[Federal Register Volume 66, Number 210 (Tuesday, October 30, 2001)]
[Proposed Rules]
[Pages 54863-54870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27075]



  Federal Register / Vol. 66, No. 210 / Tuesday, October 30, 2001 / 
Proposed Rules  

[[Page 54863]]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[WO-300-1990-PB-24 1A]
RIN 1004-AD44


Mining Claims Under the General Mining Laws; Surface Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Land Management (BLM or ``we'') proposes to 
amend its regulations governing mining operations involving metallic 
and some other minerals on public lands. The purpose of the proposed 
rule is to obtain further public comment on changes to these 
regulations that BLM is adopting in a final rule that appears elsewhere 
in today's Federal Register. We are also seeking comment on other 
changes in the hardrock mining surface management regulations that were 
not directly addressed in today's final rule.

DATES: You should submit your comments by December 31, 2001. BLM will 
not necessarily consider comments postmarked or received by messenger 
or electronic mail after the above date in the decisionmaking process 
on the proposed rule.

ADDRESSES: Mail: Director (630), Bureau of Land Management, 
Administrative Record, Room 401 LS, 1849 C Street, NW, Washington, DC 
20240.
    Personal or messenger delivery: Room 401, 1620 L Street, NW, 
Washington, DC 20036.
    Internet e-mail: [email protected]. (Include ``Attn: AD44'')

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, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters

I. Public Comment Procedures

A. How Do I Comment on the Proposed Rule?

    If you wish to comment, you may submit your comments by any one of 
several methods.
     You may mail comments to Director (630), Bureau of Land 
Management, Administrative Record, Room 401 LS, 1849 C Street, NW, 
Washington, DC 20240.
     You may deliver comments to Room 401, 1620 L Street, NW, 
Washington, DC 20036.
     You may also comment via the Internet to 
[email protected]. Please submit Internet comments as an ASCII file 
avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: AD44'' and your name and return address in 
your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact us directly at 202/452-
5030.
    Please make your comments on the proposed rule as specific as 
possible, confine them to issues pertinent to the proposed rule, and 
explain the reason for any changes you recommend. Where possible, your 
comments should reference the specific section or paragraph of the 
proposal that you are addressing.
    BLM may not necessarily consider or include in the Administrative 
Record for the final rule comments that BLM receives after the close of 
the comment period (see DATES) or comments delivered to an address 
other than those listed above (see ADDRESSES).

B. May I Review Comments Submitted by Others?

    Comments, including names and street addresses of respondents, will 
be available for public review at the address listed under ``ADDRESSES: 
Personal or messenger delivery'' during regular business hours (7:45 
a.m. to 4:15 p.m.), Monday through Friday, except holidays.
    Individual respondents may request confidentiality, which we will 
honor to the extent allowable by law. If you wish to withhold your name 
or address, except for the city or town, you must state this 
prominently at the beginning of your comment. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

II. Background

    On November 21, 2000 (65 FR 69998), BLM adopted a final rule 
revising the hardrock mining surface management regulations in 43 CFR 
subpart 3809 (hereinafter referred to as the ``2000 rule''). These 
regulations became effective on January 20, 2001. On March 23, 2001 (66 
FR 16162), BLM proposed to make changes to the 2000 rule because of 
substantial concerns raised by the mining industry, the western states 
and environmental groups. The preamble to that proposed rule explains 
in detail the nature of the concerns. The regulatory text in this 
proposed rule, with exceptions we will discuss later in this preamble, 
is identical to that in a final rule published elsewhere in today's 
Federal Register. You should refer to that document for a complete 
discussion of the background of the final rule.
    While we are providing this additional opportunity for interested 
parties to comment on changes to the hardrock mining regulations, we 
decided that it was important to make final some changes today in order 
to resolve uncertainties resulting from pending legal challenges. This 
will ensure a continued reliable supply of minerals. This benefits all 
affected parties by clarifying the Department's position on several 
issues involved in the litigation challenging the 2000 rules. However, 
we recognize that because of the high level of interest in this rule 
among affected industry groups, environmental organizations, and 
states, we might benefit from providing a further opportunity to 
comment on the specific changes we are adopting today. If comments on 
this proposed rule indicate that additional changes to the regulations 
are warranted, we will make these changes in a subsequent final rule.
    In addition to the specific issues addressed in the proposed rule 
language, we are particularly interested in comments on the following 
topics:
     Whether we should amend the regulations regarding BLM's 
relationship to states and the delegations these rules provide.
     Whether additional innovative means are available to 
provide sound and reliable financial guarantees.
     Whether BLM should always perform a validity examination 
before approving a plan of operations on withdrawn lands.
     Whether we should add a specific reference to cave 
resources in the performance standards.
     Whether the 3809 regulations published today contain other 
provisions which are either overly burdensome or fail to provide 
adequate environmental protection.
    We may address these issues and others in a future proposed rule.

III. The Proposed Rule

    This proposed rule gives you an additional opportunity to comment 
on the provisions contained in the final rule published elsewhere in 
today's

[[Page 54864]]

Federal Register. See that document for a more complete discussion of 
the changes to the 2000 rule and our rationale for not making 
additional changes. Because the rule we are proposing today also was 
the subject of the March 23, 2001, proposed rule, you do not need to 
resubmit comments that you sent in response to that proposal. We will 
include all comments submitted in response to the March 23, 2001, 
proposed rule in the administrative record for today's proposed rule.
    In addition to the same language that is also contained in the 
final rule published today, this proposed rule includes several 
technical or clerical changes and other modifications. One is the 
provision for including drywashers under 10 horsepower in casual use as 
defined in section 3809.5. Following is a section-by-section summary of 
the provisions that have changed from the 2000 rule. Today's final rule 
contains additional discussion of those provisions.

Section 3809.5  How Does BLM Define Certain Terms Used In this Subpart?

    We are proposing changes in the definition of ``casual use,'' 
``operator,'' and ``unnecessary or undue degradation'' found at section 
3809.5.
Casual Use
    Several comments on the March 23, 2001, proposed rule from persons 
who engage in small scale placer mining objected to the definition of 
``casual use'' in the 2000 rule allowing employment of only hand or 
battery-powered dry washers as casual use. Many recreational miners use 
dry washers powered by small gasoline motors that are roughly 
equivalent to lawn mower motors. The comments said that this definition 
would bar these miners from using public lands for their activities due 
to the cost of either having to file a plan of operations or acquiring 
battery-powered drywashers. In this rule we propose to amend the 
definition of ``casual use'' to accommodate this use of small motorized 
drywashers (under 10 horsepower) that cause negligible disturbance. To 
ensure that such disturbances are negligible, we propose a 10-
horsepower engine limit. The use of drywashers powered by motors of 
less than 10 horsepower would be considered casual use. The use of any 
drywasher powered by an engine with 10 or more horsepower would not be 
casual use. This change was not included in today's final rule.
    Today's final rule contains the same language as the 2000 rule, 
which in turn was consistent with the 1980 regulations, which stated 
that casual use does not include the use of ``mechanized earth-moving 
equipment.'' However, the purpose of this change is to reflect BLM's 
agreement with comments that said that the disturbance created by these 
small drywashers, largely used by individual recreational miners, is 
negligible in most areas, and thus should qualify as casual use. This 
type of dry washing activity would be unfairly burdened under the 2000 
rule, under which all activities that are not classified as casual use 
must file a plan of operations and a bond. Since these portions of the 
2000 rule have been retained, this change to the casual use definition 
corresponds to a similar 2000 rule treatment of some small suction 
dredgers, and is not significantly different in its impacts from those 
corresponding provisions analyzed in the Environmental Impact Statement 
alternative that would have retained the 1980 regulations.
Operator
    We propose to define the term ``operator'' to mean any person who 
is conducting or proposing to conduct operations. This definition, 
which appeared in the regulations that were in effect before January 
20, 2001 (the 1980 regulations), is familiar to regulators and the 
regulated community alike, and did not cause problems. It does not 
contain the 2000 rule provisions that expressly include mining 
claimants, persons who manage or direct operations and corporate 
parents and affiliates who materially participate in the operations. 
This proposed definition of ``operator'' is the same as the one in 
today's final rule.
    BLM is concerned that the 2000 rule definition of the term 
``operator,'' by referencing ``parent'' entities and affiliates, 
appeared to authorize BLM routinely to breach the corporate veil that 
generally is established under state corporate laws to protect such 
entities. As explained in the Federal Register preamble to the 2000 
rule (65 FR 70013), BLM adopted the ``material participation'' standard 
in the 2000 rules based on a concept authorized under CERCLA, as 
enunciated in a recent Supreme Court decision. However, there is no 
indication that Congress intended to override state laws in this regard 
under FLPMA. Unlike statutes such as the Surface Mining Control and 
Reclamation Act (see, e.g., 30 U.S.C. 1260(c)) that expressly focus on 
``ownership'' and ``control'' of entities, neither the mining laws nor 
FLPMA expressly holds parent entities and affiliates responsible for 
activities which occur at mining operations conducted by other 
entities. Thus, we decided we will not include the concept of 
``parent'' or ``affiliate'' responsibility in the definition of the 
term ``operator'' in subpart 3809. Under today's final rule and these 
proposed rules, we will hold the appropriate entity liable through 
established state common law principles.
    The 2000 rule also included the statement that the operator can 
also be the claimant. That provision also is unnecessary and therefore 
is removed by today's final rule, and does not appear in this proposed 
rule. Both mining claimants and operators, however, are still 
responsible for any liability arising from obligations relating to the 
project area that accrue while they hold their interests, as stated in 
section 3809.116. The claimant may operate his or her mining claim, but 
stating that in the definition is unnecessary.
    The change in this proposed rule, and in today's final rule, 
removes the presumption that any person who was ever associated with 
the site will be 100 percent liable, and allows for a case-by-case 
factual determination of an appropriate level of responsibility. After 
reviewing comments received, and re-evaluating our policy direction, we 
have decided that the public interest is better served by this more 
equitable approach to establishing liability. It will ensure fairness 
to all parties while allowing enforcement against responsible parties.
    The definition of operator in this proposed rule is the same as the 
one in today's final rule, and we request comment on whether we should 
reinstate the definition in the 2000 rule or incorporate some other 
definition.
Unnecessary or Undue Degradation
    We propose a definition of the term ``unnecessary or undue 
degradation'' that excludes paragraph (4) of the 2000 rule definition. 
That paragraph included in the definition conditions, activities, or 
practices that occur on mining claims or millsites located after 
October 21, 1976 (or on unclaimed lands), and result in substantial 
irreparable harm (SIH) to significant scientific, cultural, or 
environmental resource values of the public lands that cannot be 
mitigated (the ``SIH'' standard). This paragraph created significant 
uncertainty by giving BLM broad authority to deny plans of operation 
even if all of the other standards could be satisfied. Of all the 
provisions in the 2000 rule, this one paragraph had more projected 
economic impacts than all of the other sections combined. Further 
analysis of this issue is set forth in the preamble to today's final 
rule. In addition, the Interior

[[Page 54865]]

Department Solicitor has issued an opinion (M-37007) addressing the 
legal authority of the SIH standard. This opinion has been placed in 
the Administration Record.
    The definition of ``unnecessary or undue degradation'' in this 
proposed rule is the same as the one in today's final rule, and we 
request comment on whether we should continue to exclude paragraph (4) 
from the definition.

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

    Today's final rule adds the phrase ``For other than Stock Raising 
Homestead Act lands'' to the beginning of paragraph (e) to make it 
clear that paragraph (c) does not apply to Stock Raising Homestead Act 
lands, which we address in paragraph (d). We made the change because it 
was possible to construe paragraph (e) in such a way that it could be 
read to include Stock Raising Homestead Act lands. This was not our 
intent in the 2000 rule, as demonstrated by the presence of paragraph 
(d), which applies only to Stock Raising Homestead Act lands. You may 
comment on whether we should retain this change.
    We also propose to change the word ``submittals'' in the heading of 
this section to ``submissions.'' We are proposing this simply for 
grammatical reasons. This minor diction change in section 3809.31 was 
not included in today's final rule.

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

    Today's final rule and this proposed rule delete the specific 
reference to joint and several liability that was added in the 2000 
rule. Both mining claimants and operators are liable for compliance 
with the requirements of this rule. BLM will determine the appropriate 
degree of responsibility on a case-specific basis, guided by common law 
principles. The underlying liability scheme serves as a backstop, and 
allows for a case-by-case factual determination of an appropriate level 
of responsibility. After reviewing comments received and reevaluating 
our policy direction, we have decided that the public interest is 
better served by this more equitable approach to establishing 
liability, which will ensure fairness to all parties while encouraging 
enforcement against responsible parties.
    We request comment on whether we should eliminate the reference 
included in section 3809.116(a) of the 2000 rule to ``joint and 
several'' liability. The 2000 rule provided a series of examples. These 
examples are also removed in this proposed rule and in today's final 
rule. Section 3809.116(a) thus would provide that ``mining claimants 
and operators'' (if other than the mining claimant) ``are liable for 
obligations under this subpart that accrue while they hold their 
interests.'' BLM recognizes that neither FLPMA (43 U.S.C. 1701 et seq.) 
nor the mining laws expressly provide for joint and several liability, 
and such an approach has not been shown to be necessary to prevent 
unnecessary or undue degradation of the public lands. There is 
sufficient authority under current law and today's final rule to fully 
enforce the requirements of subpart 3809 against both claimants and 
operators. Furthermore, the establishment of adequate financial 
guarantees ensures that neither the government nor taxpayer will be 
saddled with the costs of reclamation in the event of incomplete 
performance of reclamation responsibilities.
    We note that subpart 3809 only covers liability for reclamation of 
mining operations under FLPMA and the mining laws. Unlike the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), 42 U.S.C. 9601 et seq., these statutes do not establish joint 
and several liability. To the extent obligations associated with mining 
operations arise under CERCLA or any other statute, such obligations 
are independent of those that subpart 3809 establishes. Subpart 3809 is 
not intended to affect any obligations established under other 
statutes, and liability schemes under such other statutes do not 
determine the entities responsible under subpart 3809. BLM will 
determine the appropriate degree of liability on a case-specific basis, 
guided by common-law principles.

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

    In today's final rule, we amend section 3809.401 only to change a 
cross-reference to a renumbered performance standard. You may comment 
on this change.

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

    and

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

    In today's final rule, we amend sections 3809.411 and 3809.415 by 
removing a portion of paragraph 3809.411(d)(3)(iii) and all of 
paragraph 3809.415(d) of the 2000 rule, both of which would have 
implemented the substantial irreparable harm standard. These are 
corresponding changes resulting from the removal of the SIH standard 
from the definition of unnecessary or undue degradation. You may 
comment on whether we should retain these amendments.

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

    The performance standards of subpart 3809 are key to establishing 
the adequacy of environmental protection that the regulations require. 
In deciding which performance standards to include in the final rule, 
we carefully considered a congressionally-mandated report by the 
National Research Council (NRC), entitled Hardrock Mining on Federal 
Lands (the NRC Report). The general conclusion of the NRC Report is 
that the existing regulations are generally effective, although some 
changes are necessary. (NRC Report, p. 5.) The NRC Report further 
states that the ``overall structure of the federal and state laws and 
regulations that provide mining-related environmental protection is 
complicated but generally effective.'' This conclusion and the material 
in the NRC Report led BLM to conclude that it was unnecessary to adopt 
an entire new set of performance standards in the 2000 rule, and that 
we should reinstate the performance standards from the 1980 
regulations. Thus, today's final rule reinstates the standards that 
were formerly set forth in sections 3809.1-3(d), 3809.2-2, and 3809.3-3 
through 3809.3-5 of the regulations in effect prior to January 20, 
2001. These are to be incorporated into section 3809.420, as paragraph 
(a)(6) and paragraphs (b)(1) through (b)(10) and (b)(13). You may 
comment on whether we should retain these performance standards as they 
are set forth in this proposed rule and today's final rule.
    In addition to reinstating the previous performance standards in 
today's final rule, we retain the general performance standards 
(paragraphs (a)(1) through (a)(5)) from the 2000 rule because they 
provide an overview of how an operator should conduct operations under 
an approved plan of operations and clarify certain basic 
responsibilities, including the operator's responsibility to comply 
with applicable land use plans and BLM's responsibility to specify 
necessary mitigation measures. We also included a paragraph (a)(6) in 
the general standards to make clear that

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operators must comply with pertinent state and Federal laws and 
regulations. This paragraph is derived from the introductory text of 
former section 3809.2-2. These standards, while general in nature, 
provide ample guidance on how to conduct operations. In addition, in 
today's final rule we retain from the 2000 rule the performance 
standards which address acid-forming, toxic, and deleterious materials 
and the standards governing leaching operations and impoundments. These 
latter standards reflect and codify BLM's acid rock and cyanide 
policies, which have been in effect since before the 2000 rule was 
published. They have been redesignated as sections 3809.420(c)(11) and 
(c)(12). BLM would appreciate comment on the combination of performance 
standards from the 1980 regulations and the 2000 rule that is included 
in today's final rule.
    BLM expects that implementation of the performance standards will 
be straightforward because today's final rule and this proposed rule do 
not introduce new performance standards. We recognize that some 
confusion could exist as to which performance standards apply to 
particular operations. The following table clarifies which set of 
performance standards you should follow:

------------------------------------------------------------------------
                    If                                  Then
------------------------------------------------------------------------
BLM approved your plan of operations prior  Continue to operate under
 to the effective date of today's final      your approved plan.
 rule.
Your plan of operations was pending prior   If approved, you must
 to January 20, 2001.                        conduct your plan of
                                             operations under the
                                             performance standards in
                                             place before January 20,
                                             2001.
You filed an application on or after        If approved, you must
 January 20, 2001 and BLM has not acted on   conduct your plan of
 it as of the effective date of today's      operations under the
 final rule.                                 performance standards in
                                             place as of the effective
                                             date of today's final rule.
------------------------------------------------------------------------

    We should also note we did not change the plan content requirements 
in section 3809.401.

Section 3809.421  Enforcement of Performance Standards

    Related to restoring provisions from the 1980 regulations 
containing performance standards, we also would add section 3809.421, 
which contains language on enforcing the performance standards. This 
section is taken from section 3809.1-3(f) of the regulations in effect 
prior to January 20, 2001. The new section is helpful to remind 
operators that failure to comply with the performance standards 
subjects them to enforcement under this subpart. This amendment is 
included in today's final rule, but you may comment on whether we 
should retain it. We included this provision in today's final rule and 
this proposed rule as a separate section because it does not fit into 
the structure of revised section 3809.420.

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

    In today's final rule we remove a reference in section 3809.598 to 
joint and several liability to conform to changes in section 3809.116. 
Under the amended provision, we will determine on a case-by-case basis 
the apportionment of liability between operators and mining claimants 
to cover the full cost of reclamation. You may comment on whether we 
should retain this amendment.

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

    In today's final rule we remove a reference in paragraph (a) of 
this section to civil penalties in section 3809.702 of the 2000 rule, 
because this proposed rule would remove that section, as discussed 
below. You may comment on whether we should retain this change.

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

    and

Section 3809.703  Can BLM Settle a Proposed Civil Penalty?

    In today's final rule we remove sections 3809.702 and 3809.703 of 
the 2000 rule. We made this change because there is merit to the point 
made by comments that stated that FLPMA does not contain a section 
expressly addressing administrative civil penalties. Although in the 
November 2000 Federal Register preamble we made an argument in support 
of the agency's authority to assess administrative penalties, this is 
an unsettled area for which it is prudent to await clear guidance from 
Congress before promulgating rules. You may comment on whether we 
should retain this amendment of the 2000 rule.
    Finally, as a technical matter, under Federal Register rules, we 
cannot publish in this proposed rule the regulatory amendments for some 
of the changes we made in the final rule published elsewhere in today's 
Federal Register and referred to in this preamble. Nevertheless, you 
may comment on these changes. These include the removal of paragraph 
(d) from Sec. 3809.415, a change made to conform to the proposed 
revision of the definition of ``unnecessary or undue degradation,'' and 
the removal of Secs. 3809.702 and 3809.703 on civil penalties. In 
addition, you may comment on the cross-reference changes and 
corrections made in the final rule in Secs. 3809.2, 3809.31, and 
3809.604.

III. How Did BLM Fulfill Its Procedural Obligations?

Executive Order 12866, Regulatory Planning and Review

    BLM found in the 2000 rule that the new subpart 3809 regulations 
were a significant regulatory action under section 3(f) of Executive 
Order 12866 and require an assessment of potential costs and benefits 
under section 6(a)(3) of that Executive Order. The impacts caused by 
today's final action and proposed action remain within the range of 
alternatives analyzed for the 2000 rule. Since we propose to retain 
most of the 2000 rule, while amending selected provisions, we rely on 
the regulatory impact analysis and benefit-cost analysis prepared for 
the 2000 rule and summarized in that rule, to evaluate today's final 
rule and this proposed rule. The full analyses remain on file in the 
BLM Administrative Record at the address specified in the ADDRESSES 
section. In the following paragraphs, we describe how the changes 
presented in today's rule affect these analyses.
    The estimated costs associated with this rule are significantly 
lower than those associated with the 2000 rule. Over the 10 year period 
that we analyzed, we do not expect today's rule to have significant 
annual impacts on the economy.
    The lower expected costs arise primarily from removing the SIH 
provision of the 2000 rule. Relative to the 2000 rule, substantial 
production benefits could accrue as a result of eliminating the SIH 
standard. However, uncertainty exists with respect to how eliminating 
the SIH provision will affect net economic benefits. Uncertainty about 
how the SIH provision would have been implemented, site specific 
factors, and any exploration and production effects (and the timing of 
these effects) make evaluating net economic benefits very difficult.
    The net economic effects associated with eliminating joint and 
several liability, civil penalties, and revising the performance 
standards (with the exception of the acid rock drainage and cyanide 
standards, which would be retained) are equally difficult to

[[Page 54867]]

quantify but are not significant because the economic costs associated 
with these provisions are likely to be overshadowed by the potential 
economic costs associated with the SIH provision. We estimated the net 
effect of modifying the performance standards from the 1980 rule to the 
2000 rule as being limited. Similarly, changing the 2000 standards back 
to the 1980 standards will result in negligible impact.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. We invite your comments on how 
to make this proposed rule easier to understand, including answers to 
questions such as the following:
    (1) Are the requirements in the proposed regulations clearly 
stated?
    (2) Do the regulations contain technical language or jargon that 
interferes with their clarity?
    (3) Does the format of the regulations (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce their 
clarity?
    (4) Would the regulations be easier to understand if they were 
divided into more (but shorter) sections? (A ``section'' appears in 
bold type and is preceded by the symbol ``Sec. '' and a numbered 
heading, for example ``Sec. 3809.420 What performance standards apply 
to my notice or plan of operations?'')
    (5) Is the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble helpful in 
understanding the regulations? How could this description be more 
helpful in making the final regulations easier to understand?
    Please send any comments you have on the clarity of the proposed 
regulations to the address specified in the ADDRESSES section.

National Environmental Policy Act

    The 2000 rule found that the new subpart 3809 regulations 
constituted 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 prepared an 
environmental impact statement (EIS), which remains on file and is 
available to the public in the BLM Administrative Record at the address 
specified in the ADDRESSES section.
    Because today's final rule and this proposed rule retain most of 
the provisions of the 2000 rule, we rely on the findings in the EIS. In 
today's final rule, we discuss in considerable detail the extent to 
which we expect this rule to change the impacts on the human 
environment that we anticipated in the 2000 rule. The final rule also 
contains a discussion of comments we received on the March 23, 2001, 
proposal. We have found that the impacts resulting from the final rule, 
with respect to the baseline established by the 1980 standards as well 
as the change from the 2000 rule, would fall within the range of 
impacts analyzed, and thus are not significantly different. No 
significant new information or change in circumstances has occurred 
that would alter the analysis or findings in the final EIS.
    The definition of casual use in this proposed rule, which would 
specify that a gas powered drywasher of less than 10 horsepower 
qualifies as casual use, would not change impacts appreciably.
    Although today's final rule and this proposed rule remove the 
substantial irreparable harm provision in the definition of unnecessary 
or undue degradation, BLM retains ample authority to protect surface 
resources and the environment. As discussed in today's final rule, BLM 
has ample statutory and regulatory means of preventing harm to 
significant scientific, cultural, or environmental resource values: the 
Endangered Species Act, the Archaeological Resources Protection Act, 
establishment of areas of critical environmental concern in land use 
plans under the FLPMA, withdrawal under Section 204 of FLPMA, the 
performance standards in section 3809.420, and so forth. Many of these 
are invoked in the performance standards in section 3809.420 and in the 
requirements for submission of Plans of Operations in section 3809.401.
    The revision of section 3809.420 removes requirements for 
environmental protection that might conflict with or duplicate existing 
Federal or State laws or regulations. For example, paragraph (b)(2), 
which provided for minimizing water pollution via source control rather 
than treatment, and (b)(3), on jurisdictional wetlands protection, are 
addressed by the Clean Water Act, and the relevant programs are 
administered by the Environmental Protection Agency or the state or 
both, and the Corps of Engineers, respectively. Therefore, the 
requirements that the operator must comply with the Clean Water Act, 
Clean Air Act, and other environmental laws and regulations will have 
the same effect. The final rule and this proposed rule remove 
unnecessary language.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as 
amended, 5 U.S.C. 601-612, RFA to ensure that Federal 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. BLM prepared a 
regulatory flexibility analysis on the expected impact of the 2000 rule 
on small entities, determined that the 2000 rule will have a 
significant economic effect on a substantial number of small entities, 
and summarized it in the 2000 rule (65 FR 69998, 70103). The regulatory 
flexibility analysis remains on file in the BLM Administrative Record 
at the address specified in the ADDRESSES section. In today's final 
rule and this proposed rule we have made changes that should reduce the 
burdens on small entities. The regulations no longer provide for joint 
and several liability for violations of the regulations, no longer 
provide for civil liability for violations, simplify the definition of 
``operator,'' and reduce the burdens of performance standards.
    The Small Business Administration (SBA) commented in support of the 
March 23, 2001, proposed rule to suspend the 2000 rule. The principal 
substantive objection of the SBA to the 2000 rule was to the definition 
of ``unnecessary or undue degradation'' and the inclusion in it of 
``substantial irreparable harm'' as an element. Removing this element 
from the definition in this proposed rule should obviate this 
objection.

Small Business Regulatory Enforcement Fairness Act

    Evaluated against the baseline of the 2000 rule, BLM has concluded 
that today's final rule and this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule should reduce the costs borne by small entities relative to 
the 2000 rule. However, the magnitude of the cost reductions depends on 
site and operation specific factors. The removal of the SIH provision 
will benefit small entities. As stated earlier, the SBA objected to the 
2000 rules primarily because of the SIH provision. This proposed rule 
obviates that objection and benefits small entities.

Unfunded Mandates Reform Act

    In the 2000 final rule (65 FR 69998, 70109), BLM found that those 
final regulations do not impose an unfunded

[[Page 54868]]

mandate on state, local, or tribal governments or the private sector of 
more than $100 million per year; nor do those final regulations have a 
significant or unique effect on State, local, or tribal governments or 
the private sector. The impacts of this proposed rule do not change 
that finding. Therefore, BLM is not required to prepare a statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.)

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

    In the 2000 final rule (65 FR 69998, 70109), BLM found that those 
final regulations do not represent a government action capable of 
interfering with constitutionally protected property rights. We stated 
that it doesn't affect property rights or interests in property, such 
as mining claims; it governs how an individual or corporation exercises 
those rights. However, one comment on the March 23, 2001, proposal to 
amend the 2000 rule stated that the joint and several liability 
provision in section 3809.116(a) would diminish the property value by 
severely restraining alienation and thus amount to a taking in 
violation of the Fifth Amendment of the Constitution. We have removed 
this provision in today's final rule and would maintain that change in 
this proposed rule. Because today's final rule and this proposed rule 
do not make any changes that increase the burdens on mining claim 
owners or other property owners, the Department of the Interior has 
determined that this proposed rule would not cause a taking of private 
property or require further discussion of takings implications under 
this Executive Order.

Executive Order 13132, Federalism

    In the 2000 rule, BLM found (65 FR 69998, 70109) that it would have 
federalism implications in that in certain circumstances it may preempt 
State law. However, we concluded that it would not have a substantial 
direct effect on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. The 2000 rule 
describes the consultation BLM engaged in with the States and the 
results of that consultation. The changes made in this proposed rule 
will not increase burdens on States, and will facilitate cooperation 
between States and the United States in the area of surface management 
of mining operations on public lands.
    The 2000 rule described the consultation between BLM and the States 
in aid of developing that rule. This proposed rule does not change the 
findings in that rule. This rule does not change the regulations in a 
manner contrary to the interests of the States as found from 
consultation with the States.
    Further, we received comments from governors, agencies, or 
legislatures of or Members of Congress from the following Western 
States, as well as the Western Governors' Association: Alaska, Idaho, 
Nevada, Utah, and Wyoming. These comments were critical of the 2000 
regulations and supported their suspension and revision. Only one of 
these provided detailed recommendations that largely tracked those of 
the NRC. To the extent that those specific recommendations pertain to 
BLM, or are within the legal responsibility of BLM, we believe this 
proposed rule follows those recommendations. We are also willing to 
engage in further consultation with states as may be appropriate.
    BLM's full Federalism assessment, performed on the 2000 rule, 
remains on file in the BLM Administrative Record at the address 
specified in the ADDRESSES section, along with the written public 
comments on the assessment.

Executive Order 12988, Civil Justice Reform

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

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    We rely in part on Tribal consultation that occurred before 
publication of the 2000 rule. In accordance with Executive Order 13175, 
we have also found that this proposed rule does not include policies 
that have significant tribal implications. We have made clear that 
plans of operations under these regulations must comply with State, 
local, Tribal, and other Federal requirements. Removing the SIH 
standard will not significantly affect Native American cultural 
resources on the public lands because these resources can be protected 
under other provisions. In addition, in most instances mitigation 
measures will be possible to reduce such impacts. Today's final rule 
responds to comments received from Tribes on the March 23, 2001, 
proposal. We are willing to engage in further consultation with Tribes 
as may be appropriate.

E.O. 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use

    This rule is not a significant energy action. It will not have an 
adverse effect on energy supplies. The principal changes proposed in 
the rule address (1) the definition of an operator, what entities are 
responsible for reclamation and other duties, (2) the definition of 
unnecessary or undue degradation, and (3) performance standards that 
operators must follow. To the extent that the rule affects the mining 
of energy minerals (i.e., uranium and other fissionable metals), they 
will tend to increase production marginally.

Paperwork Reduction Act

    The 2000 final rule (65 FR 69998, 70111) stated that it required 
collection of information from 10 or more persons. It went on to 
discuss our compliance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), and the public comments that discussed the information 
collection requirements. We continue to rely on the discussion in the 
2000 rule as to information collection requirement matters. The Office 
of Management and Budget has approved those information collection 
requirements in the final rule under the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 et seq., and has assigned clearance number 1004-
0194. This proposed rule does not contain additional information 
collection requirements that the Office of Management and Budget must 
approve under the Paperwork Reduction Act of 1995.

Author

    The principal authors of this rule are members of the Departmental 
3809 Task Force, chaired by Robert M. Anderson, Deputy Assistant 
Director, Minerals, Realty, and Resource Protection, Bureau of Land 
Management.

List of Subjects in 43 CFR Part 3800

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

P. Lynn Scarlett,
Assistant Secretary, Policy, Management, and Budget.
    Accordingly, for the reasons stated in the Preamble, and under the 
authorities cited below, BLM proposes to amend

[[Page 54869]]

Title 43 of the Code of Federal Regulations, part 3800 as set forth 
below:

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

Subpart 3809--Surface Management

    1. The authority citation for subpart 3809 continues to read as 
follows:

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

    2. Amend Sec. 3809.5 by removing from paragraph (1) of the 
definition of ``casual use'' the phrase ``hand and battery-powered 
drywashers'' and adding in its place the phrase ``less than 10 
horsepower drywashers,'' and by revising the definitions of 
``operator'' and ``unnecessary or undue degradation'' to read as 
follows:


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

* * * * *
    Operator means a person conducting or proposing to conduct 
operations.
* * * * *
    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 chapter; or
    (3) Fail to attain a stated level of protection or reclamation 
required by specific laws in areas such as the California Desert 
Conservation Area, Wild and Scenic Rivers, BLM-administered portions of 
the National Wilderness System, and BLM-administered National Monuments 
and National Conservation Areas.
    3. Amend Sec. 3809.31 by removing the word ``submittals'' in the 
section title and adding the word ``submissions''.
    4. Amend Sec. 3809.116 by revising paragraph (a) to read as 
follows:


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

    (a) Mining claimants and operators (if other than the mining 
claimant) are liable for obligations under this subpart that accrue 
while they hold their interests.
* * * * *
    5. Amend Sec. 3809.411 by revising paragraph (d)(3)(iii) to read:


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

* * * * *
    (d) * * *
    (3) * * *
* * * * *
    (iii) Proposes operations that would result in unnecessary or undue 
degradation of public lands.
    6. Revise Sec. 3809.420 to read as follows:


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.
    (6) Compliance with other laws. You must conduct all operations in 
a manner that complies with all pertinent Federal and state laws.
    (b) Specific standards.
    (1) Access routes. Access routes shall be planned for only the 
minimum width needed for operations and shall follow natural contours, 
where practicable to minimize cut and fill. When the construction of 
access routes involves slopes that require cuts on the inside edge in 
excess of 3 feet, the operator may be required to consult with the 
authorized officer concerning the most appropriate location of the 
access route prior to commencing operations. An operator is entitled to 
access to his operations consistent with provisions of the mining laws. 
Where a notice or a plan of operations is required, it shall specify 
the location of access routes for operations and other conditions 
necessary to prevent unnecessary or undue degradation. The authorized 
officer may require the operator to use existing roads to minimize the 
number of access routes, and, if practicable, to construct access roads 
within a designated transportation or utility corridor. When commercial 
hauling is involved and the use of an existing road is required, the 
authorized officer may require the operator to make appropriate 
arrangements for use and maintenance.
    (2) Mining wastes. All tailings, dumps, deleterious materials or 
substances, and other waste produced by the operations shall be 
disposed of so as to prevent unnecessary or undue degradation and in 
accordance with applicable Federal and state Laws.
    (3) Reclamation. (i) At the earliest feasible time, the operator 
shall reclaim the area disturbed, except to the extent necessary to 
preserve evidence of mineralization, by taking reasonable measures to 
prevent or control on-site and off-site damage of the Federal lands.
    (ii) Reclamation shall include, but shall not be limited to:
    (A) Saving of topsoil for final application after reshaping of 
disturbed areas have been completed;
    (B) Measures to control erosion, landslides, and water runoff;
    (C) Measures to isolate, remove, or control toxic materials;
    (D) Reshaping the area disturbed, application of the topsoil, and 
revegetation of disturbed areas, where reasonably practicable; and
    (E) Rehabilitation of fisheries and wildlife habitat.
    (iii) When reclamation of the disturbed area has been completed, 
except to the extent necessary to preserve evidence of mineralization, 
the authorized officer shall be notified so that an inspection of the 
area can be made.
    (4) Air quality. All operators shall comply with applicable Federal 
and state air quality standards, including the Clean Air Act (42 U.S.C. 
1857 et seq.).
    (5) Water quality. All operators shall comply with applicable 
Federal and state water quality standards, including the Federal Water 
Pollution Control Act, as amended (30 U.S.C. 1151 et seq.).
    (6) Solid wastes. All operators shall comply with applicable 
Federal and state standards for the disposal and treatment of solid 
wastes, including regulations issued pursuant to the Solid Waste 
Disposal Act as amended by the Resource Conservation and Recovery Act 
(42 U.S.C. 6901 et seq.). All garbage, refuse or waste shall either be 
removed from the affected lands or disposed of or

[[Page 54870]]

treated to minimize, so far as is practicable, its impact on the lands.
    (7) Fisheries, wildlife and plant habitat. The operator shall take 
such action as may be needed to prevent adverse impacts to threatened 
or endangered species, and their habitat which may be affected by 
operations.
    (8) Cultural and paleontological resources. (i) Operators shall not 
knowingly disturb, alter, injure, or destroy any scientifically 
important paleontological remains or any historical or archaeological 
site, structure, building or object on Federal lands.
    (ii) Operators shall immediately bring to the attention of the 
authorized officer any cultural and/or paleontological resources that 
might be altered or destroyed on Federal lands by his/her operations, 
and shall leave such discovery intact until told to proceed by the 
authorized officer. The authorized officer shall evaluate the 
discoveries brought to his/her attention, take action to protect or 
remove the resource, and allow operations to proceed within 10 working 
days after notification to the authorized officer of such discovery.
    (iii) The Federal Government shall have the responsibility and bear 
the cost of investigations and salvage of cultural and paleontology 
values discovered after a plan of operations has been approved, or 
where a plan is not involved.
    (9) Protection of survey monuments. To the extent practicable, all 
operators shall protect all survey monuments, witness corners, 
reference monuments, bearing trees and line trees against unnecessary 
or undue destruction, obliteration or damage. If, in the course of 
operations, any monuments, corners, or accessories are destroyed, 
obliterated, or damaged by such operations, the operator shall 
immediately report the matter to the authorized officer. The authorized 
officer shall prescribe, in writing, the requirements for the 
restoration or reestablishment of monuments, corners, bearing and line 
trees.
    (10) Fire. The operator shall comply with all applicable Federal 
and state fire laws and regulations, and shall take all reasonable 
measures to prevent and suppress fires in the area of operations.
    (11) 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.
    (12) 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 drain down 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.
    (13) Maintenance and public safety. During all operations, the 
operator shall maintain his or her structures, equipment, and other 
facilities in a safe and orderly manner. Hazardous sites or conditions 
resulting from operations shall be marked by signs, fenced, or 
otherwise identified to alert the public in accordance with applicable 
Federal and state laws and regulations.
    7. Revise Sec. 3809.421 effective December 31, 2001, to read as 
follows:


Sec. 3809.421  Enforcement of performance standards.

    Failure of the operator to prevent unnecessary or undue degradation 
or to complete reclamation to the standards described in this subpart 
may cause the operator to be subject to enforcement as described in 
Secs. 3809.600 thorugh 3809.605 of this subpart.
    8. Revise section 3809.598 to read as follows:


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 liable for the 
remaining costs as set forth in Sec. 3809.116. 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.

[FR Doc. 01-27075 Filed 10-29-01; 8:45 am]
BILLING CODE 4310-84-P