter asserted that this is 
far beyond what Congress had in mind when it directed the BLM in FLPMA 
to prevent unnecessary or undue degradation.
    BLM disagrees with the comment. The mining laws do not establish an 
unfettered right to develop mining claims free from environmental 
constraints. The Mining Law of 1872 itself refers to ``regulations 
prescribed by law,'' 30 U.S.C. 22, and FLPMA mandates regulation to 
prevent ``unnecessary or undue degradation.'' That is, section 302(b) 
of FLPMA expressly amended the mining laws by making rights under the 
mining laws subject to the Secretary's responsibility, by regulation or 
otherwise, to take any action necessary to prevent unnecessary or undue 
degradation of the public lands. Because FLPMA did not define 
``unnecessary or undue degradation,'' the Secretary may do so in these 
rules. BLM believes that the regulation changes are necessary to 
prevent unnecessary or undue degradation. BLM has identified numerous 
regulatory issues that need to be addressed. The NRC Report has also 
identified issues and recommended regulatory changes. The commenter is 
also wrong in asserting that proper land management does not include 
setting appropriate environmental standards for activities that occur 
on the public lands, particularly in light of the Congressional policy 
set forth in section 102(a)(8) of FLPMA.
    A commenter disagreed with a statement in the draft EIS that the 
BLM lacks ``clear, consistent standards for environmental protection'' 
(p. 12, Draft EIS). The commenter stated that there are over 20 State 
and Federal environmental regulations that control mining industry 
impacts on the environment, and that Congress delegated authority for 
implementation of environmental regulation to specific Federal and 
state agencies in order to avoid overlapping authority and redundancy. 
The commenter asserted that Congress limited the authority of the BLM 
to regulate locatable mineral exploration and development in accordance 
with FLPMA and has not significantly modified this authority since 
1976. Thus, BLM must ensure that its regulatory actions are consistent 
with the intent of Congress as reflected in the existing environmental 
statutes.
    BLM disagrees that its rules exceed its statutory authority under 
FLPMA and the mining laws. Although other Federal and State agencies 
regulate various aspects of mining under other statutes, BLM has its 
own responsibilities under FLPMA and the mining laws to protect the 
resources and values of the public lands from unnecessary or undue 
degradation. The statement from the draft EIS reflects the difficulty 
BLM often encounters in determining what constitutes unnecessary or 
undue degradation. The NRC Report noted this difficulty in its 
Recommendation 15. See NRC Report, pp. 120-22; see also id. pp. 68-71.
    Numerous commenters were concerned that BLM's requiring compliance 
with State or Federal environmental requirements duplicates existing 
State and Federal programs and permitting requirements, especially 
regarding water quality. BLM made modifications to the proposed rule to 
clarify that BLM is not duplicating State or Federal requirements but 
instead is making it clear to operators, the public and BLM field 
managers that operators must comply with State and or Federal 
environmental requirements. BLM as the land manager of public land is 
ultimately responsible for ensuring that operations on land under its 
jurisdiction are in compliance with various Federal, State, tribal or, 
where delegated by the State, local government environmental 
requirements. If operators are cited for violations of these 
environmental requirements by appropriate authorities, BLM will notify 
operators they are in non-compliance with their plan of operations and 
act accordingly. The NRC Report observed that, ``In general, the 
existence of multiple regulatory programs helps to assure that at least 
large-scale mining on Federal lands is subject to substantial 
scrutiny.'' See p. 54.
    Commenters expressed concern over mitigation. BLM has adopted a 
three-tiered approach to mitigation. First, we encourage avoiding the 
impact altogether by not taking the action or certain parts of an 
action. Secondly, we encourage the operator to minimize the impact by 
(a) limiting the degree or magnitude of the action and its 
implementation; (b) rectifying or eliminating the impact by repairing, 
rehabilitating, or restoring the affected environment; and (c) reducing 
or eliminating the impact over time by taking appropriate steps during 
the life of the action. Thirdly, an operator may, if the impacts are 
unavoidable, compensate for the impact by replacing or providing 
substitute resources or environments. Mitigation would only occur on a 
limited case-by-case basis if this strategy is followed.
    Some commenters questioned BLM's authority to require mitigation of 
unavoidable impacts. We believe, however, that sections 302(b) and 
303(a) of FLPMA, 43 U.S.C. 1732(b) and 1733(a), and the mining laws, 30 
U.S.C. 22, provide the BLM with the authority to require mitigation. 
Mitigation measures fall squarely within the actions the Secretary can 
direct to prevent unnecessary or undue degradation of the public lands. 
An impact that can be mitigated, but is not, is clearly unnecessary. 
Section 303(a) of FLPMA directs the Secretary to issue regulations with 
respect to the ``management, use and protection of the public lands * * 
*'' In addition, 30 U.S.C. 22, allows the location of mining claims 
subject to ``regulations prescribed by law.'' Taken together these 
statutes clearly authorize the regulation of environmental impacts of 
mining through measures such as mitigation. BLM may mandate particular 
steps to mitigate where mitigation can be performed onsite. For 
example, if due to the location of the ore body a riparian area must be 
impacted, mitigation can be required on the public land within the area 
of mining operations. If a suitable site for riparian mitigation cannot 
be found on site, the operator may voluntarily choose, with BLM's 
concurrence, to mitigate the impact to the riparian area off site.
    Some commenters were concerned that BLM did not have the authority 
to, or should not require, operators to follow a ``reasonable and 
customary mineral, exploration, development, mining and reclamation 
sequence.'' In BLM's experience, there have been instances in the past 
where operators

[[Page 70053]]

have created unnecessary impacts by not following a reasonable and 
customary mineral development sequence. Therefore we believe regulating 
sequencing may be necessary to prevent unnecessary or undue 
degradation. BLM will review sequencing on a large scale and will not 
regulate the sequencing of small portions of an operation.
    Numerous commenters wanted BLM to establish explicit provisions for 
groundwater protection as well as general and operational performance 
standards. BLM considered establishing numeric standards for 
groundwater affected by operations. Currently, there are no Federal 
groundwater standards, and several States where mining activities 
subject to these regulations occur do not have their own groundwater 
standards. BLM decided not to propose numeric standards because of the 
difficulty of designing nationwide numeric standards relevant to the 
range of conditions. BLM believes the States are better equipped to 
develop groundwater standards applicable within their borders. Instead, 
the regulations adopt a pollution minimization requirement, in 
preference to treatment or remediation, and rely upon applicable State 
standards for groundwater where they are present.
    Some commenters were concerned that BLM's requirement to return 
disturbed wetlands and riparian areas to proper functioning condition, 
where economically and technically feasible, would infringe upon the 
U.S. Army Corps of Engineers (COE) and EPA's responsibility to manage 
wetlands under their jurisdiction (so-called ``jurisdictional 
wetlands'') under Sec. 404 of the Clean Water Act. BLM is not proposing 
to duplicate the regulation of jurisdictional wetlands. Not all 
wetlands meet the definition of jurisdictional wetlands. BLM has 
responsibility for wetland and riparian areas found on public lands 
under its jurisdiction that do not fall under the COE jurisdiction, and 
the final rules require that impacts to them either be avoided or 
mitigated.
    Commenters were concerned that waste dumps should not be located on 
millsites (non-mining claims). Final Sec. 3809.420 does not address 
whether waste dumps can be located on particular mining claims. The 
issue raised, in part, relates to whether locating waste dumps on 
mining claims rather than millsites affects the validity of those 
mining claims under the mining laws. This is an issue the Department is 
currently examining, but is not implicated in this rulemaking.
    Some commenters supported BLM requiring the use of Best Available 
Technology and Practices (BATP) and opposed the use of Most Appropriate 
Technology and Practices. Since BATP doesn't lead to innovation and 
development of new technology, BLM chose not to require the use of 
BATP, preferring instead to use outcome-based performance standards, as 
discussed earlier in this preamble. The definition of MATP also served 
to confuse and not add any value to the regulations and was therefore 
dropped from the final rule. BLM has sought, in the development of 
performance standards, to focus on the outcome or accomplishment the 
operator must achieve.
    Some commenters thought that the requirement to ``minimize changes 
in water quality in preference to water supply replacement'' was an 
improper infringement upon State water laws. We believe, however, that 
sections 302(b) and 303(a) of FLPMA, 42 U.S.C. 1732(b) and 1733(a), and 
the mining laws, 30 U.S.C. 22, authorize, if not mandate, that BLM 
require mining operators to minimize water pollution (source control) 
in preference to water treatment, and it is appropriate for BLM to make 
these decisions in reviewing and deciding whether to approve mining 
plans. This review falls squarely within the actions the Secretary can 
direct to prevent unnecessary or undue degradation of the public lands. 
While allocation and permitting of water use is primarily the 
responsibility of the States, the ``prevention of unnecessary or undue 
degradation'' mandate makes it BLM's responsibility to address impacts 
to water resources on the lands under its jurisdiction, in deciding 
whether to approve plans of operations under these regulations.
    There were comments that BLM should not require operators at 
closure to detoxify leaching solutions and heaps. Final 
Sec. 3809.420(c)(4) lists acceptable practices for detoxification of 
leaching solutions and heaps and adds that other methods that achieve 
the desired success are acceptable. However, all materials and 
discharges must meet applicable standards. Partial detoxification is 
not acceptable if upon completion, all materials and discharges don't 
meet applicable standards.
    Some commenters expressed concern that the performance standards 
would not require compliance 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 final Sec. 3809.420. These performance standards will ensure that 
the rangeland health standards can be met. To the extent that the 
standards for rangeland or public land health are incorporated in BLM's 
land use plans, they will be reflected in the plans of operations that 
BLM approves under this subpart.

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

    Final Sec. 3809.423, which was not changed from what was proposed, 
states that the plan of operations is in effect as long as operations 
are being conducted, unless BLM suspends or revokes the plan of 
operations for failure to comply with this subpart.
    BLM received several comments on this section of the proposed 
regulations. One comment suggested that BLM should establish a term or 
duration after which a plan of operations would have to be renewed. A 
term of 5 years was suggested for active plans of operations and a term 
of 1 year for inactive operations.
    BLM considered issuing plan of operations approvals with limited 
periods of effectiveness or terms, but could not decide upon a standard 
term or duration due to the variability in mining operation sizes and 
types. BLM believes it is more appropriate to have the operator propose 
an overall schedule for operations. During the plan review and approval 
process, BLM would then approve the operations schedule for the 
individual mining plan under review. Changes or extensions in the 
schedule could be provided through plan modifications under 
Sec. 3809.431(a), if needed.
    Other comments were concerned with the revocation clause in this 
section of the regulations. One commenter suggested removing the 
revocation provision from the regulations. Another asked how long BLM 
would give the operator before revoking the operating plan.
    Final Sec. 3809.423 provides that the plan of operations approval 
is good for the life of the project as described in the plan. In the 
event the operator fails to comply with an enforcement order, however, 
the plan approval can be revoked under Sec. 3809.602. BLM believes this 
is appropriate where the operator is failing to take corrective actions 
specified in an enforcement order. Final Sec. 3809.602(a)(1) provides 
that a plan may be revoked after the time frames provided in the 
enforcement order have been exceeded, and it provides the operator with 
due process to appeal

[[Page 70054]]

such a determination. The enforcement order's time frame will vary from 
case to case depending upon the specific cause of the violation and the 
urgency with which it must be abated to prevent unnecessary or undue 
degradation.
    Final Sec. 3809.423 is not inconsistent with the recommendations of 
the NRC Report. The NRC Report did discuss the issue, as follows:

    The Committee did not determine if plans of operations should be 
reviewed or reopened at predetermined intervals. The evolutionary 
nature of mining at individual sites--particularly at mines using 
newer technologies and dealing with disseminated mineral deposits--
requires changes in the limitations on plan modifications in the 
original BLM and Forest Service regulations. Updating of financial 
assurance instruments should also take place as conditions change 
that might affect the levels of bonding or other forms of financial 
assurance. Practices now vary among the states and federal agencies.

Report, p. 101. The issues of plan modification and changes in levels 
of financial assurance are discussed further below.

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

    Final Sec. 3809.424 addresses the obligations of operators should 
they stop conducting operations. This section of the regulations 
provides in table format a list of conditions operators must follow 
during periods of non-operation. It also describes what BLM will do if 
non-operation is likely to cause unnecessary or undue degradation; or 
if BLM determines the operation has been abandoned.
    The final regulations at Sec. 3809.424 carry out Recommendation 5 
of the NRC Report, which was that BLM require interim management plans, 
define conditions of temporary closure, and define conditions under 
which temporary closure becomes permanent and all reclamation and 
closure requirements must be completed.
    Final Sec. 3809.424 requires that if an operator stops conducting 
operations for any period of time, the operator must follow the 
approved interim management plan for its plan of operations, take all 
necessary action to prevent unnecessary or undue degradation, and 
maintain an adequate financial guarantee. If the interim management 
plan does not address the particular circumstances of the temporary 
closure, the operator must submit a modification of the interim 
management plan to BLM within 30 days. The regulations also provide 
that BLM will require the operator to take all necessary actions during 
the period of non-operation to assure that unnecessary or undue 
degradation does not occur. This includes requiring the removal of 
structures, equipment and other facilities, and reclamation of the 
project area. After 5 consecutive years of inactivity BLM will review 
the operation to determine whether the operation is abandoned and 
whether BLM should direct final reclamation and closure. If BLM 
determines the operation has been abandoned, it may initiate bond 
forfeiture and conduct the reclamation. If the bond is not adequate to 
pay for the reclamation, BLM may complete the reclamation and hold the 
operator liable for the reclamation costs.
    Comments received on proposed Sec. 3809.424 included suggestions 
for incorporating the NRC Report recommendation on temporary and 
abandoned operations; concern that BLM would terminate plans, thus 
causing a decrease in the value for the operator; suggestions for 
putting limits on how long an operation can wait for improvement in 
commodity prices; and objections that operators would be held 
responsible for reclamation costs that exceed the amount of the 
financial assurance should BLM terminate a plan and implement 
reclamation. Specific comments and responses to proposed Sec. 3809.424 
follow.
    Numerous commenters were concerned that proposed 
Sec. 3809.424(a)(3) and (4) be revised to incorporate NRC Report 
recommendations and describe the conditions that will cause BLM to 
unilaterally terminate a plan of operations. They noted that an 
approved plan of operations has financial value to the owner/operator 
and can be transferred to another owner or operator as part of a total 
mining package. The commenters asserted that BLM should not have the 
ability to unilaterally terminate a financially valuable part of a 
mining operation. The proposed 5-year threshold for terminating an 
approved plan of operations failed to properly consider the economic 
consequences of unilateral cancellation when the suspended mining 
operation is not causing unnecessary or undue degradation and BLM has 
certified that the financial guarantees are adequate. Other commenters 
suggested amounts of time, ranging from 3 years to 10 years, that 
operations should be allowed to remain inactive before terminating the 
plan of operations. One comment suggested that the temporary closure be 
considered permanent only when the operator advises BLM it is 
permanent. Others suggested that five years is just the right length of 
time. A comment was made that the rule should not just direct BLM to 
review to see if termination is warranted, but should instead require 
BLM to initiate termination.
    In response to comments, BLM has incorporated the NRC Report 
recommendation regarding interim management plans into final 
Secs. 3809.401 and 3809.424. Because of the recognized value an 
approved plan of operations may have, and the potential for changing 
market conditions, the rule allows up to 5 years to pass before BLM 
conducts a review to see if the plan should be terminated. The final 
regulations do not require the plan to be terminated after five years, 
only that a review be conducted to determine if it should be 
terminated. If there is adequate bonding in place, no unnecessary or 
undue degradation occurring, and persuasive reasons exist to maintain 
an inactive status, there may be no reason for BLM to terminate the 
plan and direct final closure. However, a plan of operations cannot be 
allowed to remain inactive and unreclaimed indefinitely. BLM believes 
that 5 years is a reasonable amount of time to allow most operators to 
maintain standby conditions. After 5 years of inactivity, it will be 
increasingly difficult to remove equipment, maintain suitable access 
for reclamation purposes, control weed infestations, preserve topsoil 
stockpiles, and ensure public safety. At some point, BLM should direct 
reclamation and closure.
    One commenter proposed an alternative approach for interim 
management plans, as follows: (1) BLM should require an operator to 
notify BLM and the State of intent to temporarily cease operation. (2) 
An interim management plan should be adopted within 90 days of a 
decision by the mining company to cease operations due to market 
conditions or other factors. (This approach is taken in some state 
programs, such as section 273(h) of California's Surface Mining and 
Reclamation Act.) (3) BLM should annually review the operation to 
determine whether the site is viable to restart, and assess the intent 
of the operator to continue operations. (4) If, after two consecutive 
years, the operator has not indicated an intent to restart mining, the 
BLM should require the operator to begin reclamation. (5) If the 
``temporary'' closure extends to 5 years, the operator must demonstrate 
that the site will be re-opened. Otherwise, the operator must begin 
reclamation.
    Another comment suggested that the operator should be required to 
obtain approval of an interim management plan that describes what 
measures will

[[Page 70055]]

be taken to comply with proposed Sec. 3809.424(a)(1)(i-iii).
    BLM prefers to require that the operator propose an interim 
management plan for periods of non-operation as part of the initial 
plan of operations. This approach should reduce the workload on both 
the operator and BLM, plus provide for up-front planning on how to 
manage periods of non-operation. If the period of non-operation is not 
adequately covered by the interim management plan, BLM would require 
the operator to submit a modification within 30 days, while at the same 
time assure that unnecessary or undue degradation does not occur. We 
believe final Sec. 3809.424(a)(3) would accomplish the objective of 
this commenter. If the operator could not demonstrate the site would 
reasonably be expected to reopen, BLM may consider it abandoned and 
order reclamation.
    Several comments wanted proposed Sec. 3809.424(a)(3) revised to 
unambiguously explain the difference between inactive and abandoned 
mining operations and to be consistent with the NRC Report 
recommendations. One commenter wanted assurance that BLM and FS are 
using and applying the definitions for inactive and abandoned 
operations in a uniform manner.
    Under the final regulations at Sec. 3809.424(a), an operation is 
considered inactive if it is not operating (mining, exploring or 
reclaiming), but is following its interim management plan. An operation 
may be considered abandoned for a variety of reasons, including failure 
to follow or amend the interim management plan, or after 5 consecutive 
years of inactivity. Other reasons for considering an operation 
abandoned may include inability to locate the operator, or if the 
operator is deceased. This is consistent with NRC Report 
recommendations regarding inactive and abandoned operations. BLM is 
unable to assure the Forest Service would adopt similar regulations for 
defining inactive or abandoned operations.
    EPA expressed concerns about the potential for interminable delays 
that may occur between mine closure and reclamation. The time when 
mining is terminated and the interval between cessation of mining and 
restoration needs to be carefully addressed in the plan of operations. 
It is sometimes difficult to determine when an operator is finished 
mining the site. Most mining activities are sensitive to world 
fluctuations of commodity prices, and may have to be discontinued when 
prices are not high enough to make the operation profitable. The 
occurrence or length of these ``down times'' caused by low commodity 
prices cannot be determined in advance. Nonetheless, EPA asserted, 
there needs to be some criteria, within the plan of operations, to 
determine when extractable resources have been exhausted, and when 
reclamation should commence. EPA recommended that criteria be included 
that define mining activity end-points that are consistent with the 
financial objectives of the applicant, and at the same time identify a 
time line for the initiation of reclamation activities.
    BLM believes that the final regulations generally address EPA's 
concerns. Final Sec. 3809.401 requires operators to provide a general 
schedule of activities from start through closure and an interim 
management plan for periods of non-operation. The general performance 
standard in Sec. 3809.420 requires the operator to perform concurrent 
reclamation on areas that will not be disturbed further under the plan 
of operations. Final Sec. 3809.424 puts limits on the amount of time an 
operation can remain temporarily closed without undergoing review to 
determine if it is abandoned. This combination of requirements means 
individual plans of operations will have to set out an extraction and 
reclamation schedule for agency review and approval that describes when 
mine facilities would be open and when they would be reclaimed, and 
that reclamation would have to occur at the earliest practical time. In 
addition, temporarily inactive operations would receive greater 
scrutiny with defined time limits for periods of inactivity. BLM 
believes these combined requirements will promote timely reclamation 
within a defined period after operations cease, yet be flexible enough 
to take into account ordinary fluctuations in world commodity markets.
    Several commenters requested that proposed Sec. 3809.424(b) be 
revised to make it clear that the obligations of the owner/operator are 
only those contained in the approved plan of operations and associated 
financial instruments, such as bonds. Some commenters characterized the 
plan of operations and associated requirements as in the nature of a 
``contract'' between the BLM and the operator, and asserted that an 
operator may use ``reasonable and customary methods'' to comply with 
the contract. They would have the regulations deny BLM unilateral 
authority to change that ``contract'' and make the operator liable 
beyond this. They assert that operators should not be required to 
monitor a site in perpetuity, and that, without well-defined closure or 
success criteria, operators will have a difficult, if not impossible, 
time securing reclamation bonds.
    BLM disagrees with the comment. The operator's liability is not 
limited to the amount of the reclamation bond or other financial 
instrument. The operator is responsible for preventing unnecessary or 
undue degradation. This includes complying with applicable 
environmental standards such as water quality and air quality 
standards, and to reclaim the site to the performance standards in 
Sec. 3809.420. The financial instrument is an enforcement tool to back 
up the operator's obligations, if it is unable or unwilling to meet 
these regulatory requirements. It does not represent the limits of the 
operator's responsibility, but merely provides the BLM some level of 
assurance that the work will be performed. If a reclamation bond is not 
adequate to perform the reclamation work, the operator is liable for 
the unfunded portion needed to meet the minimum regulatory 
requirements.
    BLM also disagrees with the commenter's characterization of its 
obligations as being contractual in nature. The operator's obligation 
to reclaim and prevent unnecessary or undue degradation is based on 
Federal statute and regulations. The test for compliance is not whether 
the operator uses ``reasonable and customary practices,'' but whether 
the operator achieves success in meeting the performance standards. 
Site-specific success criteria and post-closure monitoring requirements 
should be established as a result of the individual plan of operations 
review process. Once a closure plan has been successfully implemented, 
no additional work or monitoring may be necessary by the operator. 
However, operator remains responsible for future problems that might 
develop on that site deriving from the operator's activities.
    One commenter recommended that BLM should not be mandated to 
forfeit the bond within 30 days of the determination that the operation 
was abandoned. The commenter recommended instead a statement indicating 
that the BLM may initiate forfeiture under this section. In this way, 
the BLM would have an opportunity to take enforcement action prior to 
forfeiture.
    BLM agrees with the comment and final Sec. 3809.424(a)(4) provides 
that BLM may initiate forfeiture under Sec. 3809.595. Final 
Sec. 3809.595 has been revised to substitute ``may'' for ``will'' on 
conditions which would cause BLM to initiate forfeiture.
    One comment was made that ``inactive'' status under the mining laws

[[Page 70056]]

may constitute ``abandonment'' under CERCLA (Superfund) where a release 
or threat of a release exists because of inadequate controls for public 
safety, health and the environment.
    These rules do not reflect any judgment that ``inactivity'' here 
equates with ``abandonment'' under CERCLA. CERCLA liability is 
determined by that statute. We believe, however, that a release or 
threat of release under CERCLA from a mining operation subject to these 
rules could also constitute unnecessary or undue degradation. The 
interim management plan required under final Sec. 3809.401(b)(5) must 
address management of toxic or deleterious materials during periods of 
temporary closure. This includes measures needed to prevent a release 
or the threat of a release. Operations which have a release, or 
threaten release, may be considered abandoned by BLM and subject to 
immediate forfeiture of that portion of the financial guarantee needed 
to stabilize the area or to prevent or correct the release conditions.
    One comment was not opposed to procedures regarding abandonment, 
temporary cessation of operations, or a specified time frame for 
expiration of a notice, as the NRC Report recommends, but urged that 
BLM work with States to determine how best to plan and define those 
circumstances when temporary closure becomes permanent. States already 
have extensive experience in this area. No new Federal program is 
necessary and would only duplicate these existing State programs and 
authorities.
    BLM agrees that temporary closure is one of the items that must be 
coordinated with the respective States. This has been specified in 
final Sec. 3809.201 as one of the items that should be covered under 
Federal/State agreements. However, BLM believes that, as recommended by 
the NRC Report, it must have its own procedures in place to address 
ongoing problems with inactive and abandoned operations.
    One commenter objected to the requirement for preparation of 
interim management plans, asserting that it was a significant burden on 
operators and not needed where unnecessary or undue degradation has not 
occurred or is not expected. For example, the commenter stated, it is 
inappropriate to require an interim management plan in all plans of 
operations because of speculation that the mining operation may be 
suspended in the future. Further, the commenter suggested any interim 
management plan prepared as part of the plan of operations application 
would become out of date in the future.
    BLM believes that interim management plans do not pose a 
significant burden on operators if prepared as part of the plan of 
operations. The operator, in planning to mine, should also be able to 
plan under what conditions they might temporarily not mine, and how 
they would manage the site to prevent unnecessary or undue degradation 
during the temporary closure. If conditions change at temporary 
closure, the interim management plan could be easily modified to 
address the new conditions or circumstances. More importantly, by 
giving consideration to possible interim management needs during the 
project planning phase, the operator is better prepared to address 
temporary closure should it become necessary. Finally, there is some 
efficiency in using a single NEPA document and a single review process 
to process the entire plan of operations, instead of treating the 
interim management plan as a plan modification later, with its own 
review periods and NEPA documentation requirements.
    One comment objected to what it called the ``implied'' requirement 
of an interim management plan to remove equipment and/or facilities. 
The comment asserted that this issue should be considered in the BLM 
plan of operations decision for final reclamation, and at least BLM 
should describe factors under which it might consider equipment or 
facility removal during temporary suspension of operations.
    BLM does not know in advance all situations where removal of 
equipment might be required. However, under the interim management 
plans that would be submitted as part of the plan of operations, it is 
the operator who will propose the provisions for storage or removal of 
equipment, supplies, and structures during periods of temporary 
closures. BLM will review the proposed interim management plan and 
decide if the plan would prevent unnecessary or undue degradation. 
Obviously, the need to remove equipment at the end of mine life is 
greater than it would be for relatively short periods of non-operation.
    Some commenters did not agree that BLM needed to require interim 
management plans or to specifically define the conditions under which 
temporary closure becomes permanent, triggering the requirement for 
final reclamation, although they did acknowledge that the NRC Report 
recommended (Recommendation 5) that BLM define such conditions.
    BLM believes the NRC was correct and that it is appropriate to have 
interim management plans prepared for both planned and unplanned 
temporary closures as part of the overall plan of operations. BLM has 
defined 5 years as the maximum time period an operation can maintain 
temporary closure without a review to evaluate whether final closure 
should be directed. This gives operators a reasonable amount of time to 
await changes in financial conditions yet provides flexibility in that 
closure is not necessarily mandated after the 5-year period.
    Other commenters were concerned that BLM be consistent with NRC 
Report Recommendation 5. They pointed out that following the 
recommendation would add clarity and provide useful guidelines. In 
addition, that BLM should allow for extended periods of temporary 
closure.
    In the final regulations, BLM has added the requirement under 
Sec. 3809.401(b) that plans of operations include interim management 
plans as recommended by the NRC Report; and to final Sec. 3809.424 that 
operators follow their approved interim management plans during periods 
of non-operation. BLM believes these requirements are consistent with 
NRC Report Recommendation 5 and provide useful guidelines for 
temporary, seasonal, and abandonment determinations. Operators may 
propose to extend periods of temporary closure by submitting a 
modification to their interim management plans while maintaining an 
adequate financial assurance during the closure period.
    Changes made to final Sec. 3809.424 have been made under the 
``Then'' column of Sec. 3809.424(a)(1). Several sentences have been 
inserted in the final regulations to the effect that if an operator 
stops conducting operations for any period of time, the operator must 
follow the approved interim management plan submitted under 
Sec. 3809.401(b)(5), and must submit a modification under 
Sec. 3809.431(a) to the interim management plan within 30 days if it 
does not cover the circumstances of the temporary closure.
    Other changes made to final Sec. 3809.424(a)(1) are the deletion of 
the phrase, ``maintain the project area, including structures, in a 
safe and clean condition;'' and deletion of the phrase, ``* * * 
including those specified at 3809.420.(c)(4)(vii).'' These phrases have 
been added to Sec. 3809.401(b)(5) as part of the content requirements 
for all interim management plans. With the addition to final 
Sec. 3809.424(a)(1) that interim management plans must be

[[Page 70057]]

followed, these phrases became redundant and have been deleted.
    Final Sec. 3809.424 is not inconsistent with the conclusions or 
recommendations of the NRC Report. NRC Report Recommendation 5 stated 
that BLM should adopt consistent regulations that (a) define 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.
    The final regulations implement the NRC Report recommendation. 
Interim management plans that define the anticipated conditions of 
temporary closure are required to be approved as part of all plans of 
operations. The interim management plans must be implemented during 
periods of non-operation, and modifications must be submitted within 30 
days if circumstances of the closure change from that anticipated in 
the interim management plan. Final Sec. 3809.424 provides that after 5 
consecutive years of inactivity, BLM will review the operations and may 
determine that the closure is permanent and direct final reclamation 
and closure be completed. BLM may also determine at any time that the 
operation has been abandoned, and direct final reclamation, if the 
interim management plan is not being implemented and the indicators of 
abandonment in final Sec. 3809.336(a) exist.

Sections 3809.430  Through 3809.434 Modifications of Plans of 
Operations

Section 3809.430  May I Modify My Plan of Operations?

    Final Sec. 3809.430 says that the operator may request a 
modification of the plan of operations at any time when operating under 
an approved plan of operations. No substantive comments were received 
on this section of the proposed rule, and no changes have been made to 
the final regulations. Providing for operator-requested modifications 
is not addressed by any recommendation of the NRC Report, and therefore 
this section is not inconsistent with any recommendation of the NRC 
Report.

Section 3809.431  When Must I Modify My Plan of Operations?

    Final Sec. 3809.431 describes the three circumstances under which 
operators must modify their plans of operations: (1) Before making any 
changes to the operations described in the approved plan of operations; 
(2) when required by BLM to prevent unnecessary or undue degradation; 
and (3) before final closure to address impacts from unanticipated 
events or conditions or newly discovered circumstances or information. 
The final regulations then provide examples of what might constitute 
unanticipated events or conditions or newly discovered circumstances or 
information that would warrant a plan modification before final 
reclamation and closure. These include: the development of acid or 
toxic drainage, the loss of surface springs or water supplies, the need 
for long-term water treatment and site maintenance, providing for the 
repair of potential reclamation failures, assuring the adequacy of 
containment structures and the integrity of closed waste units, 
provisions for post-closure management, and eliminating hazards to 
public safety.
    A new paragraph has been added under final Sec. 3809.431(c) to 
address NRC Report Recommendation 14 that BLM plan for and assure the 
long-term post-closure management of mine sites. BLM believes that the 
best way to do this, aside from comprehensive planning in the initial 
plan of operations, is to provide a mechanism where plans of operations 
may be modified before closure to address specific closure needs due to 
unanticipated events or conditions, or newly discovered circumstances 
or information.
    Experience has shown that, especially with large mining projects 
spanning ten or more years, it is often useful to reevaluate 
reclamation plans prior to final closure. This allows for the 
incorporation into the reclamation plan of environmental information 
gained throughout the mine life, consideration of ``as built'' mine 
conditions, and the ability to apply the most recent developments in 
reclamation or remediation technology. This does not mean that all 
plans of operations would require modification prior to reclamation and 
closure. The requirement to modify the plan of operations would have to 
be triggered by a significant change that makes reclamation and closure 
plans approved as part of the initial plan of operations no longer 
adequate or appropriate.
    BLM received comments expressing concern about when BLM would 
require an operator to modify a plan of operations. Some commenters 
were concerned that a modification not be directed just because BLM 
suddenly changed its mind regarding acceptable impacts. Others were 
concerned that BLM could use the new definition of unnecessary or undue 
degradation with the modification requirements to retroactively apply 
the new performance standards to existing operations. Some commenters 
recommended periodic reviews for all plans of operations while others 
were against periodic reviews. Some operators were concerned with the 
amount of operational change that would warrant a modification 
requiring BLM review and approval.
    In response, BLM believes we must have the authority to require a 
plan modification in a timely manner to prevent unnecessary or undue 
degradation. In this regard, the NRC Report had some relevant 
observations:

    Where * * * modifications are needed to prevent unnecessary 
undue degradation, such review should be expeditious and tied to the 
NEPA document approving the initial plan of operations. In addition, 
revised agency procedures should contain safeguards to assure that 
modifications are imposed only after serious consideration and 
following a procedure that protects the interests of the mining 
company in continuing to conduct operations, consistent with the 
avoidance of unnecessary or undue degradation.

NRC Report, p. 101. BLM would not use the modification requirement to 
place existing operations under the new performance standards. Final 
Sec. 3809.400 makes it clear that an existing operation can continue to 
implement the existing plan of operations under the performance 
standards in the existing regulations. Furthermore, the final 
regulations do not require reviews of plans of operations at 
predetermined intervals, or modifications of already approved plans of 
operations for non-substantive changes in circumstances.
    Two commenters asked if proposed Sec. 3809.431(b) was 
``retroactive'' onto private lands. As discussed earlier in this 
preamble, the 3809 regulations apply only to operations located on 
lands managed by the BLM. Final Sec. 3809.2(d) has been added to the 
regulations to make this more clear.
    One comment objected to statements in the proposed rule preamble 
that the proposed rule would eliminate the procedures relating to 
required modifications because the ``procedures are unnecessarily 
detailed and cumbersome'' and the ``proposal would allow BLM field 
staff flexibility to streamline the modification review process.'' The 
commenter asserted that the provisions in the existing regulations 
provide justifiable and substantive protections to operators that have 
expended enormous sums designing and constructing facilities in 
accordance with BLM-approved plans, and that BLM shouldn't be allowed 
to wipe the slate clean merely because it

[[Page 70058]]

changes its mind in a situation where all impacts were foreseen from 
the start. The commenter asserted that the existing provisions have 
worked well over time to allow BLM to protect the public lands from 
unforeseen events without disturbing the legitimate expectations 
operators gain through approval of their plans and their resulting 
investment of significant sums in mining operations.
    BLM has developed the modification procedures in the final 
regulations in response to NRC Report Recommendation 4 that BLM revise 
its modification requirements to provide more effective criteria for 
modifications to plans of operations. The NRC Report concluded that the 
current procedures are not straightforward enough to allow BLM to 
require a modification even where needed to prevent unnecessary or 
undue degradation, and should not depend upon ``looking backward'' at 
what should have happened in the initial plan of operations approval. 
See the NRC Report, pp. 99-101. The new modification procedures are 
designed to be consistent with the discussion in the NRC Report.
    One comment specifically requested that BLM require a closure plan 
that includes all actions to both reclaim and remediate any outstanding 
environmental issues. BLM has added final Sec. 3809.431(c) to the final 
regulations to require a modification prior to final mine closure if 
needed to address unanticipated events or conditions, or newly 
discovered circumstances or information that must be taken into account 
by final reclamation activities. This would include requiring, as part 
of the modified final reclamation plan, plans for remediation of any 
outstanding environmental problems that were not adequately covered in 
the approved plan of operations.
    Several commenters were concerned that the agency's authority to 
direct an operator to modify its approved plan be subject to some 
constraint. They asserted that operators are entitled to due process, 
including some written specification on how and why the agency has 
determined that operations it previously approved as not constituting 
unnecessary or undue degradation of BLM-managed land has suddenly 
become unnecessary or undue degradation. They urge that the rule 
require the agency to state in writing, in any such directive to modify 
a plan, how and why the modification is being directed.
    Any order issued under final Sec. 3809.431(b) requiring an operator 
to submit a plan modification would contain a detailed description on 
why BLM had determined that the modification is necessary. Procedural 
protections for the operator are preserved in final Sec. 3809.800. An 
operator may challenge an order of the BLM field manager by appealing 
it to the BLM State Director and eventually to the Interior Board of 
Land Appeals. This approach is consistent with discussions in the NRC 
Report on revising the criteria for requiring plan modifications, and 
on preserving due process for operators.
    One comment said that proposed Sec. 3809.431 would create a 
separate and inconsistent standard for modifications to plans of 
operations by allowing BLM to require a modification to ``minimize 
environmental impacts, or to enhance resource protection.'' The 
commenter asserted that BLM should only be able to require a 
modification to prevent unnecessary or undue degradation. Final 
Sec. 3809.431 doesn't use the terms suggested in the comment, but 
requires modifications to prevent unnecessary or undue degradation and 
to account for unanticipated events or conditions, or newly discovered 
circumstances or information.
    Several commenters were concerned that existing operations would be 
affected by the rule changes. In their view, proposed Sec. 3809.431(b) 
would essentially create a ``Catch-22'' situation by providing that a 
plan of operations must be modified if BLM concludes it does not 
prevent unnecessary or undue degradation, because the rule will also 
modify the definition of ``unnecessary or undue degradation'' and the 
related performance standards. This gives BLM the authority to require 
modification at any time to require compliance with the new performance 
standards. The commenter asked that the rule be clarified with respect 
to BLM's ability to impose the new performance standards on existing 
operations through a modification order.
    In response, BLM has revised final Sec. 3809.400(a) to make it 
clear that operations existing on the effective date of this final rule 
are exempt from the new performance standards. A modification required 
under 3809.431(b) for operations covered by a plan of operations 
approved or pending as of the effective date of the final regulations 
would be tied to the previous definition of ``unnecessary or undue 
degradation'' and the previous performance standards. Existing 
operations would remain subject to modification orders under final 
Sec. 3809.431, but the modification requirements themselves would be 
based on the previous performance standards and definition of 
unnecessary or undue degradation.
    One commenter suggested that the regulations clarify when changing 
conditions warrant a change or modification in operations. For example, 
a single mine in a basin doesn't have the same impact as several; 
therefore changes should be required throughout the basin rather than 
to put all of the mitigation requirements on the last mine permitted.
    Final Sec. 3809.431(c) has been added to provide some examples of 
when a change in conditions or circumstances would require a plan 
modification. The allocation of mitigation measures among different 
mine operators contributing to cumulative impacts may be factually 
complex and may also raise legal issues. BLM believes such situations 
must be dealt with on a case-by-case basis.
    Several comments noted that most operations at some time make 
changes in their plans of operations, such as to expand the scale of 
operations, or to extend mine life, or to convert from open pit to 
underground operations. Eventually, according to these comments, most 
existing mining operations will likely be impacted by these new 
regulations.
    BLM agrees that most existing operations are likely to undergo a 
modification in the future. We have written final Sec. 3809.433 
specifically to address how the final regulations would apply to new 
modifications of existing plans of operations and to provide a 
transition approach that BLM believes would not significantly affect 
existing operations.
    Some commenters recommended no periodic reviews. Commenters also 
asserted that, as a practical matter, mining plans of operations are 
amended relatively frequently to reflect changing economic and geologic 
conditions, that mandatory periodic review creates undue burden on the 
entire industry and on the BLM, and that changing environmental 
conditions or standards can be considered in evaluation of plan 
amendments submitted by the operator. Others felt that if BLM imposes 
this periodic review of plans, reviews should be no more frequent than 
every five years. One commenter believed that the regulations should 
require BLM to conduct an annual review on all plans of operations. 
According to this commenter, an annual review would be a good time for 
BLM to review the bond amount and specifically address the adequacy of 
the approved plan of operations in the light of actual on-the-ground 
performance. BLM could also determine at this time if a modification

[[Page 70059]]

was needed to prevent unnecessary or undue degradation.
    The NRC Report did not take a position on whether plans should be 
``reviewed or reopened at predetermined intervals,'' (p. 101), although 
it did say that ``[p]rovisions for periodic review of plans of 
operations, and the ability to require modifications, are important to 
deal with adverse effects on public lands.'' Ibid. It also said that 
``[s]taff comments and documents reviewed by the Committee suggest that 
the regulations should be modified to improve criteria for 
modifications, require periodic reviews, and/or specify expiration 
dates for approved plans of operations to assure the opportunity to 
adjust practices where needed.'' (p. 100.)
    BLM has decided not to require annual or other mandatory reviews of 
plans of operations at predetermined intervals. Final Sec. 3809.431 
provides for the BLM to require modifications to existing plans of 
operations to prevent unnecessary or undue degradation on an as-needed 
basis when unanticipated conditions or situations arise. This 
provision, coupled with inspection and monitoring requirements, 
provides adequate protection of public lands without burdening either 
the operator or the agency with periodic reviews on a fixed schedule to 
determine if modifications are needed. BLM can review a plan of 
operations at any time to determine whether modifications are needed to 
prevent unnecessary or undue degradation, and can conduct a review at 
any time to verify that the financial guarantee is adequate to cover 
the reclamation liability. Due to the site-specific nature of the 
various mining operations on public land, BLM decided not to specify a 
set time interval for review of plans of operations.
    There were several comments about the discussion in the NRC Report 
under its Recommendation 4, which says that BLM and Forest Service 
regulations ``should not require the agencies to make retrospective 
findings on `foreseeability' or whether `all reasonable measures' were 
applied in approving the existing plan. Modifications should be based 
on the results of monitoring or other data that demonstrate the 
occurrence or likely occurrence of unnecessary or undue degradation if 
the plan is not modified.'' (P. 101) These commenters assert that the 
revised definition of ``unnecessary or undue degradation'' proposed by 
BLM in this rulemaking would be impossible to administer. The 
commenters believe that because the proposed definition of 
``unnecessary or undue degradation'' is essentially circular (i.e., 
unnecessary or undue degradation is whatever BLM says it is), and 
therefore proposed Sec. 3809.431 is unworkable and inconsistent with 
the NRC Report recommendation for more effective modification criteria.
    BLM does not agree that the modification language is unworkable 
with the new definition of ``unnecessary or undue degradation.'' We 
believe the final definition of ``unnecessary or undue degradation'' 
provides a more direct basis for evaluating whether a modification is 
needed by being tied directly to the performance standards in final 
Sec. 3809.420, as well as to compliance with other Federal and State 
laws. Further, the plan modification procedures in the final 
regulations remove the State Director determinations regarding initial 
plan approval that were of concern to the NRC.
    One commenter questioned whether the application of the millsite 
acreage limits would affect BLM's review if an operator proposed a 
modification. They noted that currently there are no serious 
consequences to an operator if a change in the plan of operations is 
labeled a modification. They expressed concern whether a 
``modification'' of a plan would lead BLM to examine whether the 
millsite acreages in the operation exceed the acreage limits in the 
Mining Law, as interpreted in the Solicitor's Opinion on millsites. The 
commenter was concerned that an operator might forego improvements in 
efficiency to its operation, including reductions in environmental 
impacts or improvements in efficiency (reducing the volume or distance 
of waste rock or ore hauls), if proposing a ``modification'' to its 
existing plan would force BLM to get into claim position reviews never 
before undertaken, and never before deemed relevant under the 3809's in 
the siting and environmental clearance of existing and planned 
facilities.
    In the final regulations, BLM did not include a specific review 
requirement regarding millsite acreage limits. Any modification filed 
for a plan of operations will be reviewed in the context of the need to 
prevent unnecessary or undue degradation. Whether an operation is in 
compliance with the acreage limits on mill sites or any other 
requirement of the Mining Law concerning claim location and maintenance 
is generally outside the purview of these regulations. Such matters can 
be raised by BLM at any time, regardless of the status of operations.
    One commenter asserted that any requirement to modify a plan of 
operations must be coordinated with State permitting requirements so as 
to avoid unnecessary duplication of effort and to minimize industry and 
agency time devoted to evaluating minor changes. In Nevada, for 
example, key permits for mining and exploration projects must be 
renewed or updated on a regular basis. (A Water Pollution Control 
Permit must be renewed every five years; a Reclamation Permit must be 
updated every three years). The commenter requested that BLM's plan 
modification process should be coordinated with these State 
requirements to minimize duplication.
    BLM agrees with the comment that where States or other regulatory 
agencies conduct periodic reviews of operations, operators should 
provide BLM with updates on operations activities that have occurred 
within the scope of the approved plan of operations. For operational 
changes that would exceed the scope of the approval, the operator 
should contact BLM and the appropriate State agency well in advance to 
determine what modification requirements need to be followed.
    One commenter asserted that the proposed rule is vague in defining 
the circumstances under which BLM would require a plan modification. 
While the creation of a new facility (waste rock dump, heap leach pad, 
etc.) or expansion of an existing facility would require a plan 
modification, as provided for in proposed Sec. 3809.433, the commenter 
believes the following activities should also trigger plan 
modifications: boundary adjustments, changes in a financial assurance, 
and temporary closure (which would trigger a modification for 
``interim'' operations).
    BLM does not intend that administrative actions, which do not 
approve or create any on-the-ground impacts, will trigger a plan of 
operations modification, such that the NEPA analysis would need to be 
supplemented or the public comment period would need to be reopened. 
Examples of such administrative actions include a change in operator, 
property boundary changes, or enforcement actions. These actions are 
clearly within the scope of implementing the approved plan of 
operations. A modification would be triggered by a material change in 
operations outside the scope of the existing approved plan of 
operations, or by events or conditions which create the possibility of 
unnecessary or undue degradation as described in the preamble 
discussion of final Sec. 3809.431(c). A change in revegetation plans, 
an increase in mining rate, or a greater disturbance footprint beyond

[[Page 70060]]

that described in the approved plan of operations are all examples of 
material changes that would require a plan of operations modification 
prior to implementing.
    Final Sec. 3809.431(c) requires a plan modification prior to final 
closure to address unanticipated events or conditions or newly 
discovered information. Final Sec. 3809.431 has also been revised and 
reformatted to present the possible circumstances that would require 
plan modification in a sequential fashion.
    Final Sec. 3809.431 is consistent with the recommendations of the 
NRC Report. NRC Report Recommendation 14 is that BLM plan for and 
assure the long-term post-closure management of mine sites. The final 
regulations provide not only for up-front post-closure management plans 
under Sec. 3809.401(b), but also provide a mechanism under 
Sec. 3809.431(c) where plans of operations can be modified prior to 
closure to address specific closure and post-closure needs due to 
unanticipated events or conditions or newly discovered circumstances or 
information.
    Recommendation 4 of the NRC Report was for BLM to revise its 
modification requirements to provide more effective criteria for 
modifications to plans of operations. The NRC stated that the current 
procedures are not straightforward enough to require a modification 
even when ``the results of monitoring or other data * * * demonstrate 
the occurrence or likely occurrence of unnecessary or undue degradation 
if the plan is not modified.'' (p. 101) BLM has developed the 
procedures for when it can require a modification in final 
Sec. 3809.431 and removed the complex State Director evaluation process 
which was of concern to the NRC. The final regulations now provide that 
BLM may require a modification to a plan of operations when needed to 
prevent unnecessary or undue degradation. The final regulations also 
preserve procedural protection for operators by allowing for appeals of 
a BLM-required modification decision.

Section 3809.432  What Process Will BLM Follow in Reviewing a 
Modification of My Plan of Operations?

    Final Sec. 3809.432(a) describes the review and approval process 
that BLM will use for modifications to plans of operations. BLM will 
review and approve a modification in the same manner as it reviewed and 
approved the initial plan of operations. This is not a change from the 
previous regulations at Sec. 3809.1-7(b). BLM follows these procedures 
for modifications involving changes in the plan of operations that 
exceed the scope of the initial review and approval. For example, 
modifications to add new mine facilities, extend mine life, or change 
the operating and reclamation plans are reviewed and approved following 
the same procedural steps as used for the initial plans. In appropriate 
cases, BLM may supplement or tier off of the previously prepared NEPA 
documents (EA or EIS), as allowed under the CEQ regulations, in order 
to expedite the modification review process.
    Final Sec. 3809.432(b) describes how BLM will process minor 
modifications that do not constitute a substantive change in the plan 
of operations and do not require additional environmental analysis 
under NEPA. The final regulations provide that BLM will accept such 
modifications after review for consistency with the approved plan of 
operations and consistency with NEPA analysis previously done on the 
operation. Examples of such modifications include a change in mining 
rate, adjustment of monitoring plans, substitution of revegetation 
species, implementation of engineering practices, minor realignment of 
roads or disturbance areas within the approved project footprint, or 
administrative changes such as a change in operator or mining claim 
information.
    Several commenters suggested that under proposed Sec. 3809.432(b), 
BLM should provide an operator with an approval or disapproval to a 
requested plan modification. The degree of administrative review would 
vary depending on the magnitude of the requested plan modification, but 
the operator should be informed that a requested plan modification has 
been either approved or disapproved. Otherwise, the operator may be 
unknowingly in violation of approved permits.
    BLM agrees that the operator needs to be advised as to the outcome 
of our review of a modification request. Under final Sec. 3809.432(b), 
BLM will notify the operator of the acceptability of proposed changes 
in the plan of operations as minor modifications. BLM does not intend 
to issue approvals or denials of minor changes, but to merely screen 
them for conformance with the existing approved plan requirements and 
consistency with previous NEPA documentation, and advise the operator 
if they are acceptable without undergoing the formal review and 
approval process in final Sec. 3809.432(a).
    One commenter wanted to know how much of the information listed in 
proposed Sec. 3809.401 would be required for a plan modification. BLM 
will require all of the information listed in Sec. 3809.401 that is 
applicable to support the review and approval of the plan modification. 
The amount of information depends on the type and magnitude of the 
proposed modification. Minor changes could be sufficiently addressed on 
a single page while major modifications may require much more 
information.
    One commenter was concerned with the situation where modifications 
are being processed when a plan of operations is under appeal. The 
commenter recommended that BLM add a provision that we would deny any 
substantial amendments until appeals are settled. BLM notes that under 
current procedures, when a BLM decision is under appeal before IBLA, 
BLM does not take any additional action on matters covered by the 
pending appeal, unless agreed to by the IBLA. During the pendency of 
the appeal, the IBLA has jurisdiction over the matter covered by the 
appeal. For example, if a modification approval for a mine expansion is 
under appeal before IBLA, BLM won't approve a second modification while 
the appeal on the first one is pending.
    Several commenters want BLM to define ``minimally'' as used in 
proposed Sec. 3809.432(a) regarding not soliciting public comments if 
the financial guarantee amount would only be changed ``minimally.'' It 
was suggested that since the word ``minimally'' is open to differing 
interpretations, it would be helpful if BLM would pick a certain 
percentage change in the guarantee amount (20% or 80% were suggested) 
before triggering public comment. Or that BLM should use the NEPA 
compliance process to determine whether the proposed modification is 
``minimal.'' If a supplement to the EIS is required, it would not be 
``minimal;'' whereas if only an EA/FONSI is required it would be 
``minimal.''
    As discussed earlier in response to comments on proposed 
Sec. 3809.411(d), BLM has removed the requirement for public review on 
the amount of the financial guarantee. BLM has also deleted reference 
to public review from the last half of Sec. 3809.432(a) which included 
the term ``minimally.'' Therefore, comments on defining this term are 
no longer relevant. Plan modifications processed under final 
Sec. 3809.432(a) would still have public comment periods on the 
modification. Comments on the financial guarantee could still be 
provided during the 30-day comment period on the plan modification, but 
the comment period is

[[Page 70061]]

not contingent upon any change in the financial guarantee.
    Other commenters requested that BLM define ``substantive'' as used 
in proposed Sec. 3809.432(b). They stated that since virtually 
everything in a plan of operations is substantive; the regulations need 
a qualitative adjective to distinguish matters of minor substance from 
those of significance. They suggested including in the definition in 
Sec. 3809.5 that any change proposed would not be substantive when BLM 
uses an EA/FONSI for NEPA compliance.
    In response, BLM believes a substantive change takes place at a 
lower threshold than suggested by the commenter, and occurs when the 
activity would exceed the scope of the approved plan of operations. A 
substantive change may require either the EA or the EIS analysis to be 
supplemented. Even if the impact is not significant (able to be 
approved using an EA) the change itself could be substantive compared 
to the initial approved plan of operations. For example, expanding a 
25-acre waste rock dump by ten acres may be a substantial change, but 
it may not trigger the significant impact threshold of NEPA, and might 
be processed using an EA instead of an EIS. Placing an extra lift of 
ore on a leach pad involves no additional surface disturbance, but 
could still present potentially significant impacts through changes in 
mass stability or leaching solution inventory, and might trigger 
preparation of an EIS or supplement. For these reasons BLM does not 
believe it is appropriate to tie the substantive change criteria for 
minor modifications to either the level of NEPA review required or to 
the amount of surface disturbance involved.
    One commenter was concerned that the modifier ``substantive'' will 
not work because virtually everything in a plan of operations is 
substantive. The commenter asserted that the regulations need a 
qualitative adjective to distinguish matters of minor substance from 
those of significance, and only the latter should be required to be 
reported. The provision must be modified to clearly indicate that only 
``significant'' changes require a modification of a plan of operations.
    In response, BLM points out that the test for how a modification 
submitted under the final regulations at 3809.431(a) is processed does 
not rely on whether the project component being modified is 
``substantive,'' but on whether the ``change'' itself would be 
substantive from that already approved. BLM anticipates that there are 
three levels of changes or modifications which an operator could make 
to a plan of operations. The first are changes within the confines of 
the approved plan of operations, such as a change in equipment size or 
type that is within the range already described in the plan. These do 
not require any notification to BLM as they are within the scope of the 
existing plan approval. The second are changes which, while not 
substantive enough to require supplemental NEPA analysis, must be 
reviewed by BLM for consistency with the approved plan of operation to 
ensure unnecessary or undue degradation would not result. These would 
include such things as a revision to monitoring parameters or 
frequency, a seed-mix substitution, or a minor road re-alignment. The 
third types of modification are those that involve a material change in 
operations, either in extent, intensity, duration or type of activity 
such that they are not within the scope of the existing approved plan 
of operations and require formal review and approval. Examples of this 
type of modification include construction of new or expanded mine 
facilities; changes in mineral processing that change the potential 
impacts or increase their intensity; or changes needed to address 
unanticipated events or conditions, such as subsidence or development 
of acid drainage. This is not much different from the existing 
regulations. Operators are already required to contact BLM before 
making changes that exceed the scope of their existing approvals. The 
threshold for each of these levels is site-specific, and operators 
should contact the local BLM office if they have any question on the 
change in operations they would like to make.
    Several commenters were concerned that by requiring such detailed 
plans to be submitted, BLM increases the likelihood that when 
circumstances are encountered that are different from those projected 
by the exploration work, the details of the plan will require changes. 
Under the draft rules, any ``substantive change'' may require 
reinitiating the same process required for initial plan of operations 
approval under Sec. 3809.432. In the view of these commenters, this 
process can be extraordinarily expensive and time-consuming. The 
commenters suggest that the draft rules should either reduce the level 
of detail required in plans of operation, or ease the procedural 
requirements for plan modifications.
    BLM notes that while a substantive change may require review and 
approval similar to the process followed for the initial plan of 
operations, only the information pertinent to the modification need be 
submitted under Sec. 3809.401(b). Furthermore, the NEPA analysis for 
the modification may use or supplement existing documents, serving to 
facilitate the modification review. BLM does not believe the 
information requirements in final Sec. 3809.401 are overly detailed. 
Plans of operations may be proposed in such a manner that preserve 
operators' flexibility to make minor adjustments without exceeding the 
scope of the plan approval.
    Several commenters question how a ``substantive change'' under 
proposed Sec. 3809.432(b) was the same as a ``significant 
modification'' under the previous regulations at 43 CFR 3809.1-7. They 
were concerned that the term ``substantive'' could mean any change that 
is not strictly ``procedural,'' and thus, an operator might have to go 
through a formal BLM approval process for something as minor as a 
proposal to add 10 square feet to a storage shed.
    In response, a substantive change or modification is one that is 
outside the scope of the approved plan of operations. It is very 
similar to the ``significant modification'' under the existing 
regulation, but BLM decided to use ``substantive'' instead of 
``significant'' to avoid confusion over whether ``significant'' in this 
context was the same as ``significant impacts'' as used in NEPA to 
trigger preparation of an EIS. It has never been BLM's policy or 
practice under the previous regulations that a change had to exceed the 
EIS significance trigger before a modification was required, and using 
the term ``substantive'' makes the regulation better conform to BLM's 
practice. Regarding the example, BLM believes that in most situations a 
10-square-foot increase in the size of a storage shed would be 
considered minor and not require further NEPA analysis or require BLM 
approval. However, if for some reason the size of the storage shed had 
been an issue during the initial plan approval and the storage shed 
size had been specifically limited to meet the performance standards, 
then an increase in its size would require a modification under final 
Sec. 3809.432(a).
    Another comment was that proposed Sec. 3809.432 should include time 
frames for BLM's review of modifications and that BLM needs to return 
to the current language which recognizes the reality of ongoing mining 
operations, where minor operating changes are made constantly as a 
matter of course. The commenters recommended that the new regulations 
not create a system which even implicitly requires the operator to 
constantly barrage the local BLM office with non-significant changes.

[[Page 70062]]

    BLM recognizes that day-to-day operations often include minor 
changes. However, anytime the operator makes a change in operations 
that goes outside what was provided for in the approved plan of 
operations, it is substantive and the operator must contact BLM. For a 
substantive modification, BLM would follow the time frames for review 
found in final Sec. 3809.411. If the substantive change requires 
additional analysis under NEPA, then we will process it in the same 
manner as the initial plan of operations. If the change is a minor 
modification consistent with the approved plan of operations, it can be 
handled expeditiously as a compliance matter between the operator and 
BLM.
    One commenter felt that the NRC Report was inaccurate in its 
depiction of how small miners were allowed to make modifications. In 
the commenter's opinion, BLM does not permit small miners to make minor 
modifications to approved plans of operations without requiring 
extensive re-processing. The commenter asserted that the NRC has 
reported something other than what actually does occur for all small 
miners, has failed to comply with the law mandating the study, is 
unreasonable, and should not be followed.
    In response, the final regulations apply to all plans of 
operations, including both small and large mines. The final regulations 
provide flexibility for plan modifications to be judged on an 
individual basis as to the need for additional environmental review. 
Whether or not the NRC Report has accurately portrayed the process for 
small miners, Congress has required that BLM rules not be inconsistent 
with the NRC Report recommendations.
    Changes made to final Sec. 3809.432 include deleting the last 
clause from proposed Sec. 3809.432(a) with respect to a specific public 
comment period on the amount of the financial guarantee. The paragraph 
now reads, ``BLM will review and approve a modification to your plan of 
operations in the same manner as it reviewed and approved your initial 
plan under Secs. 3809.401 through 3809.420.''
    BLM has also edited final Sec. 3809.432(b) to clarify that it 
applies to minor modifications that are consistent with the approved 
plan of operations, and do not require additional NEPA analysis. The 
final paragraph now reads: ``BLM will accept a minor modification 
without formal approval if it is consistent with the approved plan of 
operations and does not constitute a substantive change that requires 
additional analysis under the National Environmental Policy Act.'' This 
change is needed to allow for the expeditious consideration of minor 
modifications which, may be a substantive change, yet are still 
consistent with the approved plan such that additional NEPA analysis is 
not warranted.
    The final regulations are not inconsistent with the recommendations 
in the NRC Report. Final Sec. 3809.432(a) maintains a public review and 
approval process, consistent with NRC Report Recommendation 10, for 
modifications that are clearly outside the scope of the approved plan 
of operations. Consistent with the NRC Report discussions following 
Recommendation 4, final Sec. 3809.432(b) recognizes that operational 
changes are often necessary, and an expeditious process is needed where 
minor modifications can be reviewed under the existing NEPA documents 
used to approve the original plan of operations.

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

    Final Sec. 3809.433 addresses the situation where an operator may 
propose to modify an existing plan of operations after the effective 
date of the final regulations. The regulations consider two types of 
modifications that might occur. One is a modification to add a new and 
distinct mine facility, such as a new waste rock repository, leach pad, 
drill site, or road. The second is a modification that changes an 
existing mine facility, such as by enlarging a leach pad, waste rock 
repository, or mine pit.
    Where the operator adds a new mine facility, the final regulations 
require the new facility to follow the plan content requirements of 
final Sec. 3809.401 and meet the performance standards of final 
Sec. 3809.420. The other portions of the operation can continue under 
the terms and conditions of the existing plan of operations.
    Where the operator changes an existing mine facility, the final 
regulations require compliance with the plan content requirements of 
final Sec. 809.401 and the performance standards of final 
Sec. 3809.420, except that if the operator can demonstrate to BLM's 
satisfaction that it is not practical to apply the new requirements for 
economic, environmental, safety or technical reasons, then the modified 
facility may operate under the plan content requirements and 
performance standards of the previous regulations. This is because BLM 
recognizes it may not be practical or desirable to retrofit an existing 
mine facility with new requirements.
    One commenter stated that if an existing facility is modified after 
the effective date of the final rule, the entire modified facility (not 
just the modified portion of it) must generally be retrofitted to 
comply with the new performance standards unless this is not 
``feasible.'' For instance, if more environmentally protective 
processes become available in the future, an operator might be hesitant 
to incorporate them into an existing facility, for fear of having to 
retrofit the entire facility in all respects. Or, the commenter 
asserted, if an operator wants to expand operations, rather than modify 
(and thereby retrofit) an existing facility, it may decide instead to 
build an entirely new facility--thereby resulting in more environmental 
impacts than a modified, but not retrofitted, facility.
    As part of the modification review process to determine whether 
unnecessary or undue degradation would occur, BLM would consider the 
environmental trade-offs should the operator propose building a new 
facility versus expanding and retrofitting an existing facility. The 
provision in Sec. 3809.433(b), allowing for a demonstration that 
applying the final regulations the entire facility is not practical, 
should mitigate the impact on most operators while identifying the 
environmentally preferred approach for mine expansion.
    A couple of comments were concerned with how final Sec. 3809.433(b) 
would apply if the mine pit layback is on patented ground and how much 
road widening is allowed. There was a question on the amount of 
deviation allowed on a day-to-day basis to grade roads, and when it 
would be considered road widening.
    The 3809 regulations do not apply where private lands overlie 
private minerals, even if those lands are within the project area. 
Therefore, a modification approved by BLM would not be required for a 
pit layback totally on private lands. However, it should be noted that 
if the layback on private lands causes some change in activity on BLM-
managed lands, such as increased waste rock disposal or expanded leach 
pad areas, then a plan modification would be needed for those 
activities. Regarding roads and grading, provisions for day-to-day 
maintenance needs should be written into the plan of operations, and 
the overall specified road width should take such activities into 
account. If the plan of operations calls for a road with a certain 
maximum width, and the operator wants to grade it to exceed that width, 
then we would consider it widening of the road and would require an 
approved modification.

[[Page 70063]]

    A commenter stated that, under proposed Sec. 3809.433(b), economic 
reasons alone would not prevent the application of the new performance 
standards to new or expanded facilities within an existing operation. 
The commenter suggested that operating plans and the economics of 
established operations are based upon requirements and laws at the time 
those plans and operations were developed, therefore these requirements 
should be modified so that the regulations would not apply to any 
activities within an ``integral operating area'' covered by an approved 
plan or by a plan submitted to the BLM at least 18 months prior to the 
effective date of the regulations.
    BLM understands that the economics of a specific operation were 
determined by the regulations in place at the time the project was 
first approved. That is why BLM believes it is appropriate that parts 
of the regulations be applied prospectively to new plans of operations 
or expanded activities that require modification of already approved or 
pending plans of operations. BLM believes that final Sec. 3809.433(b) 
provides a reasonable transition approach allowing the operator and the 
BLM to consider whether a certain measure can be applied to satisfy the 
purpose of the statute and these regulations to prevent unnecessary or 
undue degradation while respecting the investments operators have made. 
In response to the commenter's concern, we have revised the provision 
to replace ``feasible'' with ``practical'' to account for the economic 
factors that must be considered, and we have added the word 
``economic.'' BLM does not believe it is necessary to introduce the 
term ``integral operating area'' into the regulations.
    Several commenters were concerned that proposed Sec. 3809.433 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, especially when it is not simply parts of ``an 
operation'' that may be under different standards, but parts of the 
same, integrated ``facility''--an individual milling unit, an 
individual pit, a leach pad, or a waste rock repository. The commenters 
proposed that the regulations in effect when a plan of operations is 
submitted would govern the plan and all subsequent modification to 
avoid confusion. Another commenter suggested letting the operator 
decide where and how they wanted the new regulations to apply on future 
modifications.
    BLM does not believe that allowing operations to continue to expand 
or modify indefinitely under the old regulations is a reasonable 
transition approach. Given the incremental nature of mining, and the 
need to achieve economies of scale, it is not uncommon for a 
modification to be larger in size and scope than the initial approved 
plan of operations. Final Sec. 3809.433(b) provides a reasonable test 
of practicality in applying the new requirements to future 
modifications of existing mine facilities. BLM believes that as long as 
the overall facility design and operating parameters are clearly laid 
out in the approved plan of operations, the BLM inspector should be 
able to discern the appropriate requirements.
    One commenter was concerned that a literal reading of the proposal 
required an operator who wished to modify a facility to incorporate new 
environmentally protective technology could do so only if first 
retrofitting the entire facility to comply with all of the proposed 
performance standards or established to BLM's satisfaction that 
retrofitting was not ``feasible.'' The commenter stated that in such 
circumstances, the operator would likely not install the new 
environmentally protective technology. For these reasons, the commenter 
suggested that the new rules should at most apply only to the modified 
portions of an existing facility.
    BLM agrees with the comment and notes that the intent of final 
Sec. 3809.433 is not to apply the new regulations to the entire mine 
facility, but only to the portion that is being modified, and only if 
the application of the new regulations is practical. The final 
regulations have been revised to clarify that the requirement applies 
to the modified portion of the mine facility.
    Another person commented that under proposed Sec. 3809.433(b), the 
term ``feasible'' can be interpreted to mean that it is simply not 
possible. This in turn could mean that absent bankrupting the company, 
an operator could be required to expend enormous sums to retrofit an 
existing facility merely because it came to BLM proposing to make only 
a minor change to the facility.
    For clarity, BLM has, throughout the final regulations, modified 
the term ``feasible'' by ``technically'' and ``economically'' as 
appropriate to make it clear when we intend ``feasible'' to include 
economic considerations. In final Sec. 3809.433(b), we have replaced 
``feasible'' with ``practical'' to acknowledge that economics (cost) is 
one of the factors that will be considered in deciding to exempt a 
modification of an existing mine facility from the new performance 
standards.
    One commenter asked that the regulations be clarified regarding 
whether, when a modification is filed, it opens the entire plan of 
operations to the new 3809 regulations.
    The final rule makes it clear that the review and approval are for 
the modification being proposed, so that a proposed modification does 
not open the entire plan of operations to re-approval. However, it 
should be noted that while the modification is what would be review and 
approved, the scope of any NEPA analysis that might be required would 
have to consider the cumulative impacts of all the past actions.
    Another commenter asserted that the last sentence of proposed 
Sec. 433(b) (in the ``Then'' column of the table) contained a minor and 
a major defect. The minor one is that ``areas'' do not ``operate.'' 
Rather, ``operators use areas.'' The major one is that, as written, it 
only expressly provides for the operator to continue to operate 
facilities, or in areas, NOT subject to the modification. The negative 
implication is that all use of facilities or areas in the modification 
area must cease (leaching must cease in the pad to be enlarged; 
excavation must cease in the pit to be laid back). The commenter 
questioned whether this was intended and sought to have the regulations 
make clear that operations may continue, under the existing terms of 
approval, in the area of facility subject to the modification. The 
comment suggested that the sentence should read, ``You may continue to 
operate under your existing plan of operations, including at those 
facilities and in those areas that are the subject to the 
modification.''
    In response, BLM intended that all operations not part of the 
modification, including portions of the facility to be modified, would 
not be subject to the new regulations and could continue to operate as 
approved under the existing plan of operations. In addition, an 
operator may continue to conduct activities at the facility proposed to 
be modified under the approved plan of operations until BLM acts on the 
proposed modification. The sentence is unnecessary, and BLM has deleted 
it to avoid confusion.
    One commenter was concerned that BLM could simply undo decisions 
made and compromises wrought in the initial plan approval process 
regarding facility siting and operation, after the operator has 
invested in opening the mine under the terms of the original approval, 
by simply issuing a directive to modify the plan.
    BLM notes that existing approved facilities, while subject to 
modification

[[Page 70064]]

under the existing regulations as needed to prevent unnecessary or 
undue degradation, would not be required to change from the old 
performance standard to the new standards. The modification language 
under final Sec. 3809.433(b) applies the new performance standards only 
to that portion of the new facility being modified, and does not mean 
the entire facility would be subject to new requirements.
    Another comment on proposed Sec. 3809.433 concerned how to apply 
the performance standards of the new regulations to the expansion of an 
existing facility, in areas of mixed ownership. The commenter cited an 
example where an open pit mine on private land would require a small 
area of BLM land for expansion of the mine pit slope. The commenter was 
concerned that under final Sec. 3809.420(c)(7), BLM would be able to 
require backfilling of the part of the pit that expanded onto BLM land, 
which would effectively require backfilling the entire pit, even on the 
private land part of the mine, and even though a minuscule area of BLM 
land may be involved. The commenter cited this example as a reason for 
exempting all modifications of existing operations from application of 
the final regulations.
    The backfilling situation described above, with a large amount of 
private land, is a good example of where BLM would allow an exclusion 
from the new regulations as specified in final Sec. 3809.433(b) based 
upon practicality, or a determination made under final 
Sec. 3809.420(c)(7) that backfilling was not necessary. Other mine 
design and operation aspects, such as leach pad containment design, 
would be reviewed in a similar fashion and a determination made 
regarding the practicality of applying the new regulations to the 
modification.
    Changes made in the final regulations to Sec. 3809.433 occur in 
paragraph (b) of the table. BLM has deleted the last sentence in the 
``Then'' column to avoid confusion regarding continued operations. We 
have edited the text to specify that the paragraph applies to the 
modified portion of facility. We have replaced the term ``feasible'' 
with ``practical,'' added the word ``economic,'' and provided a 
citation to the 3809 regulations that were in effect prior to these 
final regulations.
    Final Sec. 3809.433 is not inconsistent with the NRC Report. While 
NRC did not specifically address how to transition existing operations 
into any new regulations, it did discuss the need for regulations to 
have ``safeguards to assure that modifications are imposed only after 
serious consideration and following a procedure that protects the 
interests of the mining company in continuing to conduct operations, 
consistent with the avoidance of unnecessary or undue degradation.'' 
(p. 101) Under final Sec. 3809.433, operators proposing a modification 
do not have to retrofit existing mine facilities. In addition, 
operators may be given an exemption from the content and performance 
standards of the new regulations by showing it is not practical to 
apply them to the modification of an existing mine facility. This 
approach is not inconsistent with the discussions contained in the NRC 
Report regarding plan modifications.

Section 3809.434  How Does This Subpart Apply to Pending Modifications 
for New or Existing Facilities?

    We have combined proposed Secs. 3809.434 and 3809.435 into final 
Sec. 3809.434. This section describes how the regulations will apply to 
modifications of plans of operations for new or existing mine 
facilities that are pending before BLM when the final regulations go 
into effect. We have rewritten both proposed sections, deleted the 
tables, and simplified the concepts.
    The final regulations provide that modifications pending on the 
effective date of the final regulations will be subject to the new 
regulations, except for the plan of operations content requirements 
(final Sec. 3809.401) and performance standard requirements (final 
Secs. 3809.415 and 3809.420). The existing plan of operations content 
requirements and performance standards that were in effect when the 
modification was submitted would continue to apply to the modification.
    Several commenters said that BLM was making these subsections too 
complicated, burdensome, and cumbersome. The commenters suggested that 
if the new facility or modification can be done under an EA/FONSI then 
the standards in effect at the time of plan approval should apply. If 
the modification or new facility requires amendment to the EIS prepared 
for the original decision by BLM, then the Supplemental EIS should 
determine the extent, if any, new regulations apply.
    BLM did consider using a NEPA criteria such as EA/Supplemental EIS 
for when to apply the new regulations to a pending modification, but 
did not adopt it because of potential problems with consistency and 
fairness. Instead, BLM has simplified these sections. We have combined 
proposed Sec. 3809.435 with proposed Sec. 3809.434. The cutoff for 
application of the new regulations to pending modifications has been 
relaxed from the NEPA document publication date in the proposed 
regulations, to the effective date of the final regulations. If an 
operator's modification was filed before the effective date of the new 
regulations it remains under the previous plan content and performance 
standard requirements.
    Other comments were concerned that proposed Sec. 3809.434 would 
create too much confusion by setting up a situation where one set of 
regulations governs a part of an operation and another set governs 
another part. The commenters felt that it is even more inappropriate to 
apply new standards to existing facilities than it is to apply them to 
a wholly new plan of operations submitted prior to adoption of new 
standards. This is because the operator relies on the terms and 
conditions of the initial approval in deciding whether to expand 
operations. A new facility at an existing mine is proposed because it 
fits, economically, logistically, and operationally into an existing 
operation. It can only be designed and located in ways dependent on the 
design and operation of the existing mine. The commenters were 
concerned that new facilities would be prohibited by standards that 
would not have allowed the initial facilities to be located where they 
are, or to be operated as they are, and felt that the same standards 
that governed approval of the initial facility location and mode of 
operations must govern the new facility.
    BLM understands the concern that modifications may not be able to 
occur if held to a higher standard than the initial plan of operations. 
However, BLM believes the performance standards in final Sec. 3809.420 
will generally be compatible with existing operations when applied on a 
site-specific basis. Modifications under the existing regulations 
happen frequently, yet evolving changes in reclamation technology and 
regulatory approaches get incorporated successfully, even when it may 
be years between the initial facility approval and the modification. It 
won't be that different with a change in regulations. As long as the 
approved plan of operations clearly identifies how the overall facility 
is to be constructed, operated, and reclaimed, there should not be any 
more confusion over expected performance than occurs today with 
modifications processed under the existing regulations. Nor does BLM 
expect facilities be prohibited from expansion due to the changes in 
performance standards in final Sec. 3809.420.

[[Page 70065]]

    One comment suggested that we use completion of the public scoping 
process, instead of the publication date for the NEPA document, as the 
cutoff for applying this final rule to pending modifications. BLM does 
not agree with the comment, but we have revised final Sec. 3809.434 to 
provide that a project modification submitted prior to the effective 
date of the final regulations may continue under the existing 3809 
regulations. Using the cutoff date for the scoping process, as 
suggested by the comment, would have generated the same confusion as 
the proposal.
    Changes have been made in the final regulations to proposed 
Secs. 3809.434 and 3809.435. All of proposed Sec. 3809.435 has been 
deleted. Final Sec. 3809.434 has been rewritten to address pending 
modifications for an existing mine facility that were covered in 
proposed Sec. 3809.435, as well as pending modifications for new mine 
facilities. The title of final Sec. 3809.434 has been changed to: How 
does this subpart apply to pending modifications for new or existing 
facilities? The table has been deleted and the text presented in four 
paragraphs.
    Final Sec. 3809.434(a) says that this section applies to 
modifications pending before BLM on the effective date of the final 
rule to construct a new facility, such as a waste rock repository, 
leach pad, drill site, or access road; or to modify an existing mine 
facility such as expansion of a waste rock repository or leach pad.
    Final Sec. 3809.434(b) states that all provisions of this subpart, 
except plan content and performance standards (Secs. 3809.401 and 
3809.420, respectively) apply to any modification of a plan of 
operations that was pending on the effective date of final rule. It 
also cross references Sec. 3809.505 on the applicability of financial 
guarantee requirements.
    Final Sec. 3809.434(c) provides a reference to the plan content 
requirements (Sec. 3809.1-5) and the performance standards 
(Secs. 3809.1-3(d) and 3809.2-2) that were in effect immediately before 
the final rule which apply to a pending modification of a plan of 
operations.
    Final Sec. 3809.434(d) provides that operators could choose to have 
the new rules apply to their pending modification of a plan of 
operations, where not otherwise required.
    The cutoff date for applicability of the final regulations to 
pending modifications has been changed from when the NEPA document has 
been published, to whether the proposed modification has been submitted 
to BLM prior to the effective date of the final regulations. The reason 
for this change is that BLM was persuaded by comments concerning the 
amount of effort that goes into preparing a plan of operations and 
associated NEPA documents which might have to be partially redone or 
supplemented, and by the fact that the operator has very little control 
over when the NEPA document is actually published. BLM believes that 
using the effective date of the final regulations to determine 
``grandfathered'' plans of operations, or modifications, would be 
simpler to administer and more fair to the operators. However, BLM does 
expect that in order for pending plans or modifications to be 
grandfathered, they will have to be substantially complete in 
addressing the content requirements of the existing regulations before 
the effective date of the new regulations.
    Final Sec. 3809.434 is not inconsistent with the NRC Report. While 
NRC did not specifically address how to transition pending 
modifications into any new regulations, they did express concern for 
the protection of an operator's investment and that the regulations in 
general contain procedural protections. Under final Sec. 3809.434 
operators with a pending modification do not have to redo designs or 
reopen NEPA analysis that was underway. This approach is not 
inconsistent with the discussions contained in the NRC Report regarding 
plan modifications

Sections 3809.500 Through 3809.551  Financial Guarantee Requirements--
General

    Today's rule establishes mandatory provisions for financial 
guarantees for all activities greater than casual use, expands the 
types of financial guarantees available, and establishes the 
circumstances and procedures under which BLM will pursue forfeiture of 
a guarantee. It also requires that financial guarantees be redeemable 
by the Secretary while allowing BLM to accept financial guarantees 
posted with the State in which operations take place if the level of 
protection is compatible with this subpart. The rule authorizes the 
establishment of a trust fund in those circumstances where long-term, 
post-mining operations and water treatment will be necessary.
    This final rule is different from the proposed rule in several 
significant ways. First, we are not adopting part of the proposal 
contained in the supplemental rule published on October 26, 1999. See 
64 FR 57613, proposed Sec. 3809.552(d). That proposal would have 
required an operator, when BLM identifies a need for it, to put portion 
of the financial guarantee in an immediately redeemable funding 
mechanism that would enable BLM to quickly obtain use of the funds for 
site stabilization during forfeiture proceedings.
    Second, we will no longer accept corporate guarantees for plans 
approved after the effective date of this regulation. BLM will continue 
to allow corporate guarantees which are in effect on the effective date 
of the regulation. However, if a plan modification results in an 
increase in the estimated costs of reclamation we will require a 
financial guarantee in a form other than a corporate guarantee for the 
area covered by the modification.
    A third change will provide BLM discretion in determining whether 
to seek forfeiture of a financial guarantee.
    Also, BLM will not require a 30-day period for public comment prior 
to releasing financial guarantees associated with notice-level 
activities but will have a 30-day comment period for plans of 
operation. The comment period will be posted in the BLM field office 
having jurisdiction, published in a local newspaper, or both.

General Comments on Financial Guarantees

    BLM received numerous comments addressing the proposed rules 
related to financial guarantees. Commenters generally supported the 
concept that BLM require financial guarantees for all operations beyond 
casual use. However commenters diverged widely on specific contents of 
the rule.

General Comments Supporting the Proposal

    Numerous commenters supported the notion that adequate bonding is 
necessary to protect the public from bearing the financial burdens of 
cleanup should an operator declare bankruptcy and abandon a mine site. 
In particular, this included industry support for bonding of notice-
level operations. BLM received comments in favor of the wide range of 
financial instruments we proposed to accept and the continued use of 
State bond pools. Industry expressed satisfaction that BLM proposed to 
continue to allow corporate guarantees. The environmental community 
generally supported the provisions proposing a trust fund to cover the 
cost of post-mining operations and water treatment, although some 
commenters suggested this did not go far enough. Non-industry 
commenters supported the provisions allowing a time period for public 
participation both before plan approval [proposed Sec. 3809.411(d)] and 
prior to final

[[Page 70066]]

financial guarantee release [proposed Sec. 3809.590(c)]. One commenter 
asked that BLM amend the rule to clarify how we will implement it for a 
variety of conditions covered in the individual sections of the rule.

General Comments Opposing the Proposal

    Some small miners expressed opposition to bonding for notice-level 
activities because, they felt, this would establish a hardship. There 
were numerous comments opposing BLM's proposal to accept corporate 
guarantees and State financial guarantees. Regarding the former, 
commenters saw this as a risk because if commodity prices decline, 
corporate assets would also drop. Some commenters expressed that 
accepting State financial guarantees is risky because of the 
possibility that a State could call a financial guarantee, leaving the 
Federal government holding a financial guarantee which would not cover 
the full cost of reclamation. There was also opposition to the public 
participation proposal on the part of industry which sees this as 
creating an unnecessary delay. They see the NEPA process as already 
affording the public an opportunity to comment on financial guarantee 
amounts. Industry strongly opposed the provisions calling for a trust 
fund and the posting of a financial guarantee to cover unforeseen 
contingencies. With respect to the trust fund, commenters felt that 
once a financial guarantee is released that is a recognition that 
reclamation is complete. With respect to contingency bonding, many 
commenters expressed the belief that it is not workable to provide such 
an instrument.

Consistency With the National Resource Council Report

    Recommendation 1 of the NRC Report stated; ``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 5 acres.'' The report justifies 
the recommendation by pointing out it observed unreclaimed exploration 
and mining sites that operated under a notice. The NRC expressed the 
belief that disturbances beyond casual use are significant and that 
financial guarantees would protect the taxpayer by allowing agencies to 
reclaim lands but not at taxpayer expense. The NRC also thought that a 
financial guarantee could provide an incentive ``for operators to 
reclaim land in a timely manner.'' The proposed rule and the final rule 
carry out this recommendation.
    The NRC goes on to describe how it believes BLM could implement a 
bonding program and suggests BLM should establish standard financial 
guarantee amounts for ``typical activities'' which it describes as 
limited activities of under 5 acres. This would preclude the need to 
calculate a financial guarantee for each activity. The NRC suggests 
that if BLM were to do this, the amount of bonding must be adequate. 
Language in both the proposed and final rule is broad enough to allow 
BLM field managers to establish and accept standard financial guarantee 
amounts. However, regardless of the standard, and consistent with the 
NRC Report, if the ``standard'' would result in the filing of an 
insufficient guarantee, the BLM field manager must require the posting 
of a greater guarantee, even if this requires a calculation. Likewise, 
there may be instances when the ``standard'' amount exceeds the likely 
cost of reclamation. In those cases, BLM would permit the operator to 
demonstrate this and the field manager could accept a guarantee in an 
amount less than the ``standard.''
    The NRC Report (p. 95) also encourages the use of bond pools. 
Today's action permits operators to use bond pools provided the pool is 
adequate to protect the public in case of default.
    Except for the items discussed above, the NRC Report provides no 
guidance on how to operate a bonding program. But it is difficult to 
imagine a rule which addresses financial guarantees in such a limited 
manner that BLM and the public would not know the conditions of surety 
release, forfeiture, or how the States and BLM will work together. 
Therefore today's action includes provisions necessary to implement the 
recommendations of the Report.

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

    This section requires operators to provide financial guarantees for 
all activities other than casual use. It mirrors exactly Recommendation 
1 of the NRC Report. The only difference from the proposed rule is 
language we added to state explicitly that if a notice is on file with 
BLM as of the effective date of the regulation, the operator doesn't 
need to post a financial guarantee. However, if an operator modifies or 
extends a notice, the operator will have to post a financial guarantee. 
(See final Sec. 3809.503)
    We received numerous comments in support of requiring financial 
guarantees for notice-level activities. The majority of the commenters 
expressed the feeling that financial guarantees should protect the 
public from having to bear the financial burdens of cleanup should an 
operator declare bankruptcy and abandon a mine.
    Comments opposing this section generally complained that requiring 
all notice-level operators to post a financial guarantee will create 
hardships that small operators might not be able to overcome and 
therefore would be unable to continue in the business. Several Alaska 
miners thought that the rules would be especially difficult for them 
and would make it difficult to use the Alaska bond pool. One commenter 
suggested that BLM be flexible so as to not overly burden small 
businesses. Hardships were described both as financial, i.e., the cost 
of the financial guarantee and procedural, i.e., small miners find it 
difficult to obtain a bond (the most common form of financial 
guarantee). One commenter suggested that BLM has not demonstrated that 
the requirement will provide additional environmental protection given 
that so few notice-level operations actually result in unnecessary or 
undue degradation.
    Commenters suggested that exploration activities not be subject to 
environmental review or bonding if the operations don't use chemicals. 
Under these circumstances, some saw bonding as unnecessary given the 
low level of environmental degradation. Others believe that requiring a 
financial guarantee would adversely impact the recreational mining 
community. In a similar vein, commenters suggested that it would cost 
BLM more to administer a financial guarantee program for notice-level 
operations than it would cost to simply reclaim the few operations 
where an individual or company has left their obligations. Several 
commenters expressed the belief that notice-level bonding is 
appropriate, but asked that it be done as a separate rulemaking. They 
believe this would ensure consistency with State laws. One commenter 
asks how BLM will protect the miner from trespassers who cause 
degradation that results in the legal miner forfeiting a financial 
guarantee.
    Commenters expressed a concern and requested clarification 
concerning the possibility that a mine could be double bonded for some 
parts of an operation because of the requirements for calculating 
reclamation costs.
    One State suggested that BLM distinguish between mining and 
exploration and not require a financial guarantee for certain 
exploration projects of less than 5 acres. Recreational miners and 
hobbyists

[[Page 70067]]

expressed concern that the financial guarantee requirements would 
prevent them from continuing to pursue mining.
    BLM believes, along with the NRC, that the posting of a financial 
guarantee protects the public, and its very existence might encourage 
an operator to promptly reclaim once the activities have ended. In 
fact, the NRC was quite specific that operators undertaking exploration 
activities should post a financial guarantee. With respect to 
recreational miners and hobbyists, they must follow the requirements of 
Sec. 3809.11 to determine if their activities go beyond casual use. If 
so, we must require a financial guarantee because of the potential 
cumulative impacts and the need to assure reclamation activities are 
carried out. With respect to the possibility of double bonding, BLM 
wrote these rules in such a manner that through State-BLM cooperation, 
double bonding should normally not occur. The only time double bonding 
might occur is when BLM and State interests diverge, and the parties 
can't agree on bonding requirements.
    If BLM were not to adopt this requirement, we would be inconsistent 
with a specific NRC Report recommendation. While we can be sympathetic 
toward those who may face a hardship in securing a financial guarantee, 
this potential hardship cannot override the Secretary's responsibility 
under FLPMA section 302(b) to ``prevent unnecessary or undue 
degradation.'' The NRC said posting a financial guarantee may provide 
an incentive to reclaim land and also protects the taxpayer from having 
to pay for the failure of an operator to do so. We agree. This is why 
we include the requirement in today's action.
    A commenter stated that at the time the previous rules were 
adopted, BLM decided not to burden the small miner with 
``confiscatory'' bonding or undue impairment to the point that mining 
was no longer feasible. The commenter asserted that BLM previously 
concluded that requiring notice-level operations to obtain bonds was 
unreasonable enforcement and the taking of capital to mine through 
bonding, a hardship that took the operating capital from a small-entity 
operation.
    BLM disagrees as to the relevance of its decision in 1980 not to 
require that notice-level operations be bonded. BLM has documented over 
500 cases since 1980 where the operators, most of them at the notice 
level, have abandoned their operation without performing the required 
reclamation. BLM now believes that bonding is necessary to ensure 
performance of reclamation. The bonding provisions have been structured 
so that the amount of the financial assurance can be incrementally 
posted and released to correspond with the on-the-ground disturbance or 
the performance of reclamation. This should keep the impact to 
operating capital at a minimum while promoting performance of 
reclamation.
    Today's action does not intend to limit the use of State bond 
pools, including the Alaska bond pool, provided the BLM State Director 
is satisfied that the bond pool will actually provide the funds BLM 
might need to carry out reclamation in the event operators fail to 
carry out their obligations.
    The rule attempts to eliminate hardships by requiring bonding for 
the actual cost of reclamation rather than requiring a minimum 
financial guarantee as we did in the remanded 1997 rule. In response to 
those who believe this would cause hardship, BLM contacted the Small 
Business Administration (SBA) to see how its Surety Bond Guarantee 
Program might be applied to small mining businesses. The SBA concluded 
that it is unable to accommodate our request at this time.

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

    This section of the final rule requires an operator to provide a 
financial guarantee before beginning operations, if the operator files 
a notice on or after the effective date of the rule. Operators must 
provide a financial guarantee for operations that existed before 
today's rule becomes effective only if they modify their operation or 
extend it beyond two years.
    Today's action differs from the proposal in that we modified 
paragraph (b) to make clear that if an operator modifies a notice that 
the operator submitted prior to the effective date of the rule, the 
operator must post a financial guarantee to ensure reclamation for the 
entire area covered by the notice. We believe that this language, 
coupled with final Sec. 3809.300 clearly answers any questions 
regarding the posting of financial guarantees for notices. This change 
is in response to comments that the proposal was unclear as to whether 
an operator has to post a financial guarantee if the operator modifies 
a notice that existed before the effective date of this rule.
    We also received a comment asking BLM to clarify that the operator 
is only responsible for the disturbances created by that operation. The 
commenter feared that BLM would hold operators responsible for 
disturbance created by previous operations. One commenter asked BLM to 
clarify whether if the operator modifies a notice, a financial 
guarantee is required for the entire notice or just the modified part 
of the notice. One commenter suggested that we add words to clarify 
that the State might have requirements for a financial guarantee beyond 
what BLM requires.
    The intent of this section is to state that financial guarantees 
are posted for current notice-level operations. However, if the 
operations are continuing under a notice which has been transferred, 
the joint and several liability provisions of final Sec. 3809.116 would 
apply. If an operator begins a new operation on lands disturbed by an 
earlier operation, and if the new operation is not a continuation of 
the earlier operation, the new operator is responsible for the earlier 
disturbances only to the extent the new operator redisturbs the area. 
If an operator modifies a notice, BLM will consider the notice as a new 
notice, and we will regulate the modified notice under the rules we are 
issuing today. Therefore, as stated above, we added language to this 
section to clarify that the operator will have to post a financial 
guarantee for the entire notice.
    We do not think it is necessary to address State requirements for a 
financial guarantee. Operators know that in addition to the 
requirements of this subpart, they must comply with all local, State, 
and Federal requirements. We have made clear that the plan of 
operations must comply with State, local, Tribal, and other Federal 
requirements. Where those requirements include the posting of a 
financial guarantee beyond the BLM requirements, the operator is 
responsible for doing so.

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

    This section allows those operating under an existing plan of 
operations 180 days from the effective date of today's action to comply 
with the financial guarantee requirements of this rule. There are no 
substantive changes from the proposed rule; however we did add a 
sentence to clarify that if an existing financial guarantee complies 
with the requirements of this subpart, the operator need not file a new 
financial guarantee.
    We received some comments asking that we lengthen the time period 
for operators to comply to one year. Some holders asked that BLM extend 
the requirements from 180 days to one year

[[Page 70068]]

to cover seasonal situations and to give the operator additional time 
to decide whether to continue the notice. We received a comment from a 
Federal agency asking that we shorten the period to 60 days. We also 
received a few comments suggesting that we clarify that notice level 
operators are not subject to the requirements of this section. Several 
commenters asked that we clarify proposed Sec. 3809.505 to state that 
the obligation to provide a financial guarantee meeting the 
requirements of this subpart will not restrict the ability of an 
operator to continue to operations under an approved plan of 
operations. One commenter said that the existing financial guarantee 
should remain in place unless the operator modifies the approved plan 
of operations.
    There were comments that the provisions of the rule for existing 
plans require clarification. One commenter suggested that proposed 
Secs. 3809.430-434 appear to have requirements that conflict with 
proposed Sec. 3809.505. Final Secs. 3809.430-434 apply to modifications 
of existing plans of operations whereas this section states that an 
operator has 180 days to post a financial guarantee meeting the 
requirements of this subpart. The financial guarantee requirements are 
independent of modifications. Any modification of an approved plan of 
operations would require the operator to adjust the financial guarantee 
before beginning to operate under the modifications. One commenter 
asked that we modify this section to state explicitly, ``This 
obligation does not affect your right to continue to operate under the 
approved plan of operations both before and after complying with the 
obligation in this section.'' As stated above, we adopted language to 
make clear that operations may continue during the 180-day period we 
grant in final Sec. 3809.50.
    BLM decided to leave the 180-day transition period in place as this 
provides ample time to come into compliance. The 180-day period applies 
to plans of operations, not notices. As most currently operating under 
a plan will already be complying with these provisions, we believe few, 
if any, operations will be impacted. But if an existing plan of 
operations does not have a financial guarantee meeting the requirements 
of this subpart, there is a need to upgrade the guarantee. Plans of 
operations frequently result in significant on-the-ground disturbance 
and other impacts. However, shortening the time period to 60 days has 
the potential to unnecessarily cause hardship in some instances due to 
the fact that some work is seasonal and that requiring a financial 
guarantee could take more than 60 days. If the operator cannot secure 
an adequate financial guarantee in 180 days, the operator will be in 
noncompliance. We believe that BLM can justifiably say the operations 
pose a potential threat and take appropriate enforcement action.

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

    These rules 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,
     Evidence of an existing financial guarantee under State 
law or regulations.

These choices are identical to those contained in the proposed rule.
    Several members of the mining industry commented that companies 
with several notice- or plan-level operations would be better served 
with one large financial guarantee, rather than having several 
different financial guarantees. Conversely, a large financial guarantee 
is seen by some commenters as a way that industry can skimp on bonding 
and have all of their operations covered. In addition, the same 
commenters believe having one financial guarantee for several plans of 
operations would make defaulting on a financial guarantee more of a 
possibility.
    Commenters suggested that the blanket financial guarantee provision 
is unclear as to whether the sum of the financial guarantees will equal 
the sum of financial guarantees required for individual operations. 
Others objected to blanket guarantees because of the administrative 
difficulties they could cause BLM.
    BLM allows nationwide blanket guarantees in other mineral programs, 
and we believe we can administer the program soundly. Final 
Sec. 3809.560(b) states that BLM will accept the blanket financial 
guarantee if we determine that its terms and conditions are sufficient 
to comply with this subpart. As the operator must post a sufficient 
financial guarantee to cover the cost of reclamation for each 
individual project, we believe that the amount of the financial 
guarantee must equal the sum of the reclamation estimates for each 
project.

Sections 3809.552 Through 3809.556  Individual Financial Guarantee

Section 3809.552  What Must My Individual Financial Guarantee Cover?

    This final rule requires an individual financial guarantee to cover 
reclamation costs as if BLM were to contract for reclamation with a 
third party. The rule also requires financial guarantees to cover all 
reclamation obligations arising from an operation, regardless of the 
areal extent or depth of activities the operator describes in the 
notice or the approved plan of operations. Paragraph (b) BLM 
establishes the goal of periodic BLM review of the adequacy of the 
estimated reclamation cost. Paragraph (c) authorizes BLM to require the 
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 other long-term, post-mining maintenance requirements.
    The final rule omits a portion of the proposal contained in the 
supplemental proposed rule published on October 26, 1999 (64 FR 57613). 
See proposed Sec. 3809.552(d). That portion of the proposal would have 
required an operator, when BLM identifies a need for it, to establish a 
portion of the financial guarantee used to conduct site stabilization 
and maintenance in a funding mechanism that would be immediately 
redeemable by BLM. BLM would then use the funds to maintain the area of 
operations in a safe and stable condition during the period needed for 
bond forfeiture and reclamation contracting procedures.
    Some commenters feared that it would require operators to put up 
front substantial sums of capital for reclamation which could be used 
at BLM's whim. Some saw it as potentially giving a competitive 
advantage to larger companies. Others, silent on how BLM would use the 
money, felt the provision would tie up large sums of capital. Another 
comment suggested that all guarantees should be immediately redeemable. 
We also received several comments suggesting that the supplemental 
proposed rule did not follow the requirements of the Small Business 
Regulatory Enforcement and Fairness Act, 5 U.S.C. 601-612, because the 
regulatory flexibility document did not consider the impact of this 
proposed change.
    We decided to omit this provision from the final rule for some of 
the reasons expressed in the comments. Requiring a separate interim 
funding mechanism, while useful, could be complicated, and the 
complications of creating and maintaining such a fund in every case 
could outweigh the advantage of having the fund available in the 
relatively fewer occasions when it would be helpful. We believe the 
regulatory flexibility document meets the requirements of the Act, even 
though the economic analysis dated

[[Page 70069]]

December 18, 1998, did not specifically address the potential for 
increased cost of a financial guarantee that would be immediately 
available to BLM, and the impact of this proposal would have been 
minimal.
    We are adopting the part of the October proposal that requires the 
financial guarantee to cover any interim stabilization and 
infrastructure maintenance costs necessary to maintain the area of 
operation while third-party contracts were being developed and 
executed. See the last sentence of final Sec. 3809.552(a), which 
clarifies the February 9, 1999, proposed rule.
    One commenter suggested that we amend proposed Sec. 3809.552(b) to 
require BLM to annually send each operator a written report on the 
adequacy of the financial guarantee. The same comment asked that we 
amend paragraph (c) of that section to include a provision to require 
BLM to show that the trust fund does not duplicate any other authority.
    When we published the proposed rule we specifically asked for 
comments on whether additional financial assurances should be required 
to satisfy operational or environmental contingencies. We received a 
number of comments objecting to bonding for contingencies or worst-case 
scenarios. Numerous commenters suggested that operators have liability 
insurance to protect against the financial consequences of unforeseen 
activities. Operators would presumably use the proceeds of this 
insurance to fund corrective actions that a contingency requires. Other 
comments see contingency bonding as inconsistent with reclamation and 
also see the long-term trust fund as something that State and Federal 
water quality laws address. The potential cost led one commenter to 
conclude this ``would be a potential violation of the right to mine.''
    A national industry association questioned the concept of 
contingency bonding, stating that this runs counter to the notion of 
bonding for ``specific and calculable reclamation requirements 
established in the approved plan of operations.'' These comments 
describe this requirement as ``phantom bonding'' and suggest that 
operators liability insurance would provide protection if an unforseen 
accident occurred. They asserted it would be difficult to obtain a 
financial guarantee under these circumstances.
    One industry comment suggested that requiring contingency bonding 
is difficult to implement because all mine models are uncertain. This 
commenter suggested that BLM should consider the worst case and the 
probability that this would occur. Another commenter pointed out that 
the expense of such bonding and the infrequency of worst-case 
occurrences that were beyond the ability of the operators to redress 
with their funds.
    Others believe that bonding for unforeseen contingencies in the 
reclamation process is an unreasonable requirement. They contend this 
would give BLM too much discretion in determining the amount of the 
financial guarantee for an unplanned events. Another commenter 
suggested this is possible to do through using modeling and determining 
the probability of an impact occurring.
    There were also numerous comments asking BLM to incorporate 
contingency bonding into these rules because the impact of mining is 
often not known for many years after it is concluded. One comment 
suggested we hold a portion of the financial guarantee beyond the time 
of surface reclamation to assure that off-site impacts will not occur. 
One Interior Department agency noted that long-term financial support 
is an important tool for environmental protection.
    BLM has decided not to require bonding for contingencies because of 
the uncertainties involved in calculating the amount. The rules do 
require that the financial guarantee be sufficient to cover the costs 
of reclamation described in the plan of operations or notice. If a 
contingency occurs and creates a new reclamation obligation, the 
operator must adjust the financial guarantee upward accordingly to 
cover the new obligation.
    Some commenters objected to proposed Sec. 3809.552(c) on the basis 
that a financial guarantee to establish long-term water treatment or 
water quality standards should be left to EPA or State regulators. A 
Federal agency noted the proposal didn't define the criteria BLM would 
use to base the ``need'' for a long-term trust fund. One commenter 
asked that we clarify that the State may require financial assurances 
for water quality requirements that go beyond the requirements of this 
subpart.
    In some circumstances, an important or perhaps the only way an 
operator may protect water quality from unnecessary or undue 
degradation is to provide for long-term water treatment. The trust fund 
or other funding mechanism is appropriate to assure that long-term 
treatment and other maintenance will continue. The final rule does not 
preclude States from establishing additional financial guarantee 
requirements.
    Some commenters said that paragraph (c) should be deleted because 
BLM should not approve any plan of operation that would create the need 
for long-term water treatment because that constitutes unnecessary or 
undue degradation. This suggestion is not incorporated into the final 
rule. BLM defines ``unnecessary or undue degradation'' in such a way 
that long-term water treatment by itself is not an indicator of 
unnecessary or undue degradation.
    One commenter asked that we revise proposed Sec. 3809.552(a) to 
specify that BLM administrative costs associated with a default be 
limited to direct costs of BLM staff directly responsible for 
implementing the approved reclamation plan. One commenter suggested 
that instead of financial guarantees BLM (and the Forest Service) 
should have the funding authority to spend Federal dollars on the 
``few, if any'' operations causing unnecessary or undue degradation.
    In the final rule we are not limiting the administrative costs to 
direct BLM costs. Such an action could result in BLM having to use 
taxpayer funding to properly monitor reclamation contracts. Likewise we 
did not impose a requirement to send an annual status letter to the 
claimant/operator or to impose a specific time period for BLM to review 
the adequacy of a financial guarantee. Both proposals would impose an 
unnecessary administrative burden on BLM because the normal claim/plan 
management process affords us the opportunity to review the adequacy of 
financial guarantees when it is necessary. This final rule also 
declines to adopt the rules of any one State. We intend this rule to be 
flexible, avoiding a one size fits all approach. Adopting a rule which 
mirrors that in one State could inadvertently negatively affect other 
States. We also decided not to accept the suggestion that BLM seek 
authority to spend tax dollars to reclaim lands because BLM already has 
the authority, and it is the objective of these rules to prevent 
unnecessary or undue degradation, not simply to make arrangements for 
cleaning up problems after they occur at the expense of taxpayers.
    BLM has explained on many occasions that these rules do not 
establish water quality standards. States establish the standards for 
ground water, and EPA establishes the standards for surface water 
unless EPA has delegated this function to the State. Final 
Sec. 3809.420 describes what constitutes an acceptable plan of 
operations. In this section (final Sec. 3809.552) we are requiring the 
posting of a financial guarantee to assure that State water quality 
standards will be

[[Page 70070]]

maintained on public lands as a result of mining operations.
    BLM did not attempt to define ``need'' because this will differ on 
a case-by-case basis. BLM believes that allowing the local field 
manager to work with the operator to determine need is preferable to 
trying to force a one-size-fits-all set of criteria.
    One comment asked that paragraph (b) of this section require BLM to 
prepare an annual report on the adequacy of the financial guarantee. An 
association asked BLM to consider incorporating the financial assurance 
requirement used under California laws, including an annual review. 
Another commenter recommended that we amend paragraph (b) to require 
BLM to review the adequacy of financial guarantees at least once every 
three years.
    We are not requiring review of the amounts of financial guarantees 
at predetermined periods. If a financial guarantee is linked to market 
fluctuations, the operator must certify annually to BLM that the market 
value of the instrument is sufficient to cover the cost of reclamation. 
See final Sec. 3809.556(b). In other cases, the BLM will monitor the 
adequacy of financial guarantee amounts through our inspection program.

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

    This final rule permits operators to provide financial guarantees 
on an incremental basis to cover only those areas being disturbed. 
Paragraph (b) establishes BLM's goal of reviewing the financial 
guarantee for each increment of an operation at least annually. The 
final rule is unchanged from the proposed rule.
    We received one comment on this section which supported incremental 
bonding as a ``welcome regulatory innovation.''

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

    This section requires that an operator estimate the reclamation 
cost as if BLM were to hire a third-party contractor to perform 
reclamation of the operation after the operator has vacated the project 
area. It is unchanged from the proposed rule.
    There were numerous comments opposing this provision. Some 
expressed the belief that the rule should limit financial guarantees to 
100% of reclamation costs so that BLM administrative costs would not be 
part of the calculation. This was seen as an incentive to achieve 
reclamation. Another comment wanted to limit BLM administrative costs 
to the direct costs of individuals implementing the approved 
reclamation plan. Other comments aimed at cost reduction objected to 
third-party reclamation cost calculations as requiring contractors to 
pay Davis-Bacon wages.
    Others believed that calculating the amount of each financial 
guarantee was too labor intensive and suggested alternatives such as:
     Establishing thresholds, for example, under $100,000, 
under $500,000 and over $500,000, for determining the amount of the 
financial guarantee;
     For notices, establishing a fixed amount;
     Giving notice-level operators the option of using either a 
dollar per acre figure or a site-specific amount that the operator 
calculates; or
     Establishing Statewide amounts.
    We received a series of comments suggesting that BLM incorporate 
State models and guidelines to calculate the costs of reclamation. Some 
see this as a way of avoiding double bonding.
    The NRC Report discussion of bonding notes that ``standard bond 
amounts for certain types of activities on specific kinds of terrain 
should be established by the regulatory agencies. * * * in lieu of 
detailed calculations of bond amounts based on the engineering design 
of a mine or mill.'' Numerous commenters, while expressing general 
support for the NRC discussion, noted that it would also be reasonable 
to calculate the amount for individual operations as necessary. One 
mining association thought BLM ought to allow operators to choose 
between a per-acre amount and an actual-cost-to-reclaim amount. Another 
industry group wrote that a one-size-fits-all standard financial 
guarantee amount would be counter to the heart of the NRC Report which 
emphasizes the need for site-specific flexibility. One mining company 
expressed specific support for the cost-estimating approach BLM used in 
the proposed rule. However, other mining groups suggested that an 
amount could be set at the State level if BLM and the State worked 
cooperatively.
    Alaskan miners argued that BLM should establish standard amounts 
and that it is inappropriate to base financial guarantee amounts on the 
basis of third-party contractor rates.
    There were comments that asked BLM to incorporate the NRC proposal 
to establish fixed amounts for financial guarantees as a means of 
streamlining the process, while also giving operators a way of knowing 
ahead of time what their financial guarantee requirements will be.
    One commenter asked that we explain what constitutes an 
``acceptable'' reclamation cost estimate. We chose not to define 
``acceptable'' because the decision as to what constitutes 
``acceptable'' must be made at the local level by the field manager for 
each project.
    There were comments asking that BLM reinstate the remanded 
regulations requiring a third-party professional engineer to certify 
the reclamation estimate, even suggesting that BLM foot the bill if 
this would be overly burdensome to small miners. The argument presented 
was that a company would ``lowball'' the estimate to lower its costs.
    This final rule requires that financial guarantees cover actual 
costs. We believe this is consistent with the NRC Report, which 
recommends that operators post financial guarantees adequate to cover 
reclamation costs. The rule is flexible enough to permit the BLM field 
manager to establish fixed amounts for activities under his or her 
jurisdiction, but also allows the field manager to require a financial 
guarantee in an amount over or under the fixed amount if the cost of 
reclamation of a specific operation deviates from the fixed amount.
    As we stated in the preamble of the proposed rule (64 FR 6442, Feb. 
9, 1999), the purpose of this section 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. We explained that 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 could result in incomplete or substandard 
reclamation. This final rule reconfirms BLM's desire to assure complete 
reclamation without the use of taxpayer funds.
    The comments that advocate excluding BLM's administrative costs 
from the amount of the financial guarantee would not achieve the goal 
of avoiding the taxpayer bearing the cost of reclamation. Arguments 
that BLM administrative costs should be limited to direct costs were 
not accepted because BLM's general policy regarding cost recovery is to 
include all charges, direct and indirect. We found no reason for making 
an exception where reclamation financial guarantees are calculated. 
Similarly, inclusion of Davis-Bacon wages for third-party contracts in 
the calculation is something

[[Page 70071]]

BLM, as well as all other Federal agencies, are required to do as a 
matter of law.
    We decided not to accept suggestions that we establish financial 
guarantee thresholds, establish fixed amounts, or have different 
processes for notice operations. Again, the purpose of these provisions 
is to assure the availability of funding to complete reclamation. 
Especially in the case of operations beyond the notice level, 
reclamation costs vary widely depending on size, location, and the 
mineral being developed. Using a threshold amount would leave BLM 
vulnerable to having an insufficient guarantee, especially in the case 
of larger mines.
    Notice-level operations pose a different set of problems. While 
estimated reclamation costs might vary, the range of costs will not be 
as great. The rule will permit local BLM field managers to establish 
fixed amounts for reclamation of notice-level activities and work with 
the operator to adjust the amount of financial guarantee in specific 
cases. This could work on a district-wide basis. Establishing Statewide 
amounts is more problematic. For example, within a single State such as 
California, climate, soil conditions, water quantity may differ widely 
with an accompanying difference in reclamation costs. The approach we 
are taking is not inconsistent with the NRC Report, which recognized 
that different on-the-ground conditions require different levels of 
financial guarantees.
    This final rule does not incorporate State models and guidelines 
for calculating the cost of reclamation. It would be very difficult to 
issue a national regulation incorporating the guidelines of the 
individual States. However, there is nothing to prevent individual 
States from working with BLM to incorporate all or part of their 
guidelines into BLM-State MOUs. This approach has advantages over a 
regulatory solution in that the site-specific needs can be addressed by 
those most familiar, and, as conditions or knowledge change, it is 
easier to make adjustments if parties are not locked into a methodology 
prescribed by regulation.
    When we proposed the financial guarantee portion of today's 
rulemaking, BLM chose not to incorporate a provision of the rules we 
previously published on this subject that were remanded by a district 
court, which would have required a third party to certify the estimated 
cost of reclamation bonding. The experience under the remanded rules 
was that requiring a third party to certify the estimated cost of 
reclamation was a burden, particularly on small miners, and on BLM 
because the BLM field manager must still had to pass on the adequacy of 
the estimate to make sure the amount of the guarantee was adequate, 
regardless of who made the estimate. The benefits of the process did 
not outweigh these burdens. The final reinforces BLM field managers' 
responsibility to have an adequate financial guarantee in place before 
operations begin.

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

    The final rule expands the kinds of financial instruments that are 
acceptable. In addition to surety bonds, cash, and negotiable 
securities, which were acceptable under the previous rule, this 
expanded list of acceptable instruments includes letters of credit, 
certificates of deposit, State and municipal bonds, investment-grade 
rated securities, and insurance.
    The final rule differs from the proposed rule in that we have 
decided to include insurance as an acceptable form of financial 
guarantee as paragraph (f) of this section. The form and function of 
the insurance must be to guarantee the performance of regulatory 
obligations in the event of operator default. In adding insurance, we 
determined that the company must have an A.M. Best rating of AA. This 
rating limits the risk to the government that the company will be 
unable to pay should the operator fail to reclaim land after completing 
operations. Several commenters suggested that we add insurance because 
it provides BLM as much protection as the other instruments and 
operators are often able to obtain insurance at a reasonable cost.
    We also added language to reference Treasury Circular 570 and 
removed the word ``Non-cancellable.'' We added the reference to 
Treasury Circular 570 in response to suggestions that we clarify that 
BLM will not accept any surety. BLM will only accept bonds of sureties 
that Treasury Circular 570 authorizes to write Federal bonds.
    We took out the word ``non-cancellable'' after considering comments 
which emphasized the difficulty of obtaining a surety if it could never 
be canceled. BLM decided these concerns had merit and that an 
operator's liability would not change and BLM's protection would not be 
appreciably diminished so long as the liability period of the surety 
would cover any situation where BLM would make a demand on the surety. 
If a surety intends to cancel a bond, the operator must have a 
replacement financial guarantee in place at the time of cancellation to 
avoid a gap in coverage.
    Several commenters asked BLM to consider operators' liability 
insurance as an additional funding mechanism. Another comment asked us 
to include language which would, in essence, allow BLM to take any form 
of guarantee if it would achieve the objectives and purposes of the 
bonding program. The intent of this suggestion was to provide the 
greatest possible flexibility for both operators and BLM.
    Another comment suggested that BLM require operators to replace an 
expiring letter of credit 30 days before it expires, because after its 
expiration there would be no guarantee to collect. The same commenter 
said BLM should redeem the letter of credit 30 days before it expires 
if the operator has not replaced it. One comment objected to our 
proposal to accept investment-grade securities because the commenter 
views them as close to accepting corporate guarantees. One comment 
suggested that BLM explore with the States creative forms of guarantees 
including liens on property. This suggestion was proffered to ease the 
burden on small business. One comment asked BLM to require the 
custodian of the security to submit monthly statements to BLM attesting 
to the market value.
    BLM chose not to incorporate any of the above suggestions. We did 
not include operators' liability insurance because we consider 
liability insurance to be more appropriate for work-related liability, 
such as worker injury as opposed to liability for completing 
reclamation. Companies routinely acquire this type of insurance and 
while it would normally cover unintended events during mining, such 
insurance would not cover post-mining liabilities.
    BLM chose not to add language regarding expiring letters of credit 
because in most cases the letter of credit will be for a significant 
time period. As BLM will be reviewing the adequacy of financial 
guarantees on a periodic basis, the field manager will be aware of any 
letter of credit which is about to expire and take appropriate action 
if the operator is not moving to replace it in a timely manner. 
Redeeming a letter of credit solely because it is about to expire would 
not be consistent with the objective of the rule. We would only redeem 
the letter of credit if the operator were unwilling or unable to 
complete reclamation.
    BLM can explore creative forms of guarantees with the States, but 
our experience is that the rules should not provide open-ended 
discretion in this area. If we determine a ``creative'' method is worth 
including in the list of

[[Page 70072]]

acceptable instruments we can incorporate that in a separate 
rulemaking.
    The notions that BLM should not accept investment-grade securities 
or, if we do, require the custodian to submit monthly statements 
attesting to their market value, are overly burdensome. In the first 
instance, an investment-grade security is not equivalent to a corporate 
guarantee because the value can be determined daily in the marketplace 
without having to consider intangible corporate assets. Final 
Sec. 3809.556 provides BLM adequate protection from any declines in the 
value of the security. The suggestion that the custodian provide a 
monthly statement would place an unnecessary burden on the custodian 
without substantially increasing BLM's protection. It would also place 
a burden on BLM to review and file monthly reports. We believe 
requiring annual review of these types of financial guarantee 
instruments will be adequate.

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

    This section of the rule requires operators to provide BLM an 
annual statement describing the market value of a financial guarantee 
which is in the form of traded securities. Paragraph (b) requires the 
operator to post an additional financial guarantee if the values 
decline by more than 10 percent or if BLM determines that a greater 
financial guarantee is necessary. Paragraph (c) allows the operator to 
ask BLM to release that portion of an account exceeding 110 percent of 
the required financial guarantee. BLM will allow the release if the 
operator is in compliance with the terms and conditions of the 
operator's notice or approved plan of operations. It is unchanged from 
the proposed rule.
    One commenter suggested deleting this paragraph because 
Sec. 3809.552(b) contains the same general requirement for an annual 
review.
    We chose not to delete paragraph (b) because it provides the 
specific requirements for certain types of financial guarantees. As the 
instruments vary in value, it is important that BLM annually review the 
value to assure their adequacy. In contrast, final Sec. 3809.552 
establishes the framework for all financial guarantees. Part of that 
framework is paragraph (b) which tells operators that BLM will 
periodically review financial guarantees without establishing any 
specific time period for the review. Unlike this section, 
Sec. 3809.552(b) does not require the operator to submit anything to 
BLM unless specifically requested by BLM.
    Commenters asked why BLM is requiring assets to be 110 percent of 
estimated reclamation costs before BLM will authorize releasing that 
portion of the guarantee that exceeds 110 percent. The comment suggests 
that a guarantee covering 100 percent of the reclamation cost is 
sufficient. The purpose of requiring 110 percent is to provide 
assurance that an adequate financial guarantee remains in place 
regardless of market fluctuations. If we were to use 100 percent it 
would be logical for us to ask for an increase in the guarantee if the 
level drops to 95 percent. This would impose a burden on industry and 
BLM to constantly adjust the level of the guarantee while not providing 
any real increase in protection.

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

    This section allows operators to provide a blanket guarantee 
covering State-wide or nation-wide operations. The amount of any 
blanket financial guarantee would have to be sufficient to cover all of 
an operator's reclamation obligations. This final rule is unchanged 
from the proposed rule.
    We received a comment asking whether the purpose of this section 
was to provide administrative convenience or something else. Other 
comments expressed the fear that blanket guarantees make it easier for 
companies to post insufficient financial guarantees, declare bankruptcy 
and walk away. Others see blanket guarantees as a way of avoiding 
detailed calculations of financial guarantee amounts based on the 
engineering design of a mine or mill. Others expressed the concern that 
the blanket guarantees will not equal the sum of guarantees needed for 
all individual projects.
    BLM decided to maintain the option allowing blanket guarantees. The 
system has been in place for many years and provides administrative 
convenience to both the operator and BLM. It is a system which is used 
successfully in other BLM programs. In our experience, a blanket 
guarantee does not increase BLM's risk of having to use taxpayer funds 
to reclaim operations. BLM must work with its field managers to review 
the blanket guarantees to be certain that sufficient funds are 
available for each project covered in the event the operator does not 
complete reclamation for whatever reason.

Sections 3809.570 Through 3809.574  State-Approved Financial Guarantee

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

    This section permits BLM to accept 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 requiring that any State-
approved financial guarantee be redeemable by the Secretary so that, in 
case of failure to reclaim, we have independent authority to initiate 
forfeiture of the financial guarantee to ensure reclamation of public 
lands. The redeemability requirement would not apply to State bond 
pools. The final rule is unchanged from the proposed rule.
    We received one comment asking that BLM amend proposed paragraph 
(c) to provide that the State guarantee need not include funds to cover 
BLM costs for issuing a third-party contract when the State agreement 
provides for the State to implement a jointly approved reclamation plan 
that is in default.
    There were comments that the proposal would end joint bonding 
because a surety would not issue an instrument redeemable by both the 
State and the Secretary of the Interior. One State asked that we amend 
the section so that the Secretary of the Interior would not have to 
sign the guarantee, citing the MOU as providing a means to protect both 
the State and BLM. Another State pointed out that its law does not 
provide for jointly held financial guarantees and suggested that to 
make an MOU workable with respect to financial guarantees could require 
the State legislature to act. One State expressed concern that BLM 
should allow that State to hold the financial guarantee instrument 
because a joint instrument would be difficult to administer.
    In the context of State bonding, there were many comments about 
using State bond pools. One comment stated, ``We are pleased that the 
State bond pool may continue to work as a means of allowing placer 
miners and others to easily comply with proposed regulations. In 
Alaska, all operations disturbing 5 acres or more are required to be 
bonded for reclamation, and reclamation is required for all operations 
of any size. The State of Alaska bond pool has been used successfully 
for many years, and has been approved by the BLM for many operations.''

[[Page 70073]]

    Another comment said that BLM shouldn't be able to recoup 
administrative costs from the State bond pool because utilizing the 
pool saves BLM money. The same commenter noted that States ``have the 
ability to audit all reclamation costs claimed under a default 
situation, when monies are drawn from the existing State bond pool.'' 
Finally, the commenter suggested that BLM proceed with legal action 
against any and all liable parties before using State bond pool money 
to remedy the reclamation obligation.
    There were comments asserting BLM should not accept financial 
guarantees that are part of State bond pools. These commenters see such 
pools as not always solvent and note that one large cost recovery may 
exceed the value of the pool.
    Other commenters asked why BLM would not adopt State rules. 
Commenters also questioned whether operators would be able to obtain an 
instrument from a surety that named two different entities with the 
ability to redeem a guarantee.
    BLM did not accept the suggestion that a third-party contract not 
be included. Even when a State agreement exists, the responsibility for 
protecting Federal lands remains with BLM. BLM must still administer 
any third party contracts needed to reclaim land after operations, and 
this is a legitimate expense. Estimates of the amount of the financial 
assurances are expected to consider the administration of contracts, so 
it is not unreasonable to have proceeds from a State bond pool pay this 
expense. BLM believes it must include its direct and indirect 
administrative costs in calculating the estimated reclamation costs. 
These costs should apply to State bond pools as well. In the event of a 
disagreement with the State, BLM should be certain to have sufficient 
funds to pay for reclamation. See also the response to comments about 
the calculation of the estimate in final Sec. 3809.554.
    We believe that making a financial guarantee redeemable by the 
Secretary is a fundamental principle of the financial guarantee 
program. In final Sec. 3809.203, we state clearly that if the financial 
guarantee is a single instrument, it must be redeemable by both the 
Secretary and the State, and this section is consistent with that 
requirement. We believe that surety companies will cooperate and accept 
the notion, and that joint State-BLM bonding may proceed. We recognize 
that sometimes State and Federal interests are not the same. Under 
FLPMA, the Secretary of the Interior is ultimately responsible for 
assuring that operators not cause unnecessary or undue degradation, and 
this appropriately includes a requirement that they assure reclamation 
of Federal land after mining.
    We believe that continuing to use State bond pools is appropriate, 
especially to assist small miners who might otherwise have difficulty 
obtaining a financial guarantee from other sources, so long as the 
conditions of the next section are met. The BLM State Director will 
have to determine whether the pool is sound (see final Sec. 3809.571) 
before an operator would be able to post a financial guarantee through 
the pool. If one large claim would make the pool insolvent, the State 
would need to find a means to supply the financial guarantees necessary 
to comply with the requirements of subpart 3809.
    We also received a comment asking BLM to add language that would 
clarify that BLM may still require its own financial guarantee even if 
there is an existing State-approved financial guarantee. We did not 
accept this suggestion because we believe the language in final 
Sec. 3809.570 makes clear that BLM will review State-held financial 
guarantees and make an independent decision on whether to accept them.
    Finally, BLM disagrees that it should have to bring legal action 
against liable parties before using a bond pool. One principal purpose 
of financial guarantees is to avoid the necessity of lawsuits to 
accomplish reclamation.

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

    This section allows an operator to provide a State-approved 
financial guarantee subject to the conditions in final Sec. 3809.570, 
in the following forms:
     The kinds of individual financial guarantees specified 
under Sec. 3809.555;
     Participation in a State bond pool, if the State agrees it 
will draw on the pool where necessary to meet obligations on public 
lands, and the BLM State Director determines that State bond pool 
provides equivalent level of protection as required by this subpart; or
     A corporate guarantee existing on the effective date of 
this final rule.
    The final rule differs from the proposed rule regarding whether BLM 
will accept a corporate guarantee as a financial guarantee. BLM 
proposed to continue its policy of accepting corporate guarantees under 
certain circumstances if the State in which the operations are 
occurring did so and if the BLM State Director determined that the 
corporate guarantee would provide an appropriate level of protection. 
We asked for public comment on whether to continue this policy. A new 
section, final Sec. 3809.574, explains that BLM will no longer accept 
corporate guarantees, but will allow those in place to continue for 
that portion of the operation covered by a corporate guarantee existing 
on the effective date of this rule.
    Numerous commenters argued against permitting corporate guarantees, 
stating that financial guarantees should be held by an independent 
third party. Commenters noted that if BLM allows corporate bonding, the 
value of the ore should not be considered an asset as it fluctuates 
over time and loses value as it is mined. Thus, the soundness of the 
guarantee might be most questionable at the time it is most needed. We 
also received a comment suggesting that allowing corporate guarantees 
could be inconsistent with the first recommendation in the NRC Report 
because they may not provide assurance that reclamation will be 
completed.
    Other commenters supported allowing corporate guarantees and 
suggested approaches the commenters considered workable. One commenter 
suggested that if BLM decides to permit corporate bonds, we should use 
a system similar to the system that the Office of Surface Mining (OSM) 
uses. This is an elaborate system which limits the percentage of 
corporate bonding based on the assets of a corporation. Other 
commenters suggested that BLM look at State models (specifically Nevada 
and California) for determining the levels of corporate guarantees. One 
comment described and supported the Nevada reclamation regulations 
pertaining to corporate guarantees, which allow them under certain 
conditions of corporate financial soundness, but only for 75 per cent 
of the estimated cost of reclamation. Another comment urged BLM to 
consider, for small entities, the salvage value of equipment and other 
property at the mine site. Numerous comments asked that we amend the 
rule to state that guarantees under the California program are 
automatically acceptable.
    One commenter suggested that BLM use the OCS system which measures 
assets over liabilities on an annual basis. One commenter suggested 
that BLM consider using as a model the regulations adopted under 
Subtitle C of the Resource Conservation and Recovery Act (``RCRA'') 
with respect to the financial assurance of closure and abandonment 
costs.
    During a January 11, 2000 meeting with the Western Governors' 
Association, some State representatives

[[Page 70074]]

expressed concern about continuing to accept corporate guarantees, for 
reasons similar to those in the comments we received from others 
opposing corporate guarantees. However, some State laws specifically 
allow corporate guarantees. We recognize that the final rule will, in 
some cases, require a reworking of MOUs with the States.
    We found the arguments opposing corporate guarantees persuasive. We 
agree that a corporate guarantee is less secure than other forms of 
financial guarantees, especially in light of fluctuating commodity 
prices. Recent bankruptcies added to the concern that corporate 
guarantees don't provide adequate protection. We believe the number of 
new mines that might have wanted to rely on corporate guarantees is 
relatively small, and we also believe, given the economics of the 
industry, that companies that would have been eligible to hold a 
corporate guarantee should not have a significant problem finding a 
third-party surety, or posting the requisite assets.
    BLM currently accepts a corporate guarantee only if there is an MOU 
with the State and the State accepts corporate guarantees. The proposed 
rules would have required BLM to evaluate the assets of individual 
companies before allowing corporate guarantees. Specific models cited 
in the comments all have requirements to evaluate assets, liabilities, 
and net worth. Some require judgments as to the amount of a company's 
net worth in the United States. Annual reviews would be necessary. BLM 
does not currently have the expertise to perform these reviews on a 
periodic basis, and even if we did, a risk of default would remain. 
This contributed to our decision not to allow additional corporate 
guarantees.
    BLM and the State of Nevada currently hold a significant number of 
corporate guarantees. Some other States also allow corporate 
guarantees. We have decided not to invalidate existing guarantees, so 
as not to require these operators to secure an alternative financial 
guarantee instrument, so long as they are operating under already 
approved plans. While we have decided not to require operators who 
currently hold State-approved corporate guarantees to post an 
alternative guarantee, the final rule seeks to reduce the associated 
risk by explicitly requiring periodic review of financial guarantees, 
and directing that appropriate steps be taken if they are determined to 
be no longer adequate.

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

    This section states that BLM will notify the operator and the State 
in writing if it rejects a financial instrument in an existing State-
approved financial guarantee. BLM will notify the operator within 30 
days and explain why it is taking such action. This section requires an 
operator to provide BLM with a financial guarantee acceptable under 
this subpart at least equal to the amount of the rejected financial 
instrument before mining may continue.
    The final rule is slightly different from the proposal. In response 
to comments, we have added language which directs BLM to notify the 
State if we do not accept a State-approved financial guarantee. We are 
making this change to assure that lines of communication between BLM 
and State governments are adequately maintained.
    Some commenters stated that BLM should defer to the States on 
financial guarantees. Many comments questioned the criteria under which 
BLM would not accept a State bond, saying ``if a state accepts a bond, 
BLM should accept it.'' To do otherwise, these commenters suggest, 
might result in duplicate bonding. One commenter asked for a list of 
criteria under which BLM would not accept a financial guarantee which 
the State accepts. Other commenters noted that in the event BLM does 
not accept a State financial guarantee, there is no mechanism or time 
frame for BLM and the State to resolve what is an acceptable financial 
guarantee. Another commenter suggests establishing a time frame for the 
operator to remedy the situation. The same commenter asked BLM to 
establish an appeals procedure under which BLM would accept the State 
guarantee while the appeal is pending. Final Secs. 3809.800-3809.809 
establishes an appeals procedure.
    There were some comments in opposition to BLM accepting State 
financial guarantees on the grounds that the interests of the State and 
Federal government can diverge.
    The process we establish in this section assures that a strong 
financial guarantee will protect the Secretary if an operator is unable 
or chooses not to complete reclamation, or if a State establishes a 
requirement that does not provide adequate protection. If BLM does not 
accept a State-approved financial guarantee, the operator may not begin 
mining activities. For this reason, we have declined to accept the 
recommendation to add a time frame.
    Although the appeals procedures in final Secs. 3809.800 through 
3809.809 apply to all BLM decisions, including whether to approve a 
financial guarantee, a rejected financial guarantee will not satisfy 
the regulatory requirement during the pendency of the appeal, because a 
sufficient guarantee must be in force at all times.

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

    Final Sec. 3809.573 requires an operator to replace or augment a 
financial guarantee within 30 days when the State makes a demand 
against the financial guarantee and the available balance is 
insufficient to cover the remaining reclamation cost. This differs from 
the proposed rule by the addition of a 30-day time frame for augmenting 
or replacing a financial guarantee. This action conforms to the NRC 
Report's first recommendation that ``[f]inancial assurance should be 
required for reclamation of disturbances to the environment caused by 
all mining activities beyond those classified as casual use.'' It also 
responds to a comment from a Federal agency asking how BLM and a State 
would handle a situation where a financial guarantee is inadequate to 
cover demands made by both entities, and another comment that suggested 
BLM should add language specifying that the operator must inform BLM 
within 15 days of the demand's occurrence and require a replacement or 
augmented guarantee within 15 days. We decided 15 days was too short, 
and stretching the process beyond 30 days would leave a troubled 
operation operating too long without a sufficient financial guarantee. 
Such situations should be avoided if possible by taking care to 
establish a proper financial guarantee amount to cover both Federal and 
State obligations.

Section 3809.574  What Happens if I Have an Existing Corporate 
Guarantee?

    As stated earlier, the final rule continues to allow corporate 
guarantees for existing operations to satisfy financial guarantee 
requirements, if they were accepted before the effective date of this 
rule. BLM will not allow an operator to transfer a corporate guarantee 
to another entity or operator.
    Paragraph (b) specifies that if the State changes its corporate 
guarantee criteria or requirements, the BLM State Director will review 
any outstanding guarantees to ensure they still afford adequate 
protection. If the State Director determines they won't provide 
adequate protection, the State Director may terminate the existing 
corporate

[[Page 70075]]

guarantee and require the operator to post an alternative guarantee.

Sections 3809.580  Through 3809.582 Modification or Replacement of a 
Financial Guarantee

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

    This section requires an operator to adjust the financial guarantee 
if the operator modifies a plan of operations or a notice and the 
estimated reclamation cost increases. The final rule clarifies the 
regulatory text by also explaining that if the estimated reclamation 
cost decreases, the operator may request BLM reduce the amount of the 
required financial guarantee. This change in the final rule was 
suggested by numerous commenters who noted that the language in the 
proposed rule did not allow BLM to approve a decrease in the amount of 
a financial guarantee even if a modification resulted in a lower 
estimated reclamation cost.
    One comment asked us to clarify that an operator may request BLM to 
lower the amount of the financial guarantee. As noted in the preamble 
to the proposed rule (see 64 FR 6443, Feb. 9, 1999), this section makes 
clear that the proposed section does not preclude an operator from 
requesting BLM's approval to decrease the financial guarantee if the 
estimated reclamation cost decreases.

Section 3809.581  Will BLM Accept a Replacement Financial Instrument?

    Final Sec. 3809.581(a), unchanged from the proposed rule, 
authorizes BLM to approve an operator's request to replace a financial 
instrument. BLM will review and act on the request within 30 calendar 
days. We received no comments specific to this section.
    BLM has added final Sec. 3809.581(b) to clarify a surety's 
obligations, if for some reason a surety bond is no longer in effect. 
See, for example, the standard BLM surety bond form entitled, Surface 
Management Bond Form (February 1993), Bond Condition No. 8. See also 
U.S. and Nevada v. SAFECO Insurance Co. of America, CV-N-99-00361-
DWH(PHA), Order dated Aug. 12, 1999. The final rule makes it clear that 
a surety is not released from an obligation that accrued while the 
surety bond was in effect, unless the replacement financial guarantee 
covers such obligations to BLM's satisfaction. This is not a new 
policy, but BLM believes it should be stated expressly so that if a 
surety bond is canceled or terminated, all parties understand that the 
surety cannot unilaterally terminate liability for obligations that 
have accrued while the bond was in effect. If the operator submits, and 
BLM accepts, an adequate replacement financial guarantee that covers 
the obligations covered by the previous surety bond. Then the earlier 
surety may be released from its obligations.

Section 3809.582  How Long Must I Maintain My Financial Guarantee?

    This section requires an operator 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 
the operator completes reclamation. With minor editing, it is unchanged 
from the proposed rule.
    One comment suggested that the rule contain criteria for release of 
a financial guarantee. BLM will not release the financial guarantee 
until we determine reclamation is complete. The standard is the 
reclamation plan in the notice or approved plan of operations . The 
sole criterion for judging whether the standard is met is the 
successful completion of reclamation. The regulation is clear and 
therefore we did not change it.

Sections 3809.590  Through 3809.594  Release of Financial Guarantee

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

    The final rule authorizes an operator to notify BLM that 
reclamation is complete on all or part of notice or approved plan of 
operations and to request a reduction in the financial guarantee upon 
BLM's approval of the adequacy of the reclamation. BLM must promptly 
inspect the area, and we encourage the operator to accompany the BLM 
inspector. If the reclamation is acceptable to BLM, the operator may 
reduce the financial guarantee as allowed in final Sec. 3809.591. 
Paragraph (c) of this section requires BLM to post the proposed final 
release of the financial guarantee in the field office having 
jurisdiction, or to publish notice of the proposed final release in a 
local newspaper of general circulation and accept public comments for 
30 calendar days.
    We received several comments asking that notice-level activities 
not be included in the release procedures of paragraph (c). Because 
notice level activities entail less than 5 acres of surface 
disturbance, commenters suggested that there is no added value to 
allowing the public 30 calendar days to review a financial guarantee 
release.
    The final rule differs from the proposed rule by excluding notice-
level activities from the public notice and comment provisions of 
paragraph (c). Release of financial guarantees for notice-level 
operations do not need to undergo the same level scrutiny as the 
release of financial guarantees for plans of operations. Notice-level 
operations are much less likely to involve significant disturbance and 
in most cases generate little or no public interest. Additionally, the 
timing of the release of the financial guarantee is important to many 
notice-level operators as they need the release of one guarantee to 
post a guarantee on a new notice. Because the final rule limits notices 
to exploration, this change benefits small business without posing a 
significant threat to the environment.
    A second change from the proposed rule is that the final rule 
includes language that will give the BLM field manager the discretion 
to post the proposed release of the financial guarantee in the BLM 
office or publish it in a local newspaper of general circulation, or 
both. The proposed rule would have required BLM to publish the proposed 
release of all financial guarantees in the newspaper. We chose this 
approach because today's rule limits notices to exploration, which 
generally has limited impact and limited interest. A newspaper notice 
for these actions is probably unnecessary. Moreover, BLM already posts 
many proposed actions in its office for public review; for example, 
Congress mandated that BLM post all oil and gas applications for permit 
to drill (APD) in the office as a way of promoting public involvement 
in decision making. In many cases, the (APD) results in more surface 
disturbance than small mining operations.
    Several commenters believe that BLM should amend paragraph (b) by 
including a specific number of days within which we will inspect the 
operation. These commenters consider the term ``promptly inspect'' to 
be too vague. Other comments suggested we continue the current 
requirement that the inspection include the owner and/or operator 
unless they notify BLM in writing that the joint inspection is waived. 
Another commenter says that BLM should publish the date of inspection 
so that interested persons can attend.
    The opportunity for public participation is controversial. Many 
respondents stated BLM should give the public an opportunity to be 
involved in all phases of planning, assessment, and

[[Page 70076]]

bond setting, noting that mining may affect local residents for a long 
period of time. Many others assert the public already has input into 
this process during the EIS stage, and their further involvement will 
slow down the process due to the 30-day period for public comment. 
These commenters feel that financial guarantee release is largely a 
mathematical exercise where a body of literature provides guidance on 
how to do the calculations. Other comments stated the general public is 
not educated in calculating and setting financial guarantees, and the 
BLM professionals should continue to set these requirements. We also 
received comments criticizing BLM for not discussing the value of 
public comment and explaining how differences would be resolved. There 
were several comments suggesting that the final rules should allow 30 
days for BLM to inspect an operation and release financial guarantee, 
and to require BLM to pay interest if we take longer than 30 days to 
release the financial guarantee.
    Other commenters pointed out that the impact of mining is not 
always known immediately at the time BLM approves reclamation, and 
therefore BLM should establish a mechanism to hold bonds after 
reclamation approval.
    We changed the current rule which requires written waivers of joint 
inspections, and decided not to establish a time frame for when a joint 
inspection can occur. It is our intent to promptly inspect the 
reclaimed area, usually within 30 days. However, the time when we do it 
depends not only on our workload, but the availability of the operator 
and weather conditions. To state a time frame in the rule would be too 
inflexible. Requiring the release within a finite number of days could 
lead to the inappropriate release of some guarantees, or time-consuming 
appeals when we have legitimate reasons for delaying the release.
    One overall purpose of these final rules is to permit an increase 
in public review of mining. The release of the financial guarantee is 
an important step in the mine closure process. Allowing the public an 
opportunity to comment on it should add value to the BLM review. The 
logistics of including the public on inspections could result in many 
of the same problems that we identified in deciding not to incorporate 
the proposal for ``citizen inspections'' (See the discussion of 
proposed Sec. 3809.600(b) below.). Therefore, we did not add this as a 
step in the release of financial guarantees.
    We view the opportunity for outside parties to comment as a 
positive. The public that is likely to comment tends to be well-versed 
in many aspects of mining or be familiar with the on-the-ground 
condition of the area for which the operator seeks release. BLM will 
review public comments as promptly as possible to see if they should 
affect the release of the guarantee. Then we will either release the 
guarantee or require additional work to meet the requirements of the 
performance standards and the approved plan of operations. Given the 
differences in the size and complexity of mines and the number of 
comments BLM might receive, the time it will take to analyze comments 
will vary greatly. Therefore, we choose not to place a time limit on 
the time to analyze comments.
    We also chose not to hold financial guarantees after release. The 
performance bond guarantees reclamation. BLM will release it when it 
determines that the operator has successfully accomplished reclamation. 
While we know that the impacts of mining are not always readily 
apparent, and mining-related problems can subsequently occur, under 
final Sec. 3809.592, the operator and mining claimant remain 
responsible for such problems. However, BLM does not think it necessary 
to hold a financial guarantee longer than the periods specified in 
final Sec. 3809.591.

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

    This section governs incremental financial guarantee release. 
Paragraph (a) provides that this section does not apply to any long-
term funding mechanism that an operator establishes under final 
Sec. 3809.552(c). Paragraph (b) states that BLM will release up to 60 
percent of a financial guarantee for a portion of a project area when 
BLM determines the operator has successfully reclaimed that portion of 
the project area. Paragraph (c) states that BLM will release the 
remainder of the financial guarantee when we determine the operator has 
successfully completed reclamation, if the area meets water quality 
standards for one year without needing additional treatment or if the 
operator has established a long-term funding mechanism under 
Sec. 3809.552(c). These are unchanged from the proposed rule.
    Several commenters suggested that the release of financial 
guarantee should be on a dollar by dollar basis as the reclamation work 
is completed, rather than, as proposed, holding of a financial 
guarantee for ``contingency or other unquantified purpose. Some 
commenters asserted that by the time an operator completes regrading he 
has spent more than 60 per cent of the total cost of reclamation. These 
commenters state that even if there were to be a default on the 
remainder of the financial guarantee, there would be more than adequate 
funds remaining to cover actual costs and BLM administrative costs. 
Some suggest we should release 80 percent of the financial guarantee, 
as once revegetation is completed, there is little left to reclaim. 
Conversely, other comments asked that we reduce the amount BLM releases 
to 40 per cent to assure that funds are available for use if necessary. 
These comments also suggested setting a ten-year period for full 
release, because problems are often undetected in the first year after 
mining.
    One commenter suggested that we add language requiring the NEPA 
document to identify the amount of financial obligation BLM should 
release as each discrete phase of reclamation is completed.
    Releasing financial guarantee on a dollar-for-dollar basis would 
create a somewhat more cumbersome process than relying on a fixed 
percentage. In addition, it would create a greater risk that toward the 
end of the reclamation process, the financial guarantee would prove 
inadequate to cover the cost of the remaining reclamation. Whether to 
release 40, 60, or 80 percent of a financial guarantee is admittedly a 
judgment call. In the proposed rule we chose 60 percent to assure that 
funds would be available at the end of the reclamation process. The 
comments on both sides of the issue suggest that our proposal took a 
reasonable middle ground. Therefore, we decided not to change the 
percentage of the financial guarantee we will release.
    The final rule provides that once an operator completes 
reclamation, including revegetation of the disturbed area, the 
financial guarantee should be released when the water quality standards 
are achieved for one year. We believe this will provide a reasonable 
degree of confidence that reclamation is truly complete. In arid areas 
of the West, a determination that an area has been successfully 
revegetated may require the passage of several growing seasons. Until 
BLM makes that determination, we will not fully release the financial 
guarantee.
    BLM decided not to accept the suggestion to use the NEPA document 
to identify financial release amounts at discrete phases of 
reclamation. This would overly complicate the NEPA document and would 
have the same problems associated with releasing the financial 
guarantee on a dollar-for-basis as discussed above. Also, because most

[[Page 70077]]

plans undergo numerous modifications, BLM and the operator would have 
to review the financial guarantee release points as we review each 
modification. Such a process would be overly burdensome.

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

    The final rule states that an operator's liability does not 
terminate when BLM releases the financial guarantee. We have included 
this provision to cover situations where latent defects exist, such as, 
for example, where a regraded and revegetated slope begins to slump or 
fail. Paragraph (b) of the final rule provides that release of a 
financial guarantee 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., (CERCLA) 
or under any other applicable statutes or regulations. This is 
unchanged from the proposed rule.
    We received a number of comments opposing the concept of continued 
liability. Their primary arguments are: (1) because release of the 
financial guarantee means BLM determined the operator has successfully 
met the reclamation terms of the approved notice, it is not reasonable 
for BLM to later say that reclamation is no longer considered 
successful; and (2) once the reclamation is complete and the land 
opened up to other uses, someone other than the operator may be 
responsible for any degradation occurring.
    Other commenters found continued liability objectionable because it 
could last into perpetuity, with the operator never knowing when BLM 
might require additional mitigation. Some commenters compared FLPMA to 
CERCLA and stated that FLPMA does not permit BLM to hold operators 
perpetually liable. Some commenters pointed out that financial 
guarantee release and release from environmental liability are 
different issues. One commenter suggested that we add a section 
addressing the release of a long-term funding mechanism if the 
anticipated problem never occurs, or is eliminated prior to 
reclamation.
    Other commenters see this section as meaning financial guarantees 
will either never be returned, or it will be difficult or impossible to 
obtain financial guarantees because surety underwriters will see this 
provision as exposing themselves to an unacceptable risk. Another 
commenter stated that the standards for the release of the financial 
guarantee are part of the approved plan of operations and thus when 
they are met, the guarantee should be released. A few commenters 
suggested that we address definitive termination of liability for 
notice-level activities and add it as a new section under notices.
    On the other side of the issue, some commenters expressed the 
opinion financial guarantees should address perpetual treatment 
scenarios, and objected that one year of satisfactory water quality is 
not sufficient for release of the financial guarantee, because 
contaminants may not be observed for years after closure. This 
commenter suggested releasing the financial guarantee after increasing 
by 50 per cent the time predicted in the mine model estimate.
    In the preamble to the proposed rule (64 FR 6444), BLM anticipated 
these types of objections to paragraph (a). We pointed out that the 
issue of residual responsibility for a project area after release of 
the financial guarantee has come up many times since 1980 and the 
current rules do not address this. We continue to believe that this 
provision is necessary to cover situations where, for example, a 
totally regraded and revegetated slope begins to slump or fail. As we 
pointed out in the preamble to the proposed rule: ``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.'' We do not anticipate 
a large number of cases where we would have to direct an operator to 
come back after release and fix problems, but we believe the final rule 
will help prevent unnecessary or undue degradation.
    Regarding the concerns expressed about perpetual liability, and 
about possible difficulties in establishing a causal link between 
mining and subsequently occurring degradation, for liability to be 
imposed, there must be evidence that ties the on-the-ground problem to 
the operator's activities. As time passes, it may be increasingly 
difficult to demonstrate that a particular environmental problem was 
caused by an operator's mining activities, and not by independent 
causes.
    As we explained in the preamble to the proposed rule, paragraph (b) 
clarifies the relationship between this subpart and other regulations, 
by providing that the release of a financial guarantee held to satisfy 
the requirements of this subpart doesn't affect any responsibility an 
operator may have under other laws.
    We believe it is not necessary to include language here addressing 
the release of a long-term funding mechanism (trust fund) established 
under Sec. 3809.552 in the event that the anticipated problem never 
occurs, or is eliminated prior to reclamation. If the problem does not 
occur or is eliminated, it is clear that the BLM field manager may 
release these funds as part of the reclamation release process.

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

    This section states that a new operator must satisfy the financial 
guarantee requirements of this subpart. It also states that the 
previous operator remains responsible for obligations or conditions 
created while that operator conducted operations unless the new 
operator accepts responsibility. This means that a financial obligation 
must remain in effect until BLM determines that the operator is no 
longer responsible for all or part of the operations. BLM has added the 
word ``must'' to clarify the intent of the proposal.
    We received comments that the rule does not make clear that BLM 
will promptly release the guarantee once the new operator provides a 
satisfactory guarantee and assumes the obligations of the former 
operator. We believe the rule is clear that once, in the language of 
the rule, ``BLM determines that you are no longer responsible for all 
or part of the operation,'' BLM will promptly release the financial 
guarantee. Therefore, we did not adopt the suggestion.

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

    This section states BLM will release the portion of a financial 
guarantee that applies to operations within the boundaries of the 
patented land. The final rules added the term ``mill site'' to make 
clear that BLM will also release any financial guarantee associated 
with a patented mill site.
    We received one comment asking to delete paragraph (c) from the 
proposed rule because it addressed only access and therefore does not 
belong in this rule. We agree and have deleted it in the final rule.
    We received one comment asking that BLM assign the financial 
guarantee on newly patented land to the State to assure that the 
private surface is reclaimed according to State law. Similarly, the EPA 
commented that if a cleanup became necessary on patented land, the 
government would likely have to spend money, thereby suggesting that we 
maintain the financial guarantee on newly patented land.
    Once land is patented, BLM is no longer a party in interest with 
regard to

[[Page 70078]]

the reclamation of the patented land. BLM will, however, retain 
portions of a financial guarantee whose purpose is to guarantee 
reclamation of the public lands. BLM will work with States to see if 
portions of the financial guarantee can be transferred to States to 
meet State bonding requirements. Because this is likely to vary from 
State to State, we did not incorporate these suggestions into this 
final rule.

Sections 3809.595 Through 3809.599  Forfeiture of Financial Guarantee

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

    This section states BLM may initiate forfeiture procedures for all 
or part of a financial guarantee if the operator refuses or is unable 
to complete reclamation as provided in the notice or the 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.
    The final rule changes the word ``will'' in the proposed rule to 
``may,'' to clarify that BLM has discretion in deciding under what 
circumstances to initiate forfeiture. Many commenters suggested that 
the term ``will'' would require BLM to initiate forfeiture procedures 
even for minor violations, and that this was not a reasonable approach, 
because it would be burdensome on BLM and would not give the operator 
an opportunity to correct the violation. We agree and made the change 
to indicate that BLM may, but does not have to, initiate forfeiture for 
every violation. Final Sec. 3809.596(d) describes how an operator may 
avoid forfeiture after BLM issues a decision to require forfeiture.
    An industry association suggested that we consider using California 
statutory language for clarity. We have generally avoided using State-
specific language to ensure the rule is flexible enough to meet 
conditions in all States.

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

    Except for minor editing, this section is unchanged from the 
proposed rule. It describes the process BLM will follow to initiate 
forfeiture of a financial guarantee. The section also describes the 
actions an operator can take to avoid forfeiture by demonstrating that 
the operator or another person will complete reclamation.
    A State agency and others commented that Federal procedures are 
more protracted than State-level procedures and that State procedures 
can actually resolve the on-the-ground problem quicker. In response, we 
hope we will only rarely have to initiate forfeiture procedures, and 
that BLM and the State will be able as necessary to work together to 
resolve the issues before initiating forfeiture. Of course, if the 
operator, State, and BLM cannot agree on a course of action, BLM must 
take the steps necessary to prevent unnecessary or undue degradation. 
Although the procedures may appear detailed, BLM doesn't view them as 
protracted. Therefore, we decided to keep the proposed language in the 
final rule.

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

    This section describes the next steps in the forfeiture process--
how BLM will collect the forfeited amount, and how BLM will use the 
funds to implement the reclamation plan. This final rule differs from 
the proposed rule in that we changed the term ``forfeiture notice'' to 
``forfeiture decision.'' We believe this is a more accurate description 
and is consistent with final Sec. 3809.596 which discusses ``BLM's 
decision to require the forfeiture.'' BLM begins forfeiture by issuing 
a formal decision.
    One comment said the State, not BLM, should be the collection 
agency and that this should be established in an MOU. Another commenter 
asked us to add language allowing BLM to use the funds to continue 
interim reclamation operations as permitted in proposed Sec. 3809.552.
    As BLM has the ultimate responsibility to protect Federal lands 
from unnecessary or undue degradation, BLM and a State may use a 
general or site-specific MOU to address procedures and responsibilities 
to assure that monies are collected and used to perform needed 
reclamation.
    The final rule does not include language contained in proposed 
Sec. 3809.552 that would have allowed BLM to continue interim 
reclamation, and does not incorporate the suggestion regarding interim 
reclamation in this section.

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

    This section makes clear that if the amount of the financial 
guarantee forfeited by an operator is insufficient to pay the full cost 
of reclamation, the operator(s) and mining claimants(s) are jointly and 
severally liable for the remaining costs. It is unchanged from the 
proposed rule.
    One commenter suggested BLM amend the rule to limit recovery to 
``reasonable'' costs of reclamation. Another commenter said that the 
joint and several liability provisions should be eliminated because BLM 
does not have the authority to propose such a requirement.
    The ``reasonable cost'' of reclamation is what it takes to reclaim 
the land and associated resources in accordance with these regulations. 
The primary purpose of posting a financial guarantee is to ensure that 
the taxpayer does not have to pay for the failure of an operator to 
reclaim land after completing operations. We have not incorporated the 
suggestion to limit recovery to the ``reasonable'' costs of 
reclamation, which are in the eye of the beholder.
    Regarding BLM's authority to impose joint and several liability, 
see the discussion earlier in this preamble of the provisions of final 
Sec. 3809.116.

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

    This section states that BLM will return the unused portion of a 
forfeited guarantee to the party from whom we collect it. It is 
unchanged from the proposed rule. We did not receive any comments on 
this section.

Sections 3809.600 Through 3809.605  Inspection and Enforcement

    This portion of the final rule (Secs. 3809.600 through 3809.605) 
sets forth BLM's policies applicable to inspection of operations under 
subpart 3809. The final rules follow the proposed rules, with one 
exception related to allowing members of the public to accompany BLM 
inspectors to the site of a mining operation. The final rules also set 
forth the procedures BLM will use to enforce the subpart, including 
identifying several types of enforcement orders, specifying how they 
will be served, outlining the consequences of noncompliance, and 
specifying certain prohibited acts. The inspection and enforcement 
rules apply to all operations on the effective date of the final rule.

Section 3809.600  With What Frequency Will BLM Inspect My Operations?

    Final Sec. 3809.600 clarifies 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. BLM's authority to 
inspect operations on the public lands derives from 43 U.S.C. sections 
1732, 1733, and 1740 and 30 U.S.C. 22 (RS 2319). This section

[[Page 70079]]

incorporates previous Secs. 3809.1-3(e) and 3809.3-6.
    Final Sec. 3809.600(a) provides that at any time, BLM may inspect 
all operations, including all structures, equipment, workings, and uses 
located on the public lands, and that the inspection may include 
verification that the operations comply with subpart 3809. Final 
Sec. 3809.600(b), which was proposed as paragraph (c), provides 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. This paragraph codifies existing BLM policy with regard to 
inspection of those operations at which this hazard exists. See Cyanide 
Management Policy, Instruction Memorandum 90-566, August 6, 1990, 
amended November 1, 1990. As was stated in the proposed rule, 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.
    Proposed paragraph (b) is not adopted as proposed, but has been 
replaced by a more moderate provision allowing once-a-year public 
visits to mines, codified as Sec. 3809.900, discussed below.
    The recommendations of the NRC Report did not address BLM's 
inspection program. Therefore, the inspection provisions of the final 
rules are not inconsistent with the NRC Report.

Comments Related to Inspection

    BLM received numerous comments addressing the proposed rules 
related to inspection and enforcement, both for and against the 
proposal. A number of the comments addressed inspection and enforcement 
together, and are discussed together for convenience.

General Comments Supporting the Proposal

    Many commenters urged that inspection and enforcement must be 
improved, asserting that inspection and enforcement of mining 
regulations is a critical element of the regulatory process. Without 
it, they asserted, improved rules will be meaningless. These commenters 
asserted that inspection and enforcement activities also need to be 
strengthened to assure that environmental damage is as limited as 
possible and, in particular, to protect people, livestock, water, 
wildlife, and all other resources, from the modern realities of mining 
activity. One commenter stated that although many miners now operate 
and clean up in a responsible manner, unfortunately, based on 
observations ``for many years, both near home and also throughout the 
region,'' many others fail miserably. The commenter urged that land 
managers need enough teeth in the regulations to insure the compliance 
of all. Other commenters asserted that the proposed inspection and 
enforcement rules do not go far enough and supported the stronger 
inspection and enforcement measures set forth in Alternative 4 of the 
draft EIS .
    BLM generally agrees with the commenters who urged strengthening of 
the BLM inspection and enforcement rules.

General Comments Against the Proposal

    Some commenters opposed the proposed inspection and enforcement 
rules, asserting that this section is overly broad and will be 
administratively infeasible. Commenters stated that the industry's 
record with notice level compliance, although not spotless, is 
generally very good. Instead of revising the regulations, they urged, 
BLM should allocate more resources and get more inspection personnel in 
the field. BLM disagrees with the comment, and believes that the rules, 
are not too broad and will be workable.

Budget

    The adequacy of BLM resources was a recurring theme. Commenters 
asserted that BLM must evaluate the personnel and funding it will take 
to implement the proposed inspection and enforcement provisions since 
BLM's current resources will be inadequate and no funding increases 
have been requested. For example, a commenter asserted, it is 
questionable whether BLM has the necessary resources to conduct 
inspections ``at least four times a year * * * if you use cyanide or 
where there is significant potential for acid drainage.'' Rather than 
cut back on the proposal, some commenters suggested a cost-recovery 
program, under which miners pay fees to cover inspection and 
enforcement. These commenters stated that it is sad if fees and 
reclamation requirements put mining companies out of business, but the 
reality is that our nation's history has brought many changes since 
1872 that alter how we look at and value safety and environmental 
integrity along with the importance of mineral wealth. If operators 
cannot afford to mine responsibly, then they should not be mining at 
all. Other commenters stated that the agency needs to build in budget 
line items for inspection and enforcement.
    BLM is cognizant of budgetary issues related to implementation of 
these rules. These final rules reflect policy choices that BLM believes 
appropriate. BLM will determine whether budget and resources are 
sufficient for implementation and, if they are not, seek additional 
resources consistent with fiscal constraints and Administration 
priorities.
    Specific inspection issues raised by commenters follow:

Inspection Frequency

    A number of commenters addressed the issue of inspection frequency. 
On one side, commenters urged that inspection and enforcement of the 
regulations need to be more frequent and rigorous, and include 
unannounced inspection of mining operations, and more frequent 
inspections of high-risk operations. These commenters asserted that 
mining companies have shown through the years that they will not 
conduct environmentally responsible operations unless forced to by law. 
Therefore, it is extremely important that enforcement include frequent 
unannounced inspections. A commenter requested that the final rule 
address whether inspections would be scheduled in advance or 
unannounced.
    Some commenters suggested mandated inspection schedules for all 
operations, suggesting quarterly for example. For others, quarterly 
inspection is not sufficient, urging that every mine needs to be 
inspected at least monthly, and a sophisticated BLM lab needs to be big 
enough to process samples of air, water, tailings, dumps, etc. on a 
monthly basis, including chemical analysis of ground water, tailings, 
air, etc. Others suggested that the number and frequency of BLM 
inspections should be directly linked to documented risk evaluated in 
the NEPA compliance documents and incorporated in the approved plan of 
operations.
    Several commenters opposed incorporating into the rules the current 
BLM policy of inspecting cyanide operations four times a year. There 
were suggestions that the number is arbitrary and does not reflect any 
documented problem with a lack of BLM inspections nor does it recognize 
that many operations in some areas like Alaska are seasonal. Some 
complained that the requirement for a minimum frequency of inspections 
appears to be based, at least in part, on an incomplete assessment of 
other State and Federal regulatory programs, and that BLM failed to 
properly account for the number of inspections which are required by 
States (e.g., pursuant to the air, water, waste and cyanide processing 
programs) and by EPA.

[[Page 70080]]

    BLM agrees that inspections are an important part of any regulatory 
program, but one limited by available resources. BLM has decided to 
inspect the more hazardous operations at least four times a year, and 
not to mandate an inspection frequency for other operations. When 
necessary, the inspections will be unannounced.
    The U.S. Environmental Protection Agency suggested that to assure 
effective environmental compliance at mine sites, inspection efforts 
must occur from the start of operations and be ongoing. It suggested 
that the regulations be amended to require that BLM coordinate with the 
applicable State and Federal environmental agencies to conduct a 
complete multi-media inspection of mines within five years after 
beginning full-scale operations. The regulations should send a strong 
message that a coordinated Federal and State effort will occur at the 
beginning of the mine life to check environmental compliance. EPA 
suggested that these types of coordinated compliance inspections should 
also occur every five years throughout the mine life.
    Other commenters asserted that proposed Sec. 3809.600, which would 
establish new provisions related to the nature and frequency of BLM's 
inspections of mining operations, are generally unnecessary and 
inappropriate and reflect BLM's failure to consider the substantial 
implications of its proposal. Some commenters disagreed with BLM's 
statement that establishing a specific number of inspections is needed 
to prevent adverse environmental impacts, although certain large 
operators did not object to more frequent BLM inspections or visits to 
the mine sites. These operators stated that contact between BLM and the 
operator keeps the operator informed of BLM's concerns and educates BLM 
about the mine operations, concluding that this is desirable and can 
prevent misunderstandings or compliance problems.
    One operator expressed two concerns with the proposed rule. First, 
it is not clear that a mandatory inspection schedule is the most 
efficient use of BLM's limited resources. Second, BLM has considered 
its own inspection program in isolation from other State and Federal 
regulatory authorities. The operator asserted that a mandatory 
inspection frequency is inappropriate if it has no relationship to the 
risk or compliance problems associated with the site to be inspected. 
The operator pointed to an Office of Surface Mining rule that 
eliminated a mandatory inspection frequency for certain categories of 
coal mines ``to free resources that can focus on existing or potential 
problems at high risk sites.'' 59 FR 60876 (Nov. 18, 1994) (OSM rule 
reducing frequency of inspections for abandoned, but not completely 
reclaimed, coal mines). The operator concluded that the goal of 
quarterly inspections is a useful goal, but should not be written into 
the regulations as a mandatory requirement. The operator suggested as 
an alternative, BLM should consider regulatory language that directed 
the BLM field officers to target their inspection and compliance 
resources at ``high risk'' sites or at sites during critical periods 
(such as placement of liners or during construction periods). The 
operator also proposed that the regulations include a provision that 
would require a follow-up inspection when a major notice of 
noncompliance has been issued. These provisions would give the agency 
more flexibility and would be more effective in preventing unnecessary 
or undue degradation than a formulaic approach to compliance 
inspections.
    BLM fully intends to cooperate with other agencies with regulatory 
jurisdiction over mining operations. BLM agrees that it should 
coordinate both its inspection and enforcement activities with State 
agencies and with other Federal agencies. Such coordination can become 
formalized through memoranda of understanding of agreements, as 
suggested by the NRC Report, to prevent duplications of effort and to 
promote efficiency. See NRC Report at p. 104. Nevertheless BLM believes 
it important to codify its existing policy of four inspections a year 
for operations using cyanide or other leachate or which have a 
significant acid-generating potential. This policy has been effective 
so far, in BLM's judgment. The reference to the OSM rule is not on 
point because that rule dealt with situations involving abandoned coal 
mines where continued quarterly inspections serve no purpose.
    On a technical level, one commenter asked that BLM define the term 
``significant potential for acid drainage,'' asserting that there is a 
wide range of confusing and ambiguous applications of the concept of a 
mining operation that may or may not produce significant acid drainage. 
These can range from standard core drilling a high sulfide mineral 
deposit, to open trenching, to underground mining, to open pit mining 
to road or airport construction that will expose sulfide bearing 
country rock. Even where there may be high acid drainage potential, a 
small scale mining operation may not be threatening. Conversely, a 
large-scale operation in an area with low acid drainage potential might 
be significant concern. The commenter suggested that a table such as 
BLM has used in other parts of the proposed 3809 regulations would help 
sharpen BLM intentions and provide for uniform application between 
Resource Area, Districts, and States.
    BLM appreciates the comment, but does not believe it requires 
providing a definition of the concept of ``significant potential for 
acid drainage,'' but rather calls for common sense in administering 
this section of the rules.

Requests for Inspection

    Some commenters wanted BLM to provide opportunities for citizens to 
request inspections of mines. BLM does not view it necessary for its 
rules to provide citizens with the opportunity to request inspections. 
Anyone may inform BLM of the existence of problems and request 
inspections. BLM is not aware of a lack of responsiveness of its 
personnel that needs to be addressed in its rules.

Inspection--How?

    Commenters addressed the nature of inspections and the measurement 
of compliance. One commenter asserted that the practical realities of 
judging compliance with unachievable performance standards to eliminate 
impacts will create substantial problems for both the BLM and the 
mining industry. For instance, how will BLM inspectors determine when 
erosion control and acid generation management measures comply with the 
``minimize'' performance standard? Will each mine or mineral 
exploration site be judged on a case-by-case basis, subject to the 
individual inspectors' discretionary interpretation of what constitutes 
minimize? BLM disagrees that substantial problems will result. Trained, 
professional BLM inspectors will use their best judgment in determining 
whether operators comply with their approved plan of operations. 
Although the rules contain standards such as ``minimize'' rather than 
numeric standards, the plans will specify the activities that are 
allowable, and where appropriate, the acceptable parameters at a 
particular location.

Scope and Timing of Inspections

    Some commenters objected to the scope and timing of inspections, 
asserting the BLM inspector cannot inspect ``at any time'' as provided 
by proposed Sec. 3809.600(a). Some mining companies did not object to 
BLM's proposal for BLM employees to inspect mining operations on public 
lands, as long as such inspections are made at reasonable times--during 
normal

[[Page 70081]]

business hours. These commenters asserted that without a specific grant 
of authority from Congress, inspections must be conducted at reasonable 
times. Some commenters asserted that inspectors must notify the 
operator of their presence, and must permit representatives of the 
operator to accompany them during any such inspections. In addition, 
allowing inspectors unrestricted access to ``all structures, equipment, 
workings and uses located on public lands'' is too sweeping in its 
effect and creates significant safety concerns. Inspectors' access 
should be limited to property (both real and personal) having a 
reasonable relationship to BLM's role of ensuring compliance with the 
proposed revisions. Such limited access is especially appropriate in 
light of applicable Federal and State health and safety mandates.
    To perform its inspections properly, BLM needs to be able to 
inspect whenever, wherever, or whatever is required to assure 
compliance with its regulations on the public lands. Many mining 
operations are conducted around the clock, and problems can arise 
anytime and anywhere on a mine site. When appropriate, BLM inspectors 
may allow operator representatives to accompany them, but not to the 
extent of interfering with their inspections. BLM expects that its 
inspectors will ordinarily inform operators of their presence. BLM 
inspectors will conform to applicable health and safety mandates.

Who Should Inspect?

    A number of commenters asserted that those who enforce the 
regulations should not be the same as those who approve mine permits, 
if possible, and that the enforcement and regulatory processes should 
be otherwise kept apart. Such commenters were concerned about the 
independence of the inspectors. They suggested that BLM should consider 
dividing the agency into those who approve the mines and those who 
enforce environmental protection.
    Although BLM understands the commenters' concern, the final rules 
do not address who can or cannot perform inspections. BLM agrees that 
inspectors need to be impartial in enforcing the rules, but persons who 
are involved in making decisions on plans of operations should not 
necessarily be precluded from determining whether operators have 
complied with the plans. Such persons will be more familiar with what 
is allowable under a plan of operations than a person who has had no 
earlier involvement.

Inspection of Residential Structures

    A commenter asked that BLM revise proposed Sec. 3809.600(a) to 
indicate the extent and authority of BLM to inspect the inside of 
private residential structures owned by workers at the mine site. The 
commenter asked that BLM define residential structures for the purposes 
of this subpart because the referenced 43 CFR 3715.7 focuses on a wide 
variety of uses that are exclusive of mining. For example, the 
commenter asked, does this include unlimited BLM inspection of living 
accommodations for the work force at a medium-sized remote mine in 
Alaska with workers living in trailers/campers. The commenter requested 
that BLM define how this provision applies to large and small size 
mines where there are no alternative living provisions.
    As referenced in the rule for the convenience of readers, 
inspection of residences located on the public lands is covered by 43 
CFR 3715.7. Section 3715.7(b) provides that BLM will not inspect the 
inside of structures used solely for residential purposes, unless an 
occupant or court of competent jurisdiction gives permission. For 
additional information concerning BLM's occupancy rules, the reader is 
directed to the July 16, 1996 Federal Register preamble at 61 FR 37125.

Self-Monitoring

    Commenters opposed self-monitoring by operators. The commenters 
asserted that mine operators have a huge vested interest in ensuring 
that the results of such testing do not adversely affect operations at 
the mine. They questioned the reliability of asking someone in such a 
position to produce accurate and honest results. Also, commenters 
asserted that there are some mine operators who may be honest but 
unskilled in doing accurate scientific measurements.
    Although BLM will perform inspections, the rules also require 
monitoring plans under which operators perform monitoring. Despite the 
concerns expressed by commenters, operator monitoring can be an 
effective way to keep track of activities at an operation. Records have 
to be maintained, and falsification or misrepresentation is a violation 
of Federal law.

Proposed Sec. 3809.600(b)  Citizen Participation in Inspection

    One of the most controversial issues in the proposed rule, 
generating many comments, was the BLM proposal to allow members of the 
public to accompany BLM inspectors on mine inspections. Under the 
proposal, BLM would have been able to authorize members of the public 
to accompany a BLM inspector onto mining sites, as long as the presence 
of the public would not materially interfere with mining operations or 
with BLM's activities, or create safety problems. Under the proposal, 
when BLM authorized a member of the public to accompany the inspector, 
the operator would have been required to provide access to operations.

Opposition to BLM Proposal

    Many commenters opposed public involvement in the inspection 
process. Specific objections included:
    Undue influence--The only members of the public likely to accompany 
a BLM inspector onto a mine site are apt to be political opponents of 
the mine or other individuals with anti-mining agendas looking for a 
means to harass the mine operators. To allow ``biased 
environmentalists'' along will create unnecessary and undue influence.
    Safety considerations--Allowing the public on mine sites with BLM 
inspectors poses an unacceptably high risk. There is no guarantee or 
assurance of personal safety of the visitor. MSHA requires that the BLM 
inspectors have specific MSHA training in order to enter certain 
hazardous areas of the mine such as the pits and mill. Citizens do not 
have that level of training and would not be allowed in most areas of a 
mine. Untrained people could cause a serious accident, if not a 
fatality.
    Liability--BLM and mine operators could incur liability for injury 
or death of public or BLM personnel resulting from untrained people 
being allowed on mining sites. There could be BLM liability for public 
claims of exposure to toxic chemicals while at mine or mill sites. 
Increased risk to BLM personnel could also occur because of such 
personnel being responsible for untrained accompanying public. One 
commenter asserted that ``[i]t is unreasonable to require the company 
to carry liability insurance for the public at large on-site. It is 
also unfair to the BLM employee. There is no place for the public on a 
mine site unless the company provides the tour and is able to set 
access limits. It is unreasonable for the federal government to 
establish regulations that create unnecessary risk to the industry and 
the public, unless the government is willing to assume all liability 
created by this action.''
    Authority--Commenters asserted the ``BLM does not have the 
authority to allow citizen inspections and therefore, the citizen 
inspection provision should be deleted. FLPMA is silent on this issue 
and cannot be cited as providing

[[Page 70082]]

such authority. * * * . In fact, FLPMA prohibits such citizen 
inspections. * * *  Citizens cannot be permitted to accompany BLM 
inspectors without the specific consent of the mine operator.'' A 
commenter asserted that allowing members of the public to accompany BLM 
officials when they make inspections would be a Government 
authorization of trespass.
    Confidentiality--Allowing a member of the public to accompany BLM 
officials during a site inspection raises serious issues of 
confidentiality. ``There is nothing in the proposal to constrain 
citizens from disseminating and disclosing information about the 
confidential business materials and processes they may encounter during 
an inspection. Nothing could stop a potential competitor from 
accompanying BLM as a ruse to obtain such information, and due to the 
difficulty in proving disclosure of confidential information, it would 
be hard to rewrite this provision in a manner that would allow 
meaningful policing of a nondisclosure agreement.'' A company whose 
shares are traded on any stock exchange cannot allow member(s) of the 
public to gain insider information that would affect the trading of the 
company's stock. This issue is of critical importance during the 
initial exploration stages when a mineral discovery is being made.
    Vandalism and Theft--Small miners have a lot of supplies and small 
equipment at their remote mining camps. If non-BLM people visit the 
claims, it may result in loss of equipment, vandalism, or both. 
Citizens entering a mining operation could learn where each piece of 
equipment is located and what is vulnerable to acts of destruction.
    Workload--Public participation in field inspections could be a 
cumbersome task if multiple people show up at some remote site and need 
to be transported. ``BLM should also consider how the presence of the 
public may affect the conduct of an inspection. Certainly, a trained 
inspector who is familiar with a mine site will be considerably slowed 
by the presence of untrained members of the public. Longer inspections 
will require more inspectors or fewer inspections will be completed.''
    Comments also questioned how citizen involvement in inspections 
would work. For instance, if the BLM visits the site, is this the point 
when the proposed citizen inspector accompanies the BLM inspector? Will 
the operator be told that citizen inspectors are coming, and under what 
circumstances will the inspection be done?

Support for Public Participation in Inspections

    Some commenters supported public participation in inspection and 
monitoring. They noted that citizens should have access to public lands 
and that the BLM should allow citizens to accompany BLM employees on 
mine inspections to ensure that no violations of regulations occurs. 
One commenter asserted that public involvement in the inspections of 
mines is merely an extension of open government and should be part of 
the privilege of operating on the public lands. ``The land the mining 
companies use are public lands, which the public should be allowed to 
visit, especially during these inspections, because the mining company 
is present during these inspections. * * *  to balance that `undue 
influence' on the inspectors from the mining companies, the public 
should have their own people present too. This would create a balance 
among the miners, the public, and the government caught in between.'' A 
commenter supporting the BLM proposal agreed that public involvement in 
mine inspections must depend upon the caveat that there are no 
significant safety concerns.
    A commenter agreed that the public should be kept away from any 
potentially dangerous situations such as underground mines, but 
asserted there are safe opportunities for the public to view what is 
going on. Allowing inspections may have to be considered on a case-by-
case basis rather than opening everything up to inspections as was 
proposed. The commenter asserted that the public should be allowed to 
see what's happening, with some restrictions, and the mining industry 
should be willing to go along with that, especially since they are 
always complaining about the public not understanding the industry.

BLM Conclusion

    BLM has carefully considered all of the comments concerning members 
of the public accompanying BLM inspectors on inspections, as well as 
its own experience on those few occasions when members of the public 
did accompany BLM inspectors. BLM has decided not to finalize the 
provision as proposed. Many of the objections and risks pointed out by 
the commenters have merit. In addition, BLM's experience with allowing 
members of the public to accompany inspectors is that the site visits 
typically become more of a tour than an actual inspection, and that the 
inspector has to reinspect the operation to perform his or her job 
properly. Thus, BLM has concluded that the provision as proposed would 
not be workable.

Section 3809.900  Public Visits to Mines

    On the other hand, BLM firmly believes that the public should be 
able to observe activities on the public land, including mining 
operations. BLM has thus adopted a provision, to be codified as 
Sec. 3809.900, designed to allow public visits to mines once each year, 
but not in such a way to interfere with BLM or operator activities or 
to compromise safety or confidentiality. This provision is intended to 
respond to many of the objections raised by commenters. A visit will 
effectively be a mine tour, not an inspection, and operators can 
specify areas that will not be available, and limit the nature of the 
visit.
    Specifically, final Sec. 3809.900 provides that if requested by a 
member of the public, BLM may sponsor and schedule a public visit to a 
mine on public land once each year. The purpose of the visit is to give 
the public an opportunity to view the mine site and associated 
facilities. Visits will be limited to surface areas and surface 
facilities ordinarily made available to visitors on public tours. BLM 
will schedule visits during normal BLM business hours at the 
convenience of the operator to avoid disruption of operations. Under 
the final provision, operators must allow the visit and must not 
exclude persons whose participation BLM authorizes. BLM may limit the 
size of a group for safety reasons. An operator's representative must 
accompany the group on the visit. Operators must make available any 
necessary safety training that they provide to other visitors. BLM will 
provide the necessary safety equipment if the operator is unable to do 
so. Members of the public must provide their own transportation to the 
mine site, unless provided by BLM. Operators don't have to provide 
transportation within the project area, but if they don't, they must 
provide access for BLM-sponsored transportation.
    BLM believes that a once a year visit sponsored by BLM will not 
impose unreasonable burdens on operators, who typically already provide 
limited mine tours, or interfere with operators' rights to develop 
minerals under the mining laws. The provision is authorized by FLPMA 
sections 302(b), 303(a), and 310 (43 U.S.C. 1732, 1733, and 1740), as 
well as by the mining laws, 30 U.S.C. 22 (R.S. 2319).

Enforcement

    BLM is adopting its enforcement provisions generally as proposed. 
Each

[[Page 70083]]

section of the final rule is discussed below, together with comments 
received relating to the specific sections. First, however, BLM 
discusses the general enforcement comments and issues raised by 
commenters.

General Comments Received

    Commenters supporting the proposal stated that strengthening BLM's 
administrative enforcement mechanisms and penalties for enforcing its 
surface mining regulations will help to prevent unnecessary or undue 
degradation of public land resources by mining operations, and wanted 
particularly to endorse the enforcement and penalty provisions in 
Secs. 3809.600 and 3809.700. If BLM does not strengthen its 
administrative sanctions, the commenters asserted, it sends a message 
that BLM does not care about the health and welfare of the citizens and 
of the environment . Commenters stated that all of BLM's proposed 
changes are for naught if enforcement is not strengthened, and that 
stiff fines and the real threat of losing the right to mine are 
necessary to prevent harm to the taxpayer, environment, and local 
community. Commenters stated that if mining companies can't meet these 
standards they shouldn't be permitted to mine. Some commenters stated 
that mining companies have shown through the years that they will not 
conduct environmentally responsible operations unless forced to by law. 
Therefore, it is extremely important that enforcement be strong.
    BLM agrees that it is important that BLM have strong enforcement 
remedies available to assist in preventing unnecessary or undue 
degradation of the public lands. BLM recognizes that many operators 
conduct operations in a responsible manner in compliance with 
regulatory standards. These final rules will not impede such operators 
in continuing their lawful conduct. On the other hand, violations do 
occur, and BLM must be able to deal with those in a firm, but fair 
manner. The rules provide the flexibility for BLM to take enforcement 
action when warranted, or to defer such action if violations will 
otherwise be timely corrected.
    Commenters opposing the proposal asserted that BLM misled the 
public in the draft EIS by stating, as a ``gap'' not adequately covered 
in the existing 3809 regulations, that ``BLM lacks provisions for 
suspending or nullifying operations that disregard enforcement actions 
or pose an imminent danger to human safety or the environment.'' In 
support of its assertion, the commenter stated that previous 3809 
regulations adequately addressed the issue of enforcement, and referred 
to previous Sec. 3809 .3-2 ``Noncompliance,'' which provided that 
mining operations that were issued a notice of noncompliance pursuant 
to the regulations may be enjoined by a court order from continuing 
such operations, and may be liable for damages for unlawful acts. Other 
commenters pointed out that earlier BLM changes to its ``use and 
occupancy'' rules in 43 CFR part 3710 addressed the only enforcement 
needs BLM identified in 1992. Commenters also asserted that the BLM 
also fails to consider authority under RCRA, or authority delegated 
from the President of the United States to use the tools of CERCLA to 
address noncompliance and ``imminent dangers.''
    BLM disagrees with the comments. BLM's previous rules did not 
provide adequate enforcement authority. Notices of non-compliance were 
not self-enforcing, and BLM was unable to compel compliance without 
seeking to invoke the aid of the Federal courts, in what could be a 
lengthy and uncertain process, which usually did not mean immediate 
compliance. The NRC Report discussed this problem at some length and 
made a specific recommendation for strengthening BLM policy on the 
subject. See the NRC Report at pp. 102-04. These final rules will 
increase the incentives for operators to correct violations in a timely 
manner.
    Although BLM's ``use and occupancy'' rules adopted in 1996 (43 CFR 
subpart 3715) addressed certain abuses occurring on the public lands, 
those rules were somewhat limited in as to the types of activities 
regulated, focusing in large part on whether activities are 
``reasonably incident'' to mining. The enforcement rules adopted today 
are broader than the 1996 rules and cover all activities the operator 
engages in, and in particular whether unnecessary or undue degradation 
occurs.
    BLM acknowledges that RCRA and CERCLA provide a basis for 
enforcement of certain activities, and will work with EPA, as 
appropriate, so as not to duplicate enforcement actions, but BLM needs 
its own enforcement provisions as the land manager of the public lands.
    Some commenters asserted that other enforcement mechanisms exist. 
For instance, operations that pose an imminent danger to human safety 
on public lands, are under the Federal jurisdiction of the U.S. 
Department of Labor, Mine Safety and Health Administration, whose 
regulations at 30 CFR 57.1800 ``Safety Program,'' require operators to 
inspect each working place at least once each shift for conditions that 
may adversely affect safety or health, and promptly initiate 
appropriate action to correct such conditions. In addition, conditions 
that may present an imminent danger, require the operator to withdraw 
all persons from the area affected until the danger is abated. These 
inspections are required to be recorded, and are available to the 
Secretary of Labor, or his authorized representative. Others asserted 
that State regulatory inspection and enforcement are sufficient.
    BLM recognizes that other Federal and State enforcement agencies 
share the responsibility for regulating mining operations on the public 
lands, and that with respect to certain matters, other agencies will 
have the lead responsibility. BLM will work with the other agencies so 
as not to duplicate enforcement, and will refer violations to other 
agencies in appropriate cases. Notwithstanding this coordination, BLM 
believes it important to have its own enforcement actions available to 
use to assure the prevention of unnecessary or undue degradation of the 
public lands.
    Other commenters urged a program based on cooperation: Cooperate 
with the obviously good operators, enlist their support and help, 
create a feeling of trust, and follow through with a positive program. 
Some felt that current rules were not adequately enforced until recent 
years and that there was little effort to take serious violators to 
task. Some commenters thought that it is inappropriate to dwell on the 
one or two ``bad apples'' of mining, such as the Summitville situation 
in Colorado and the Zortman-Landusky situation in Montana. The 
commenter asserted that both of these were in States that have very 
stringent environmental laws and that if these laws had been enforced 
and monitored, the environmental problems probably would not have 
occurred.
    BLM agrees that it is important for BLM to cooperate with the 
industry, and vice versa. BLM intends to work with the industry to 
assure compliance with its rules, but is adopting the new rules to 
provide more effective, and a wider array, of remedies for use where 
needed. Although the high-visibility problems mentioned by the 
commenters perhaps could have been limited through better enforcement 
of existing authorities, these problems, as well as the recent overflow 
of a tailings dam at a gold mine in Romania, do show that mining 
operations sometimes carry a risk of serious environmental harm that is 
very expensive, or even impossible to repair. Stronger enforcement 
tools will allow more effective BLM intervention if other agencies need 
BLM assistance.

[[Page 70084]]

    A commenter stated that if BLM proceeds with this final rulemaking, 
BLM will indeed change the way the surface management regulations are 
working on the public lands. It will change the regulatory system from 
one which encourages cooperation between mine operators and regulatory 
agencies into one which relies upon confrontational enforcement 
authorities.
    BLM disagrees with the comment. BLM will continue to encourage 
cooperation between the regulated community and the regulators. 
Cooperation and seeking voluntary compliance will remain the top 
priority, but BLM must have, as the NRC Report has underscored, better 
access to an array of enforcement tools, for use when cooperation and 
voluntary compliance don't work.
    A commenter concluded that the information provided to the public 
in the draft EIS and preamble was misleading, self-serving, and 
violates the conditions of several court rulings, NEPA, Department of 
Interior policy and regulations, and the Administrative Procedure Act.
    BLM disagrees with this comment. BLM perceived a need to strengthen 
its enforcement remedies and so informed the public in the draft EIS 
and the proposed rule. The NRC Report also recognized the need for 
better enforcement mechanisms.
    Some commenters stated that BLM could make better use of the 
enforcement tools it currently possesses through improved 
implementation and training. BLM agrees that improved implementation 
and training are useful, but that does not negate the need for better 
enforcement tools.
    For consistency in enforcement, one commenter thought the same 
definitions and standards should be applied for all Federal lands, 
regardless of which agency managed the lands (for example, BLM, Forest 
Service), referring as an example, the 5-acre limitation on 
disturbance. A number of commenters repeated the theme that the BLM and 
the Forest Service should have comparable provisions and definitions.
    The goal of having BLM and the Forest Service use the same 
definitions and standards is laudable. However, it must be recognized 
that the two agencies operate under different organic statutes and have 
different management responsibilities. BLM will continue to work with 
the Forest Service to use common standards and procedures wherever 
practicable.
    Some commenters asserted that it is premature to conclude that 
additional enforcement and penalty provisions are needed in the absence 
of information (other than anecdotal) demonstrating whether existing 
authorities are being applied in a consistent and uniform manner.
    BLM disagrees that it should wait for further information before 
updating its enforcement regulations. The NRC Report did not indicate 
that action in this area was premature. The enforcement provisions 
adopted today provide practical methods for BLM to assure compliance 
with its rules. We hope that BLM will not have widespread need to use 
enforcement actions to compel compliance, but the availability of such 
remedies should help to prevent unnecessary or undue degradation of the 
public lands.

NRC Report Recommendation 6

    Recommendation 6 of the NRC Report stated that BLM should have both 
(1) authority to issue administrative penalties for violations of the 
hard rock mining regulations, subject to appropriate due process, and 
(2) clear procedures for referring activities to other Federal and 
State agencies for enforcement. NRC Report at p. 102. The committee 
found that administrative penalty authority should be added to the 
array of enforcement tools in order to make the notice of noncompliance 
a credible and expeditious means to secure compliance. NRC Report at p. 
103.
    Commenters asserted that the NRC concluded BLM does not have 
administrative penalty authority under current law. One State agreed 
that Congressional action would be necessary to give BLM authority to 
issue administrative penalties. Therefore, it considered NRC Report 
Recommendation 6 as a proposal for legislative change, not a change in 
the regulations. In addition, the commenter noted that the NRC Report 
endorsed only administrative penalty authority. The commenter concluded 
that proposed revisions to the 3809 regulations include broad new 
inspection and enforcement authority for BLM which it characterized as 
neither authorized by statute nor required to administer an effective 
program.
    BLM disagrees with the commenters' assertion that the NRC Report 
concluded that BLM did not have authority to establish administrative 
penalty authority. The NRC was neutral on the issue of BLM authority to 
establish administrative penalty authority. It expressly stated that 
BLM should seek additional authority from Congress only ``if statutory 
authorization is necessary'' NRC Report at p. 104. BLM also disagrees 
with the characterization of the recommendation as solely a proposal 
for legislative change. The NRC Report discussion made clear that, 
assuming BLM found that authority already existed for it, BLM should 
revise and expand the existing enforcement provisions in the 3809 
regulations to include administrative penalty authority for violations 
of the regulations. NRC Report at p. 104.
    Commenters concluded that because the NRC Report recommended no 
changes in regulatory provisions regarding inspections and enforcement 
apart from the administrative penalty recommendation, the proposed 
enforcement revisions are inconsistent with the recommendations of the 
NRC Report. Commenters suggested that in order to remain consistent 
with the recommendations of the NRC Report, BLM should defer any 
proposed changes in the inspection and enforcement provisions of the 
regulations until it has implemented those measures recommended by the 
NRC Report to improve efficiency and the use of staff and resources to 
implement the existing inspection and enforcement requirements.
    BLM disagrees that the final enforcement rules are inconsistent 
with the NRC Report recommendations. BLM construes the term 
``administrative penalty'' as used by the NRC to encompass the full 
range of proposed administrative sanctions, including suspension and 
revocation orders, as well as monetary penalties. Recommendation 6 was 
intended to make notices of noncompliance a credible and expeditious 
means of securing compliance (NRC Report at p. 103), and the NRC Report 
stated in connection with the Recommendation that an operator should be 
given the opportunity to rectify the circumstance of noncompliance (NRC 
Report at p. 104). This applies equally to suspension and revocation 
orders, as to monetary penalties. To the extent that the NRC Report 
recommendations simply do not address certain provisions of the final 
rule, such as inspection, no inconsistency exists with regard to the 
recommendations. Therefore, there is no need to defer changes to the 
inspection and enforcement rules for purposes of consistency.
    At the other end of the spectrum, some commenters asserted that the 
NRC Report supported establishing a ``mandatory'' enforcement program 
for regulating mining on Federal lands. They stated that the NRC Report 
affirms that a clear and effective enforcement is needed to replace the 
existing enforcement mechanisms, and DOI's

[[Page 70085]]

proposed rules need to be strengthened to achieve the goals of this 
recommendation. The commenters stated that this recommendation makes 
clear that BLM enforcement on the ground is imperative to protecting 
against unnecessary or undue degradation. The commenters focused on a 
passage of the NRC Report that states, ``[f]ield-level BLM and Forest 
Service personnel told the committee that they have experienced 
difficulty, in some cases, in enforcing compliance with regulations and 
the requirements of notices and plans of operations.'' NRC Report at p. 
102.
    The commenters concluded that the best way to ensure that BLM field 
personnel take the required measures to ensure compliance with the 
regulations is to make such enforcement mandatory, i.e. require BLM to 
take enforcement action and to assess fines against all observed 
violations. For instance, a commenter stated that operations that are 
clearly hazardous to the environment and to human health and public 
safety should be closed down until brought into compliance. Others 
suggested that any and all violations should be documented and, when 
the health of the watershed is threatened, operations ordered to cease 
until the operator can show compliance. Others urged enforcement to 
protect groundwater from violations. Without mandatory enforcement, 
commenters asserted BLM field personnel will experience the same 
ambiguity and confusion as to what degree of enforcement is 
appropriate.
    Commenters objected that the discretionary enforcement system 
proposed by BLM will be rendered meaningless by what they say are 
poorly trained agency staff who are more likely to ``try to work things 
out'' with representatives of the mining industry when conflicts over 
land regulations exist, rather than take action that would compel 
compliance with the regulations. In the commenters' view, even in the 
event of gross abuse of public resources at a mine site, BLM will not 
mandate that enforcement actions be taken. The commenters state that 
this approach to enforcing the proposed regulations fails to create a 
climate in which effective regulation is likely to take place. Thus, 
some commenters conclude, allowing wholly discretionary enforcement of 
violations out in the field would be inconsistent with the NRC Report 
recommendations.
    Commenters representing State regulatory authorities urged BLM to 
make enforcement discretionary, so that BLM and the States do not get 
caught up in unnecessary disputes as to what constitutes a violation 
and to avoid suits to compel compliance with duties established by the 
rules. Commenters supporting discretionary enforcement asserted that 
there are numerous ways to gain compliance, and issuing violations with 
associated civil penalties should be looked at as only one possible 
tool. Some stated that coordination on enforcement activities with 
State regulatory agencies is an absolute necessity, and States should 
be allowed to take the lead on enforcement. These commenters asserted 
that State enforcement can usually occur in a more timely manner, 
resulting in improved on the ground compliance.
    BLM agrees that a firmly administered enforcement program will 
improve compliance, but concludes such a program is possible without 
mandatory enforcement. Under the final rules, trained professional BLM 
inspectors will exercise their judgment and take enforcement actions 
when necessary. BLM has been concerned that mandating enforcement 
action for every violation, no matter how small, would clog the system 
with unnecessary administrative proceedings and delays, and tend to 
create the confrontational atmosphere that BLM, the States, and the 
regulated community wish to avoid. BLM certainly intends to coordinate 
with State regulators and, where appropriate to assure timely 
compliance, allow other Federal agencies and States to take the 
enforcement lead. What BLM has tried to do in these regulations is to 
make enforcement tools available to BLM inspectors so they will not be 
hamstrung by the lack of administrative remedies. Providing these tools 
will strengthen BLM enforcement, without requiring operators be cited 
for every violation. BLM also disagrees that the NRC Report recommends 
that BLM enforcement be mandatory rather than discretionary. To the 
contrary, the NRC Report suggests that BLM acknowledge and rely on 
enforcement authorities of other Federal, State, and local agencies as 
much as possible. NRC Report at p. 104.

Authority

    One theme addressed repeatedly by the comments is BLM's authority 
to promulgate the administrative enforcement rules. Some commenters 
agreed that enforcement is a necessary part of any regulatory program, 
but opposed the proposed enforcement rules as exceeding the BLM's legal 
authority under FLPMA. The commenters reasoned that FLPMA provides 
express enforcement authorities, both civil and criminal, and BLM is 
limited to the bounds of the statutory provisions. These commenters 
asserted that when Congress intends to grant administrative enforcement 
and penalty mechanisms, it provides specific statutory authority, which 
does not appear in FLPMA. For example, in the context of regulation of 
the mining industry, it has done so in the Federal Mine Safety and 
Health Act of 1977 and in SMCRA. Specific proposals that commenters 
asserted go beyond the BLM's authority include: Suspension and 
revocation orders, administrative civil penalties, and criminal 
penalties.
    Multiple provisions of FLPMA, and one under the mining laws, 
authorize the establishment of administrative sanctions, including 
suspension and revocation orders and monetary civil penalties. These 
include the first and last sentences of 43 U.S.C. 1732(b), 43 U.S.C. 
1732(c), the first sentence of 43 U.S.C. 1733, 43 U.S.C. 1740, and the 
authority to prescribe regulations under 30 U.S.C. 22 (R.S. Sec. 2319). 
Section 302(b) provides the Secretary the authority to publish rules to 
regulate the use, occupancy, and development of the public lands. The 
last sentence of section 302(b) directs the Secretary to take any 
action necessary to prevent unnecessary or undue degradation of the 
public lands. Section 302(c) provides for the suspension and revocation 
of instruments providing for the use, occupancy, and development of the 
public lands. The first sentence of 43 U.S.C. 1733 directs the 
Secretary to issue regulations with respect to the management, use, and 
protection of the public lands. The use of suspension and revocation 
orders and administrative civil penalties are an integral part of a 
regulatory scheme to manage and protect the public lands. 
Administrative enforcement orders and monetary penalties establish more 
immediate and tangible consequences than the possibility of future 
judicial enforcement after a referral to the Attorney General. All of 
these sanctions will help achieve compliance with subpart 3809, and 
will help prevent continuing unnecessary or undue degradation of the 
public lands when violations occur.
    BLM disagrees with the commenters' assertion that the provision 
allowing the Attorney General to seek the judicial imposition of 
injunctive or other judicial relief, 43 U.S.C. 1733(b), limits the 
Secretary's administrative authority. That section, together with a 
portion of 43 U.S.C. 1733(a) establishing criminal violations, provides 
affirmative authority for judicial enforcement. They do not, however, 
address or limit the scope of the Secretary's authority to regulate 
activities on the public lands

[[Page 70086]]

under other provisions of FLPMA and to establish administrative 
enforcement remedies.
    Commenters stated that BLM's previous subpart 3809 regulations 
reflect the correct interpretation of FLPMA's enforcement authorities, 
and discussed the history of the previous enforcement rules. In the 
Subpart 3809 regulations as originally proposed (41 Fed. Reg. 53428 
(Dec. 6, 1976)), Sec. 3809.2-5(b) would have authorized initiation of 
suspension of operations if BLM ascertained the existence of 
``significant disturbance of * * * surface resources * * * unforeseen 
at the time of filing the Plan of Operations.'' Id. at 53431. 
Suspension would have been obligatory for operations, or parts thereof, 
which were ``unnecessarily or unreasonably causing irreparable damage 
to the environment.'' Id. See also proposed Secs. 3809.4-1 and 3809.4-
2. Id. at 53432. These provisions were not included, however, when BLM 
reproposed the Subpart 3809 rules on March 3, 1980. 45 FR 13956, 
explaining: ``After further examination of the authority of the 
Secretary to issue these regulations, it has been decided that [BLM] 
will not unilaterally suspend operations without first obtaining a 
court order enjoining operations which are determined to be in 
violation of the regulations.'' Id. at 13958. Thus, the commenters 
concluded the Interior Department's contemporaneous interpretation of 
FLPMA was that the Department lacked administrative authority to 
suspend operations associated with mining claims without first 
obtaining injunctive relief pursuant to section 303(b) of FLPMA, 43 
U.S.C. 1733(b).
    BLM acknowledges that the previous rules reflected a permissible 
implementation of FLPMA, but not the only permissible one. The 
Department of the Interior did not state in 1980 that it had concluded 
the Secretary lacked legal authority to suspend mining operations by 
administrative order; it concluded only that it would not assert such 
authority in its subpart 3809 regulations. BLM's earlier policy 
approach was to ask the Attorney General to initiate a civil action 
under 43 U.S.C. 1733(b) for failure to comply with a notice of 
noncompliance, without the intermediate step of BLM issuance of an 
administrative order, for instance, directing an operator to suspend 
its operations. Section 1733(b), however, does not circumscribe the 
Secretary's actions before he or she asks that a civil action be 
initiated.
    The current rule takes a different approach from the previous 
rules, one that is also consistent with section 1733(b). Under these 
final rules, before seeking judicial enforcement BLM may issue 
enforcement orders in addition to issuing a notice of noncompliance, 
including issuance of suspension orders, plan revocations, or monetary 
penalties. If an operator does not comply with any of these 
administrative orders, the Secretary may then seek judicial enforcement 
under section 1733(b).
    Commenters also asserted that Congress apparently limited BLM's 
enforcement authority because it authorized the Secretary of the 
Interior to achieve ``maximum feasible reliance'' upon State and local 
law enforcement officials in enforcing the Federal laws and regulations 
``relating to the public lands or their resources.'' 43 U.S.C. at 
1733(c)(1).
    BLM disagrees with the commenter's interpretation of FLPMA. Section 
1733(c)(1) authorizes the Secretary of the Interior to enter into 
contracts for the assistance of and use appropriate local officials in 
enforcing Federal laws and regulations relating to the public lands or 
their resources. That section does not constrain the Secretary from 
establishing necessary enforcement regulations.
    Commenters asserted that BLM's reliance on section 302(c) of FLPMA, 
43 U.S.C. 1732(c), to justify suspensions or revocations of plans is 
misplaced. FLPMA section 302(c) provides suspension and revocation 
authority for ``instrument[s] providing for the use, occupancy or 
development of the public lands.'' The commenter asserted that a plan 
of operations under the 3809 regulations is not ``an instrument 
providing for the use, occupancy, or development of the public lands * 
* *,'' because the mining laws already authorize the ``use, occupancy, 
or development of the public lands.'' In the commenter's view, the plan 
of operations is simply an administrative means of regulating that 
development activity to prevent unnecessary or undue degradation of the 
public lands as addressed by FLPMA. A commenter asserted, moreover, 
that Section 302(c) is inapplicable to mining operations because 
section 302(b) provides that no provision of the Act shall ``in any 
way'' amend the mining laws unless that provision is specifically 
cited.
    BLM disagrees with the assertion that plans of operations are not 
instruments providing for the use, occupancy, or development of the 
public lands, and that suspension or revocation of a plan of operations 
under FLPMA section 302(c) interferes with an operator's rights under 
the mining laws. Rights under the mining laws are subject to the FLPMA 
section 302(b) requirement to prevent unnecessary or undue degradation 
of the public lands. Approval of the plan of operations is the key to 
allowing use, occupancy, and development in a manner that will prevent 
unnecessary or undue degradation. Until BLM approves a plan of 
operations, an operator cannot use, occupy or develop its mineral 
interests in the public lands even if it has rights under the mining 
laws. The next-to-last sentence of section 302(b) of FLPMA makes this 
clear when it says, in pertinent part, that ``except as provided * * * 
in the last sentence of this paragraph,'' nothing in FLPMA amends the 
1872 Mining Law or impairs the ``rights of any locators or claims under 
that Act.'' The ``last sentence of this paragraph'' it refers to sets 
out the Secretary's duty to protect the public lands from unnecessary 
or undue degradation. A plan of operations is the instrument allowing 
an operator to proceed with its use, occupancy or development of public 
lands consistent with the duty not to unnecessarily or unduly degrade 
the lands.\6\ Suspension or revocation doesn't interfere with operator 
rights under the mining laws because such rights are dependent upon 
operator compliance with the approved plan. Accordingly, section 302(c) 
is a statutory basis for the sections providing for suspension and 
revocation of plans of operation.
---------------------------------------------------------------------------

    \6\ The Interior Board of Land Appeals has held that the 
requirements of 43 U.S.C. section 1732(c) are not restricted to 
instruments issued by BLM under section 1732(b). ``Inclusion of the 
fourth proviso [of 43 U.S.C. section 1732(c)] makes it clear that 
Congress intended this requirement to extend to all land use 
authorizations issued by the Department under any law for lands 
managed by BLM.'' James C. Mackay, 96 IBLA 356 at 365.
---------------------------------------------------------------------------

    A commenter requested that the new regulations clearly identify 
when BLM will refer a documented noncompliance to the Department of 
Justice for initiation of judicial action. The commenter stated that 
this information should also describe and evaluate the consequences of 
any differences between the various Department of Justice units having 
jurisdiction over mining and how these differences can be resolved to 
assure that all similar documented noncompliances are treated in a 
similar manner.
    The standards for referral to the Department of Justice for 
judicial enforcement are not covered by subpart 3809. This will either 
be handled on a case-by-case basis or be the subject of BLM guidance.
    A number of comments supported BLM's proposed enforcement rules. 
For instance, EPA supported BLM's

[[Page 70087]]

proposed regulations at Secs. 3809.601 and 3809.602, including the 
authority for BLM to suspend operations, and at Secs. 3809.702 and 
3809.703 to issue administrative civil penalties based on non-
compliance with the subpart. Commenters stated that BLM clearly needs 
to have the tools available to shut down a ``renegade'' mining 
operation or jail a ``renegade'' operator. One commenter pointed out 
that when the BLM issues a Record of Decision based on a final EIS, the 
operator is responsible for carrying out the Plan as specified, and if 
the operator makes changes without BLM analysis and approval, the BLM 
should have the authority to levy fines and suspend operations. BLM 
agrees with these comments.

Permit Blocks

    A number of commenters recommended adoption of a rule which would 
prevent BLM from approving future plans of operation for operators with 
unresolved noncompliances until the violations are corrected. A 
commenter stated that the new BLM rules--while certainly an 
improvement--do not allow the agency to reject an operation outright. 
These commenters asserted that BLM needs the ability to block 
historically irresponsible operators, as well as parent and subsidiary 
companies, from obtaining new mining permits. These commenters believed 
that denial of plans of operations is an important tool to protect 
public lands and waters from environmental damage. One State suggested 
language preventing the operator from obtaining a permit anywhere on 
public lands until all compliance issues have been resolved to the 
satisfaction of the BLM. That State said it uses a permit block 
section, and has found it to be useful, especially in addressing the 
repeat offender issue.
    BLM has decided not to institute such a system at this time. The 
improvements in the enforcement mechanisms contained in this final rule 
have the promise, BLM believes, to satisfactorily address all 
enforcement issues. They should be given the chance to work before 
something as administratively complex and cumbersome as a ``permit 
block'' system is considered further.

Citizen Petitions and Suits

    A commenter suggested that citizens and tribes should have the 
right to petition for inspection and enforcement in order to spur the 
BLM into fully implementing its FLPMA obligations.
    BLM disagrees that a rule is needed to address the commenter's 
concerns. Individuals can presently request BLM conduct an inspection 
and can obtain copies of inspection reports. The commenter did not show 
that BLM is not adequately responding to citizen or tribal requests to 
inspect. As explained earlier in this preamble, BLM has decided that 
enforcement should remain discretionary.
    A number of comments supported a provision providing citizens the 
right to sue to correct violations. Such a provision is beyond BLM 
authority and would require a legislative change.

Additional Definitions Requested

    Commenters suggested that BLM define a number of the terms used in 
the enforcement context. These include ``noncompliance order'' as used 
in final Sec. 3809.601(a), ``suspension orders'' as used in final 
Sec. 3809.601.(b), ``immediate, temporary suspension'' as used in final 
Sec. 3809.601(b), ``imminent danger or harm'' as used in final 
Sec. 3809.601(b)(2)(ii), ``violation'' as used in final Sec. 3809.702, 
and ``pattern of violations'' as used in final Sec. 3809.602(a)(2). 
Specifically, the commenter stated that the BLM standard or threshold 
must be included to avoid ambiguity and arbitrary and capricious 
application by the responsible BLM field official.
    BLM declines to add the suggested definitions. The meaning of many 
of the terms are apparent from their context. Implementation will occur 
on a case-by-case basis. Where necessary BLM will issue guidance to 
assure consistent application of the enforcement provisions.

Section-Specific Issues and Comments

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

    Final Sec. 3809.601 specifies the kinds of enforcement orders BLM 
may issue, when they can be issued, the contents of such orders, and 
when they will be terminated. For the most part, the final rule tracks 
the proposal. Final Sec. 3809.601(a) allows the issuance of 
noncompliance orders for operations that do not comply with provisions 
of a notice, plan of operations, or requirement of subpart 3809. Final 
Sec. 3809.601(b)(l)(i) provides that the BLM may order suspension of 
operations if the operator fails to timely comply with a noncompliance 
order for a significant violation. 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. Thus, unless the violation may result in harm or danger or 
substantially departs from the notice or plan, BLM cannot suspend 
operations. Before issuance of a suspension order, BLM is required to 
notify the recipient of its intent to issue a suspension order; and to 
provide an opportunity for an informal hearing before the BLM State 
Director to object to a suspension. These latter procedures are 
intended to satisfy the procedural requirements of FLPMA section 
302(c).
    Final Sec. 3809.601(b)(2) provides that BLM may order an immediate, 
temporary suspension of all or any part of operations for noncompliance 
without issuing a noncompliance order, advance notification, or 
providing an opportunity for an informal hearing if an immediate, 
temporary suspension is necessary to protect health, safety, or the 
environment from imminent danger or harm. This provision implements the 
third proviso of FLPMA section 302(c). Being mindful of the importance 
of an advance opportunity to object, the final rule limits temporary 
immediate suspensions to situations involving imminent danger, that is, 
situations where the harm could occur before a hearing would be held 
and a decision issued.
    The final rule establishes one presumption. BLM may presume that an 
immediate suspension is necessary if a person conducts notice- or plan-
level operations without having an approved plan of operations or 
having submitted a complete notice, as applicable. BLM believes that 
operations that have not undergone the required BLM review and 
approval, including operator preparation and submittal of detailed 
plans, are presumed to be operating without the care necessary to 
operate properly, and thus constitute an imminent danger to the 
environment. In a clarifying change from the proposal, the final rule 
references the sections requiring plan approvals and notice submittals.
    Final Sec. 3809.601(b)(3) provides that BLM will terminate a 
suspension order when BLM determines the violation has been corrected. 
The proposed rule would have had BLM terminate the suspension order no 
later than the date a person corrects the violation, but unless BLM is 
present, it would not be able to terminate the suspension on that date. 
Thus, the final rule bases the termination on the date BLM determines 
the correction has occurred.
    Final Sec. 3809.601(c) specifies the contents of enforcement 
orders, including: (1) How an operator failed to comply with the 
requirements of subpart 3809; (2) the portions of operations, if any, 
that must cease; (3)

[[Page 70088]]

the corrective actions to be taken, and the time, not to exceed 30 
calendar days, to begin such actions; and (4) the time to complete 
corrective action. A minor change from the proposal clarifies that the 
30 days to begin corrective action are calendar days.
    Commenters stated that for the mainstream mining industry, a notice 
of noncompliance will almost invariably resolve the problem without 
protracted controversy. These commenters asserted that mine operators 
have enormous incentives to maintain positive and cooperative relations 
with the Federal land management agencies, and that judicial 
enforcement is pursued in rare instances of recalcitrant operators, 
usually where individuals are engaging in sham operations. The 
commenters conclude that the rare use of judicial enforcement 
authorities in the past attests to the lack of need for new enforcement 
authorities today.
    BLM agrees that in many instances notices of noncompliance will 
lead to successful resolution and abatement of violations. There will 
be instances, however, where notices of noncompliance will not 
completely resolve the issue, and the danger of harm will continue. 
That is when the other remedies can prove useful. The rare use of 
judicial enforcement in the past may be attributed to the difficulty in 
successfully initiating civil actions rather than the lack of need for 
such actions.
    Commenters asserted that in both subparagraphs of Sec. 3809.601(b), 
BLM officials should not be authorized to shut down operations unless 
there is a significant violation that both may result in environmental 
harm and that substantially deviates from the completed notice or 
approved plan of operations.
    BLM disagrees with the comment. BLM believes that a suspension is 
warranted under Sec. 3809.601(b)(2) in either situation when an 
operator fails to correct the significant violation within the allotted 
time. The danger of environmental or other harm from an unabated 
violation justifies a suspension. BLM also believes that it should be 
authorized to direct an operator to suspend activities that 
substantially deviate from what was approved.
    A commenter stated that although FLPMA allows BLM to use specific 
enforcement mechanisms in cases when the operator is noncompliant, the 
proposed regulations exceeded BLM authority by giving BLM the power to 
suspend and nullify operations. The commenter asserted FLPMA intended 
to limit BLM's enforcement capability in order to specifically promote 
the dissemination of information and to advise the public and to use 
administrative resolution rather than prosecution for violation.
    BLM disagrees with the comment. BLM has a duty to take any action 
needed to prevent unnecessary or undue degradation as stated in section 
302(b) of FLPMA. Suspending operators that are causing unnecessary or 
undue degradation is within BLM's authority.
    Commenters stated that the proposed rules are entirely too vague 
and leave too much power in the hands of a few BLM employees. For 
instance, the rules would leave to the BLM inspector's discretion just 
what is imminent danger or harm to the public health, safety or 
environment. Commenters asserted that no business should be shut down 
without a ruling by a Federal judge.
    BLM disagrees with the comment. In implementing the procedure 
contemplated by FLPMA section 302(c), trained professional BLM 
inspectors will exercise their judgment carefully. In the absence of 
imminent danger, an operator will have the opportunity to raise 
objections to the State Director. And operators will be able to 
immediately appeal temporary immediate suspensions to the Interior 
Board of Land Appeals. Although judicial rulings may ultimately occur, 
the BLM has the initial responsibility to administer the provisions of 
FLPMA, including section 302(c).
    Commenters asserted that the proposed rule allowing BLM to order a 
temporary suspension without issuing a noncompliance order violates the 
principle of due process to which all individuals and companies are 
entitled to under United States Law. Commenters also asserted that 
suspension and revocation orders indefinitely shutting down entire mine 
operations would ``impair the rights of'' locators under the mining 
laws. These commenters stated that such enforcement authorities cannot 
reasonably be implied from the general mandate to ``prevent unnecessary 
or undue degradation'' of the public lands. Furthermore, the commenters 
stated that if finalized as proposed, a temporary suspension order 
presumably would be considered final agency action since there exist no 
provisions for a hearing either prior to or within a reasonable time 
after the suspension. Thus, the party adversely affected by such action 
may seek review and relief from a Federal District Court pursuant to 
the APA.
    BLM disagrees with the comment. It is well established that due 
process may be, as here, satisfied through an administrative appellate 
process. Any BLM enforcement order may be appealed to the Interior 
Board of Land Appeals, and a stay may be requested under the provisions 
of 43 CFR 4.21. Thus a temporary suspension is not final agency action, 
for which review is available in Federal Court. Rights of claimants 
under the mining laws are not impaired by BLM enforcement actions 
because such rights do not include the right to operate in a manner 
that causes unnecessary or undue degradation.
    Commenters suggested that BLM revise proposed Sec. 3809.601(b) to 
substitute the term ``unnecessary or undue degradation'' for language 
like ``imminent danger or harm to the environment.'' The commenters 
stated that there is only one primary authority for BLM to issue a 
noncompliance finding or temporary suspension--the approved plan of 
operations is not being followed and BLM has determined that the 
variance is significant.
    BLM declines to accept the suggestion. Although BLM recognizes that 
failure to comply with the regulations and an approved plan of 
operations constitutes unnecessary or undue degradation, the suspension 
rules implement FLPMA section 302(c) as well as FLPMA section 302(b). 
BLM believes that the terminology of the final rule provides a better 
sense of when suspension orders can be issued than the use of the 
phrase ``unnecessary or undue degradation.''
    The commenters also asked that BLM and the Forest Service use 
comparable standards for non-compliance and temporary suspension. BLM 
declines because the two agencies' regulations are based on different 
authority.
    A commenter requested that BLM revise proposed Sec. 3809.601 to 
identify the responsible BLM official for issuing noncompliance and 
suspension orders, and to include the place and time of any appeal so 
[that] there is a clear understanding of the DOI administrative appeal 
process. The commenter stated that because the appeal process varies 
according to the level of the BLM official signing the order, it is 
important for everyone to know that process.
    BLM declines to modify the rules as suggested. In addition to 
subpart 3809 specifying appeal procedures in final Sec. 3809.800, each 
enforcement order ordinarily will inform the recipient of his or her 
appeal rights.
    One commenter asserted that the suspension order process proposed 
by Sec. 3809.601 is too cumbersome for a declining BLM workforce. The 
commenter requested that BLM clarify that the BLM notification of its 
intent to issue a suspension order

[[Page 70089]]

(Sec. 3809.601(b)(1)(ii)) can be combined with notification of the 
opportunity for an informal hearing (Sec. 3809.601(b)(1)(iii)).
    The process set forth in final Sec. 3809.601(b) is necessary to 
implement the notice and hearing requirement of FLPMA section 302(c). 
BLM agrees with the commenter that the BLM notification of its intent 
to issue a suspension order (Sec. 3809.601(b)(1)(ii)) can be combined 
with notification of the opportunity for an informal hearing 
(Sec. 3809.601(b)(1)(iii)).
    One commenter recommended that once an operator files bankruptcy, 
the operation should automatically receive a record of non-compliance 
subjecting all notices and plans of operations to a higher level of 
compliance enforcement (more frequent inspections), bonding, and 
penalties. Another commenter suggested the rule include a provision for 
EPA or a State environmental agency to petition BLM to suspend 
operations or withdraw an operating plan if there is a continued 
history of non-compliance with environmental regulations.
    BLM agrees that the operations of an entity that files for 
bankruptcy should be subject to continual scrutiny to assure that 
regulatory obligations are satisfied. BLM also agrees with the 
commenter that it is important to assure the adequacy of the financial 
guarantee of an operator in bankruptcy. BLM believes, however, that 
enforcement action should await the occurrence of violations, and that 
a bankruptcy filing does not necessarily represent the existence of 
violations. Once a violation occurs, BLM will take whatever action is 
best to assure that the violation will be corrected.
    A commenter stated that under 43 U.S.C. 1732(c), an immediate 
temporary suspension is separate from, rather than a subtype of, a 
suspension. The commenter recommended that, for the sake of more 
clearly distinguishing between the two types of suspension orders, 
change the labeling in Sec. 3809.601 to the following: (a) 
Noncompliance order; (b) Suspension order; (c) Immediate temporary 
suspension order; and (d) Contents of enforcement orders. These 
proposed subdivisions would more faithfully represent the intent of 43 
U.S.C. 1732(c) and also make this section more understandable to the 
public by clearly differentiating between a suspension order and an 
immediate temporary suspension order, which is one of the goals of 
rewriting these regulations in plain language. In addition, this 
proposed labeling would allow for a complete one-to-one correlation 
with the set of orders identified in 43 CFR 3715.7-1, with the 
exception of the suspension order being called a cessation order in 
Sec. 3715.7-1.
    BLM has chosen not to make these suggested changes because the 
suggested reordering does not appear to be much different from the 
final and proposed rules, and even with the changes there would not be 
a complete correlation with subpart 3715.
    A commenter requested that BLM revise proposed Sec. 3809.601 to 
provide that BLM is liable for all owner/operator documented costs from 
an arbitrary and capricious suspension order that is overturned during 
the administrative appeal process or from litigation.
    BLM does not intend to take enforcement actions in an arbitrary and 
capricious manner. Furthermore, it is not authorized to assume monetary 
liability in such circumstances. There are situations in which, either 
through Congressional statute or court-evolved common law, the 
regulated community may sometimes recover their costs or attorneys fees 
if they are successful in overturning an agency regulatory decision. 
But agencies may not make commitments to spend money or provide 
compensation that has not been authorized or appropriated by Congress.
    A commenter objected that the feature of the proposed rule that 
would authorize BLM to issue temporary immediate suspensions without 
first holding an informal hearing violates an operator's due process 
rights. BLM disagrees. Section 302(c) of FLPMA, 43 U.S.C. 1732(c), 
specifically provides for the issuance of temporary immediate 
suspensions prior to a hearing. Final Sec. 3809.601(b)(2) carries out 
the statutory provision. The statute and the implementing regulation 
are limited to situations where BLM determines that such action is 
necessary to protect health, safety or the environment. The rule adds 
the further gloss that temporary immediate suspensions not occur unless 
imminent danger or harm exists. Thus, temporary immediate suspensions 
are intended to address those situations where a delay in making the 
suspension effective could exacerbate existing or imminent harm. Under 
such circumstances and well-established case law, an operator's due 
process rights are fully satisfied by the operator's ability to seek 
administrative review of the temporary suspension from the Interior 
Board of Land Appeals, including the right to request a stay of the BLM 
action under IBLA procedures set forth at 43 CFR 4.21.

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

    Final Sec. 3809.602 tracks the proposed rule and implements the 
revocation portion of FLPMA section 302(c). It provides 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 violation was not corrected within the time 
specified in an enforcement order issued under Sec. 3809.601; or (2) a 
pattern of violations exists at the operations. The finding is not 
effective until BLM notifies the operator of its intent to revoke the 
plan or nullify the notice, and BLM provides an opportunity for an 
informal hearing before the BLM State Director. The final rule also 
provides 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.
    A commenter asserted that although revocation of a plan of 
operations is the last step in the enforcement process, it must be used 
in those circumstances in which other enforcement orders have failed to 
compel compliance with the regulations governing mining on public 
lands. The commenter stated that BLM must be willing to stop an 
operation in which major environmental damage is occurring, or other 
impacts are taking place, and all other efforts to stop the problem 
have failed. The commenter requested that proposed Sec. 3809.602(a) 
should be revised to change the ``may'' to ``shall'', to make permit 
revocation mandatory. The commenter stated that BLM's mandate to 
prevent ``unnecessary or undue degradation'' is not discretionary--it 
is a mandatory duty, and cited Sierra Club v. Hodel, 848 F.2d 1068 
(10th Cir. 1988). According to the commenter, this revision would also 
be consistent with the NRC Report recommendations.
    BLM declines to make permit revocation mandatory. BLM agrees that 
it is important to achieve operator compliance with BLM regulations, 
and has provided a range of actions it can take, including 
administrative enforcement orders, such as suspension and revocation, 
administrative penalties, and judicial intervention. The appropriate 
remedy may differ in individual cases and the rules provide flexibility 
for BLM to use whichever one will cause the violations to be corrected. 
BLM agrees that it is required to prevent unnecessary or undue 
degradation of the public lands, but concludes that it

[[Page 70090]]

has some discretion in how to achieve that goal, and the final rule is 
a sound exercise of that discretion.
    A commenter suggested that BLM revise proposed Sec. 3809.602 to 
inform operators expressly that the BLM will revoke their plan of 
operations or nullify their notice if the financial guarantee is not 
properly maintained.
    BLM does not accept the suggestion. As mentioned in the previous 
response, BLM will do what is necessary to achieve compliance, but BLM 
has a variety of means to do so. Plan revocation is but one such means.
    Among those objecting to the policies embodied in the proposal, 
commenters asserted that it is too harsh for BLM to be able to revoke a 
plan of operations for a single violation.
    BLM generally agrees that a plan of operations should not be 
revoked on the basis of one violation. If the violation is significant 
enough, however, with the potential to cause serious harm, and the 
operator refuses to correct the violation, BLM needs to have the option 
to consider whatever remedy-including revocation-that it believes will 
best achieve compliance.
    A commenter suggested that BLM revise proposed Sec. 3809.602(c) to 
clarify that operators continue to be authorized to use equipment and 
perform necessary reclamation following the suspension or revocation of 
a plan of operations. The commenter questioned what form of 
authorization BLM will use, who is the responsible BLM official to 
issue that authorization, and the extent, if any, for public and other 
Federal, State, local, native, and private surface ownership input to 
the new BLM authorization.
    Revocation of a plan of operations does not terminate an operator's 
obligation to satisfy outstanding obligations. The authorization to 
perform the activities to fulfill such obligations can derive from the 
original plan, or be part of the order revoking the plan. Because this 
would be a continuation of existing obligations, BLM does not 
contemplate formal public participation. On the other hand, BLM intends 
to coordinate with State and other interested Federal agencies before 
revoking a plan of operations.

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

    Final Sec. 3809.603 deals with 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 previous 
service provision appeared in Sec. 3809.3-2(b)(1).
    Under the final rule, service will be made on the person to whom it 
is directed or his or her designated agent by different methods. 
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.
    Service could also occur by 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. In response to a comment, the final rule requires 
that if service occurs at the project area, BLM will send an 
information copy by certified mail to the operator or the operator's 
designated agent. This will assure that regardless of who receives the 
copy of the order at the project area, operator management will receive 
a copy.
    The service rules 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 is served.
    The final rule allows a mining claimant or operator to designate an 
agent for service of notifications and orders. A written designation 
has to be provided in writing to the local BLM field office having 
jurisdiction over the lands involved.
    Commenters objected to proposed Sec. 3809.603(a)(1), which provided 
that BLM may serve an enforcement action on ``an individual at the 
project area who appears to be an employee or agent of the operator.'' 
Commenters asserted that this method of service, particularly 
considering the seriousness of enforcement actions under these 
regulations, does not comply with fundamental principles of due 
process. These commenters recommended that this section be revised to 
require BLM to serve notices by certified mail or personally on the 
person the operator designates as authorized to accept service.
    BLM agrees in part. The final rule will continue to allow service 
to be complete based on actions at the project area because persons 
conducting activities at the site of an operation will ordinarily be 
responsible. BLM agrees, however, that an information copy should be 
promptly mailed to the operator or his or her agent to assure that 
responsible management persons not located at the mining site are 
notified of the BLM actions.
    Commenters also suggested that BLM revise proposed Sec. 3809.603 to 
require BLM to provide a copy of any noncompliance or suspension order 
to all other Federal, State, and local entities that have permits or 
authorizations and Native entities and private landowners of the 
surfaces that are directly linked with the BLM-approved plan of 
operations.
    BLM declines to accept the suggestion to put such a requirement 
into its rules. BLM intends to consult with other regulators, both 
State and Federal, when it takes enforcement action. Private entities, 
however, will not ordinarily be party to enforcement actions and will 
not necessarily receive copies of enforcement orders.

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

    Final Sec. 3809.604 is adopted as proposed. Final Sec. 3809.604(a) 
provides that 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 
an operator from conducting operations on the public lands in violation 
of this subpart, and collect damages resulting from unlawful acts. This 
reflects the judicial remedies provided in 43 U.S.C. 1733(b), and 
informs the regulated community of the tie between BLM administrative 
enforcement and subsequent judicial actions.
    The final rule makes clear that judicial relief may be sought 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.
    A commenter recommended that civil actions be brought by States 
rather than in Federal Court as specified in proposed Sec. 3809.604 
because State procedures tend to be quicker, more cost-effective, and 
more outcome-based than Federal actions, and that implementation of 
Federal enforcement will be delayed by the existing DOI appeals 
process.
    Final Sec. 3809.604(a) identifies the availability of civil actions 
in United States District Courts, as provided in FLPMA section 303(b). 
It does not

[[Page 70091]]

preclude States from enforcing their programs in State courts. BLM will 
work with State regulators to determine which entity, State or Federal, 
should have the enforcement lead, and the appropriate judicial forum to 
initiate any required civil action.
    Final Sec. 3809.604(b) specifies that if a person fails to timely 
comply with a noncompliance order issued under Sec. 3809.601(a), and 
remains in noncompliance, BLM may order that person to submit plans of 
operations under Sec. 3809.401 for current and future notice-level 
operations. This paragraph continues the requirement contained in 
previous Sec. 3809.3-2(e).

Section 3809.605  What Are Prohibited Acts Under This Subpart?

    Final Sec. 3809.605 is a new section that lists certain prohibited 
acts under subpart 3809. The list includes the most significant and 
most commonly violated prohibitions, but is not intended to be 
exhaustive. BLM reserves the right to take enforcement action on other 
violations of the requirements of this subpart that are not 
specifically listed in this section. None of the items on the list are 
new requirements; all were included in the proposed rule.
    We added this section in response to comments. Some commenters 
suggested that a list of prohibited acts would be beneficial to 
regulated parties by alerting them to potential pitfalls. Other 
commenters suggested that the list would be helpful to those engaged in 
carrying out the enforcement program under this subpart, such as BLM 
rangers, U.S. District Attorneys, and judges, by providing an easily 
referenced and clearly stated list of the most common violations on 
which to base enforcement actions, prosecutorial decisions, and 
judgments.

Sections 3809.700 Through 3809.703  Penalties

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

    Final Sec. 3809.700 tracks the proposal and describes criminal 
penalties associated with violations of subpart 3809. Final 
Sec. 3809.700 identifies 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. This regulation is intended to inform the public 
of existing criminal statutory provisions. These statutes exist 
independent of subpart 3809, and persons can be prosecuted, and have 
been prosecuted, regardless of whether BLM promulgates this section. 
Such prosecutions can occur regardless of whether BLM identifies 
specific prohibited acts, as some commenters urge. The necessary 
element of a ``knowing and willful'' violation can be satisfied in a 
specific case regardless of a regulatory listing of such acts by BLM. 
Such a listing is not required by 43 U.S.C. 1733(a).
    Final Sec. 3809.700(a) specifies 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.
    Final Sec. 3809.700(b) specifies 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.
    Many of the comments supporting strengthened enforcement also 
supported the criminal sanctions described in proposed Sec. 3809.700. 
BLM received a considerable number of comments, however, objecting to 
the criminal sanctions provision, proposed Sec. 3809.700. Commenters 
asserted that provision is beyond the scope of BLM's FLPMA authority 
and would unintentionally criminalize actions that are not 
appropriately subject to prosecution. Commenters stated that these are 
rules and not laws, so no criminal penalties should be assigned by 
these rules. Under no circumstances should the BLM or the Department of 
the Interior be given authority to file criminal charges against a 
citizen of this country.
    These rules do not establish new criminal sanctions, and BLM itself 
does not file criminal charges; only the Department of Justice may do 
that on behalf of the United States. These rules are intended to bring 
existing criminal provisions to the attention of the regulated 
community, and for that reason are included in subpart 3809. The 
conduct that is criminal is exactly that provided for in 43 U.S.C. 
1733(a)
    Some commenters objected to the establishment of ``across the 
board'' criminal penalties for any knowing and willful violations of 
the requirements of subpart 3809. Commenters stated that this is 
unjustified overkill, and that in no other public land management 
program does BLM establish that it is a crime to violate any provision 
of an entire subpart. Rather, commenters asserted, in other public land 
management programs, BLM has taken the essential effort of distilling 
those substantive violations that will be subject to criminal 
sanctions. Commenters asked that the agency specifically identify and 
list in the rule those actions by operators which are so serious as to 
justify criminal sanctions, or else delete the entire section. The 
commenters asserted that the preamble must state the basis for BLM's 
conclusion that it needs, to assure compliance, to have the threat of 
criminal penalties for such ``crimes'' as: submitting an incomplete 
plan of operations; holding financial guarantees that BLM has 
determined (in its revision of an estimate of reclamation costs under 
Sec. 3809.552(b)) is no longer adequate; failing to modify a notice 
under Sec. 3809.331(a)(2) that BLM thinks (and the operator does not 
think) constitutes a ``material change'' to the operations. The 
commenter stated that the list of ``violations'' of the rules is 
endless, and most ``violations'' are minutiae. The commenter stated 
that if a plan is incomplete, this is not a crime; the plan must be 
completed before processing can occur.
    As discussed above, BLM has not accepted the commenters' suggestion 
and has published a list providing examples of the more common 
prohibited acts under subpart 3809. It is impractical, and probably not 
possible, to catalog all the violations of the regulations that could 
warrant criminal prosecution, and the list is not intended to be 
exhaustive. FLPMA establishes that knowing and willful violations of 
the regulations can be prosecuted under section 303(a). 43 U.S.C. 
1733(a). BLM does not expect or advocate that minor violations be 
prosecuted. BLM expects that United States Attorneys will continue to 
exercise their prosecutorial discretion in determining when to bring 
criminal prosecutions.
    A commenter stated that if proposed Sec. 3809.700 is just 
informational, criminal enforcement cannot occur until 43 CFR part 9260 
is changed. Those rules provide ``in a single part a compilation of all 
criminal violations relating to public lands that appear throughout 
title 43.'' 43 CFR 9260.0-2. There were and are no provisions of 43 CFR 
3809 listed there. In fact, ``Subpart 9263-Minerals Management'' is 
``Reserved.'' Thus, the unrevised part 9260 remains the controlling, 
effective criminal penalty rule, and the absence of any provisions in 
that subpart pertaining to hardrock mining operations means there are 
none.

[[Page 70092]]

    Although BLM disagrees with the assertion that prosecutions cannot 
occur under 43 U.S.C. 1733(a) until BLM changes 43 CFR part 9260, BLM 
agrees that to avoid confusion subpart 9263 should contain a cross-
reference to subpart 3809. Thus, this final rule incorporates such a 
cross-reference in subpart 9263. Again, the statute controls, 
regardless of what is contained in either subpart 3809 or subpart 9263 
of BLM's regulations. The absence of such a cross-reference would not 
invalidate any properly obtained conviction under 43 U.S.C. 1733(a).
    Commenters objected to the criminal enforcement provisions as 
violating the mining laws. One commenter stated that section 302(b) of 
FLPMA indicates that, unless specified otherwise, FLPMA does not amend 
the mining laws. FLPMA section 303 is not listed in section 302(b). The 
commenter asserted that there were no criminal penalty provisions in 
the 1980 3809 regulations for this reason. The Secretary's authority to 
prevent unnecessary and undue degradation must exercised by other, 
lawful means, not by means that Congress specifically established would 
not apply to ``locators or claims'' under the mining laws.
    BLM disagrees with these comments. Criminal enforcement under 43 
U.S.C. 1733(a) neither amends the mining laws, nor impairs rights 
established under that law. The mining laws create no right in any 
person to violate BLM's lawfully promulgated regulations, particularly 
those implementing the unnecessary or undue degradation standard of 
FLPMA section 302(b), which does amend the mining laws.
    A commenter requested that BLM define the term ``knowingly and 
willingly'' as used in proposed Sec. 3809.700. The commenter stated 
that this is especially important since BLM has chosen to include this 
section only for information purposes.
    BLM does not accept this suggestion. The Congress defines, and the 
courts apply, the elements of such generic criminal statutes.
    A commenter asked that BLM revise proposed Sec. 3809.700 to make it 
clear the extent, if any, this section applies to existing approved 
mining operations on public lands.
    As stated earlier, 43 U.S.C. 1733(a) applies by its own terms to 
any person who knowingly and willfully violates a regulation issued 
under FLPMA. There is no exception for existing approved operations. To 
the degree, however, that subpart 3809 excepts existing approved 
operations from certain new regulatory requirements, such requirements 
cannot form the basis for criminal conduct.

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

    Final Sec. 3809.701 tracks the proposed rule. It informs the 
regulated community of the existing criminal sanctions for making false 
statements to BLM. Under Federal 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 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 subject to a fine 
of not more than $250,000 or the alternative fine provided for in the 
applicable provisions of 18 U.S.C. 3571, or imprisonment of not more 
than 5 years, or both. As with final Sec. 3809.700, BLM is not 
establishing any criminal sanctions by promulgating final 
Sec. 3809.701.
    Some commenters thought that proposed Secs. 3809.700 and 3809.701 
provide excessively severe penalties of from $100,000 to $250,000 fines 
and/or imprisonment for five years for violations of the regulations or 
making of false statements.
    BLM is simply providing, as a matter of information to the 
regulated community, pertinent information about the existing statutes. 
The penalties the commenters object to cannot be changed by BLM 
regulation.
    Commenters asked: What does the BLM consider to be a false 
statement? Will the BLM include false statements or accusation made by 
private parties against operators during comment period for bonding or 
other NEPA processes? What standards will the BLM use to determine if 
the statements are false?
    U.S. Attorneys initiate prosecutions under 18 U.S.C. 1001. The 
courts interpret that law, and a body of case law exists interpreting 
18 U.S.C. 1001. BLM defers interpretation of the statute to appropriate 
officials with responsibility to enforce that statute.

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

    Final Sec. 3809.702 adopts the civil penalty provision that was 
proposed. This is consistent with NRC Report Recommendation 6 by 
providing administrative civil penalties, subject to appropriate due 
process. Administrative penalties are described in the NRC Report as 
necessary ``to make the notice of noncompliance a credible and 
expeditious means to secure compliance.'' NRC Report at p. 103.
    The final rule provides that 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 a person who (1) violates any term or 
condition of a plan of operations or fail to conform with operations 
described in a notice; (2) violates any provision of subpart 3809; or 
(3) fails to comply with an order issued under Sec. 3809.601. The rule 
provides that BLM may consider each day of continuing violation a 
separate violation for purposes of penalty assessments. In determining 
the amount of the penalty, BLM will consider the violator'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 negligence is 
involved; and whether the violator demonstrates good faith in 
attempting to achieve rapid compliance after notification of the 
violation. BLM will also accommodate small entities and will, under 
appropriate circumstances, consider reducing or waiving a civil penalty 
and may consider ability to pay in determining a penalty assessment.
    To afford due process of law, the rule specifies that a final 
administrative assessment of a civil penalty occurs only after BLM has 
notified the violator of the assessment and provided a 30-day 
opportunity to request a hearing by the Office of Hearings and Appeals 
(OHA). BLM may extend the time to request a hearing during settlement 
discussions. If the violator requests a hearing, OHA will issue a 
decision on the penalty assessment. If BLM issues a proposed civil 
penalty and the recipient fails to request a hearing on a timely basis, 
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.
    The proposed rules allowing BLM to assess monetary penalties drew 
many comments. Many commenters stated that BLM enforcement should allow 
for the assessment of administrative civil penalties against mining 
operators. Commenters stated that civil penalties will play a vital 
role in providing an incentive that operators understand. Commenters 
asserted that enforcement only works if the penalties for being 
``caught'' are far more expensive than the profits to be made through 
non-performance. EPA supported the authority for BLM to issue civil 
administrative penalties based on non-

[[Page 70093]]

compliance with subpart 3809. BLM agrees with the comments supporting 
the use of administrative penalties.
    A commenter suggested that the penalties BLM collects be put into a 
fund for reclaiming mine lands and not go into the U.S. Treasury or 
some general Department of the Interior fund. The proper disposition of 
penalties collected is, however, determined by Congress and may not be 
changed by BLM regulation.
    Commenters asserted that FLPMA is quite specific about the 
enforcement authorities provided to BLM by Congress, stating 43 U.S.C. 
1733(b) expressly allows only the Attorney General to institute civil 
penalties for violations of regulations promulgated by the Secretary of 
Interior pursuant to FLPMA, The commenter asserts that the absence of 
express administrative civil penalty provisions in FLPMA confirms the 
Congressional intent that BLM not impose civil penalties.
    BLM disagrees with the commenters' assertion that the provision 
allowing the Attorney General to seek the judicial imposition of 
injunctive or other judicial relief limits the Secretary's 
administrative authority. That section, together with a portion of 43 
U.S.C. 1733(a) establishing criminal violations, provides affirmative 
authority for judicial activity. As discussed earlier, neither 
provision addresses the scope of the Secretary's authority to establish 
civil penalties under other provisions of law.
    Commenters stated that although they recognize that BLM wants new 
civil penalty authorities to address ``bad actors,'' recalcitrant 
operators would continue to flout any new BLM administrative 
authorities, and that civil or criminal court action would ultimately 
be necessary to resolve such problems as in the case now. The 
commenters asserted that BLM's proposed new bonding authorities will 
help make such cases of noncompliance more clear-cut and render easier 
the task of persuading a U.S. Attorney to pursue such actions.
    BLM disagrees with the comment. Although BLM cannot assure that the 
imposition of civil penalties will always cause entities to come into 
compliance, the additional administrative sanctions will provide 
greater incentive for operators to do so. A person may decide to delay 
correcting a violation to see whether a court will issue injunctive 
relief, but that person may decide to abate a violation in the face of 
a Federal administrative order directing him or her to suspend 
operations or a continually accruing monetary penalty. BLM also is not 
persuaded that the existence of new bonding authorities will lead to 
greater success in bringing civil actions for injunctive relief.
    A commenter emphasized the NRC Report statement that ``federal land 
management agencies need to acknowledge and to rely on the enforcement 
authorities of other federal, State, and local agencies as much as 
possible'' (NRC Report at p. 103) and suggested that the regulations 
should incorporate the requirement that BLM defer to enforcement by 
Federal or State agencies with primary jurisdiction over environmental 
requirements. The commenter suggested the regulations should also 
incorporate the NRC Report statement that BLM develop formal 
understandings or memoranda of understanding with State and Federal 
permitting agencies to prevent duplication and promote efficiency (NRC 
Report at p. 104). The commenter stated that the NRC Report intended 
that the BLM use the new administrative penalty authority only where 
the agency ``needs to act immediately to protect public lands or 
resources, or in cases where the other agency is unable or unwilling to 
act with appropriate speed'' (NRC Report at p. 104) and suggested that 
these limitations should be written directly into the regulations.
    BLM agrees with the policies embodied in the NRC Report, to the 
extent reliance on other agencies will achieve compliance with BLM 
regulations and public lands and resources will be adequately 
protected. Inclusion of the suggested limits in the regulations, 
however, could be construed to establish jurisdictional bars to BLM 
enforcement. Such limits would complicate individual enforcement 
actions with issues related to matters such as the extent of BLM 
reliance on other agencies. These types of issues can lead to disputes 
between BLM and the States, as is evidenced by the experience of the 
Office of Surface Mining in implementing 30 U.S.C. 1271. BLM believes 
it preferable, instead, to develop understandings and agreements with 
States and other agencies to exercise its discretion appropriately to 
defer to other agencies, without including jurisdictional bars in the 
BLM regulations.
    Other commenters asserted that the administration of a civil 
penalty system will impose new and unjustified resource and personnel 
requirements on the agency, not to mention the States. Commenters 
stated that from a practical perspective, BLM should also consider the 
procedural issues and complexities associated with the civil penalty 
policies and the implementation of similar programs by other agencies, 
such as EPA. For example, the commenter stated that BLM's penalty 
assessments would likely be the subject of innumerable appeals. That 
reality should be considered in light of the fact that the Interior 
Board of Land Appeals is already staggering under a multi-year backlog. 
Appeals stemming from BLM penalty assessments would have the potential 
to bring the system to a complete halt. The commenter also stated that 
BLM assumption of civil penalty responsibilities would impair the 
agency's capacity to perform its land management responsibilities.
    Although the use of civil penalties could increase BLM's workload 
and add additional appellate cases, BLM disagrees that the additional 
resource needs will be as dramatic as the commenters assert. BLM does 
not expect that a great number of civil penalties will be issued, 
particularly if States and other Federal agencies take the enforcement 
lead in many instances.
    Final Sec. 3809.702 provides civil penalties of up to $5,000 per 
day for violation of the regulations, violation of a plan of 
operations, or failure to comply with an order of the BLM. Commenters 
stated that the draft penalties section is extremely stringent and 
excessive considering that a single violation of one of the new 
performance standards could likely occur even if the operator was 
diligent, prudent and acting in good faith. One commenter suggested the 
maximum penalty should be $1,000 per day, a noncompliance order be 
issued first, together with an opportunity to cure the violation, and 
appeals of penalty assessments be heard, in the first instance, by BLM 
State Directors.
    BLM believes that the administrative civil penalty system is fair. 
The issuance of monetary penalties in any amount is discretionary. In 
many instances, BLM will not issue any monetary penalty. The $5,000 per 
day maximum amount of a penalty is just that, a maximum. BLM does not 
expect that penalty amounts will always approach the maximum, 
particularly if a violation is an isolated incident and an operator is 
diligent, prudent, and acting in good faith. The rule contains criteria 
for assessing penalties, with appropriate reductions for small 
entities. Setting a maximum amount of less than $5,000 per day may be 
inadequate to reflect the harm caused by serious violations.
    Before any penalty becomes final, the recipient may seek a 
settlement agreement with the BLM State Director under final 
Sec. 3809.703, discussed below. The recipient may also petition OHA for 
a hearing under final Sec. 3809.702(b). A hearing gives the person 
assessed a

[[Page 70094]]

penalty the opportunity to explain extenuating circumstances and seek a 
reduction in the penalty amount or a determination that the violation 
did not occur. The Hearings Division of OHA has extensive experience 
with monetary penalty hearings. BLM agrees that generally penalties 
will not be assessed until a noncompliance order has been issued and 
there has been a failure to comply, but occasionally a serious 
violation may warrant the issuance of monetary penalty, or another 
agency may have issued the enforcement order and BLM would not wish to 
duplicate that order.
    Instead of penalties, a commenter asserted that compliance through 
financial guarantees should be adequate. BLM disagrees with the 
comment. BLM would prefer that an operator correct violations that 
occur. Administrative enforcement orders and civil penalties provide an 
incentive for operator action that does not exist through the financial 
guarantee. In addition, forfeiting and collecting on a financial 
guarantee can be a lengthy process and may not be warranted for 
individual violations.
    A commenter suggested the BLM should use the judicial system for 
the assessment of civil penalties, as the only fair way to administer 
penalties. The commenter felt that if a violation is serious enough to 
warrant a penalty, then the judicial system should administer it. The 
commenter was concerned about the impartiality of BLM and the Interior 
Board of Land Appeals. Another commenter suggested that the BLM should 
provide a fair appeal process from civil penalties, which includes a 
committee composed of representatives of both government and industry.
    BLM disagrees with the comment. The same difficulties and 
uncertainties exist with obtaining judicial imposition of civil 
penalties under 43 U.S.C. as with getting injunctive relief under that 
section. Persons who believe they are treated unfairly by the 
Department may appeal an IBLA ruling to Federal District Court. BLM 
also disagrees with the suggested use of multi-interest appeal boards. 
The appeal of a civil penalty involves an individual factual dispute 
involving a specific application of the regulations. This is not the 
type of proceeding where a committee composed of multiple interests 
would add value, such as in making recommendations on policy issues.
    A commenter asked that BLM define the term ``small entity'' as used 
in proposed Sec. 3809.702(a)(3). In the commenter's view, the current 
interpretation of the term conflicts with the term ``small business'' 
as used by BLM in 1998 legal briefs defending its earlier bonding 
rules. BLM will interpret the term ``small entity'' consistent with the 
definition of that term established by the Small Business 
Administration in its regulations at 13 CFR 121.201.
    A commenter asked whether the 30-day appeal period specified in 
proposed Sec. 3809.702(b) referred to calendar days or business days. 
The final rule includes the phrase ``calendar days'' to clarify this.
    A commenter recommended that a system of positive incentives be 
developed in lieu of administrative penalties to encourage 
environmental stewardship, keeping in mind that financial assurance in 
the form of reclamation bonds will still be in place to ensure 
compliance. The commenter was also concerned that the rules do not 
provide enough guidance to provide for consistent application of the 
administrative civil penalty provisions without imposing personal 
biases of individual regulators. Although BLM encourages environmental 
stewardship and positive incentives (such as reclamation awards to 
operators who provide environmentally superior reclamation), it also 
needs to have administrative sanctions available. These rules provide 
such sanctions, while providing opportunities for appeals and review 
that will guard against enforcement biases.

Section 3809.703 Can BLM Settle a Proposed Civil Penalty?

    Final Sec. 3809.703 clarifies that 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. This section is unchanged from the proposal.

Sections 3809.800 Through 3809.809 Appeals

    Proposed Sec. 3809.800 addressed appeals of BLM decisions, but also 
said that State Director review would occur if consistent with 43 CFR 
part 1840, anticipating BLM publication of revised BLM State Director 
review rules. The October 26, 1999 supplemental proposed rule 
elaborated and sought comments on BLM's State Director review 
provisions for subpart 3809 because separate BLM State Director review 
regulations were not published at that time and part 1840 did not allow 
State Director review. See 64 FR 57613, 57618.
    These final rules finalize in modified form the February 9, 1999 
proposal for appeals to the Office of Hearings and Appeals (OHA), and 
also adopt in modified form the State Director review provisions 
proposed in October 1999. BLM has revised final Sec. 3809.800 and added 
Secs. 3809.801 through 3809.809 to account for the two processes for 
seeking review.

Section 3809.800 Who May Appeal BLM Decisions Under This Subpart?

    Final Sec. 3809.800 establishes the two review processes. Portions 
of proposed Sec. 3809.800 are contained in final Secs. 3809.801, 
3809.802 and 3809.803, discussed below.
    Final Sec. 3809.800(a) provides that a party adversely affected by 
a decision under subpart 3809 may ask the State Director of the 
appropriate BLM State Office to review the decision. Final 
Sec. 3809.800(b) provides that an adversely affected party may bypass 
State Director review, and directly appeal a BLM decision under subpart 
3809 to OHA under 43 CFR part 4. In other words, a party may elect to 
ask for State Director review or may appeal to OHA.
    Providing a choice of appealing either to OHA or seeking State 
Director review is consistent with the October 1999 proposal. It is a 
change from the previous rule which required operators to appeal to the 
State Director before being able to file an appeal with OHA, and did 
not allow other parties to seek State Director review. This choice may 
allow issues to be resolved at the State Director review level without 
the necessity of a potentially more complex IBLA appeal. In addition, 
operators may decide to proceed directly with an appeal to the IBLA, 
thus reducing the State Director review workload.
    One change from the proposal made in response to comments is to 
limit appeal rights to an adversely affected ``party,'' as was set 
forth both in previous Sec. 3809.4 and in the current OHA appellate 
rules at 43 CFR 4.410(a), rather than to allow any adversely affected 
``person'' to file an appeal. The word ``party'' is intended to include 
a person who previously participated in the BLM proceeding, such as by 
filing comments or objections with BLM.
    Commenters objected to the granting of appeal rights to an 
``undefined and open-ended'' class of ``persons adversely affected by a 
decision made under this subpart.'' Commenters stated that the preamble 
to the proposal contains no rationale whatsoever for this ``wholly 
unauthorized expansion of rights.'' Another commenter suggested that 
BLM should adopt the Alaska standard that administrative appeals and 
litigation can be initiated only by persons that meaningfully 
participated in the public participation elements of the decision 
process. A commenter

[[Page 70095]]

pointed out the difference in language between proposed 
Sec. 3809.800(a) which authorized any ``person'' adversely affected by 
a BLM decision to appeal the decision under 43 CFR parts 4 and 1840, 
and the wording of 43 CFR section 4.410 which states: ``Any party to a 
case which is adversely affected * * *'' shall have a right to appeal'' 
(emphasis added). The commenter correctly observed that a potential 
appellant may be adversely affected by a BLM decision, but not be a 
party to the BLM proceeding. A commenter requested that BLM clarify the 
discrepancy between these sections by providing for appeal by parties 
which can show they are adversely affected or have a legitimate 
interest in the effects of the action either on or off-site.
    As noted above, the final rule limits appeals to ``parties.'' BLM 
agrees that it is helpful for potentially adversely affected persons to 
participate meaningfully in the BLM proceeding, and to raise objections 
or concerns before BLM makes a decision. In the absence of comments or 
objections, BLM will not necessarily be aware of particular issues and 
its decision will be reasonable based on the information before it. 
Although persons who do not participate in a BLM proceeding could be 
aggrieved by either the on- or off-site effects of a decision, BLM does 
not think it burdensome for those persons to have voiced their concerns 
to BLM before BLM makes a decision. In most instances BLM expects that 
persons who will be adversely affected will inform BLM of their 
objections, particularly in light of the opportunity to submit public 
comments under final Sec. 3809.411(c). Finally, BLM has concluded that 
the issue of who has standing to file an appeal to OHA should be 
resolved consistently for all of BLM's programs, and BLM should not 
create an exception for an individual program, such as for subpart 
3809.

Section 3809.801  When May I File an Appeal of the BLM Decision With 
OHA?

    Final Sec. 3809.801 describes when an appeal can be filed with OHA. 
Final Sec. 3809.801(a) describes the various scenarios when an appeal 
may be filed with OHA, taking the State Director review process into 
account. These are as follows:
    Under final Sec. 3809.801(a)(1), if a party does not request State 
Director review, the party has 30 calendar days from receipt of the 
original BLM decision to file an OHA appeal. This is consistent with 
the February proposal, and the OHA regulations.
    Under final Sec. 3809.801(a)(2), if a party requests State Director 
review and the State Director declines to accept the request for 
review, the party may file with OHA an appeal of the original decision 
within 30 calendar days of the date the party receives the State 
Director's decision not to review. Thus a party seeking third party 
review will not be prejudiced and lose his or her appeal rights to OHA 
if the State Director declines to accept the request for review.
    Under final Sec. 3809.801(a)(3), if a party requests State Director 
review and the State Director has agreed to accept the request for 
review, a party may file with OHA an appeal of the original decision 
before the State Director makes a decision. This allows a party to 
change his or her mind and appeal to OHA if, for instance, he or she 
does not receive a timely decision from the State Director.
    Under final Sec. 3809.801(a)(4), if a person requests State 
Director review and the State Director makes a decision, a person may 
file with OHA an appeal of the new decision within 30 calendar days of 
the date the person receives or is notified of the State Director's 
decision.
    Under final Sec. 3809.801(b), and as provided in the February 
proposal, a person must file a notice of appeal in writing with the BLM 
office where the decision was made in order for OHA to consider an 
appeal of a BLM decision.

Section 3809.802  What Must I Include in My Appeal to OHA?

    Final Sec. 3809.802 addresses the contents of appeals to OHA, and 
includes the material proposed as Sec. 3809.800(c). It provides that 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. The person must also 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 43 CFR part 4 (usually within 30 
calendar days after filing the appeal). The word ``calendar'' was added 
as a clarification.

Section 3809.803  Will the BLM Decision Go Into Effect During an Appeal 
to OHA?

    Under final Sec. 3809.803, and also as provided in proposed 
Sec. 3809.800(b), all BLM decisions under subpart 3809 go into effect 
immediately and remain in effect while appeals are pending before OHA, 
unless a stay is granted under 43 CFR Sec. 4.21(b). This derives from 
previous Sec. 3809.4(f).

Comments Related to Appeals to the IBLA

    A commenter on the February proposal stated that it thought that 
the intent of proposed Sec. 3809.800(a) is to have both the operator 
and affected third parties appeal directly to IBLA. It stated the 
sentence about the BLM State Director review and the reference in part 
1840 is rather confusing and does not clearly state when the BLM State 
Director would or would not review an appeal. Therefore, the commenter 
stated BLM should remove the last sentence about the BLM State Director 
review, since all appeals are going to be sent to IBLA.
    BLM attempted to clarify its intent in the October 1999 
supplemental proposed rule. The confusing sentence has been removed. 
The final rule allows operators and adversely affected third parties 
the choice of seeking State Director review or appealing to the IBLA. 
The final rules clarifies when appeals may be made.
    Commenters stated that BLM should carefully weigh the impacts of 
additional appeals on the agency and its resources. A number of 
comments focused on the increased workload and delays that would be 
caused by the appeal process of proposed Sec. 3809.800. Commenters 
stated that the detailed new permitting requirements contained in the 
3809 proposal will greatly increase the number of BLM decisions that 
ultimately will be subject to administrative appeals to the Interior 
Board of Land Appeals (``IBLA''), as well as increase the potential 
grounds for such appeals. Commenters asserted that an appeal to the 
IBLA is relatively simple and inexpensive for opponents to a mining 
project because opponents can simply repackage their NEPA comments as a 
statement of reasons, and obtain an administrative rehearing on all of 
their claims, regardless of whether they have merit. But, the 
commenters continued, the burden of an appeal on BLM is substantial. 
Regulations require that the agency assemble and transmit the entire 
administrative record to the IBLA and the agency must respond to an 
appellant's statement of reasons. Responding to an appeal can require a 
substantial amount of time from field office personnel, time that is 
lost from permit processing, compliance inspections or enforcement, or 
other duties. Commenters stated that BLM cannot ignore an appeal, 
because if BLM does not respond adequately, the decision will likely be 
remanded, imposing an additional burden on the agency and its 
employees. BLM's draft EIS acknowledges that the ``current

[[Page 70096]]

backlog in IBLA for a routine appeal is about three years.'' Commenters 
asserted that adoption of the proposed rules will increase the backlog 
beyond already intolerable levels. The commenter concluded that 
protracted administrative appeals and litigation over permitting 
decisions compound the delays and uncertainties in the permitting 
process.
    Commenters also asserted that vague regulatory standards governing 
BLM's discretionary judgments will make the appeals that are filed more 
complex. Exercise of agency judgment and discretion will ultimately be 
judged by the standards written into the regulations. Such standards, 
the commenters pointed out, include determinations of MATP, the 
application of the performance standards, the completeness of plans of 
operations, adequacy of reclamation plans, the amount of financial 
guarantees, and innumerable enforcement decisions (including the 
decision whether to allow a member of the public to accompany a BLM 
inspector). BLM's intent about the way particular provisions should be 
implemented will be meaningless if that intent is not clearly stated in 
the regulatory language. The commenter stated that because many of the 
provisions in the proposed rule, particularly the ``performance 
standards,'' are written in absolute terms, the potential for legal 
challenges is a source of great concern to the industry, and should be 
of great concern to BLM.
    Although BLM agrees that appeals to the IBLA of BLM decisions under 
subpart 3809 use BLM resources, BLM concludes such appeals need to be 
available to provide basic procedural fairness to parties who may be 
aggrieved by the decision. Under the previous rules, parties could 
appeal to the IBLA (although operators were required to go through the 
State Director review process before appealing to the IBLA). As noted, 
many commenters objected not to the appeal process as much as to the 
revised rules leading to the underlying decisions that are appealed. 
The potential consequences from an increased number and greater 
complexity of appeals, however, does not dissuade BLM from promulgating 
needed standards and procedures.
    Commenters pointed out that allowing operators to appeal both a 
noncompliance order and a subsequent suspension order would also be 
time-consuming and costly to both the BLM and IBLA. Moreover, BLM 
proposes that it may eliminate certain appeals to the State Director, 
which will further increase appeals to IBLA.
    BLM recognizes that each enforcement action may have separate 
appeals, but it may not be necessary to relitigate issues that the same 
parties have already litigated. Persons who previously requested State 
Director review can do so under these final rules, plus the State 
Director review process has been made available to any aggrieved 
person. To the extent issues are resolved before the State Director, 
appeals may not have to be taken to the IBLA.
    A commenter asked that BLM revise proposed Sec. 3809.800(b) to 
require the decision to indicate the appropriate next level of appeal. 
The commenter supported having appeals from local decision to go 
directly to the State Director, as a time-saving mechanism. The 
commenter suggested that the appeal process would be further 
streamlined if the next level above the BLM State Director is the 
Secretary of the Interior.
    BLM agrees in part. The process BLM adopts in these final rules 
allow a party to seek review by the State Director (to save time or for 
some other reason) or to appeal directly to the IBLA. Ordinarily, 
appeal rights are specified in BLM decisions. The Interior Department's 
Office of Hearings and Appeals is the Secretary's representative for 
handling appeals from BLM decisions, and OHA decisions are ordinarily 
final decisions of the Department which can be appealed to an 
appropriate court.
    Some commenters suggested a streamlined appeals process under which 
an appeal from a field-level operation can only be reviewed timely 
(suggesting seven calendar days for each of the two reviews) by the 
Office Manager and State Director responsible for public land 
management in the area of the proposed mining operation. Under this 
suggested procedure, appeals would immediately be taken to Federal 
District Court as litigation. The commenter stated that this 
modification would be similar to an existing U.S. Forest Service appeal 
process. The commenter asserted that since the Secretary of the 
Interior is the ultimate policy setter for IBLA and the Solicitor and 
has ultimate hiring/firing authority over the Assistant Secretary, BLM 
Director, and the BLM State Directors, the proposed appeals would be 
futile and a waste of time. The commenter concluded that this is a 
major modification that would be a step to effectively implement NRC 
Report Recommendations 15 and 16.
    BLM declines to accept the suggestion. One level of review within 
the State should be sufficient, and BLM doubts that seven days for each 
review would allow for meaningful review. Based on past experience, BLM 
disagrees that appeals to the IBLA are futile. The IBLA assures that 
there will be national consistency to the interpretation and 
implementation of BLM rules, and does not always support local BLM 
decisions as the commenter asserts. BLM also disagrees that the 
commenter's suggestions would be an effective step to implement the NRC 
Report recommendations.
    Industry commenters stated that because the NRC Report made no 
recommendation that previous appeals procedures be changed, and BLM is 
limited to promulgating rules that are consistent with the NRC Report 
recommendations, BLM is not authorized to modify the current appeals 
provisions in the previous 3809 regulations. The commenters recommended 
that the previous regulations, which allow operators to appeal to the 
BLM State Director in certain circumstances, but direct other appeals 
to the IBLA, should be retained.
    BLM disagrees with the comments. The legislative standard is that 
the BLM final rule not be inconsistent with the NRC Report 
recommendations. Recommendation 6 specifically states that BLM 
administrative penalties be subject to appropriate due process. The BLM 
appeal procedures and State Director review procedures are intended to 
assure that BLM enforcement decisions, as well as its other decisions, 
are subject to due process of law. Thus, the appeals rules are clearly 
not inconsistent with the NRC Report recommendations.
    A commenter stated that the proposed rule contains no mechanism 
(nor did its cross-referenced citations) which provide for public 
notice of the submittal of a plan of operations or notice under the 
proposed regulations. The commenter stated that without notice how is a 
person who may be adversely affected aware of the plan of operations or 
notice activity? The commenter recommended that a public notice 
procedure should be established for concerned individuals, adjoining 
property owners, and the public at large of the submittal of a plan of 
operations or notice so that they can participate in the process.
    As discussed above, BLM agrees (although not solely for the reasons 
raised by the commenter) and has modified final Sec. 3809.411(c) to 
establish a public participation provision.

[[Page 70097]]

Sections 3809.804 Through 3809.809 State Director Review

    Final Secs. 3809.804 through 3809.809 flesh out the mechanics of 
the State Director review process, and generally follow the process 
described in the October 1999 supplemental proposal.

Section 3809.804  When May I Ask the BLM State Director To Review a BLM 
Decision?

    Final Sec. 3809.804 establishes the time frame for requesting State 
Director review. It provides that the State Director must receive a 
request for State Director review no later than 30 calendar days after 
a person receives or is notified of the BLM decision sought to be 
reviewed. The supplemental proposed rule did not detail the time frame 
for requesting State Director review, and the 30-day period is 
consistent with the period specified in previous Sec. 3809.4(b) for 
requesting State Director review. Thus, an adversely affected party has 
30 days to request State Director review or to file an OHA appeal.

Section 3809.805  What Must I Send BLM To Request State Director 
Review?

    Final Sec. 3809.805 specifies what a person must send BLM to 
request State Director review. It provides that a State Director review 
request must be a single package that includes a brief written 
statement explaining why BLM should change its decision and any 
documents that support the written statement. The envelope should be 
marked ``State Director Review,'' and a telephone or fax number should 
be provided. These requirements are consistent with those previously 
found in Sec. 3809.4(c). A person may accompany his or her request for 
State Director review with a request for a meeting with the State 
Director. Holding a meeting is discretionary, but the State Director 
will notify the person seeking review as soon as possible if he or she 
can accommodate the meeting request.

Section 3809.806  Will the State Director Review the Original BLM 
Decision if I Request State Director Review?

    Final Sec. 3809.806(a) provides that the State Director may, but is 
not obliged to accept requests for State Director review. Based on 
factors such as workload or complexity of the issues, the State 
Director may conclude that it is appropriate for appeals to be heard 
directly by OHA rather than at the BLM State Director level. The 
October proposal stated that the State Director would have seven days 
to decide whether to accept a request for review. BLM has revisited 
this and has concluded that seven days may not be sufficient for the 
State Director to determine whether to conduct the review of an earlier 
decision and thus has provided 21 days to make that determination.
    Final Secs. 3809.806(b) and (c) describe address possible 
overlapping OHA appeals and State Director review proceedings. Final 
Sec. 3809.806(b) provides that a State Director will not begin a 
review, and will end an ongoing review if the party who requested State 
Director review or another party files an appeal of the original BLM 
decision with OHA under Sec. 3809.801 before the State Director issues 
a decision, unless OHA defers consideration of the appeal pending the 
State Director decision.
    Final Sec. 3809.806(c) provides that a party filing an appeal with 
OHA after requesting State Director review must notify the State 
Director. After receiving such a notice, the State Director may request 
OHA to defer consideration of the appeal. Final Sec. 3809.806(d) 
provides that if a party who requested State Director review fails to 
notify the State Director of his or her appeal to OHA, any decision 
issued by the State Director may be voided by a subsequent OHA 
decision.

Section 3809.807  What Happens Once the State Director Agrees to My 
Request for a Review of a Decision?

    Final Sec. 3809.807(a) directs the State Director to promptly send 
the requester a written decision. BLM intends to act promptly on 
requests for State Director review. This is consistent with previous 
Sec. 3809.4(d). Although there is no consequence if the State Director 
does not issue the decision promptly, the party may choose to appeal 
the original BLM decision to OHA at any time before the State Director 
issues the decision.
    Under the final rule, the State Director's decision may be based on 
any of the following: the information the requester submits; the 
original BLM decision and any information BLM relied on for that 
decision; and any additional information, including information 
obtained from a meeting the requester held with the State Director. The 
State Director may affirm, reverse, or modify the original BLM 
decision, and the State Director's decision may incorporate any part of 
the original BLM decision. If the original BLM decision was published 
in the Federal Register, the State Director will also publish his or 
her decision in the Federal Register.

Section 3809.808  How Will Decisions Go into Effect When I Request 
State Director Review?

    Final Sec. 3809.808 describes how decisions go into effect when a 
person requests State Director review. Under final Sec. 3809.808(a), 
the original BLM decision remains in effect while State Director review 
is pending, except that the State Director may stay the decision during 
the pendency of his or her review. This is consistent with previous 
Sec. 3809.4(b) and (f). Under final Sec. 3809.808(b), the State 
Director's decision will be effective immediately and remain in effect, 
unless a stay is granted by OHA under 43 CFR 4.21.

Section 3809.809  May I Appeal a Decision Made by the State Director?

    Final Sec. 3809.809 addresses whether a party may appeal a decision 
made by the State Director. Final Sec. 3809.809(a) provides that an 
adversely affected party may appeal the State Director's decision to 
OHA under 43 CFR part 4 except that a party may not appeal a denial of 
his or her request for State Director review or for a meeting with the 
State Director. This is consistent with previous Sec. 3809.4(e). 
Persons who did not participate in the State Director review process, 
but who participated in the underlying BLM proceeding that was appealed 
are considered parties and may appeal State Director review decisions.
    Final Sec. 3809.809(b) provides that once the State Director issues 
a decision on the review, only the State Director's decision can be 
appealed, and not the original BLM decision. This is because when the 
State Director issues a decision, it replaces the original BLM 
decision, which is no longer in effect.

Comments on State Director Review

    Some commenters supported having the opportunity to appeal BLM 
field office decisions to BLM State Directors. Some stated that they 
favored State Director review as a mechanism to save time on appeal. 
Others favored the development of an appeals process that involves and 
emphasizes the input of local and State managers. Others objected to 
State Director review. BLM agrees that it is useful to have a process 
whereby the appeals can be resolved in a timely manner in the State 
where the decision was made.
    A commenter interpreted the proposed regulations as allowing each 
BLM State Director to grant a stay on a positive Record of Decision for 
a mining operation. The commenter stated that this power is currently 
reserved to the Interior Board of Land Appeals,

[[Page 70098]]

comprised of a group of judges, and that allowing a decision whether to 
grant a stay to be determined by one person is contrary to the intent 
of Congress.
    The commenter is correct that under the final rules the BLM State 
Director may stay a BLM field office or other decision that approves a 
plan of operation. The commenter is not correct, however, in asserting 
that this is a new feature. Previous Sec. 3809.4(b) specifically 
provided that a request for a stay could accompany an appeal to the 
State Director.

Section 3809.900  Will BLM Allow the Public To Visit Mines on Public 
Lands?

    The discussion of final Sec. 3809.900 appears earlier in this 
preamble under the discussion of comments received on the proposed 
requirement to allow citizens to accompany BLM inspectors to mine 
sites, proposed Sec. 3809.600(b).

Section 9263.1  Operations Conducted Under the Mining Law of 1872

    The discussion of final Sec. 9263.1 appears earlier in this 
preamble under the discussion of comments received on the proposed 
penalty provisions at Sec. 3809.700.

III. How Did BLM Fulfill Its Procedural Obligations?

Executive Order 12866, Regulatory Planning and Review

    These 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 
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.
    The intent of the benefit/cost/Unfunded Mandate Act analysis and 
the Regulatory Flexibility Act analysis is to satisfy the requirements 
of E.O. 12866, the Unfunded Mandates Reform Act (UMRA), and the Small 
Business and Regulatory Enforcement Flexibility Act (SBREFA). E.O. 
12866 and UMRA require agencies to undertake benefit-cost analysis for 
regulatory actions. The material presented below summarizes the 
analyses that have been conducted.

Background and Need for the Regulation

    The need for the regulation is associated with both a compelling 
public need and market failures. Congress, the General Accounting 
Office, and the public have increasingly recognized the need for 
improving BLM's surface management program under the subpart 3809 
regulations. Since the original subpart 3809 regulations were issued in 
1980, mining technology and processes have changed considerably. The 
following list of issues related to the 1980 regulations suggests that 
revisions are warranted:
     Plan-level operations are not required to have financial 
guarantees; BLM has discretion whether to require a financial 
guarantee. The regulations do not allow BLM to require financial 
guarantees for notice-level operations. A large number of operations 
have gone unreclaimed, causing environmental damage and imposing 
reclamation costs on taxpayers as a whole. A 1999 survey of BLM field 
offices found more than 500 operations that operators had abandoned and 
left BLM with the reclamation responsibility. Many of these were small 
mining operations conducted under notices. The NRC Report recommended 
that secure financial assurances be required for reclamation of all 
disturbances beyond casual use, including notice-level activity and 
that all mining and milling operations be conducted under plans of 
operations, and that notices be used only for exploration.
     Some small mining operations with high environmental 
risks, such as cyanide use or acid drainage potential, can proceed 
without NEPA review or BLM approval, simply because they disturb less 
than 5 acres and qualify as a notice.
     The lack of clarity in the types of activities permissible 
under ``casual use'' has led to inconsistencies and environmental 
damage in some instances.
     BLM has no official way of clearing records for notices. 
Notice-level activities are often never completed, or in some cases 
never started. Without a reclamation bond, or an expiration term, 
notices are often left open for years with no incentive for the 
operator to complete the reclamation, notify BLM, and get the notice 
closed.
     BLM lacks clear, consistent standards for environmental 
protection in the existing regulations. As the NRC noted, although 
mining operations are regulated under a variety of environmental 
protection laws implemented by Federal and State agencies, these laws 
may not adequately protect all the valuable environmental resources at 
a particular location proposed for mining development. Furthermore, the 
existing definition of ``unnecessary or undue degradation'' does not 
explicitly provide authority to protect all valuable resources.
     Mitigation is not defined in BLM regulations to allow BLM 
to compensate for impacts offsite where disturbed areas cannot be 
reclaimed to the point of giving plants, animals, and people the same 
benefits that existed before disturbance. This fact has resulted in an 
overall decrease in productivity around the area of operations.
     BLM cannot suspend or nullify operations that disregard 
enforcement actions or pose a imminent danger to human safety or the 
environment. Criminal penalties under the existing regulations have 
often proven ineffective. The existing regulations do not allow BLM to 
use civil penalties as an enforcement tool. The NRC Report recommended 
that BLM have the authority to issue administrative penalties for 
violations of the regulations.
     BLM can require modifications to plans of operations only 
after review by the State Director concludes that the event could not 
have reasonably been foreseen in the original approval. The NRC Report 
recommended that this ``looking backward'' process should be abandoned 
in favor of one that focuses on what may be needed in the future to 
correct the environmental harm and that the regulations be revised to 
provide more effective criteria for BLM to require plan modifications 
where needed to protect Federal land.
     The existing regulations do not distinguish between 
temporarily idle mines and abandoned operations. This distinction is 
needed to determine which mines need just to be stabilized, if idle, or 
reclaimed, if abandoned. The NRC Report recommended that the 
regulations be changed to define the temporary versus abandoned 
conditions and to require interim management plans for operations that 
are only temporarily closed.
     The existing regulations do not provide for long-term site 
maintenance, water treatment, or protection of

[[Page 70099]]

reclaimed surfaces. The NRC Report recommended BLM plan for and assure 
the long-term post-closure management of mine sites.
     The lack of clarity in the types of activities permissible 
under ``casual use'' has led to inconsistencies and, occasionally, 
environmental damage. Damage results mostly when many people 
concentrated in a small area engage in casual use. The cumulative 
impacts of such groups often exceeds the ``negligible disturbance'' in 
the existing definition of casual use.
     In some operations proposed under the 1980 regulations, 
the legal status of the material to be mined is in dispute as to 
locatable under the mining laws or saleable as a common variety 
mineral. BLM needs regulations to resolve disputes without unreasonably 
delaying mining operations.
     The 1980 regulations have no requirement for preventing 
disturbances in areas closed to mineral entry until a discovery is 
determined to be valid or not. In areas closed to the operation of the 
mining laws, surface disturbance should be allowed only where the right 
to mine predates the segregation or withdrawal.
    Absent a regulatory intervention, the market alone would be 
unlikely to ensure that sufficient and timely reclamation occurred or 
that society had sufficient information to minimize environmental 
damages and determine appropriate reclamation activities. Without 
requirements for financial guarantees, firms would have weaker 
incentives to reclaim disturbed lands. The costs associated with 
offsite damages would be particularly difficult to internalize absent 
some type of market intervention. The extent to which the parties could 
resolve these situations themselves is limited due to the high 
transaction costs and the unequal bargaining power of the entities 
involved. Currently, a large class of operators on public lands are not 
required to provide financial guarantees. These operators have little 
incentive to restore mined lands to a state where they will be able to 
provide a pre-mining level of ecosystem services. Absent revisions to 
the regulations, operators would have fewer incentives to undertake 
sufficient baseline environmental studies, disclose the nature and 
extent of their activities to the public, and monitor environmental 
conditions during and after mining.

Description of Regulation and Alternatives Considered

    The alternatives we considered are described in detail in the Final 
EIS and elsewhere in the preamble. Briefly, they include the following:
    Alternative 1: Current regulations. The 1980 regulations would be 
retained.
    Alternative 2: State Management. Under this alternative, BLM would 
rescind the 1980 regulations and return to the prior surface management 
program strategy, under which State or other Federal regulations 
governed locatable mineral operations on public land.
    Alternative 3: Proposed Regulations. This final rule would replace 
the regulations at 43 CFR 3809.
    Alternative 4: Maximum Protection. Under Alternative 4, the 3809 
regulations would contain prescriptive design requirements for resource 
protection. These requirements would increase the level of 
environmental protection and give BLM very broad discretion in 
determining the acceptability of proposed operations. Major changes 
from the current regulations include the following:
     Expanded application to public lands with any mineral or 
surface interest.
     Numerical performance standards for mineral operations.
     Required pit backfilling.
     Elimination of notices so that all disturbances greater 
than casual use require plans of operations.
     Required conformance with land-use plans.
     Prohibitions against causing irreparable harm or having to 
permanently treat water.
    Alternative 5: NRC Recommendations. Alternative 5 would change the 
existing regulations only where specifically recommended by the NRC 
Report. Under Alternative 5, the definition of ``unnecessary or undue 
degradation'' would remain same as the current regulations. The prudent 
operator standard would be retained, and operators would have to follow 
``usual, customary, and proficient'' measures, mitigate impacts, comply 
with all environmental laws, perform reclamation, and not create a 
nuisance.
    Disturbance categories and thresholds would be the same as under 
Alternative 3, but Alternative 5 would not expand the types of special 
status lands. The change threshold would be based on the division 
between exploration and mining. All mining, milling, and bulk sampling 
involving more than 1,000 tons would require a plan. Exploration 
disturbing less than 5 acres would still require a notice unless 
occurring on special status lands. Actual-cost bonding would be 
required for all notices and plans.

Summary of the Benefit/Cost Analysis

    In response to comments on the initial benefit/cost analysis, BLM 
attempted to account for the economic value of any foregone minerals 
production that might result from the regulations. This value can 
change over time, depending on the time path of prices, interest rates, 
and extraction costs. Estimating these values is also complex due to 
uncertainty about timing effects, technology changes, and future 
commodity prices.
    Information from mine cost models was used with other data 
collected by BLM to develop estimates of the annual cost of the 
regulation. Given the limitations of the models, the uncertainty about 
the magnitude of permitting costs, the extent to which delays can be 
attributed to the regulations, and the wide variety of mining activity 
occurring on public lands, these estimates should be interpreted with 
some caution. In particular, the baseline cost information best applies 
to the operations modeled and may not accurately describe the cost 
conditions associated with operations of different size or commodities. 
To account for the fact that the cost models may not be representative 
of the types of mining activity occurring on public land, sensitivity 
analysis was done by varying the baseline costs by plus or minus 20%.
    The economic cost of the permitting/compliance components 
regulation were developed by estimating the annual cost changes 
associated with the regulation for new and existing plans of operation 
and for new and existing notices. This manner in which this was done is 
described in detail in the benefit/cost analysis. The analysis 
incorporates a number of behavioral assumptions concerning the extent 
to which the regulation might affect the number and distribution of 
future notices and plans. These assumptions parallel those used in the 
final EIS to project minerals activity.
    New plans of operations: For new plans of operations, the estimated 
number of plans was multiplied by the appropriate cost increase for 
each mine model. This total was then adjusted to account for the fact 
that only 20% of the plans would be affected by the regulation, given 
that an estimated 80% of the operators are already complying with the 
requirements of the regulation. Permitting costs were assumed to 
increase from $600,000 to $900,000 for the open pit model; from 
$100,000 to $125,000 for the strip/industrial model; from $50,000 to 
$80,000 for the medium placer model; from $10,000 to $100,000 for the 
underground model; and from

[[Page 70100]]

$50,000 to $75,000 for the medium exploration model. The maximum 
protection model assumed that permitting costs increased from $600,000 
to $1 million for the open pit model; from $100,000 to $150,000 for the 
strip/industrial model; from $10,000 to $150,000 for the underground 
model; from $50,000 to $80,000 for the medium placer model; and from 
$50,000 to $80,000 for the medium exploration model. For these models, 
permitting costs are annualized over the life of the model mine using a 
7% discount rate. Permitting costs for exploration activities were not 
annualized, but were included as a lump sum.
    Under this final rule, some mining and explorations activities that 
would have operated under notices previously would now have to operate 
under plans of operations. For the preferred alternative, BLM assumed 
that 90% of the new open pit, industrial/strip, exploration, and 
underground operations that would have operated previously under 
notices would file plans; 70% of the new placer operations would file 
plans; and 10% of the exploration operations would file plans. The 
remaining new notices would be composed only of exploration activities. 
Notices are not allowed under the maximum protection alternative. The 
maximum protection alternative assumed that: 70% of the open pit, 
industrial/strip, exploration, and underground notices would file 
plans; 60% of the placer notices would file plans; and 80% of the 
exploration notices would file plans. These assumptions are consistent 
with the final EIS.
    For the preferred alternative, it was assumed that close to 45% of 
the total number of new notices submitted annually would be required to 
file plans of operation under the regulation regardless of the type of 
mining activity. This implies that 270 notices out of the annual 
baseline number of 600 would be required to submit plans. Adjusting for 
the estimated reduction in the number choosing to submit plans (10% 
reduction for open pit, strip, and underground; 30% reduction for 
placer) gives an estimate of 210 new plans (that formerly would have 
been notices). Each new plan would bear permitting, reclamation, and 
bonding costs. For the NRC alternative, the parameters are largely the 
same, except that the estimated reductions in the number choosing to 
submit plans are smaller (5% reduction for open pit, strip, and 
underground; 20% reduction for placer). The cost associated with 
``converting'' to a plan vary widely.
    For mining activities, permitting costs were assumed to average 
about $60,000 per plan; permitting costs for exploration activities 
were assumed to average about $33,000. Sensitivity analysis also 
examined the implications of conversion costs (for all notices 
regardless of type of activity) of $100,000 and $20,000. The analysis 
assumes that the regulation increases reclamation costs for the average 
2.5 acre notice by $500 and $1,500 per acre, respectively for 
exploration and mining activities. Bonding costs were assumed to be 
$500 per notice. For the purposes of developing a cost estimate, it was 
assumed that the activities included in the these new plans would occur 
for 5 years. It was also assumed that given that mining would be 
conducted under a plan, the acreage disturbed would be somewhat larger 
than if this class of notices had remained notices. Bonding and 
reclamation costs were increased 30% to account for this.
    Existing exploration notices: For the purpose of developing a cost 
estimate, the following assumptions were used. For exploration notices, 
in year 1 it was assumed that 5% of the notices were modified or 
extended and 5% dropped out; in year 2, 10% of the remaining notices 
modified or extended and 10% dropped out; and in year 3, 25% modified 
or extended, 25% dropped out, and 3% became plans. In years 4 to 10, 1% 
of the remaining notices become plans and 5% drop out each year. Over 
the 10-year period of analysis, this implies that about 4% of the total 
existing stock of notices become plans and about 40% drop out. Once a 
notice converts to a plan or modifies/extends, it incurs permitting, 
reclamation, and bonding costs. It was assumed that all permitting 
costs were incurred in the year in which the conversion occurred 
(permitting costs were not annualized); that the duration of all mining 
activities was 5 years and that reclamation costs were incurred in 
equal annual increments over this period; and that bonding costs were 
incurred over the 5-year period during which mining was occurring.
    Existing placer mining notices: About 20% of the stock of existing 
notices are associated with placer mining. To estimate the cost of the 
regulation, the following assumptions were used: in year 1, 5% of the 
existing notices drop out; in year 2, 10% drop out; in year 3, 20% (or 
225) of the remaining placer notices convert into plans and 80% drop 
out. During years 4-8 these 225 plans continued to operate; however, 
they ceased to operate beginning in year 9. The placer plans incurred 
permitting costs of $20,000 per plan in year 3, and bonding ($1,000 per 
plan) and reclamation costs (an increase of $1,500 per acre relative to 
the baseline for each plan) in each year they operated. Bonding and 
reclamation costs were also increased 20% to account for the fact that 
the placer plans might disturb somewhat larger acreage than if they had 
remained notices. All other existing notices: 10% were assumed to drop 
out in year 1; 20% were assumed to drop out in year 2; and in year 3, 
50% of the remainder were assumed to drop out and 50% converted into 
plans. It was assumed that permitting costs were $40,000 per plan and 
that reclamation costs increased by $1,500 per acre over the existing 
baseline. Bonding and reclamation costs were also increased 20% to 
account for the fact that the plans might disturb somewhat larger 
acreage than if they had remained notices. The parameters for NRC 
alternative are similar. The maximum protection alternative assumed 
similar permitting costs, annual bonding costs of $1,500 per ``small'' 
plan, and a cost increase factor of 30% to account for the fact that 
plans might disturb somewhat larger acreage.
    The net benefits of the alternatives considered cannot be 
quantified because information on site-specific and other operation-
specific factors is not readily available. Implementation of the SIH 
standard also introduces a substantial degree of uncertainty in 
estimates of net benefits. At the same time, however, the fact that 
this standard could be applied to unique resources implies that it may 
be associated with substantial economic benefits. Costs are somewhat 
more amenable to analysis, though still subject to considerable 
uncertainty due to the extent to which prices, production, technology, 
and costs may change over time. Table 21 in the benefit/cost analysis, 
reproduced below, summarizes the estimated costs of the alternatives.

[[Page 70101]]

[GRAPHIC] [TIFF OMITTED] TR21NO00.000

    As discussed in the analysis, in response to many comments 
concerning the quantification of benefits, BLM's final analysis does 
not attempt to quantify the net benefits of the regulation. However, it 
should be noted that a commenter on BLM's initial benefit-cost analysis 
revised BLM's initial analysis and calculated that the total npv costs 
ranged from $106 million to $649 million; benefits were recalculated to 
range from $11 million to $161 million. Even though this commenter was 
critical of BLM's analysis, their own results suggest that there is a 
substantial range where there may be positive net benefits. For 
example, if the costs were at the low end of the range of costs ($106 
million) and the benefits at the upper end of the range of benefits 
($161 million), then the net benefits would be $55 million.
    Because both the costs and benefits vary across the alternatives, 
it is not possible to compare the cost effectiveness of the 
alternatives. Some comparisons, however, can be made between the 
preferred alternative and the NRC alternative.
    The results of the analysis suggest that the annual compliance/
permitting cost of the preferred and NRC alternatives is about $15-20 
million (giving a 20% range of about $12 million to $24 
million). In present value terms (over 10 years and using a 7% discount 
rate), these annual costs are equivalent to $105-141 million. The 
annual cost of forgone production for the preferred alternative is 
estimated to range from $0 to $133 million; for the NRC alternative 
forgone production is estimated to be $0-$32 million. Note that these 
values may overstate actual losses because a number of factors will act 
to mitigate any production losses and because they are calculated using 
a base of total U.S. gold production, not production originating from 
public lands. Simply adjusting for production originating on public 
lands could reduce the value of forgone production by half. Other 
mitigating factors could include: increasing production from existing 
mines, shifting production to non-Federal lands, technologic change, 
the ability to increase recycling, and sales of gold from existing 
stocks. Similarly, it is expected that both BLM and operators will 
become more efficient at administering and meeting the requirements of 
the regulation as time progresses. Assuming that most of the forgone 
production would be due to the application of the SIH standard, not 
including this element in the regulation

[[Page 70102]]

would leave the preferred and NRC alternatives as providing roughly 
equivalent levels of net benefits. On this basis, the NRC alternative 
would appear to have slightly lower costs to attain the same level of 
benefits as provided by the preferred alternative.
    Including the SIH standard could result in substantially higher 
benefits (if it results in the preservation of unique resources), but 
it is also likely to have production effects. The opportunity cost 
associated with preserving these resources is the forgone production. 
These values could be quite large, but one would need to account for 
the probability of occurrence (i.e., the probability the SIH standard 
would be invoked and result in the preservation of a unique resource) 
and for timing effects. These probability and timing effects are very 
difficult to evaluate.
    The net benefits associated with the maximum protection alternative 
cannot be easily compared to the other alternatives because both the 
costs and benefits differ. However, the economic benefits would have to 
be substantially larger than those associated with the other 
alternatives to offset the higher estimated costs.
    As stated above, it is difficult to quantify the net benefits of 
the alternatives. However, if the costs are relatively low (as in the 
preferred and NRC alternatives in the case of low forgone production 
which have estimated annual costs of about $15-20 million), the 
benefits would not have to be large to equal or exceed the costs.
    Table 26 in the benefit-cost analysis, reproduced below, summarizes 
the estimated cost of the regulation on a per-capita and per-acre 
basis. Based on the population and number of households in the study 
area, the estimated annual cost per capita of the preferred alternative 
ranges from about $0.23-$2.70. Based on the estimated population 
residing within 5 miles of a mine, the annual costs per capita range 
from $5.3-$61; based on the number of households within 5 miles, the 
annual per household costs range from about $13-$153. Annual cost per 
acre for the preferred alternative, based on the estimated reduction in 
the number of acres disturbed could range up to about $2,500 per acre, 
depending on the change in acreage disturbed. On a per-capita basis, 
the magnitude of environmental benefits associated with the regulation 
could be quite small and still offset the estimated costs. Also, in 
some locations mining has the potential to impact unique resources. The 
potential environmental benefits of protecting even a small number of 
unique resources over time could easily offset the costs of the 
regulation.

[[Page 70103]]

[GRAPHIC] [TIFF OMITTED] TR21NO00.001

    BLM is placing the full benefit/cost analysis on file in the BLM 
Administrative Record at the Nevada State Office, P.O. Box 12000, Reno, 
Nevada 89520, or you may contact BLM's Regulatory Affairs Group at 202/
452-5030.

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 has prepared a final environmental impact 
statement (EIS), which will be on file and available to the public in 
the BLM Administrative Record at the Nevada State Office, P.O. Box 
12000, Reno, Nevada 89520, and on BLM's home page at www.blm.gov.

Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 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 purpose of the final RFA 
analysis is to estimate the number of entities potentially impacted, 
the magnitude of the impacts, summarize the significant issues raised 
in public comment on the proposed rule, and identify the steps the 
agency has taken to minimize the significant economic impact on small 
entities consistent with the stated objectives of the applicable 
statutes. The final RFA analysis also fulfills the requirements of the 
Small Business and Regulatory Enforcement Flexibility Act (SBREFA) 
analysis. SBREFA requires agencies to analyze the impact of regulatory 
actions on small entities; to prepare and publish an initial regulatory 
flexibility analysis when proposing a regulation; and a final analysis 
when issuing a final rule for each rule that will have a significant

[[Page 70104]]

economic impact 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. We believe that virtually all businesses 
currently engaged in mining on public lands could be considered 
``small'' under the SBA 500-employee standard.
    In February 1999 BLM published a proposed rule for regulating 
mining activities on public lands. BLM also prepared and made available 
for comment an initial RFA analysis. BLM published a summary of the 
initial RFA analysis along with the proposed rule, made the full 
initial RFA analysis available along with the proposed rule, and sought 
public comment on its findings. BLM received about 2,500 public 
comments on the proposed regulation and associated documents. BLM has 
undertaken a substantial effort to both consider and disclose the 
potential implications of the regulation for small entities. The final 
RFA analysis also summarizes the significant public comments received 
on the initial RFA analysis and responses to these comments.
    The public comments we received enabled us to refine and revise our 
analysis of the potential impact of subpart 3809 on small entities. BLM 
has concluded that the final regulation will have a significant 
economic impact on a substantial number of small entities.
    BLM notes that one of the primary differences between the proposed 
and final rule is the inclusion of the ``significant irreparable harm'' 
standard. In the interest of informing the public about the impacts of 
the rule on small entities, the implications of including this 
provision are summarized below and discussed in more detail in section 
X of the Final RFA.
    You can find detailed information on the alternatives considered in 
the summary of the benefit/cost analysis above, the preamble, the Final 
EIS, and the benefit/cost analysis. The alternative selected was judged 
to be the best in terms of not being inconsistent with the 
recommendations in the NRC report, being responsive to public comments, 
maximizing net economic benefits, and minimizing the impacts on small 
entities while still achieving the desired objectives.

Comments on the Proposed Rule

    This section summarizes the significant public comments received on 
the initial RFA analysis and responses to these comments. More detailed 
responses to comments are found in Appendix A to the final RFA 
analysis.
    Many commenters asserted that the proposed regulation would 
substantially reduce profits in the mining industry. BLM agrees that 
the new regulations could reduce profits, but that the extent to which 
this occurs and which firms are affected depends on a variety of 
factors that include commodity prices, management expertise and firm 
capitalization, technological changes over time, location and type of 
activities, other Federal and non-Federal regulations, as well as any 
BLM regulation-driven operating and permitting cost changes. BLM also 
notes that evaluating profit changes is difficult in many situations 
where small entities are involved due the discretion these entities 
often have in the treatment of certain costs.
    Commenters stated that BLM did not adequately consider what 
constituted a ``significant impact'' on a small entity. BLM considered 
these comments and believes its approach is reasonable. The initial RFA 
analysis specifically identified what BLM considered to be a 
``significant impact.'' The final RFA analysis evaluates 
``significance'' based on both cost and profit changes. The definition 
of ``significant impact'' used in this analysis is an impact that 
causes a 3% or more impact on estimated annual operating costs or on 
the ratio of the annualized compliance costs to annual gross revenues 
or a greater than 10% reduction in annual profits.
    As with the other concepts, ``significance'' is a relative measure. 
The criteria used to evaluate ``significant'' are similar to that 
adopted by other agencies. NOAA defines a ``significant impact'' as: a 
regulation that is likely to result in a reduction in gross revenues by 
more than 5%; a regulation that increases total costs of production by 
more than 5%; a regulation that causes small entities to incur 
compliance costs that are 10% more than the compliance costs of large 
entities; or a regulation that causes 2% of small entities to cease 
business operations. See, for example, 64 FR 6869-75, Feb. 11, 1999 and 
64 FR 28143-51, May 25, 1999. EPA defines ``significant'' as an impact 
of more than 3% on small business sales, cash flow, or profit (Small 
Business Administration (SBA), undated; EPA, 1997). The SBA (The 
Regulatory Flexibility Act: An Implementation Guide for Federal 
Agencies, 1998, p. 17-18) discusses the use of criteria to determine 
``significance.'' SBA identifies several examples where Federal 
agencies have used cost-based criteria. SBA goes on to state, 
``Moreover, over 60 percent of small businesses do not claim a profit 
and do not pay taxes; therefore, an agency would not be able to apply a 
profit-based criterion to these firms.'' This point is particularly 
relevant for exploration activities and for small miners who may not be 
involved in commercial scale activities. As recommended by the SBA in 
their comments on the proposed rule, the revised analysis also shows 
estimated impacts based on changes in estimated annual profits for the 
mine models. In commenting on a proposed BLM rule dealing with onshore 
oil and gas leasing operations, SBA asserted that a 10% impact on a 
business's profits is the threshold for determining significance (See 
comments submitted by SBA's Office of Advocacy on proposed rule 
``Onshore Oil and Gas Leasing Operations''). SBA did not, however, 
state whether the 10% threshold is on an annual basis, on a net present 
value basis over the period of analysis, or whether it represents an 
average over some period. SBA also did not discuss how it arrived at 
its estimate of ``significant.'' BLM views the 10% threshold as a 
percentage that would be considered significant under any terms. 
Finally, the significance threshold is important in situations where 
determinations are made that a rule will not have a significant impact 
on a substantial number of small entities. In this case, as discussed 
above, BLM has determined that the final rule will have a significant 
impact.
    Commenters stated that BLM did not adequately evaluate the impact 
of the proposed bonding requirements on small entities. BLM believes 
that the initial RFA analysis adequately analyzed the bonding 
requirements in the proposed rule. However, the final RFA analysis 
includes results from additional mine models that have bonding 
requirements that vary somewhat depending on the type of mining 
activity. The final rule has also adopted a number of measures that 
will mitigate the impact of bonding on small entities. See section IX 
of the final RFA analysis. Given that bonding for all mining operations 
is a specific NRC recommendation, BLM's ability to mitigate potential 
the impacts of bonding requirements on notices is limited (this of 
course would not preclude non-Federal entities from developing 
mechanisms to facilitate small entities obtaining appropriate financial 
guarantees). If small mining entities were not required to have 
financial guarantees, BLM would not be

[[Page 70105]]

in compliance with the direction of Congress not to be inconsistent 
with the NRC Report recommendations, and the objectives of the rule 
could not be achieved. BLM also notes that in some States bond pools 
are available for entities that can't otherwise obtain bonds.
    Commenters stated that BLM did little to minimize the compliance 
burden on small entities. BLM has taken a number of steps in the final 
rule to minimize the impacts of the rule on small entities. The 
preamble to the regulation has an extensive discussion on how the rule 
was changed in response to comments. Section IX highlights some of the 
specific changes that mitigate the impact of the regulation on small 
entities.
    Commenters stated that the proposed regulation would result in 
severe reductions in gold production from Alaska. BLM's analysis 
suggests that the final regulation is unlikely to be the major 
determinant of any changes in total gold production in Alaska. The 
regulations may, however, affect which entities produce mineral 
commodities, with relatively less being produced by small entities.
    Commenters stated that BLM used 1992 data in the initial RFA 
analysis. BLM has used 1997 Census data in the Final RFA analysis, as 
well as the most recent BLM data available. BLM has also included 
additional references to the modeling assumptions used. These 
references are found in the Appendix E of the Final EIS and in the 
benefit/cost analysis.
    Commenters stated that the initial RFA analysis didn't contain a 
discussion of significant alternatives to the proposed rule. The 
initial RFA analysis did contain a discussion of the alternatives 
considered. The final benefit/cost analysis, the final EIS, the 
preamble to the rule, and Section III of the final RFA contain 
additional discussion and analysis of the alternatives.

The Number of Potentially Affected Entities

    Table 9 (reproduced below) from the final RFA analysis summarizes 
the universe of potentially affected small entities. Estimates are 
presented using both BLM and Census data. Based on BLM's data and using 
the SBA's definition of small mining entity, the universe of 
potentially affected entities would essentially be all existing notices 
and plans of operation and all new notices and plans. Assuming that 
each notice and plan of operations represents a unique small entity 
provides an upper bound estimate for the number of potentially affected 
entities. A lower bound would be the number of individual operations 
with plans and notices. Because all operations under subpart 3809 
involve ``small'' entities, that is, operations with less than 500 
employees, BLM also examined a subset of the industry, operations with 
fewer than 20 employees, to get a more complete understanding of the 
impacts of the rule.

               Table 9.--Estimated Number of Small Entities Potentially Affected by the Regulation
----------------------------------------------------------------------------------------------------------------
                                                BLM data                               Census data
                                --------------------------------------------------------------------------------
      Employment category                                                                             Estimated
                                      Notices b           Plans b           Est. number of firms      percent of
                                                                                                     companies d
----------------------------------------------------------------------------------------------------------------
500 or fewer employees.........  All: 6,213          All: 900           Approx. 700 c..............           15
                                  existing; an        existing; an
                                  estimated 350-850   estimated 110-
                                  submitted           190 submitted
                                  annually by         annually by
                                  individual          individual
                                  operations.         operations. In
                                                      addition, 200
                                                      existing
                                                      suchtion
                                                      dredgers plus 50
                                                      submitted
                                                      annually in the
                                                      future.
Fewer than 20 employees a......  About 2,604         342 existing;      Approx. 520 d..............          16
                                  existing; 350-850   about 40-70 of
                                  submitted           the those
                                  annually.           submitted
                                                      annually. In
                                                      addition, 250
                                                      existing suction
                                                      dredgers plus 50
                                                      submitted
                                                      annually in the
                                                      future.
----------------------------------------------------------------------------------------------------------------
a Notices--calculated by assuming that all notices have fewer than 20 employees, but that 50% of notices are
  small in terms of company assets, production, and cash flows; plans--calculated by assuming that 75% of the
  plans are associated with less than 20 employees and that of these, 50% have sufficient assets, production,
  and cash flows such as to be relatively unimpacted by the proposed rule.
b Annual number of notices and plans: the range represents the approx. 1999 figure (600 notices, 150 plans) plus/
  minus one standard deviation based on the 1996-99 average.
c 1997 Census data indicate that there were a total of 629 metal mining and 3,746 non-metallic mining firms.
  Assume that 50% of the metal mining activity and 10% of the non-metallic mineral mining occurs on public
  lands. This suggests that the total number of firms potentially impacted might be 315 + 375 = 690. Percentage
  based on total number of metal mining and non-metal mining firms.
d 1997 Census data indicate that there were 487 metal mining and 2,754 non-metallic mining firms with 0-19
  employees. Assume that 50% of the metal mining activity and 10% of the non-metallic mineral mining occurs on
  public lands. This suggests that the total number of firms potentially impacted might be 244 + 275 = 519.
  Percentage based on total number of metal mining and non-metal mining firms with 0-19 employees.
Source: BLM; www.sbaonline.sba.gov/advo/stats.

Estimated Impacts

    We developed cost models for the following types of mines: a small 
and medium size placer mine; an open pit mine; an industrial/strip 
mine; an underground mine; and a small and large exploration operation. 
These models were selected because they capture, in general terms, the 
wide range of mining activities that occur on public lands. The 
assumptions used in the models also were designed to represent a wide 
range of potential costs across the alternatives considered. Additional 
details on the mine cost models is included in Appendix B of the 
benefit/cost analysis and in Appendix E of the final EIS. Models do not 
include estimates for SIH which could not be easily modeled. The 
impacts of the SIH provision were captured through analysis of 
potential production declines described below.
    Table 24 (reproduced below) from the final RFA analysis summarizes 
the estimated range of compliance/permitting cost impacts based on the 
mine models. These impacts vary substantially across the different 
types of mines modeled. Impacts on some types of entities are 
significant. Additional detailed information about

[[Page 70106]]

the mine models and assumptions used, as well as about the IMPLAN 
analysis, can be found in Appendix E of the Final EIS and in the 
benefit/cost analysis.
    The IMPLAN analysis offers some indication of the distribution of 
the costs potentially facing small entities of the regulation across 
the study area. Direct annual regional economic impacts could vary 
widely, ranging from $0 to $900 million. However, the degree of impact 
would vary by State depending primarily on the dominant types of mining 
and/or commodities mined in each State. For example, in States with 
relatively little metal mining (Oregon, Washington, and Wyoming), the 
estimated decrease in value of production would be lower (-5% to -15% 
in Oregon and Wyoming; -5% to -20% in Washington) than for those States 
with relatively greater amounts of metal mining (-10% to -30% in 
Arizona, Colorado, Montana, Nevada, New Mexico, and Utah; -10% to -20% 
in Alaska; and -10% to -25% in California).

                         Table 25.--Summary of Estimated Impacts From the Mine Models a
----------------------------------------------------------------------------------------------------------------
                                               Estimated annual percentage
                                            --------------------------------
                 Mine model                                      Profit                    Comment
                                               Cost change      reduction
----------------------------------------------------------------------------------------------------------------
Small and medium placer....................           11-13        2.6-20.4  Does not include permitting cost;
                                                                              in worst case scenario (low gold
                                                                              prices-low ore grades), permit
                                                                              costs of $10,000-$20,000 could
                                                                              cause estimated profits to decline
                                                                              to $0.
Open pit...................................             0-6          0-13.5  Results depend on: extent of delay--
                                                                              if any--in mining caused by the
                                                                              regulation; the magnitude of any
                                                                              permit cost increases; and the
                                                                              price of gold. The higher
                                                                              estimates of profit reductions
                                                                              reflect a 1 year delay in mining,
                                                                              permitting costs that increase
                                                                              from $1 million to $1.5 million,
                                                                              and a gold price of $250/ounce.
Industrial/strip...........................         5.8-9.3        8.5-15.3  Results reflect varying increases
                                                                              in permitting costs; price of
                                                                              gypsum = $7/ton.
Underground................................           0-3.0          2.4-62  Results depend on: the length--if
                                                                              any--of delays in mining caused by
                                                                              the regulation; gold prices; and
                                                                              permitting costs. The higher
                                                                              estimates of profit reductions
                                                                              reflect a 2 year delay in mining,
                                                                              a gold price of $250/ounce, and
                                                                              permitting costs that increase
                                                                              from $10,000 to $100,000.
Exploration................................  ..............  ..............  Results depend on baseline permit
                                                                              costs and the extent of any
                                                                              increases in these costs; whether
                                                                              validity exam is required and who
                                                                              bears this cost; and whether
                                                                              notice is required to convert to a
                                                                              plan.
    Medium.................................            0-48  Not applicable
    Small..................................         6-100+
----------------------------------------------------------------------------------------------------------------
a Given that the rule has ``significant'' impacts, the impacts for each alternative are not shown. The table
  summerize results for models under alternatives 3 and 5. The upper end of the range of costs associated with
  the alternative 4 models would be higher the upper end for the alternatives 3 and 5 models.

    For most types of smaller exploration and mining operations (i.e. 
less than five acres), the main components of the proposed regulations 
affecting mining would be new administrative requirements designed to 
increase resource protection. The degree to which these factors 
(workload, time, and cost) would increase would depend on the type of 
operation and the reason a plan would be required instead of a notice.
    Current corporate guarantees will not be affected, but will not be 
allowed in the future. This will increase the cost of bonding to those 
operations who use corporate guarantees. This impact would be 
concentrated in Nevada where corporate guarantees are currently allowed 
and there are a number of large mining companies using them.
    The performance standards under the proposed regulations are 
expected to have a relatively larger impact on future large operations 
(i.e. greater than five acres) than the administrative-type provisions. 
Of the performance standards, the requirement to avoid substantial 
irreparable harm (SIH) to significant resource values which cannot be 
effectively mitigated has the greatest potential for affecting mining 
activities (both large and small). In some cases, this provision could 
preclude operations altogether. It is expected that the substantial 
irreparable harm standard would preclude exploration or mining only in 
exceptional circumstances.
    The SIH standard has the potential to impact operators who might 
otherwise engage in mineral exploration and/or development activities. 
The impacts are site specific and difficult to quantify. The magnitude 
of the impacts, the incidence of the costs, the potentially affected 
entities (and their employment size class), and the timing of the 
impacts are also difficult to determine. All of these factors could 
affect the costs. We gain some sense of the relative magnitude of the 
gross costs across the alternatives by comparing the IMPLAN results for 
alternatives 3 and 5 (for additional discussion of the IMPLAN results 
see the discussion above and the Final EIS). The gross direct costs 
associated with alternative 3 were estimated to be $305 million--$877 
million; the gross direct costs associated with alternative 5 were 
estimated to be $22 million--$182 million. However, it should be kept 
in mind that these costs need to be weighted by their probability of 
occurrence. It is not possible to estimate this probability.
    The performance standard related to pit backfilling is another 
provision which could affect small and large open pit operations. 
However, the proposed backfilling provision is similar to existing 
requirements in Nevada, and is thus expected to have little effect on 
operations in that State. Other performance standards are also expected 
to affect operations, although not to the same degree as pit 
backfilling. Standards for revegetation and protection and restoration 
of fish and wildlife habitat are expected to have their greatest impact 
on small exploration projects and small placer mining.

[[Page 70107]]

    The IMPLAN analysis estimates that the value of mine production 
originating from public lands under the proposed action will decrease 
by 10% to 30%, or $169 million to $484 million across the study area. 
This level of decreased production is associated with the following 
decreases across the study area: 2,100 to 6,050 jobs, $305 million to 
$877 million in total industry output, $138 million to $396 million in 
total personal income (of which $76 million to $218 million is employee 
compensation), and $157 million to $453 million in value-added. For the 
study areas's total current value-added as measured by gross state 
product (GSP), this $157 to $453 million would represent a 2%--6% 
decrease in GSP-related value in the metals and nonmetallic sectors.
    Most States would see decreased levels of mining on public lands, 
ranging from $101,000 to $302,000 thousand in Oregon to $117 million to 
$351 million in Nevada. Nevada's share of the loss would be 70% of the 
loss for the study area as a whole. However, with the exception of the 
substantial irreparable harm standard, Nevada's existing regulations 
already incorporate most of the provisions of the proposed action, so 
the estimated 10%--30% decline in that State's production is likely to 
be overstated. On the other hand, the impacts in Nevada are based only 
on the portion of production coming from public lands. To the extent 
that the affected portion coming from public lands may negatively 
affect a larger portion of production coming from non-BLM lands, the 
impacts to Nevada may be understated; conversely, if it leads to more 
production from non-BLM lands, the impacts may be overstated.
    A 10%-30% decline overall in mineral production from current levels 
would result from a variety of responses by the mining industry. Some 
potential future operations would now be considered uneconomic and 
therefore would not be developed. Future operations might have shorter 
mine lives. Or current operations that might expand under these new 
regulations might close sooner than they otherwise would, holding 
constant other factors (e.g. technology, commodity prices, and 
political and economic conditions for mining in other countries). A 
lower level of exploration due to more restrictions would also tend to 
decrease opportunities for future development, so some deposits would 
not even be found.
    This analysis is based on BLM's best estimates of potential overall 
reductions in the level of production of mineral commodities and 
estimates of increased costs borne by firms. But aggregate levels of 
output might not change, given more efficient mining and reclamation 
techniques, a possible shift in production to non-Federal lands, or 
other changes in market conditions. Total quantity produced could 
remain unchanged. Alternatively, the regulatory cost burden imposed by 
the proposed regulations could be overwhelmed by other market forces--
such as commodity prices--that might play a relatively more important 
role in miners' production decisions.
    Further, the regulations would not be implemented in a static 
environment. Both miners and BLM would probably become more efficient 
in meeting the requirements of the regulations over time. In the long 
run, the regulations might even create incentives for firms to seek new 
lower cost approaches to mining and reclamation. This is a reasonable 
assumption given the inclination most firms have to constantly seek 
least-cost technology and business practices. This assumption implies 
that the costs of the regulations could decline over time.
    Rural communities might or might not be affected, depending on a 
variety of factors: the current local level of activity; the degree of 
dependency or ``specialization'' a community may have in mining subject 
to proposed regulations; and the size of the community, its isolation, 
and other factors. Except possibly in Nevada, small rural communities 
in most States would lose only a small number of jobs and output 
relative to overall employment and output levels. And some or all of 
this decrease might be due to forgone future mining rather than current 
operations shutting down, or closing earlier than originally planned 
due to a reduction in economic reserves. In other words, there might be 
no impact to current mining in these communities, but new operations in 
the future might not be developed.
    In Nevada, impacts to rural communities might be greater than in 
other States due to the greater estimated decrease in activity (1,050 
to 3,200 jobs and $181 to 543 million in industry output). But the 
impact to any particular community in the State would depend on whether 
it results from existing mines closing prematurely or potential future 
operations not being developed. Any impacts at the community level 
would not likely occur in the short term while the proposed regulations 
are being implemented because mines with existing permits would not be 
affected unless they submit amendments to their plans of operations. 
But, as previously stated, Nevada's existing regulations already 
incorporate most of the provisions of the proposed action, so the 
estimated 10%-30% decline in production might be overstated.
    The conclusion of this analysis is that the regulation would affect 
a substantial number of small entities in significant manner. The 
magnitude of the impacts will vary considerably depending on the nature 
and location of the activities, site specific factors, the particular 
financial and managerial characteristics of the operations, the 
presence (and content) of any agreements with States, and when the 
operation would be subject, if at all, to the new regulations. Given 
these uncertainties, it is not possible to estimate specifically which 
entities would be affected, the magnitude of the impacts, or the 
average impacts on the potentially affected entities. The modeling 
undertaken suggests that the largest cost impacts would be felt by 
exploration activities; however, all of the other modeled mines also 
have the potential to experience significant profit reductions.

Description of Projected Record Keeping and Other Compliance 
Requirements

    Final Secs. 3809.301 and 3809.401 identify the specific information 
that must be included in a notice or a plan of operations. The level of 
detail for specific notices and plans of operations will vary depending 
upon the type of operation, the local environmental setting, and the 
issues of concern. Often the information provided for an analogous 
State requirement would be adequate. The general types of skills that 
might be required includes mining engineering, geology, hydrology, and 
other natural resource specialties. Not all notices and plans would 
require these skills. BLM will assist operators in preparing notices or 
plans when necessary.
    In response to comments stating that plan content requirements were 
too detailed or were too open-ended, BLM has revised the regulations to 
specify that the level of detail must be sufficient for BLM to 
determine that the plan of operations would prevent unnecessary or 
undue degradation. BLM recognizes that the level of detail required 
will be determined by the needs of the individual review process.

Minimizing the Impacts on Small Entities

    This rule is a major rule under SBREFA (5 U.S.C. 804(2)). This rule 
may have an annual effect on the economy of $100 million or more. See 
the discussion under E.O. 12866 above. In accordance with SBREFA, BLM 
has taken steps to minimize the compliance

[[Page 70108]]

burden on small miners. During the scoping process for the development 
of the proposed regulation, BLM actively sought comments from small 
miners. BLM's activities associated with soliciting comments from 
interested parties is described in more detail in this final rule 
preamble.
    The following components of the regulation have been explicitly 
developed to mitigate the potential impacts on small entities. This 
preamble contains considerable additional detail on changes to the 
regulation that mitigate the impacts on small entities. Examples 
include:
     Plan content and information requirements: BLM has revised 
proposed Sec. 3809.401 to specify that the level of detail must be 
sufficient for BLM to determine that the plan of operations would 
prevent unnecessary or undue degradation. BLM has also deleted 
``fully'' from the paragraph and instead will have the level of detail 
be driven by the needs of the individual review process. The required 
level of detail will vary greatly by both type of activity proposed and 
environmental resources in the project area. On large EIS-level 
projects scoping may actually start before a plan of operations is 
submitted through discussion with BLM staff on the anticipated issues 
and level of details expected. A certain level of detail is needed to 
begin public scoping. In the initial plan submission it is up to the 
operator to determine what level of detail to include in the plan. BLM 
will then advise the operator if more detail is required, concurrent 
with conducting the scoping under NEPA. BLM has also revised the final 
regulations to eliminate the ``detailed'' requirement from descriptions 
of operations and reclamation in order to let the issues of a specific 
plan of operations determine the appropriate level of detail.
     Phase in for financial guarantees: Final Sec. 3809.503 
provides that miners do not need to provide a financial guarantee if 
their existing notice is not changed. Final Sec. 3809.505 provides that 
miners have 180 days to provide financial guarantee for plans.
     The final regulation does not include contingency bonding 
because of the uncertainty it might create.
     The final regulation does not prevent BLM field managers 
from implementing a financial guarantee program on a standard per acre 
basis as long as the operator posts a financial guarantee covering the 
full cost of reclamation that is acceptable to BLM.
     Existing terms and conditions: Operators can continue to 
operate under the terms and conditions for existing plans.
     Pending plans: If a plan is pending at time regulations 
are issued, then the pre-existing plan content and performance 
standards apply.
     Modifications/extensions: No changes are required for 
notices that are not modified or extended.
     Economically and technically feasible: The term 
``economically and technically feasible'' has been inserted in a number 
of places in the regulation. For example, requirements to return 
disturbed wetlands and riparian areas to properly functioning 
conditions are only required when economically and technically feasible 
(final Sec. 3809.415); the same ``economically and technically 
feasible'' standard applies to minimizing surface disturbance 
associated with roads and structures.
     Pit backfilling: Pit backfilling is based on site-specific 
factors, taking into account ``economic, environmental, and safety 
concerns'' (section 3809.415). We have removed the proposed presumption 
from the final rule.
     Demonstration that implementation is not practical: 
Additional site- and operation-specific flexibility in the context of 
plan modifications is included by providing operators an opportunity to 
demonstrate to BLM that application of the regulation is ``not 
practical'' (final Sec. 4809.433).
     Corporate guarantees: Existing corporate guarantees can 
continue to be used (final Sec. 3809.571).
     Minimize the potential for delays: The final rule requires 
to review a notice application within 15 calendar days.
     Performance standards: Proposed Sec. 3809.420 was modified 
in response to comments mainly by providing added flexibility to 
operators. Requirements to prevent the introduction of noxious weeds, 
and prevent erosion, siltation and air pollution were replaced with a 
requirement to minimize introduction of noxious weeds and minimize 
erosion, siltation, and air pollution. This was done in response to 
public comments that pointed out an operator cannot always prevent 
impacts from occurring.
     Existing State agreements: Final Sec. 3809.204 provides 
that portions of existing Federal/State agreements or MOAS that are 
inconsistent with this final rule can remain in effect for up to three 
years. For these situations, the implementation of the rule could be 
delayed for up to three years.
     State administration: When requested, BLM must give states 
the lead where the State program is at least as stringent as BLM 
requirements. This will allow the surface management program to be 
tailored to State-specific conditions.
     State Director appeal: The regulations provide that 
individuals who believe a BLM decision adversely affects their 
interests can appeal to BLM State Directors.
     Joint and several liability: BLM revised the final rule 
(Sec. 3809.116) to clarify the joint and several liability provisions. 
The final rule provides that mining claimants are responsible only for 
obligations arising from activities or conditions on their mining 
claims or millsites.
     ESA: In the final rule, BLM clarified that the reference 
to ``threatened or endangered species or their critical habitat'' in 
the proposed rule means Federally proposed or listed threatened or 
endangered species or their proposed or designated critical habitat.
     Waiver of penalties: BLM is allowed to waive and consider 
ability to pay in civil penalty situations (final Sec. 3809.702).
     Plain language: The regulation uses clear and simple 
language which allows the rule to be easily understood by small 
entities that do not have access to legal staff or extensive legal 
experience.
    BLM recognized that the requirement to provide a portion of the 
financial guarantee in a form that would be ``immediately redeemable'' 
by BLM could impose a cost on operators, particularly small operators. 
Thus, BLM has deleted this requirement from the final rule.
    BLM also has existing procedures in place to mitigate the 
requirements of the regulation on small entities. These procedures have 
been used in locations such as the California Desert Conservation Area 
(CDCA), part of the California Desert District (CDD), where the FLPMA 
requires stricter permitting requirements. The CDCA area provides an 
indication of how the regulation will be implemented BLM-wide. The goal 
in the CDD is to mitigate the burden of the permitting requirements on 
small entities.
    The CDD covers about 12.5 million acres, of which about 11 million 
are within the CDCA. About 40% of the acreage within the CDCA is 
classified such that all mineral activity above casual use requires a 
plan of operation. Recently, CDD averaged about 40-50 plans per year. 
For a plan that would be a notice in other locations, the information 
that the operator must submit is not as extensive as that required for 
a large-scale mining operation. The compliance burdens on small 
entities are minimized because BLM conducted a programmatic assessment 
to address most formal ESA section 7 consultation requirements.

[[Page 70109]]

    Another example of how BLM is likely to undertake program-wide 
measures to implement the regulation is from Arizona, where BLM 
prepared a programmatic environmental assessment for processing notices 
where there are use and occupancy issues (See 43 CFR subpart 3715). 
Similar programmatic efforts are likely to be undertaken for subpart 
3809 in selected areas. This will reduce the burden on small entities. 
The extent to which this occurs will depend on the nature and extent of 
the specific activities. One possible case is in locations where known 
and predictable levels of suction dredging occur.
    The final regulation provides substantial opportunities to mitigate 
the impacts of the regulation on small entities. The elements of the 
regulation that mitigate the impacts on small entities were identified 
and discussed above. As required by the Regulatory Flexibility Act, BLM 
will publish a small entity compliance guide and make the guide readily 
available.
    For additional information, see the final RFA analysis on file in 
the BLM Administrative Record at the Nevada State Office, P.O. Box 
12000, Reno, Nevada 89520, or contact BLM's Regulatory Affairs Group at 
202/452-5030.

Unfunded Mandates Reform Act

    These 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 final rule does not have significant takings implications. It 
doesn't 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 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, Aug. 
10, 1999), requires BLM to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects 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.''
    Under section 6 of E.O. 13132, BLM may not issue a regulation that 
has federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or BLM consults with 
State and local officials early in the process of developing the 
proposed regulation. BLM also may not issue a regulation that has 
federalism implications and that preempts State law, unless the BLM 
consults with State and local officials early in the process of 
developing the proposed regulation.
    If BLM complies by consulting, E.O. 13132 requires BLM to provide 
to the Office of Management and Budget (OMB), in a separately 
identified section of the preamble to the rule, a federalism summary 
impact statement. The summary impact statement must include a 
description of the extent of BLM's prior consultation with State and 
local officials, a summary of the nature of their concerns and BLM's 
position supporting the need to issue the regulation, and a statement 
of the extent to which the concerns of State and local officials have 
been met. Also, when BLM transmits a draft final rule with federalism 
implications to OMB for review pursuant to E. O. 12866, BLM must 
include a certification from the agency's Federalism Official stating 
that BLM has met the requirements of E. O. 13132 in a meaningful and 
timely manner.
    This final rule does have federalism implications in that in 
certain circumstances it may preempt State law. It 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. The final 
rule will provide States greater opportunities to administer the mining 
regulatory program on public lands. The following paragraphs contain a 
description of the extent of BLM's prior consultation with State and 
local officials, a summary of the nature of their concerns and BLM's 
position supporting the need to issue the regulation, and a statement 
of the extent to which the concerns of State and local officials have 
been met.

Extent of Consultation

    In the development of this final 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 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 (WGA) 
in April 1997, March 1998, September 1998, and January 2000. 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 both the WGA meetings and the 
Internet postings.
    In addition to the meetings sponsored by the Western Governors 
Association, BLM conducted numerous meetings with representatives of 
individual States. These meetings typically involved BLM State 
Directors or their staff members briefing representatives of State 
legislatures and State agencies. As an example of this activity, we are 
including the following list of meetings conducted in Nevada, the major 
hardrock mining State:

March 10, 1999
    BLM public briefing for Nevada and California agencies and State 
mining associations
March 26, 1999
    BLM public briefing for Nevada Department of Conservation and 
Natural Resources, Advisory Board on Natural Resources
September 9, 1999
    Public briefing for Nevada Legislative Committee on Public Lands
September 13, 1999
    Public briefing for Nevada State Land-Use Planning Advisory Council 
meeting
October 1, 1999
    Public briefing for Nevada State Land-Use Planning Advisory Council 
meeting
January 26, 2000
    Public briefing for Nevada Legislative Committee on Public Lands.

Nature of State Concerns and BLM's Response to the Concerns

    During the three and one-half years that we have been developing 
this final rule and throughout the consultation process we have 
conducted with the

[[Page 70110]]

States, we have heard many concerns expressed, both of a general and a 
specific nature. One general concern expressed by the States in the 
early stages of our consultation is that BLM must demonstrate a need 
for any regulatory changes, and in this case, had not demonstrated the 
need for the 3809 rulemaking. BLM agrees that, in general, a regulatory 
change should be based on an effort to address a real-world problem. 
BLM doesn't enter into the lengthy and expensive rulemaking process 
without sufficient reason. In this case, we responded to the States' 
concern about the need for the rulemaking by setting forth in detail 
our reasons for undertaking this rulemaking in the proposed rule 
preamble. In pertinent part, we said:

    ``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.''

    64 FR 6422, 6424, Feb. 9, 1999. After we published the proposed 
rule, the NRC Report bolstered our view that regulatory changes are 
necessary by recommending specific actions to address regulatory 
``gaps'' (pp. 7-9). A recent communication from the Western Governors 
Association confirms that they have changed their original view that 
there is no need for any regulatory changes. A letter to Secretary of 
the Interior Babbitt, dated February 23, 2000, and signed by 10 Western 
Governors, states:

    ``The NRC's report did identify a few regulatory gaps in the 
current system. We suggest BLM refocus its efforts on addressing 
those gaps. We recommend that the BLM coordinate with the states to 
identify any gaps, which may be different for each state, and 
develop solutions that are state specific. Closing the gaps in each 
state could involve a combination of policy and rule development at 
the state and/or federal level.''

    A related general concern expressed by the States in the course of 
the consultation process is that revising BLM's existing regulations 
would cause duplication of existing State programs. BLM, too, wants to 
avoid duplication and has carefully designed this final rule to achieve 
that purpose. The Secretary's January 6, 1997, memorandum, which re-
initiated this rulemaking, specifically directed BLM to carefully 
address coordination with State regulatory programs to prevent 
unnecessary or undue degradation while minimizing duplication and 
promoting cooperation among regulators. Following the Secretary's 
directive, we have designed a set of regulations under which BLM and a 
State can have an agreement to divide program responsibilities (final 
Sec. 3809.200(a)) or an agreement under which BLM defers to State 
administration of some or all of the requirements of this subpart 
(final Sec. 3809.200(b)). Under the previous rules, BLM only had the 
authority for the former agreement (previous Sec. 3809.3-1(c)). Thus, 
in our view, we have created under this final rule greater 
opportunities for the States to assume control over the surface 
management program, subject only to BLM oversight or, in the case of 
approving plans of operations, BLM concurrence.
    Another State concern expressed during the consultation process was 
whether BLM would provide funding for States who elected to operate the 
regulatory program under a Sec. 3809.200(b) agreement. Some State 
representatives felt that BLM should turn over to the State a portion 
of BLM's budget along with the program management responsibility under 
a Sec. 3809.200(b) agreement. BLM is sensitive to the funding issue and 
the impact that BLM's deferral to a State of all or part of a program 
could have on State-level resources. At the same time, we recognize and 
have explained to the States that BLM does not have the authority to 
provide funding to States under a Sec. 3809.200(b) agreement. Only 
Congress can do that.
    Early in the consultation process, before the 3809 task force had 
developed a written proposal, we met with State representatives under 
the auspices of the Western Governors Association to discuss at a 
conceptual level the areas the rulemaking should address. At that 
meeting, which took place in April 1997, the States expressed views on 
a number of specific issues. For example, several States shared the 
view that the rulemaking should avoid prescriptive national reclamation 
standards. The States believe that the regulations have to take into 
account the differences between the types of minerals sought, the types 
of mines, climate, topography, and the nature of various mineral 
processing activities. There should be no one-size-fits-all design or 
operating blueprint required by the regulations because it could never 
take into account the inherent variation of mining operations across 
the West. Other views expressed by the States include the following:
     A regulatory approach that requires best available control 
technology (BACT) is not effective since it stifles innovative 
approaches and doesn't take into account differences in geology and 
climate.
     BLM should not duplicate or supersede Federally delegated 
or State-legislated environmental authority.
     Specified time frames for BLM to process notices, plans of 
operations, and other required documents are an important component of 
regulatory processes.
     Bonding is an integral part of the regulatory and 
reclamation process.
     BLM should continue to focus its performance standards on 
outcomes on the ground.
     BLM should examine implementation of existing tools, 
recognize legitimacy of different approaches, examine claims carefully 
and avoid extreme or out-of-date examples.
     The revised regulations should focus on interagency and 
intergovernmental cooperation.
    BLM took these views into account in developing our first draft of 
proposed regulations. We posted this draft on the Internet in February 
1998 for public information. In response to the States' concerns, this 
first draft retained the time frames for BLM to process notices and 
plans of operations, reinstated the remanded financial guarantee 
(bonding)

[[Page 70111]]

requirement for notices and plans of operations, included an expanded 
series of outcome-based performance standards, and, as discussed above, 
added the opportunity for BLM to defer to States to administer the 
surface management program.
    Shortly after releasing our first draft, we again met with State 
representatives under the auspices of the Western Governors Association 
to discuss any concerns related to the first draft. This meeting took 
place in March 1998. Some of the general concerns expressed by the 
State representatives at this meeting included whether the regulations 
would preempt more stringent State law; would BLM pay for States to 
assume some or all of program responsibilities; that the regulations 
should specify that BLM would ``concur with'' State approval of plans 
not ``approve'' them; exactly how would a State receive BLM's approval 
to administer all or part of the surface management program in a State; 
the regulations should base inspection frequency on risk associated 
with each operation; and the definition of ``operator'' may extend 
liability for a site to stockholders in a corporation, an action that 
may supersede principles of corporate law. There were also a number of 
specific comments on the February draft.
    Following this meeting, the 3809 task force made changes to the 
working draft of the regulations and posted a revised version on the 
Internet in August 1988 for public information. In response to the 
general comments, we clarified that there would be no conflict between 
the 3809 regulations and State law or regulations if the State law or 
regulations require a higher standard of protection for public lands 
than 3809. We changed the draft to require only that BLM ``concur'' 
with a State approval of a plan of operations, deleting the requirement 
that BLM ``approve'' the State approval. We added provisions specifying 
the process that BLM would follow in approving a State request to 
administer all or part of the surface management program in a State. We 
also changed the proposed definition of ``operator'' to avoid 
inadvertently assigning liability to stockholders by requiring material 
participation in the management, direction, or conduct of a mining 
operation as a prerequisite for liability.
    After the 3809 task force posted a second revised draft on the 
Internet in August 1998, we met with State representatives in Denver in 
September. The purpose of the meeting was to get the States' reaction 
to the changes we had made in response to their comments from the March 
meeting. The questions and concerns raised by the State representatives 
at the meeting include the following:
     Would third parties be able to appeal or sue over a BLM 
State Director decision to defer to State administration of a program?
     One year may not be enough time to complete the review of 
existing Federal/State memoranda of understanding.
     BLM should look for a pattern of performance in evaluating 
State operation of a program, as opposed to focusing on individual 
actions.
     Concurrence by BLM on plans may be interpreted differently 
by different BLM offices.
     The definition of ``minimize,'' when equated to prevention 
implies that disturbance can be prevented. When BLM means ``prevent,'' 
it should say ``prevent,'' not ``minimize.''
     Will existing operations have to comply with bond release 
provisions?
     Citizens accompanying inspectors will cause problems with 
joint State/BLM inspections.
     Could an operator be subject to both State and Federal 
enforcement for a violation?
     BLM shouldn't require a detailed monitoring plan at the 
time of plan submittal. The monitoring plan should be conceptual at 
that point.
     BLM shouldn't require public comment on bond amount.
     BLM shouldn't require operators to comply with standards 
that are the responsibility of other agencies to enforce.
    The task force took the comments from this meeting into account in 
developing the proposed rule that was published on February 9, 1999 (64 
FR 6422). Some of the changes we made to the proposed rule as a result 
of this meeting include asking in the proposed rule preamble for views 
on whether one year would be enough time to review existing Federal/
State agreements for consistency with the 3809 regulations. In the 
final rule, we are adopting provisions that allow up to 3 years for the 
review to be completed. BLM responded to another State comment by 
clarifying in the preamble to the proposed rule that BLM would not look 
at isolated incidents in determining that a State is not in compliance 
with a Federal/State agreement. BLM would consider patterns, trends, 
and programmatic issues more important indicators of State performance. 
We also changed the proposed definition of ``minimize'' to accommodate 
the States' concern about the use of the word ``prevent.'' In response 
to the States' concern about monitoring plans, we explained in the 
proposed rule preamble that we recognize that in the initial phase of 
developing a mining operation, complete and detailed designs and plans 
are not always available.
    After we published the proposed rule and the 120-day comment period 
had closed, Congress directed that BLM pay for a NRC study of the 
existing regulations. Congress subsequently directed BLM to reopen the 
comment period for 120 days to give the public an opportunity to 
comment on the proposed rule in light of the NRC Report. As described 
earlier in this preamble, BLM published the reopening notice on October 
26, 1999 (64 FR 57613). The comment period extended from October 26, 
1999 to February 23, 2000. During the comment period, the 3809 task 
force again met with State representatives under the auspices of the 
Western Governors' Association. The purpose of the meeting was 
primarily to get comments on the proposed rule in light of the NRC 
Report. The meeting took place in Denver in January 2000. The thrust of 
the States' comments at that meeting was agreement with the conclusions 
of the NRC Report--that the current regulatory system is working well, 
and there is no need for sweeping changes. Also, BLM should focus its 
rulemaking efforts strictly on addressing NRC-identified gaps. And, BLM 
and the Forest Service should pursue non-regulatory approaches 
identified in the NRC Report.
    Based on the sequence of events summarized above, BLM believes that 
we have fully complied with the requirement of the Executive Order to 
consult with State and local officials early in the process of 
developing the proposed regulation. BLM also believes that we have 
addressed the concerns expressed by State representatives to the extent 
possible given the Secretary of the Interior's independent and non-
delegable responsibility to determine what constitutes unnecessary or 
undue degradation of the public lands.

Paperwork Reduction Act

    This final rule requires collection of information from 10 or more 
persons. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), BLM submitted an information collection approval package (OMB 
Form 83-I) to the Office of Management and Budget (OMB) for review when 
we published the proposed rule in February 1999. We received numerous 
comments on the approval package and, as a result, re-examined the 
information collection

[[Page 70112]]

burden that these rules would impose. We discussed this matter in our 
October 26, 1999, supplemental proposed rule. See 64 FR 57618-9. We 
have now prepared a revised OMB Form 83-I and submitted it to OMB for 
review. Our responses to the comments we received on the original 
approval package are part of the revised package, and we have concluded 
that it is unnecessary for BLM to seek further public comment at this 
time. OMB has approved the information collections contained in this 
final rule and has assigned them OMB Clearance Number 1004-0194.
    BLM intends to collect information under this final rule to ensure 
that persons conducting exploration or mining activities on public land 
conduct only necessary and timely surface-disturbing activities, 
determine that proposed exploration or mining will meet the performance 
standards of subpart 3809, determine appropriate mitigation and 
reclamation measures for the site, ensure compliance with environmental 
laws, and comply with NEPA, the Endangered Species Act, and section 106 
of the National Historic Preservation Act. A response is mandatory and 
required to obtain the benefit of conducting exploration or mining 
activities on public land. BLM estimates the total annual burden for 
subpart 3809 is 306,536 hours.

Authors

    The principal authors of this final 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

43 CFR Part 2090

    Airports, Alaska, Coal, Grazing lands, Indians-lands, Public lands, 
Public lands-classification, Public lands-mineral resources, Public 
lands-withdrawal, Seashores.

43 CFR Part 2200

    Administrative practice and procedure, Antitrust, Coal, National 
forests, Public lands.

43 CFR Part 2710

    Administrative practice and procedure, Public lands-mineral 
resources, Public lands-sale.

43 CFR Part 2740

    Intergovernmental relations, Public lands-sale, Recreation and 
recreation areas, Reporting and recordkeeping requirements.

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.

43 CFR Part 9260

    Continental shelf, Forests and forest products, Law enforcement, 
Penalties, Public lands, Range management, Recreation and recreation 
areas, wildlife.

Sylvia V. Baca,
Assistant Secretary, Land and Minerals Management.

    Accordingly, BLM is amending 43 CFR parts 2090, 2200, 2710, 2740, 
3800 and 9260 as set forth below:

PART 2090--SPECIAL LAWS AND RULES

    1. The authority citation for part 2090 continues to read as 
follows:

    Authority: 16 U.S.C. 3124; 30 U.S.C. 189; and 43 U.S.C. 322, 
641, 1201, 1624, and 1740.

Subpart 2091--Segregation and Opening of Lands


Sec. 2091.2-2  [Amended]

    2. In Sec. 2091.2-2, remove and reserve paragraph (b).


Sec. 2091.3-2  [Amended]

    3. In Sec. 2091.3-2, remove paragraph (c) and redesignate paragraph 
(d) as paragraph (c).

PART 2200--EXCHANGES: GENERAL PROCEDURES

    4. The authority citation for part 2200 continues to read as 
follows:

    Authority: 43 U.S.C. 1716 and 1740.

Subpart 2201--Exchanges--Specific Requirements


Sec. 2201.1-2  [Amended]

    5. In Sec. 2201.1-2, remove paragraph (d) and redesignate paragraph 
(e) as paragraph (d).

PART 2710--SALES: FEDERAL LAND POLICY AND MANAGEMENT ACT

    6. The authority citation for part 2710 continues to read as 
follows:

    Authority: 43 U.S.C. 1713 and 1740.

Subpart 2711--Sales: Procedures


Sec. 2711.5-1  [Removed]

    7. Remove Sec. 2711.5-1.

PART 2740--RECREATION AND PUBLIC PURPOSES ACT

    8. The authority citation for part 2740 continues to read as 
follows:

    Authority: 43 U.S.C. 869 et seq., 43 U.S.C. 1701 et seq., and 31 
U.S.C. 9701.

Subpart 2741--Recreation and Public Purposes Act: Requirements


Sec. 2741.7  [Amended]

    9. In Sec. 2741.7, remove paragraph (d).

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

    10. 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   When do I have to submit a plan of operations?
3809.21   When do I have to submit a notice?
3809.31   Are there any special situations that affect what 
submittals I must make before I conduct operations?
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   Will BLM disclose to the public the information I submit 
under this subpart?
3809.115   Can BLM collect information under this subpart?.
3809.116   As a mining claimant or operator, what are my 
responsibilities under this subpart for my project area?

Federal/State Agreements

3809.200   What kinds of agreements may BLM and a State make under 
this subpart?
3809.201   What should these agreements address?
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?

[[Page 70113]]

3809.312   When may I begin operations after filing a complete 
notice?
3809.313   Under what circumstances may I not begin operations 15 
calendar 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?
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   How does this subpart apply to pending modifications for 
new or existing facilities?

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?
3809.574   What happens if I have an existing corporate 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 or millsite is patented?

Forfeiture of Financial Guarantee

3809.595   When may 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 decision?
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?
3809.605   What are prohibited acts under this subpart?

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   Who may appeal BLM decisions under this subpart?
3809.801   When may I file an appeal of the BLM decision with OHA?
3809.802   What must I include in my appeal to OHA?
3809.803   Will the BLM decision go into effect during an appeal to 
OHA?
3809.804   When may I ask the BLM State Director to review a BLM 
decision?
3809.805   What must I send BLM to request State Director review?
3809.806   Will the State Director review the original BLM decision 
if I request State Director review?
3809.807   What happens once the State Director agrees to my request 
for a review of a decision?
3809.808   How will decisions go into effect when I request State 
Director review?
3809.809   May I appeal a decision made by the State Director?

Public Visits To Mines

3809.900   Will BLM allow the public to visit mines on public lands?

Subpart 3809--Surface Management

    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.

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 where the mineral interest is reserved to the 
United States, including Stock Raising Homestead

[[Page 70114]]

lands as provided in Sec. 3809.31(c). When public lands are sold or 
exchanged under 43 U.S.C. 682(b) (Small Tracts Act), 43 U.S.C. 869 
(Recreation and Public Purposes Act), 43 U.S.C. 1713 (sales) or 43 
U.S.C. 1716 (exchanges), minerals reserved to the United States 
continue to be removed from the operation of the mining laws unless a 
subsequent land-use planning decision expressly restores the land to 
mineral entry, and BLM publishes a notice to inform the public.
    (b) This subpart does not apply to lands in the National Park 
System, National Forest System, and the National Wildlife Refuge 
System; acquired lands; 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 does not apply to private land except as provided 
in paragraphs (a) and (c) of this section. For purposes of analysis 
under the National Environmental Policy Act of 1969, BLM may collect 
information about private land that is near to, or may be affected by, 
operations authorized under this subpart.
    (e) This subpart applies to operations that involve locatable 
minerals, including 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.


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 geochemical, 
rock, soil, or mineral specimens using hand tools; hand panning; or 
non-motorized sluicing. It may include use of small portable suction 
dredges. It also generally includes use of metal detectors, gold spears 
and other battery-operated devices for sensing the presence of 
minerals, and hand and battery-operated drywashers. Operators may use 
motorized vehicles for casual use activities provided the use is 
consistent with the regulations governing such use (part 8340 of this 
title), off-road vehicle use designations contained in BLM land-use 
plans, and the terms of temporary closures ordered by BLM.
    (2) Casual use does not include use of mechanized earth-moving 
equipment, truck-mounted drilling equipment, motorized vehicles in 
areas when designated as closed to ``off-road vehicles'' as defined in 
Sec. 8340.0-5 of this title, chemicals, or explosives. It also does not 
include ``occupancy'' as defined in Sec. 3715.0-5 of this title or 
operations in areas where the cumulative effects of the activities 
result in more than negligible disturbance.
    Exploration means creating surface disturbance greater than casual 
use that includes sampling, drilling, or developing surface or 
underground workings to evaluate the type, extent, quantity, or quality 
of mineral values present. Exploration does not include activities 
where material is extracted for commercial use or sale.
    Minimize means to reduce the adverse impact of an operation to the 
lowest practical level. During review of operations, BLM may determine 
that it is practical 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.
    Operations means all functions, work, facilities, and activities on 
public lands in connection with prospecting, exploration, 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.

[[Page 70115]]

    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: The 
performance standards in 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;
    (2) Are not ``reasonably incident'' to prospecting, mining, or 
processing operations as defined in Sec. 3715.0-5 of this title;
    (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; or
    (4) Occur on mining claims or millsites located after October 21, 
1976 (or on unclaimed lands) and result in substantial irreparable harm 
to significant scientific, cultural, or environmental resource values 
of the public lands that cannot be effectively mitigated.


Sec. 3809.10  How does BLM classify operations?

    BLM classifies operations as--
    (a) Casual use, for which an operator need not notify BLM. (You 
must reclaim any casual-use disturbance that you create. If your 
operations do not qualify as casual use, you must submit a notice or 
plan of operations, whichever is applicable. See Secs. 3809.11 and 
3809.21.);
    (b) Notice-level operations, for which an operator must submit a 
notice (except for certain suction-dredging operations covered by 
Sec. 3809.31(b)); and
    (c) Plan-level operations, for which an operator must submit a plan 
of operations and obtain BLM's approval.


Sec. 3809.11  When do I have to submit a plan of operations?

    (a) You must submit a plan of operations and obtain BLM's approval 
before beginning operations greater than casual use, except as 
described in Sec. 3809.21. Also see Secs. 3809.31 and 3809.400 through 
3809.434.
    (b) You must submit a plan of operations for any bulk sampling in 
which you will remove 1,000 tons or more of presumed ore for testing.
    (c) You must submit a plan of operations for any operations causing 
surface disturbance greater than casual use in the following special 
status areas where Sec. 3809.21 does not apply:
    (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 lands or waters known to contain Federally proposed or 
listed threatened or endangered species or their proposed or designated 
critical habitat, unless BLM allows for other action under a formal 
land-use plan or threatened or endangered species recovery plan; and
    (7) National Monuments and National Conservation Areas administered 
by BLM.


Sec. 3809.21  When do I have to submit a notice?

    (a) You must submit a complete notice of your operations 15 
calendar days before you commence exploration causing surface 
disturbance of 5 acres or less of public lands on which reclamation has 
not been completed. See Sec. 3809.301 for information on what you must 
include in your notice.
    (b) You must not segment a project area by filing a series of 
notices for the purpose of avoiding filing a plan of operations. See 
Secs. 3809.300 through 3809.336 for regulations applicable to notice-
level operations.


Sec. 3809.31  Are there any special situations that affect what 
submittals I must make before I conduct operations?

    (a) Where the cumulative effects of casual use by individuals or 
groups have resulted in, or are reasonably expected to result in, more 
than negligible disturbance, the State Director may establish specific 
areas as he/she deems necessary where any individual or group intending 
to conduct activities under the mining laws must contact BLM 15 
calendar days before beginning activities to determine whether the 
individual or group must submit a notice or plan of operations. (See 
Sec. 3809.300 through 3809.336 and Sec. 3809.400 through 3809.434.) BLM 
will notify the public via publication in the Federal Register of the 
boundaries of such specific areas, as well as through posting in each 
local BLM office having jurisdiction over the lands.
    (b) Suction dredges. (1) If your operations involve the use of a 
suction dredge, the State requires an authorization for its use, and 
BLM and the State have an agreement under Sec. 3809.200 addressing 
suction dredging, then you need not submit to BLM a notice or plan of 
operations, unless otherwise provided in the agreement between BLM and 
the State.
    (2) For all uses of a suction dredge not covered by paragraph 
(b)(1) of this section, you must contact BLM before beginning such use 
to determine whether you need to submit a notice or a plan to BLM, or 
whether your activities constitute casual use. If your proposed suction 
dredging is located

[[Page 70116]]

within any lands or waters known to contain Federally proposed or 
listed threatened or endangered species or their proposed or designated 
critical habitat, regardless of the level of disturbance, you must not 
begin operations until BLM completes consultation the Endangered 
Species Act requires.
    (c) If your operations require you to occupy or use a site for 
activities ``reasonably incident'' to mining, as defined in 
Sec. 3715.0-5 of this title, whether you are operating under a notice 
or a plan of operations, you must also comply with part 3710, subpart 
3715, of this title.
    (d) If your operations are located on lands patented under the 
Stock Raising Homestead Act and you do not have the written consent of 
the surface owner, then you must submit a plan of operations and obtain 
BLM's approval. Where you have surface-owner consent, you do not need a 
notice or a plan of operations under this subpart. See part 3810, 
subpart 3814, of this title.
    (e) If your proposed operations are located on lands conveyed by 
the United States which contain minerals reserved to the United States, 
then you must submit a plan of operations under Sec. 3809.11 and obtain 
BLM's approval or a notice under Sec. 3809.21.


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 or allow notice-level operations to 
proceed 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 a plan of operations or allowing 
notice-level operations to proceed on segregated lands. If the report 
concludes that the mining claim is invalid, BLM will not approve 
operations or allow notice-level 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,
    (1) BLM may--
    (i) 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
    (ii) Approve a plan of operations for the operator to perform the 
minimum necessary annual assessment work under Sec. 3851.1 of this 
title; or
    (2) A person may only conduct exploration under a notice that is 
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.
    (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 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  Will BLM disclose to the public the information I submit 
under this subpart?

    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.


Sec. 3809.115  Can BLM collect information under this subpart?

    Yes, the Office of Management and Budget has approved the 
collections of information contained in this subpart under 44 U.S.C. 
3501 et seq. and assigned clearance number 1004-0194. BLM will use this 
information to regulate and monitor mining and exploration operations 
on public lands.


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

    (a)(1) Mining claimants and operators (if other than the mining 
claimant) are jointly and severally liable for obligations under this 
subpart that accrue while they hold 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 reclamation, resulting from activities or conditions in the 
areas in which the mining claimants hold mining claims or mill sites or 
the

[[Page 70117]]

operators have operational responsibilities.

    Example 1. Mining claimant A holds mining claims totaling 100 
acres. Mining claimant B holds adjoining mining claims totaling 100 
acres and mill sites totaling 25 acres. Operator C conducts mining 
operations on a project area that includes both claimant A's mining 
claims and claimant B's mining claims and millsites. Mining claimant 
A and operator C are each 100 percent responsible for obligations 
arising from activities on mining claimant A's mining claims. Mining 
claimant B has no responsibility for such obligations. Mining 
claimant B and operator C are each 100 percent responsible for 
obligations arising from activities on mining claimant B's mining 
claims and millsites. Mining claimant A has no responsibility for 
such obligations.
    Example 2. Mining claimant L holds mining claims totaling 100 
acres on which operators M and N conduct activities. Operator M 
conducts operations on 50 acres. Operator N conducts operations on 
the other 50 acres. Operators M and N are independent of each other 
and their operations do not overlap. Mining claimant L and operator 
M are each 100 percent responsible for obligations arising from 
activities on the 50 acres on which operator M conducts activities. 
Mining claimant L and operator N are each 100 percent responsible 
for obligations arising from activities on the 50 acres on which 
operator N conducts activities. Operator M has no responsibility for 
the obligations arising from operator N's activities.
    Example 3. Mining claimant X holds mining claims totaling 100 
acres on which operators Y and Z conduct activities. Operators Y and 
Z each engage in activities on the entire 100 acres. Mining claimant 
X, operator Y, and operator Z are each 100 percent responsible for 
obligations arising from all operations on the entire 100 acres.

    (2) 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 that accrued or conditions that were 
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 that accrued or conditions that were 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 for the transferor's previously accrued obligations, and
    (2) BLM accepts an adequate replacement financial guarantee 
adequate to cover such previously accrued obligations and the 
transferee's new obligations.

Federal/State Agreements


Sec. 3809.200  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. 3809.201  What should these agreements address?

    (a) The agreements should provide for maximum possible coordination 
with the State to avoid duplication and to ensure that operators 
prevent unnecessary or undue degradation of public lands. Agreements 
should cover any or all sections of this subpart and should consider, 
at a minimum, common approaches to review of plans of operations, 
including effective cooperation regarding the National Environmental 
Policy Act; performance standards; interim management of temporary 
closure; financial guarantees; inspections; and enforcement actions, 
including referrals to enforcement authorities. BLM and the State 
should also include provisions for the regular review or audit of these 
agreements.
    (b) To satisfy the requirements of Sec. 3809.31(b), if BLM and the 
State elect to address suction dredge activities in the agreement, the 
agreement must require a State to notify BLM of each application to 
conduct suction dredge activities within 15 calendar days of receipt of 
the application by the State. BLM will inform the State whether 
Federally proposed or listed threatened or endangered species or their 
proposed or designated critical habitat may be affected by the proposed 
activities and any necessary mitigating measures. Operations must not 
begin until BLM completes consultation or conferencing under the 
Endangered Species Act.


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 are the same as 
corresponding numerical BLM standards, except that State review and 
approval time frames do not have to be the same as the corresponding 
Federal time frames.
    (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.

[[Page 70118]]

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 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, 
release, or forfeiture 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 
calendar days in advance.


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

    (a) No, this subpart doesn't cancel a Federal/State agreement or 
memorandum of understanding in effect on January 20, 2001. A Federal/
State agreement or memorandum of understanding 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 January 20, 
2001.
    (b) The BLM State Director may extend the review period described 
in paragraph (a) of this section for one more year upon the written 
request of the Governor of the State or the delegated representative of 
the Governor, and if necessary, for a third year upon another written 
request. The existing agreement or memorandum of understanding 
terminates no later than one year after January 20, 2001 if this review 
and any necessary revision does not occur, unless extended under this 
paragraph.
    (c) This subpart applies during the review period described in 
paragraphs (a) and (b) of this section. Where a portion of a Federal/
State agreement or memorandum of understanding existing on January 20, 
2001 is inconsistent with this subpart, that portion continues in 
effect until the agreement or memorandum of understanding is revised 
under this subpart or terminated.

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 January 20, 2001, follow this table:

------------------------------------------------------------------------
  If BLM has received your complete
  notice before January 20, 2001--                  Then--
------------------------------------------------------------------------
 (a) You are the operator            You may conduct operations for 2
 identified in the notice on file     years after January 20, 2001 under
 with BLM on January 20, 2001.        the terms of your existing notice
                                      and the regulations in effect
                                      immediately before that date. (See
                                      43 CFR parts 1000-end, revised as
                                      of Oct. 1, 1999.) After 2 years,
                                      you may extend your notice under
                                      Sec.  3809.333. BLM may require a
                                      modification under Sec.
                                      3809.331(a)(1). See Sec.  3809.503
                                      for financial guarantee
                                      requirements applicable to
                                      notices.
------------------------------------------------------------------------
 (b) You are a new operator, that    The provisions of this subpart,
 is, you were not the operator        including Sec.  3809.320, govern
 identified in the notice on file     your operations for 2 years after
 with BLM on January 20, 2001.        January 20, 2001, unless you
                                      extend your notice under Sec.
                                      3809.333.
------------------------------------------------------------------------
 (c) You later modify your notice..  (1) You may conduct operations on
                                      the original acreage for 2 years
                                      after January 20, 2001 under the
                                      terms of your existing notice and
                                      the regulations in effect
                                      immediately before that date (See
                                      43 CFR parts 1000-end, revised as
                                      of Oct. 1, 2000.) After 2 years,
                                      you may extend your notice under
                                      Sec.  3809.333. BLM may require a
                                      modification under Sec.
                                      3809.331(a)(1). See Sec.
                                      3809.503(b) for financial
                                      guarantee requirements applicable
                                      to notices.
                                     (2) Your operations on any
                                      additional acreage come under the
                                      provisions of this subpart,
                                      including Secs.  3809.11 and
                                      3809.21, and may require approval
                                      of a plan of operations before the
                                      additional surface disturbance
                                      may.
------------------------------------------------------------------------
 (d) Your notice has expired.......  You may not conduct operations
                                      under an expired notice. You must
                                      promptly submit either a new
                                      notice under Sec.  3809.301 or a
                                      plan of operations under Sec.
                                      3809.401, whichever is applicable,
                                      or immediately begin to reclaim
                                      your project area. See Secs.
                                      3809.11 and 3809.21.
------------------------------------------------------------------------


[[Page 70119]]

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

    (a) If you qualify under Sec. 3809.21, 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, 
taxpayer 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 expect 
to begin operations and the date you expect to 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.
    (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 calendar 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 
calendar 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 calendar 
days to ensure it is complete. BLM will repeat this process until your 
notice is complete, or until we determine that you may not conduct 
operations because of your inability to prevent unnecessary or undue 
degradation.


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 calendar 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 BLM completes our review sooner than 15 calendar days after 
receiving your complete notice, we may notify you that you may begin 
operations.
    (c) You must provide to BLM 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 
calendar days after filing my notice?

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

------------------------------------------------------------------------
   If BLM reviews your notice and,
     within 15 calendar 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
 calendar days, to complete its       ends.
 review.
------------------------------------------------------------------------
(b) Notifies you that you must       You must not begin operations until
 modify your notice to prevent        you modify your notice to ensure
 unnecessary or undue degradation.    that your operations prevent
                                      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. BLM will notify you if
                                      we will not conduct the site visit
                                      within 15 calendar days of
                                      determining that a visit is
                                      necessary, including the reason(s)
                                      for the delay.
------------------------------------------------------------------------
(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 are changes that disturb areas not described in the 
existing notice; change your reclamation plan; or result in impacts of 
a different kind, degree, or extent than those described in the 
existing notice.
    (b) You must submit your notice modification 15 calendar days 
before

[[Page 70120]]

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, we 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 complete notice on or after January 20, 2001, 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 and meet the financial guarantee 
requirements of Sec. 3809.503. 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, in writing, 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?

    (a) You may continue to operate under the terms and conditions of a 
plan of operations that BLM approved before January 20, 2001. All 
provisions of this subpart except plan content (Sec. 3809.401) and 
performance standards (Secs. 3809.415 and 3809.420) apply to such plan 
of operations. See Sec. 3809.505 for the applicability of financial 
guarantee requirements.
    (b) If your unapproved plan of operations is pending on January 20, 
2001, then the plan content requirements and performance standards that 
were in effect immediately before that date apply to your pending plan 
of operations. (See 43 CFR parts 1000-end, revised as of Oct. 1, 1999.) 
All other provisions of this subpart apply.
    (c) If you want this subpart to apply to any existing or pending 
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. Your plan of operations must demonstrate 
that the proposed operations would not result in unnecessary or undue 
degradation of public lands.
    (b) Your plan of operations must contain the following information 
and describe the proposed operations at a level of detail sufficient 
for BLM to determine that the plan of operations prevents unnecessary 
or undue degradation:
    (1) Operator Information. The name, mailing address, phone number, 
taxpayer 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 calendar 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 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 or conceptual 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 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, including information on the feasibility of 
pit backfilling that details economic, environmental, and safety 
factors;
    (iv) Riparian mitigation;
    (v) Wildlife habitat rehabilitation;
    (vi) Topsoil handling;
    (vii) Revegetation;
    (viii) Isolation and control of acid-forming, toxic, or deleterious 
materials;
    (ix) Removal or stabilization of buildings, structures and support 
facilities; and
    (x) Post-closure management;
    (4) Monitoring Plan. A proposed plan for monitoring the effect of 
your

[[Page 70121]]

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. 
Monitoring plans may incorporate existing State or other Federal 
monitoring requirements to avoid duplication. 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; and
    (5) Interim management plan. A plan to manage the project area 
during periods of temporary closure (including periods of seasonal 
closure) to prevent unnecessary or undue degradation. The interim 
management plan must include, where applicable, the following:
    (i) Measures to stabilize excavations and workings;
    (ii) Measures to isolate or control toxic or deleterious materials 
(See also the requirements in Sec. 3809.420(c)(4)(vii).);
    (iii) Provisions for the storage or removal of equipment, supplies 
and structures;
    (iv) Measures to maintain the project area in a safe and clean 
condition;
    (v) Plans for monitoring site conditions during periods of non-
operation; and
    (vi) A schedule of anticipated periods of temporary closure during 
which you would implement the interim management plan, including 
provisions for notifying BLM of unplanned or extended temporary 
closures.
    (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 and 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, paleontological resources, cave resources, hydrology, soils, 
vegetation, wildlife, air quality, cultural resources, and 
socioeconomic conditions in and around the project area, as well as 
information that may require you to conduct static and kinetic testing 
to characterize the potential for your operations to produce acid 
drainage or other leachate. BLM is available to 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. BLM will review your reclamation cost 
estimate and notify you of any deficiencies or additional information 
that must be submitted in order to determine a final reclamation cost. 
BLM will notify you when we have determined the final amount for which 
you must provide financial assurance.


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 calendar days 
and will notify you that--
    (1) Your plan of operations is complete, that is, it meets the 
content requirements of Sec. 3809.401(b);
    (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; or
    (3) 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 collect adequate baseline data;
    (ii) BLM completes the environmental review required under the 
National Environmental Policy Act;
    (iii) BLM completes any consultation required under the National 
Historic Preservation Act, the Endangered Species Act, or the Magnuson-
Stevens Fishery Conservation and Management 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 plan of 
operations;
    (vii) For public lands where BLM does not have responsibility for 
managing the surface, BLM consults with the surface-managing agency;
    (viii) In cases where the surface is owned by a non-Federal entity, 
BLM consults with the surface owner; and
    (ix) BLM completes consultation with the State to ensure your 
operations will be consistent with State water quality requirements.
    (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) Following receipt of your complete plan of operations and 
before BLM acts on it, we will publish a notice of the availability of 
the plan in either a local newspaper of general circulation or a NEPA 
document and will accept public comment for at least 30 calendar days 
on your plan of operations.
    (d) Upon completion of the review of your plan of operations, 
including analysis under NEPA and public comment, BLM 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) BLM approves your plan of operations subject to changes or 
conditions that are necessary to meet the performance standards of 
Sec. 3809.420 and to prevent unnecessary or undue degradation. BLM may 
require you to incorporate into your plan of operations other agency 
permits, final approved engineering designs and plans, or other 
conditions of approval from the review of the plan of operations filed 
under Sec. 3809.401(b); or
    (3) BLM disapproves, or is withholding approval of your plan of 
operations because the plan:
    (i) Does not meet the applicable content requirements of 
Sec. 3809.401;
    (ii) 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
    (iii) Proposes operations that would result in unnecessary or undue 
degradation of public lands. If BLM disapproves your plan of operations 
based on paragraph (4) of the definition of ``unnecessary or undue 
degradation'' in Sec. 3809.5,BLM must include written findings 
supported by a record clearly demonstrating each element of paragraph 
(4), including--
    (A) That approval of the plan of operations would create 
irreparable harm;
    (B) How the irreparable harm is substantial in extent or duration;

[[Page 70122]]

    (C) That the resources substantially irreparably harmed constitute 
significant scientific, cultural, or environmental resources; and
    (D) How mitigation would not be effective in reducing the level of 
harm below the substantial or irreparable threshold.


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 
Sec. 3809.551.


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 notice or approved plan of operations; and other 
Federal and State laws related to environmental protection and 
protection of cultural resources;
    (b) Assuring that your operations are ``reasonably incident'' to 
prospecting, mining, or processing operations and uses 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.
    (d) Avoiding substantial irreparable harm to significant 
scientific, cultural, or environmental resource values of the public 
lands that cannot be effectively mitigated.


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 equipment, devices, and 
practices that will meet the performance standards of this subpart.
    (2) Sequence of operations. You must avoid unnecessary impacts and 
facilitate reclamation 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 economically and technically 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, State, and, where delegated by the State, local 
government 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, State, interstate, and, where delegated by 
the State, local government laws and requirements.
    (B) You must conduct operations to prevent or control the discharge 
of pollutants into surface waters.
    (ii) Ground water. (A) You must comply with State standards and 
other applicable requirements if your operations affect ground water.
    (B) You must conduct operations 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 economically and technically 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 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.
    (iv) 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.
    (4) Soil and growth material. (i) You must remove, segregate, and 
preserve topsoil or other suitable growth material to minimize erosion 
and sustain revegetation when reclamation begins.
    (ii) To preserve soil viability and promote concurrent reclamation, 
you must directly transport topsoil from its original location to the 
point of reclamation without intermediate stockpiling, where 
economically and technically 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 minimize the introduction of 
noxious weeds and to limit any existing infestations;
    (iii) Use native species, when available, to the extent technically 
feasible. If you use non-native species, they must not inhibit re-
establishment of native species;
    (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 minimize erosion and 
stabilize the project area, subject to BLM approval.
    (6) Fish, wildlife, and plants. (i) You must minimize disturbances 
and adverse impacts on fish, wildlife, and related environmental 
values.

[[Page 70123]]

    (ii) You must take any necessary measures to protect Federally 
proposed or listed threatened or endangered species, both plants and 
animals, or their proposed or designated critical 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 30 calendar 
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 minimize erosion, siltation, air 
pollution and impacts to resources.
    (ii) Where it is economically and technically feasible, you must 
use existing access and follow the natural contour of the land to 
minimize surface disturbance, including cut and fill, and to maintain 
safe design.
    (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 and migration 
control, and you may rely on them only after all reasonable source and 
migration 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. Your design 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 to detoxify solutions and 
materials include natural degradation, rinsing, chemical treatment, or 
equally successful alternative methods. 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 economically and 
technically 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 economically and technically feasible. You may 
temporarily retain a highwall or other

[[Page 70124]]

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) Based on the site-specific review required 
in Sec. 3809.401and the environmental analysis of the plan of 
operations, BLM will determine the amount of pit backfilling required, 
if any, taking into consideration economic, environmental, and safety 
factors.
    (ii) You must apply mitigation measures to minimize the impacts 
created by any pits or disturbances that are not completely backfilled 
.
    (iii) Water quality in pits and other water impoundments must 
comply with applicable Federal, State, and where appropriate, local 
government water quality 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, 
State, and where delegated by the State, local government 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) 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 economically 
and technically 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   (1) You must follow your approved
 for any period of time.              interim management plan submitted
                                      under Sec.  3809.401(b)(5); (ii)
                                      You must submit a modification to
                                      your interim management plan to
                                      BLM within 30 calendar days if it
                                      does not cover the circumstances
                                      of your temporary closure per Sec.
                                       3809.431(a); (iii) You must take
                                      all necessary actions to assure
                                      that unnecessary or undue
                                      degradation does not occur; and
                                      (iv) You must maintain an adequate
                                      financial guarantee.
------------------------------------------------------------------------
(2) The period of non-operation is   The BLM will require you to take
 likely to cause unnecessary or       all necessary actions to assure
 undue degradation.                   that 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?

    You must modify your plan of operations when any of the following 
apply:
    (a) Before making any changes to the operations described in your 
approved plan of operations;
    (b) When BLM requires you to do so to prevent unnecessary or undue 
degradation; and
    (c) Before final closure, to address impacts from unanticipated 
events or conditions or newly discovered circumstances or information, 
including the following:
    (1) Development of acid or toxic drainage;
    (2) Loss of surface springs or water supplies;
    (3) The need for long-term water treatment and site maintenance;
    (4) Repair of reclamation failures;
    (5) Plans for assuring the adequacy of containment structures and 
the integrity of closed waste units;

[[Page 70125]]

    (6) Providing for post-closure management; and (7) Eliminating 
hazards to public safety.


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; or
    (b) BLM will accept a minor modification without formal approval if 
it is consistent with the approved plan of operations and does not 
constitute a substantive change that requires 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 modification of your plan of 
operations that you submit to BLM after January 20, 2001, refer to the 
following table.

------------------------------------------------------------------------
  If you have an approved plan of
   operations on January 20, 2001                   Then--
------------------------------------------------------------------------
(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    portion of the facility, unless
 repository, leach pad, or            you demonstrate to BLM's
 impoundment; layback of a mine       satisfaction it is not practical
 pit; or widening of a road.          to apply them for economic
                                      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
                                      January 20, 2001 apply to your
                                      modified facility. (See 43 CFR
                                      parts 1000-end, revised as of Oct.
                                      1, 2000.)
------------------------------------------------------------------------
------------------------------------------------------------------------

Sec. 3809.434  How does this subpart apply to pending modifications for 
new or existing facilities?

    (a) This subpart applies to modifications pending before BLM on 
January 20, 2001 to construct a new facility, such as a waste rock 
repository, leach pad, drill site, or access road; or to modify an 
existing mine facility such as expansion of a waste rock repository or 
leach pad.
    (b) All provisions of this subpart, except plan content 
(Sec. 3809.401) and performance standards (Secs. 3809.415 and 3809.420) 
apply to any modification of a plan of operations that was pending on 
January 20, 2001. See Sec. 3809.505 for applicability of financial 
guarantee requirements.
    (c) If your unapproved modification of a plan of operations is 
pending on January 20, 2001, then the plan content requirements 
(Sec. 3809.1-5) and the performance standards (Secs. 3809.1-3(d) and 
3809.2-2) that were in effect immediately before January 20, 2001 apply 
to your modification of a plan of operations. (See 43 CFR parts 1000-
end, revised as of Oct. 1, 2000).
    (d) If you want this subpart to apply to your pending modification 
of a plan of operations, where not otherwise required, you may choose 
to have this subpart apply.

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
                                      operations. For more information,
                                      see Secs.  3809.551 through under
                                      a 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 January 20, 2001.             financial guarantee unless you
                                      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 January 20, 2001 and      guarantee before you can begin
 you choose to modify your notice     operations under the modified
 as required by this subpart on or    notice. If you modify your notice,
 after that date.                     you must post a finacial guarantee
                                      for the entire notice.
------------------------------------------------------------------------
(c) You file a new notice on or      You must provide a financial
 after January 20, 2001.              guarantee before you can begin
                                      operations under the notice.
------------------------------------------------------------------------


[[Page 70126]]

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 January 20, 2001, you 
must post a financial guarantee according to the requirements of this 
subpart no later than July 19, 2001 at the local BLM office with 
jurisdiction over the lands involved. You do not need to post a new 
financial guarantee if your existing financial guarantee satisfies this 
subpart.


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. 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.
    (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 
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) Surety bonds that meet the requirements of Treasury Department 
Circular 570, 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.
    (f) Insurance, if its form and function is such that the funding or 
enforceable pledges of funding are used to guarantee performance of 
regulatory obligations in the event of default on such obligations by 
the operator. Insurance must have an A.M. Best rating of ``superior'' 
or an equivalent rating from a nationally recognized insurance 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

[[Page 70127]]

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 calendar 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 calendar 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 Secs. 3809.570 and 
3809.574:
    (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; or
    (c) A corporate guarantee that existed on January 20, 2001, subject 
to the restrictions on corporate guarantees in Sec. 3809.574.


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 and the State 
in writing, with a complete explanation of the reasons for the 
rejection within 30 calendar 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 do both of the 
following:
    (a) Notify BLM within 15 calendar days; and
    (b) Replace or augment the financial guarantee within 30 calendar 
days if the available balance is insufficient to cover the remaining 
reclamation cost.


Sec. 3809.574  What happens if I have an existing corporate guarantee?

    (a) If you have an existing corporate guarantee on January 20, 2001 
that applies to public lands under an approved BLM and State agreement, 
your corporate guarantee will continue in effect. BLM will not accept 
any new corporate guarantees or increases to existing corporate 
guarantees. You may not transfer your existing corporate guarantee to 
another operator.
    (b) If the State revises existing corporate guarantee criteria or 
requirements that apply to a corporate guarantee existing on January 
20, 2001, the BLM State Director will review the revisions to ensure 
that adequate financial coverage continues. If the BLM State Director 
determines it is in the public interest to do so, the State Director 
may terminate a revised corporate guarantee and require an acceptable 
replacement financial guarantee after due notice and a reasonable time 
to obtain a replacement.

Modification or Replacement of a Financial Guarantee


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

    (a) If you modify a notice or an approved plan of operations under 
Sec. 3809.331 or Sec. 3809.431 respectively, and your estimated 
reclamation cost increases, you must increase the amount of the 
financial guarantee to cover any estimated additional cost of 
reclamation and long-term treatment in compliance with Sec. 3809.552.
    (b) If you modify a notice or an approved plan of operations under 
Sec. 3809.331 or Sec. 3809.431 respectively, and your estimated 
reclamation cost decreases, you may request BLM decrease the amount of 
the financial guarantee for your operations.


Sec. 3809.581  Will BLM accept a replacement financial instrument?

    (a) 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 
calendar days of the offering.
    (b) A surety is not released from an obligation that accrued while 
the surety

[[Page 70128]]

bond was in effect unless the replacement financial guarantee covers 
such obligations to BLM's satisfaction.


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 another adequate financial guarantee, subject 
to BLM's written concurrence, 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) For your plan of operations, BLM will either post in the local 
BLM office or publish notice of final financial guarantee release in a 
local newspaper of general circulation and accept comments for 30 
calendar 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--
    (1) BLM determines that you have successfully completed 
reclamation, including revegetating the area disturbed by operations; 
and
    (2) Any effluent discharged from the area has met applicable 
effluent limitations and water quality standards for one year without 
needing additional treatment, or you have established a funding 
mechanism under Sec. 3809.552(c) to pay for long-term treatment, and 
any effluent discharged from the area has met applicable effluent 
limitations and water quality standards water 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. 3809.116, and BLM accepts an adequate replacement financial 
guarantee. Therefore, your financial guarantee must remain 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 or millsite is patented?

    (a) When your mining claim or millsite 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 access outside the boundaries 
of the mining claim, when you have completed reclamation to the 
standards of this subpart.

Forfeiture of Financial Guarantee


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

    BLM may 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 your approved 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 your approved 
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

[[Page 70129]]

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 decision?

    If you fail to meet the requirements of BLM's forfeiture decision 
provided under Sec. 3809.596, and you fail to appeal the forfeiture 
decision under Secs. 3809.800 to 3809.807, or the Interior Board of 
Land Appeals does not grant a stay under 43 CFR 4.321, or 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 responsible persons 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) 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 
notice-level operations without submitting a complete notice.
    (3) BLM will terminate a suspension order under paragraph (b)(1) or 
(b)(2) of this section when BLM determines you have corrected 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 to exceed 30 calendar days, within which you must start 
corrective action; and
    (4) The time within which you must complete corrective action.


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) 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; or
    (2) 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. Following service at 
the project area, BLM will send an information copy by certified mail 
to the operator or the operator's designated agent.
    (b) BLM may serve a mining claimant in the same manner an operator 
is served under paragraph (a)(1) 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

[[Page 70130]]

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.


Sec. 3809.605  What are prohibited acts under this subpart?

    Prohibited acts include, but are not limited to, the following:
    (a) Causing any unnecessary or undue degradation;
    (b) Beginning any operations, other than casual use, before you 
file a notice as required by Sec. 3809.21 or receive an approved plan 
of operations as required by Sec. 3809.412;
    (c) Conducting any operations outside the scope of your notice or 
approved plan of operations;
    (d) Beginning operations prior to providing a financial guarantee 
that meets the requirements of this subpart;
    (e) Failing to meet the requirements of this subpart when you stop 
conducting operations under a notice (Sec. 3809.334), when your notice 
expires (Sec. 3809.335), or when you stop conducting operations under 
an approved plan of operations (Sec. 3809.424);
    (f) Failing to comply with any applicable performance standards in 
Sec. 3809.420;
    (g) Failing to comply with any enforcement actions provided for in 
Sec. 3809.601; or
    (h) Abandoning any operation prior to complying with any 
reclamation required by this subpart or any order provided for in 
Sec. 3809.601.

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 and 
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 Federal 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 subject to a fine of not more than $250,000 or the alternative 
fine provided for in the applicable provisions of 18 U.S.C. 3571 or 
imprisonment for 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 whether you demonstrate 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 calendar days a hearing by the Office 
of Hearings and Appeals. BLM may extend the time to request a hearing 
during settlement discussions. If you request a hearing, the Office of 
Hearings and Appeals will issue a decision on the penalty assessment.
    (c) If BLM issues you a proposed civil penalty and you fail to 
request a hearing as provided in paragraph (b), 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.

Appeals


Sec. 3809.800  Who may appeal BLM decisions under this subpart?

    (a) A party adversely affected by a decision under this subpart may 
ask the State Director of the appropriate BLM State Office to review 
the decision.
    (b) An adversely affected party may bypass State Director review 
and directly appeal a BLM decision under this subpart to the Office of 
Hearings and Appeals (OHA) under part 4 of this title. See 
Sec. 3809.801.


Sec. 3809.801  When may I file an appeal of the BLM decision with OHA?

    (a) If you intend to appeal a BLM decision under this subpart, use 
the following table to see when you must file a notice of appeal with 
OHA:

[[Page 70131]]



----------------------------------------------------------------------------------------------------------------
                                                       Then if you intend to appeal, you must file a notice of
            If--                      And--                               appeal with OHA--
----------------------------------------------------------------------------------------------------------------
(1) You do not request State  ....................  Within 30 calendar days after the date you receive the
 Director review.                                    original decision.
(2) You request State         The State Director    On the original decision within 30 calendar days of the date
 Director review.              does not accept       you receive the State Director's decision not to review.
                               your request for
                               review.
(3) You request State         The State Director    On the original decision before the State Director issues a
 Director review.              has accepted your     decision.
                               request for review,
                               but has not made a
                               decision on the
                               merits of the
                               appeal.
(4) You request State         The State Director    On the State Director's decision within 30 calendar days of
 Director review.              makes a decision on   the date you receive, or are notified of, the State
                               the merits of the     Director's decision.
                               appeal.
----------------------------------------------------------------------------------------------------------------

    (b) In order for OHA 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.


Sec. 3809.802  What must I include in my appeal to OHA?

    (a) 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.
    (b) 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 calendar days after filing your 
appeal).


Sec. 3809.803  Will the BLM decision go into effect during an appeal to 
OHA?

    All decisions under this subpart go into effect immediately and 
remain in effect while appeals are pending before OHA unless OHA grants 
a stay under Sec. 4.21(b) of this title.


Sec. 3809.804  When may I ask the BLM State Director to review a BLM 
decision?

    The State Director must receive your request for State Director 
review no later than 30 calendar days after you receive or are notified 
of the BLM decision you seek to have reviewed.


Sec. 3809.805  What must I send BLM to request State Director review?

    (a) Your request for State Director review must be a single package 
that includes a brief written statement explaining why BLM should 
change its decision and any documents that support your written 
statement. Mark your envelope ``State Director Review.'' You must also 
provide a telephone or fax number for the State Director to contact 
you.
    (b) When you submit your request for State Director review, you may 
also request a meeting with the State Director. The State Director will 
notify you as soon as possible if he or she can accommodate your 
meeting request.


Sec. 3809.806  Will the State Director review the original BLM decision 
if I request State Director review?

    (a) The State Director may accept your request and review a 
decision made under this subpart. The State director will decide within 
21 days of a timely filed request whether to accept your request and 
review the original BLM decision. If the State Director does not make a 
decision within 21 days on whether to accept your request for review, 
you should consider your request for State Director review declined, 
and you may appeal the original BLM decision to OHA.
    (b) The State Director will not begin a review and will end an 
ongoing review if you or another affected party files an appeal of the 
original BLM decision with OHA under section Sec. 3809.801 before the 
State Director issues a decision under this subpart, unless OHA agrees 
to defer consideration of the appeal pending a State Director decision.
    (c) If you file an appeal with OHA after requesting State Director 
review, you must notify the State Director who, after receiving your 
notice, may request OHA to defer considering the appeal.
    (d) If you fail to notify the State Director of your appeal to OHA, 
any decision issued by the State Director may be voided by a subsequent 
OHA decision.


Sec. 3809.807  What happens once the State Director agrees to my 
request for a review of a decision?

    (a) The State Director will promptly send you a written decision, 
which may be based on any of the following:
    (1) The information you submit;
    (2) The original BLM decision and any information BLM relied on for 
that decision;
    (3) Any additional information, including information obtained from 
your meeting, if any, with the State Director.
    (b) Any decision issued by the State Director under this subpart 
may affirm the original BLM decision, reverse it completely, or modify 
it in part. The State Director's decision may incorporate any part of 
the original BLM decision.
    (c) If the original BLM decision was published in the Federal 
Register, the State Director will also publish his or her decision in 
the Federal Register.


Sec. 3809.808  How will decisions go into effect when I request State 
Director review?

    (a) The original BLM decision remains in effect while State 
Director review is pending, except that the State Director may stay the 
decision during the pendency of his or her review.
    (b) The State Director's decision will be effective immediately and 
remain in effect, unless a stay is granted by OHA under Sec. 4.21 of 
this title.


Sec. 3809.809  May I appeal a decision made by the State Director?

    (a) An adversely affected party may appeal the State Director's 
decision to OHA under part 4 of this title, except that you may not 
appeal a denial of your request for State Director review or a denial 
of your request for a meeting with the State Director.
    (b) Once the State Director issues a decision under this subpart, 
it replaces the original BLM decision, which is no longer in effect, 
and you may appeal only the State Director's decision.

Public Visits to Mines


Sec. 3809.900  Will BLM allow the public to visit mines on public 
lands?

    (a) If requested by any member of the public, BLM may sponsor and 
schedule a public visit to a mine on public land once each year. The 
purpose of the visit is to give the public an opportunity to view the 
mine site and associated facilities. Visits will include surface areas 
and surface facilities ordinarily made available to visitors on public 
tours. BLM will schedule visits during normal BLM business hours at the

[[Page 70132]]

convenience of the operator to avoid disruption of operations.
    (b) Operators must allow the visit and must not exclude persons 
whose participation BLM authorizes. BLM may limit the size of a group 
for safety reasons. An operator's representative must accompany the 
group on the visit. Operators must make available any necessary safety 
training that they provide to other visitors. BLM will provide the 
necessary safety equipment if the operator is unable to do so.
    (c) Members of the public must provide their own transportation to 
the mine site, unless provided by BLM. Operators don't have to provide 
transportation within the project area, but if they don't, they must 
provide access for BLM-sponsored transportation.

PART 9260--LAW ENFORCEMENT--CRIMINAL

    11. The authority citation for part 9260 continues to read as 
follows:

    Authority: 16 U.S.C. 433; 16 U.S.C. 460l-6a; 16 U.S.C. 670j; 16 
U.S.C. 1246(i); 16 U.S.C. 1338; 18 U.S.C. 1851-1861; 18 U.S.C. 3551 
et seq.; 43 U.S.C. 315(a); 43 U.S.C. 1061, 1063; 43 U.S.C. 1733.


    12. BLM is amending part 9260 by adding the text of subpart 9263 
consisting of Sec. 9263.1 to read as follows:

Subpart 9263--Minerals Management


Sec. 9263.1  Operations conducted under the 1872 Mining Law.

    See subpart 3809 of this title for law enforcement provisions 
applicable to operations conducted on public lands under the 1872 
Mining Law.

[FR Doc. 00-29472 Filed 11-20-00; 8:45 am]
BILLING CODE 4310-84-P