69998 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

1Although 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.

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.

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 BLMadministered 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, § 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

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

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

70000 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

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

70002 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

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

70004 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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-bysection 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 noticelevel 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.

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

70006 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

2Although 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.

§ 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 §§ 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.

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 sitespecific 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 areaspecific 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

§ 3809.2(b).

We have also added a sentence to

final § 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 §§ 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 rewrite 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 § 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 § 3809.0–6, which

recognized the declaration of policy in

section 102 of FLPMA that the ‘‘public

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

70008 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 upto-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 § 3809.3 as

proposed. Final § 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 coregulators 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 (§§ 3809.201 to 3809.204)

and the proposed performance

standards (§ 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 § 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

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

§ 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 § 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 §§ 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 § 3809.420, but the

term ‘‘most appropriate technology and

practice’’ has been dropped from final

§§ 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.

70010 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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-bycase 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 farreaching. 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 ‘‘offroad 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 motorizedvehicle 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 landuse 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

70012 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 costeffective.

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

§ 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

§ 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

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

70014 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

‘‘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 § 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 decisionmaking. 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 § 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 postclosure 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 surfacedisturbing 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 § 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 postclosure 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 ‘‘openended’’ 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

§ 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’’

70016 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 crossreference 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

§ 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

§ 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

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

70018 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

3The 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.

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.

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 § 3809.10 classifies operations

in three categories: casual use, noticelevel, 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 § 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 § 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 § 3809.11(a)

from the final rule and moved the

requirement to perform reclamation for

casual use disturbance to final

§ 3809.10(a) for clarity. See final

§ 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 § 3809.11(a) required casual

use disturbance to be ‘‘reclaimed,’’ and

wanted to know which reclamation

standards apply. We changed the

requirement in final § 3809.10(a) to

include the word ‘‘reclamation,’’ which

is defined under § 3809.5, rather than

continue to use the phrase ‘‘you must

reclaim’’ that appeared under proposed

§ 3809.11(a). The applicable standards

depend on the nature of the disturbance

and may be found in final § 3809.420.

Wording was added to final § 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 § 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 § 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 § 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 § 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

§§ 3809.11, 3809.21 and 3809.31.

As indicated under final § 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 §§ 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

§ 8340.0–5 of this title;

(6) Lands in the King Range

Conservation Area.

The final rule would add the

following new exceptions:

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70019

4The 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.

(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.

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 BLMadministered 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, offhighway 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

70020 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

environmentally sound development of

the nation’s mineral resources.

Final § 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 § 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 § 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 § 3809.11(b) where § 3809.21 does

not apply. The final rule incorporates

changes in the language from proposed

§ 3809.11(j).

Final § 3809.11(c)(6) has been

modified from proposed § 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

§ 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 § 3809.11(j)(6).

This change was made for several

reasons. First, we modified the

definition of ‘‘unnecessary or undue

degradation’’ in final § 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 § 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 § 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 § 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

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

§ 3809 regulations in effect since 1981.

We received numerous comments on

proposed § 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 § 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 § 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

§ 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

§ 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 § 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 § 3809.011(j)(3). In the final

regulations, BLM has replaced proposed

§ 3809.011(j)(6) with a different

threshold standard. Final § 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 § 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 millingrelated operations even if the area

disturbed is less than 5 acres. See

preamble discussion regarding final

§ 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 § 3809.11(f) are

now covered under final § 3809.11(a),

requiring plans of operations. Therefore,

we deleted the language in proposed

§ 3809.11(f) from the final rule.

We received numerous comments on

proposed § 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 § 3809.11 (‘‘Forest Service’’

Alternative) which would have based

the notice/plan threshold on whether a

70022 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 NRCrecommended 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 § 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 § 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 authoritiesFLPMA 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 § 3809.21 is a new section,

which incorporates changes from

proposed § 3809.11(b). Final

§ 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 § 3809.21(a)

and the preamble discussion under

§ 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 § 3809.11(b) and proposed

§ 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70023

disturbance of 5 acres or less’’ has been

changed in § 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 § 3809.5. This

means reclamation must meet

applicable performance standards

outlined in final § 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 § 3809.11(b) how an

operator is responsible to reclaim

previous disturbance by another

operator. As with proposed § 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

§ 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 § 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 § 3809.31 is derived from

proposed § 3809.11 (Alternative 1).

Final § 3809.31(a) is based on proposed

§ 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 § 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 § 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

§ 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 § 3809.31(b) incorporates

changes to the language appearing

under proposed § 3809.11(h) addressing

the use of suction dredges. The

reference in proposed § 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 § 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 § 3809.31(b)(1) and

(2). See also the preamble discussion of

§ 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

70024 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

5The 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.

‘‘casual use.’’ This is consistent with the

discussion in the NRC Report. With the

removal of the reference to the four inch

diameter, final § 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

§ 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

§ 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 § 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 § 3809.21 or a plan of operations

pursuant to final §§ 3809.400 through

3809.434, or whether their activities are

considered ‘‘casual use.’’.

Final § 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 § 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 smallscale 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 § 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.

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 § 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 § 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 nonnavigable. We believe we have provided

for appropriate State regulation of

suction-dredging activities in final

§ 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 § 3809.31(d) incorporates the

language from proposed § 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 § 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

§ 3809.11 and obtain BLM’s approval or

a notice under final § 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 § 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 noticelevel 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

§ 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 § 3809.11(j)(8).

See earlier discussion of final § 3809.11.

Final § 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 § 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

§ 3809.11(j)(8) for lack of consistency

with the NRC Report. See the discussion

under § 3809.11 earlier in this preamble.

Final § 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 presegregation 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

70026 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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.

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

§ 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 § 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 goldbearing 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

70028 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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

§ 3809.116(a) into two subparagraphs.

Final § 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 § 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 § 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 § 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 § 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

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

70030 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

Sections 3809.200 to 3809.204

Federal/State Agreements

Final §§ 3809.200 to 3809.204 address

Federal/State agreements, including the

kinds of agreements that BLM and the

State may make (§ 3809.200); the

content of the agreements (§ 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

(§ 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

§ 3809.201 as final § 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 § 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 § 3809.203.

Under the first type of agreement,

provided for at § 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 § 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

§ 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 § 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 § 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 § 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 § 3809.201 in this

rule in response to comments requesting

BLM to clarify what Federal/State

agreements should include. Final

§ 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 § 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 § 3809.201(b) addresses

agreements that allow States to regulate

suction dredging in lieu of BLM, as

provided in final § 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 § 3809.201(b)

provides that if an agreement between

BLM and a State is intended to satisfy

the requirements of § 3809.31(b)

regarding suction dredge activities (so

that the State may regulate suction

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

§ 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

70032 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 § 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

§§ 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 § 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 § 3809.203. BLM agrees that any

State findings need to be considered in

the NEPA process. After review of the

NRC Report recommendation, BLM

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70033

revised final § 3809.201 to recommend

that Federal and State agreements

should address NEPA to provide for

effective cooperation in scoping,

preparation, and review.

Final § 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 § 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 § 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 §§ 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 § 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

§ 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 § 3809.204(c). Final

§ 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 § 3809.204(c) does not allow

those portions which are currently

administered by a State to continue past

the deadlines in final § 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 § 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

70034 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§§ 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 rulemaking 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

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

(§§ 3809.300 through 3809.336) governs

operations conducted under notices. It

is based primarily on previous § 3809.1–

3. We use two tables: One covers

applicability of this subpart to existing

notice-level operations (See final

§ 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 § 3809.313.). For the

sake of simplicity, we have not used a

separate set of performance standards

applicable only to notices. Instead, final

§ 3809.320 simply references the planlevel performance standards of final

§ 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 § 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 § 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 § 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

70036 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

operations under this subpart. Final

§ 3809.300(a) adds a statement that BLM

may require a modification of an

existing notice under § 3809.331(a)(1).

Final § 3809.300(c) contains new

language about situations where an

operator modifies an existing notice

after the effective date of the final rule.

Final § 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 § 3809.333. The rule also explains

that BLM may require an operator to

modify the notice under

§ 3809.331(a)(1). The operator under a

modified notice must also comply with

the financial guarantee requirements of

§ 3809.503.

Final § 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

§ 3809.11 and § 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 § 3809.300(d) replaces proposed

§ 3809.300(c). The language has been

modified to clarify that an operator with

an expired notice must either submit a

new notice under § 3809.301, submit a

plan of operations under § 3809.401,

whichever is applicable, or immediately

commence reclamation of the project

area.

One commenter suggested we clarify

in § 3809.300(a) that all notices will

expire after 2 years, and then the final

rules will apply. We have modified final

§ 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 §§ 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

§ 3809.331(a)(2).

Other commenters wanted BLM to

delete both the two-year limitation in

proposed § 3809.300(a) and all of

proposed § 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 reapplication 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 (§ 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 § 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

§ 3809.301(b)(1). We agree and have

made that change in the final rule, as

well as under final § 3809.401(b)(1). One

commenter pointed out that noticecontent 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 § 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 § 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 § 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

§§ 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 § 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

§ 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 § 3809.311 outlines actions BLM

takes when it receives a notice. Based

on numerous comments discussed in

this preamble under final § 3809.21, we

changed final § 3809.311(a) from 15

‘‘business’’ days as proposed to

‘‘calendar’’ days from the time that we

receive a notice to review it. Final

§ 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

§ 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 § 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70037

listed in final § 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, highvalue 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 § 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

§ 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 § 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 § 3809.5. See also final § 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 noticelevel operations should not be required

to furnish a financial guarantee, as

required under proposed § 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 greaterthan-negligible surface disturbance.

Section 3809.313 Under What

Circumstances May I Not Begin

Operations 15 Calendar Days After

Filing My Notice?

Final § 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 § 3809.313 specifies

15 calendar days rather than business

days. We have added a statement to

final § 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 § 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

§ 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 § 3809.313(b), (c), and (d)

until BLM concerns are satisfied.

Section 3809.320 Which Performance

Standards Apply to My Notice-Level

Operations?

Final § 3809.320 requires that noticelevel operations meet all applicable

performance standards listed in

proposed § 3809.420. BLM is adopting

this section as proposed. See the

discussion of performance standards

later in this preamble under § 3809.420.

Section 3809.330 May I Modify My

Notice?

Final § 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 § 3809.311 and

§ 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

§ 3809.330 does not define how an

incomplete notice modification impacts

the existing notice. Final § 3809.330(b)

specifies that modified notices will be

handled under the procedures of final

§ 3809.311, which addresses incomplete

notices.

Section 3809.331 Under What

Conditions Must I Modify My Notice?

As proposed, final § 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 § 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

§ 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

§ 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

70038 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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 § 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 § 3809.332 provides for an

effective period of 2 years for a notice,

unless extended under § 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 § 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 § 3809.333 to

keep records current. Additional

extensions are allowed. See preamble

discussion under § 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 § 3809.333 contains a provision

to allow notices to be extended beyond

the 2-year effective period specified in

final § 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

§ 3809.503. We have incorporated a

reference to § 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 § 3809.330(a) and

to § 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 § 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

§ 3809.334. Several commenters were

concerned that BLM provide written

documentation of any finding under

proposed § 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 § 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 § 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 § 3809.334(a) and

‘‘extended period of non-operation’’ as

used in proposed § 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 § 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 § 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70039

clearly establishing the operator’s

responsibilities.

One commenter suggested that a third

option be added to proposed

§ 3809.335(a) which would allow an

operator to provide written notice to

BLM of the intent to extend the notice

per § 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 § 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 § 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,

§ 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 § 3809.301, then follow

§ 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 § 3809.336(a) describes what

characteristics BLM uses to determine if

it considers an operation to be

abandoned. Final § 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

§ 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 § 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

§ 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 § 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

§ 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 § 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 § 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 § 3809.401 describes where a

plan of operations has to be filed and

what information it must contain. Final

§ 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 § 3809.401(b)) has been

70040 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

moved into final paragraph (a) for

purposes of clarity as explained below.

Final § 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 § 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 § 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, acidforming 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

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

§ 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

§ 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 § 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 § 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

§ 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 § 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

70042 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 § 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 § 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

§ 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 § 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.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70043

BLM does not believe that final

§ 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 § 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 § 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

§ 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 § 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 § 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 § 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 § 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 nonEIS-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

70044 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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

§ 3809.401.

BLM has reworded the particular

sentence of concern under final

§ 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

§ 3809.411 seemed to require

compliance with all of the information

requirements of proposed § 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

§ 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

§ 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 § 3809.411(d)(3)(ii)

reference § 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 § 3809.201 would

address coordination of State

environmental permits with the plan of

operations approval. Final

§ 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 § 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 § 3809.411(d), which requires

BLM to accept public comment on the

amount of financial guarantee and

proposed § 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

§ 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

§ 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 § 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 § 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

70046 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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 § 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 § 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

§ 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 longterm 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

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

§ 3809.411 for organizational purposes,

editorial purposes, and to change

procedural requirements for plan review

and approval.

Final § 3809.411(a) has been changed

to 30 calendar days from business days

for the initial plan of operations review.

Proposed § 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 § 3809.411(a)(3)(iii), we have

added a reference to the MagnusonStevens 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 § 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 § 3809.411(d).

BLM has added final

§ 3809.411(a)(3)(ix) to the final

70048 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 3809.411(d) with final § 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 § 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 § 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

§ 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

§ 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 § 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 § 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

§ 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 § 3809.411 and

information description in final

§ 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 § 3809.401(b)(3) that plans of

operations address post-closure

management; (2) in § 3809.411(d)(2) the

incorporation of other agency plans and

permit requirements (including closure

requirements), into the approved plan of

operations; (3) in § 3809.420(a)(3) that

operations comply with applicable land

use plans; and (4) in § 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 § 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

§ 3809.411(d) since that section merely

requires an estimate of the guarantee

amount. The reference has been

replaced with one to final § 3809.551,

which provides options for the financial

guarantee instrument and associated

requirements.

BLM received several comments on

proposed § 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 § 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70049

prior to initiating operations. The

purpose of final § 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 § 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 § 3809.5.

BLM received several comments on

this section. One comment was that

tying prevention of unnecessary or

undue degradation in proposed

§ 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 § 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 § 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

§ 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 § 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

§ 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

§ 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 § 3809.5.

Final § 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 § 3809.420 explains which

performance standards apply to a notice

or plan of operations. The previous

regulations at § 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

§ 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 § 3809.420 BLM will

70050 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

review each notice or proposed plan of

operations to determine if it is

reasonably likely to meet each outcomebased 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 § 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 §§ 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 §§ 3809.5 and 3809.420.

Instead, in final § 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 § 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

§ 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 § 3809.420(b)(2)(ii)(B)

Groundwater. In addition, at both

proposed § 3809.420(b)(2)(C), now final

§ 3809.420(b)(2)(B), and

§ 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

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

§ 3809.420(b)(6) to read, ‘‘Fish, wildlife,

and plants’’ to clarify that it also covers

plants. In final § 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

§ 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

§ 3809.420(b)(7)(ii) to 30 calendar days

in final § 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 § 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 § 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

§ 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 § 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

§ 3809.420(c)(7)(i) now reads, ‘‘Based on

the site-specific review required in

§ 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

§ 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

70052 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 threetiered 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

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

§ 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 § 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

§ 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 § 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 § 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 § 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 § 3809.602. BLM believes

this is appropriate where the operator is

failing to take corrective actions

specified in an enforcement order. Final

§ 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

70054 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 nonoperation. 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 § 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 § 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

§ 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

§ 3809.424 follow.

Numerous commenters were

concerned that proposed

§ 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

§§ 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70055

be taken to comply with proposed

§ 3809.424(a)(1)(i-iii).

BLM prefers to require that the

operator propose an interim

management plan for periods of nonoperation as part of the initial plan of

operations. This approach should

reduce the workload on both the

operator and BLM, plus provide for upfront 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

§ 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

§ 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

§ 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 § 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 § 3809.420

requires the operator to perform

concurrent reclamation on areas that

will not be disturbed further under the

plan of operations. Final § 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 § 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 § 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 § 3809.424(a)(4) provides that BLM

may initiate forfeiture under § 3809.595.

Final § 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

70056 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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

§ 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 nonoperation.

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

§ 3809.401(b) that plans of operations

include interim management plans as

recommended by the NRC Report; and

to final § 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 § 3809.424

have been made under the ‘‘Then’’

column of § 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

§ 3809.401(b)(5), and must submit a

modification under § 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

§ 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 § 3809.401(b)(5) as

part of the content requirements for all

interim management plans. With the

addition to final § 3809.424(a)(1) that

interim management plans must be

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70057

followed, these phrases became

redundant and have been deleted.

Final § 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 nonoperation, and modifications must be

submitted within 30 days if

circumstances of the closure change

from that anticipated in the interim

management plan. Final § 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 § 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 § 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 § 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 § 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 § 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 nonsubstantive changes in circumstances.

Two commenters asked if proposed

§ 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

§ 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

70058 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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

§ 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 § 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

§ 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 § 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 § 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

§ 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

§ 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 § 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 § 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-theground performance. BLM could also

determine at this time if a modification

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

§ 3809.431(c). A change in revegetation

plans, an increase in mining rate, or a

greater disturbance footprint beyond

70060 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 3809.431(c) requires a plan

modification prior to final closure to

address unanticipated events or

conditions or newly discovered

information. Final § 3809.431 has also

been revised and reformatted to present

the possible circumstances that would

require plan modification in a

sequential fashion.

Final § 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 § 3809.401(b), but also

provide a mechanism under

§ 3809.431(c) where plans of operations

can be modified prior to closure to

address specific closure and postclosure 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 § 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 § 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

§ 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 § 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 § 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 § 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 § 3809.432(a).

One commenter wanted to know how

much of the information listed in

proposed § 3809.401 would be required

for a plan modification. BLM will

require all of the information listed in

§ 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

§ 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 § 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 § 3809.432(a) which

included the term ‘‘minimally.’’

Therefore, comments on defining this

term are no longer relevant. Plan

modifications processed under final

§ 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70061

not contingent upon any change in the

financial guarantee.

Other commenters requested that

BLM define ‘‘substantive’’ as used in

proposed § 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 § 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 § 3809.432. In the view of these

commenters, this process can be

extraordinarily expensive and timeconsuming. 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

§ 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 § 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

§ 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 § 3809.432(a).

Another comment was that proposed

§ 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.

70062 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 3809.432

include deleting the last clause from

proposed § 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 §§ 3809.401 through 3809.420.’’

BLM has also edited final

§ 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 § 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

§ 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 § 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 § 3809.401 and

meet the performance standards of final

§ 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

§ 809.401 and the performance

standards of final § 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

§ 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 § 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.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70063

A commenter stated that, under

proposed § 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 § 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 § 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 § 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 § 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 § 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 § 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 reapproval. 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 § 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

70064 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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

§ 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

§ 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

§ 3809.433(b) based upon practicality, or

a determination made under final

§ 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 § 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 § 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 § 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

§§ 3809.434 and 3809.435 into final

§ 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 § 3809.401) and

performance standard requirements

(final §§ 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 § 3809.435

with proposed § 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 § 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 § 3809.420 will

generally be compatible with existing

operations when applied on a sitespecific 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

§ 3809.420.

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

§ 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 §§ 3809.434 and

3809.435. All of proposed § 3809.435

has been deleted. Final § 3809.434 has

been rewritten to address pending

modifications for an existing mine

facility that were covered in proposed

§ 3809.435, as well as pending

modifications for new mine facilities.

The title of final § 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 § 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 § 3809.434(b) states that all

provisions of this subpart, except plan

content and performance standards

(§§ 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 § 3809.505 on the

applicability of financial guarantee

requirements.

Final § 3809.434(c) provides a

reference to the plan content

requirements (§ 3809.1–5) and the

performance standards (§§ 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 § 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 § 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

§ 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

§ 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

§ 3809.411(d)] and prior to final

70066 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

financial guarantee release [proposed

§ 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 § 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 noticelevel 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

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

§ 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 smallentity 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 § 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 § 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

70068 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 §§ 3809.430–

434 appear to have requirements that

conflict with proposed § 3809.505. Final

§§ 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 § 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 § 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, postmining 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

§ 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 § 3809.552(a), which

clarifies the February 9, 1999, proposed

rule.

One commenter suggested that we

amend proposed § 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 longterm 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 worstcase 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 offsite 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 § 3809.552(c) on the basis that

a financial guarantee to establish longterm 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 longterm 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 longterm water treatment by itself is not an

indicator of unnecessary or undue

degradation.

One commenter asked that we revise

proposed § 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 § 3809.420 describes what

constitutes an acceptable plan of

operations. In this section (final

§ 3809.552) we are requiring the posting

of a financial guarantee to assure that

State water quality standards will be

70070 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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 costestimating 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 thirdparty 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 sitespecific 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 ‘‘noncancellable’’ 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

70072 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 § 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

§ 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,

§ 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 StateApproved 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.’’

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 § 3809.554.

We believe that making a financial

guarantee redeemable by the Secretary

is a fundamental principle of the

financial guarantee program. In final

§ 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

§ 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 § 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 StateApproved Financial Guarantee Are

Acceptable to BLM?

This section allows an operator to

provide a State-approved financial

guarantee subject to the conditions in

final § 3809.570, in the following forms:

• The kinds of individual financial

guarantees specified under § 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 § 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

70074 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 Stateapproved 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 §§ 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 §§ 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 § 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

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

70076 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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-theground 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

§ 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 § 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 § 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

§ 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

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

70078 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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 § 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

§ 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

§ 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 § 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

(§§ 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 § 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70079

incorporates previous §§ 3809.1–3(e)

and 3809.3–6.

Final § 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 § 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 § 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.

70080 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 multimedia 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 § 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 followup 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 § 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

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

70082 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 BLMsponsored 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

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

§ 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 selfenforcing, 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.

70084 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

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

70086 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

6The 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.

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)),

§ 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 §§ 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.

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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70087

proposed regulations at §§ 3809.601 and

3809.602, including the authority for

BLM to suspend operations, and at

§§ 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

§ 3809.601(a), ‘‘suspension orders’’ as

used in final § 3809.601.(b),

‘‘immediate, temporary suspension’’ as

used in final § 3809.601(b), ‘‘imminent

danger or harm’’ as used in final

§ 3809.601(b)(2)(ii), ‘‘violation’’ as used

in final § 3809.702, and ‘‘pattern of

violations’’ as used in final

§ 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-bycase 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 § 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

§ 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

§ 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 § 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 § 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 § 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)

70088 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 § 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 § 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

§ 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

§ 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70089

(§ 3809.601(b)(1)(ii)) can be combined

with notification of the opportunity for

an informal hearing

(§ 3809.601(b)(1)(iii)).

The process set forth in final

§ 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 (§ 3809.601(b)(1)(ii))

can be combined with notification of the

opportunity for an informal hearing

(§ 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 noncompliance 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

§ 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 § 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 § 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

§ 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 wellestablished 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 § 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 § 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 § 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

70090 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 § 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 § 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

§ 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 § 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 BLMapproved 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 § 3809.604 is adopted as

proposed. Final § 3809.604(a) provides

that if a person does not comply with a

BLM order issued under §§ 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

§§ 3809.601 and 3809.602 and the

penalties described in §§ 3809.700 and

3809.702.

A commenter recommended that civil

actions be brought by States rather than

in Federal Court as specified in

proposed § 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 § 3809.604(a) identifies the

availability of civil actions in United

States District Courts, as provided in

FLPMA section 303(b). It does not

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 § 3809.604(b) specifies that if a

person fails to timely comply with a

noncompliance order issued under

§ 3809.601(a), and remains in

noncompliance, BLM may order that

person to submit plans of operations

under § 3809.401 for current and future

notice-level operations. This paragraph

continues the requirement contained in

previous § 3809.3–2(e).

Section 3809.605 What Are Prohibited

Acts Under This Subpart?

Final § 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 § 3809.700 tracks the proposal

and describes criminal penalties

associated with violations of subpart

3809. Final § 3809.700 identifies the

criminal penalties established by statute

for individuals and organizations for

violations of subpart 3809. It was

previously included in § 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 § 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 § 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 § 3809.700. BLM

received a considerable number of

comments, however, objecting to the

criminal sanctions provision, proposed

§ 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 § 3809.552(b)) is no longer

adequate; failing to modify a notice

under § 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

§ 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.

70092 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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 § 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 § 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 § 3809.700, BLM

is not establishing any criminal

sanctions by promulgating final

§ 3809.701.

Some commenters thought that

proposed §§ 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 § 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 § 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 § 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 nonperformance. EPA supported the

authority for BLM to issue civil

administrative penalties based on nonVerDate 11<MAY>2000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2
Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 § 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 § 3809.703, discussed below.

The recipient may also petition OHA for

a hearing under final § 3809.702(b). A

hearing gives the person assessed a

70094 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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

§ 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 § 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 § 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 § 3809.800 and

added §§ 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 § 3809.800 establishes the two

review processes. Portions of proposed

§ 3809.800 are contained in final

§§ 3809.801, 3809.802 and 3809.803,

discussed below.

Final § 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

§ 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 § 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

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70095

pointed out the difference in language

between proposed § 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 § 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 § 3809.801 describes when an

appeal can be filed with OHA. Final

§ 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 § 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 § 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 § 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 § 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 § 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 § 3809.802 addresses the

contents of appeals to OHA, and

includes the material proposed as

§ 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 § 3809.803, and also as

provided in proposed § 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 § 4.21(b). This derives from

previous § 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 § 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 § 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

70096 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 timeconsuming 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 § 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 § 3809.411(c) to establish

a public participation provision.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70097

Sections 3809.804 Through 3809.809

State Director Review

Final §§ 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 § 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 § 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 § 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 § 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 § 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 §§ 3809.806(b) and (c) describe

address possible overlapping OHA

appeals and State Director review

proceedings. Final § 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 § 3809.801 before the

State Director issues a decision, unless

OHA defers consideration of the appeal

pending the State Director decision.

Final § 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 § 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 § 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

§ 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 § 3809.808 describes how

decisions go into effect when a person

requests State Director review. Under

final § 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

§ 3809.4(b) and (f). Under final

§ 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 § 3809.809 addresses whether a

party may appeal a decision made by

the State Director. Final § 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

§ 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 § 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,

70098 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 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 § 3809.600(b).

Section 9263.1 Operations Conducted

Under the Mining Law of 1872

The discussion of final § 9263.1

appears earlier in this preamble under

the discussion of comments received on

the proposed penalty provisions at

§ 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-operationspecific.

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 benefitcost 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

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

70100 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

$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.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70101

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 nonFederal 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

70102 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 percapita 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.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70103

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

70104 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 profitbased 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

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

Employment category

BLM data Census data

Notices b Plans b Est. number of firms

Estimated

percent of

companies d

500 or fewer employees ............... All: 6,213 existing; an estimated

350–850 submitted annually by

individual operations.

All: 900 existing; an estimated

110–190 submitted annually by

individual operations. In addition, 200 existing suchtion

dredgers plus 50 submitted annually in the future.

Approx. 700 c ........... 15

Fewer than 20 employees a .......... About 2,604 existing; 350–850

submitted annually.

342 existing; about 40–70 of the

those submitted annually. In

addition, 250 existing suction

dredgers plus 50 submitted annually in the future.

Approx. 520 d ........... 16

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. bAnnual 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

70106 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

Mine model

Estimated annual percentage

Comment

Cost change Profit

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+

aGiven 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.

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

70108 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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 § 3809.503 provides that miners

do not need to provide a financial

guarantee if their existing notice is not

changed. Final § 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 § 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 § 4809.433).

• Corporate guarantees: Existing

corporate guarantees can continue to be

used (final § 3809.571).

• Minimize the potential for delays:

The final rule requires to review a

notice application within 15 calendar

days.

• Performance standards: Proposed

§ 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

§ 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 (§ 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

§ 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.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 LandUse Planning Advisory Council

meeting

October 1, 1999

Public briefing for Nevada State LandUse 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

70110 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 3809.200(a)) or an agreement under

which BLM defers to State

administration of some or all of the

requirements of this subpart (final

§ 3809.200(b)). Under the previous

rules, BLM only had the authority for

the former agreement (previous

§ 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

§ 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

§ 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 § 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-sizefits-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 Statelegislated 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)

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 NRCidentified gaps. And, BLM and the

Forest Service should pursue nonregulatory 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 nondelegable 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

70112 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 landsmineral resources, Public landswithdrawal, 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

§ 2091.2–2 [Amended]

2. In § 2091.2–2, remove and reserve

paragraph (b).

§ 2091.3–2 [Amended]

3. In § 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

§ 2201.1–2 [Amended]

5. In § 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

§ 2711.5–1 [Removed]

7. Remove § 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

§ 2741.7 [Amended]

9. In § 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?

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

§ 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 Stateapproved 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

§ 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.

§ 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

70114 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

lands as provided in § 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.

§ 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.

§ 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 batteryoperated 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 § 8340.0–5 of

this title, chemicals, or explosives. It

also does not include ‘‘occupancy’’ as

defined in § 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 § 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.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 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 § 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 § 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, BLMadministered portions of the National

Wilderness System, and BLMadministered 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.

§ 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 §§ 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 § 3809.31(b)); and

(c) Plan-level operations, for which an

operator must submit a plan of

operations and obtain BLM’s approval.

§ 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

§ 3809.21. Also see §§ 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 § 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

§ 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.

§ 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 § 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 §§ 3809.300 through

3809.336 for regulations applicable to

notice-level operations.

§ 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 § 3809.300 through

3809.336 and § 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

§ 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

70116 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 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

§ 3809.11 and obtain BLM’s approval or

a notice under § 3809.21.

§ 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 noticelevel 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 noticelevel 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 § 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 §§ 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.

§ 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 § 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 § 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.

§ 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.

§ 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.

§ 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

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

§ 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 § 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 § 3809.203.

§ 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

§ 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.

§ 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

§ 3809.800(c) for the items you should

include in the appeal.

70118 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

§ 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.

§ 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

§ 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 identified in the notice on file with BLM on

January 20, 2001.

You may conduct operations 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, 1999.) After 2 years, you may extend your notice under

§ 3809.333. BLM may require a modification under § 3809.331(a)(1).

See § 3809.503 for financial guarantee requirements applicable to

notices.

(b) You are a new operator, that is, you were not the operator identified

in the notice on file with BLM on January 20, 2001.

The provisions of this subpart, including § 3809.320, govern your operations for 2 years after January 20, 2001, unless you extend your

notice under § 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 § 3809.333. BLM may require a modification under § 3809.331(a)(1). See § 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 §§ 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 § 3809.301 or a plan of

operations under § 3809.401, whichever is applicable, or immediately begin to reclaim your project area. See §§ 3809.11 and

3809.21.

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70119

§ 3809.301 Where do I file my notice and

what information must I include in it?

(a) If you qualify under § 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 § 3809.420;

and

(4) Reclamation cost estimate. An

estimate of the cost to fully reclaim your

operations as required by § 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.

§ 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 § 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 § 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.

§ 3809.312 When may I begin operations

after filing a complete notice?

(a) If BLM does not take any of the

actions described in § 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.

§ 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 additional time, not to exceed 15 calendar days, to complete its review.You must not begin operations until the additional review time period

ends.

(b) Notifies you that you must modify your notice to prevent unnecessary or undue degradation.You must not begin operations until you modify your notice to ensure

that your operations prevent unnecessary or undue degradation.

(c) Requires you to consult with BLM about the location of existing or

proposed access routes.

You must not begin operations until you consult with BLM and satisfy

BLM’s concerns about access.

(d) Determines that an on-site visit is necessary ..................................... You must not begin operations until 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 qualify under § 3809.11 as a notice-level

operation.

You must file a plan of operations before beginning operations. See

§§ 3809.400 through 3809.420.

§ 3809.320 Which performance standards

apply to my notice-level operations?

Your notice-level operations must

meet all applicable performance

standards of § 3809.420.

§ 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 §§ 3809.311

and 3809.313.

§ 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

70120 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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.

§ 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

§ 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.

§ 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 § 3809.503.

You may extend your notice more than

once.

§ 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.

§ 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.

§ 3809.336 What if I abandon my noticelevel 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 § 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

§ 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

(§ 3809.401) and performance standards

(§§ 3809.415 and 3809.420) apply to

such plan of operations. See § 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.

§ 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 § 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

§ 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 acidforming, 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

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

§ 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 nonoperation; 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

§ 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.

§ 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 § 3809.401(b);

(2) Your plan does not contain a

complete description of the proposed

operations under § 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 § 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

§ 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 § 3809.401;

(ii) Proposes operations that are in an

area segregated or withdrawn from the

operation of the mining laws, unless the

requirements of § 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 § 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;

70122 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

(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.

§ 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 § 3809.551.

§ 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 § 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 § 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, BLMadministered portions of the National

Wilderness System, and BLMadministered 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.

§ 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.

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

70124 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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

§ 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 §§ 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.

§ 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.

§ 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 for any period of time ...................... (1) You must follow your approved interim management plan submitted

under § 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

§ 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 likely to cause unnecessary or undue

degradation.

The BLM will require you to take all necessary actions to assure 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 for 5 consecutive years ......................... BLM will review your operations and determine whether BLM should

terminate your plan of operations and direct final reclamation and

closure.

(4) BLM determines that you abandoned your operations ....................... BLM may initiate forfeiture under § 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

§ 3809.336(a) for indicators of abandonment.

(b) Your reclamation and closure

obligations continue until satisfied.

Modifications of Plans of Operations

§ 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.

§ 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;

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70125

(6) Providing for post-closure

management; and (7) Eliminating

hazards to public safety.

§ 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

§§ 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.

§ 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 propose to modify your plan of operations by constructing a new facility, such as waste rock repository,

leach pad, impoundment, drill site, or road.

The plan contents requirements (§ 3809.401) and performance standards (§ 3809.420) of this subpart apply to the new facility. Those facilities and areas not included in the modification may continue to

operate under the terms of your existing plan of operations.

(b) Existing facility. You subsequently propose to modify your plan of

operations by modifying an existing facility, such as expansion of a

waste rock repository, leach pad, or impoundment; layback of a mine

pit; or widening of a road.

The plan contents requirements (§ 3809.401) and performance standards (§ 3809.420) of this subpart apply to the modified portion of the

facility, unless you demonstrate to BLM’s satisfaction it is not practical 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.)

§ 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 (§ 3809.401) and

performance standards (§§ 3809.415 and

3809.420) apply to any modification of

a plan of operations that was pending

on January 20, 2001. See § 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 (§ 3809.1–5) and the

performance standards (§§ 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

§ 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 casual use, ............................................... You do not have to provide any financial guarantee.

(b) You conduct operations under a notice or a plan of operations ........ You must provide BLM or the State a financial guarantee that meets

the requirements of this subpart before starting operations operations. For more information, see §§ 3809.551 through under a

3809.573.

§ 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 BLM on January 20, 2001 ..................... You do not need to provide a financial guarantee unless you modify

the notice or extend the notice under § 3809.333.

(b) Your notice was on file with BLM before January 20, 2001 and you

choose to modify your notice as required by this subpart on or after

that date.

You must provide a financial guarantee before you can begin operations under the modified notice. If you modify your notice, you must

post a finacial guarantee for the entire notice.

(c) You file a new notice on or after January 20, 2001 ............................ You must provide a financial guarantee before you can begin operations under the notice.

70126 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

§ 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.

§ 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 plan of operations, or wish to provide a

financial guarantee for a single notice or plan of operations.

You may provide an individual financial guarantee that covers only the

cost of reclaiming areas disturbed under the single notice or plan of

operations. See §§ 3809.552 through 3809.556 for more information.

(b) You are currently operating under more than one notice or plan of

operations.

You may provide a blanket financial guarantee covering statewide or

nationwide operations. See § 3809.560 for more information.

(c) You do not choose one of the options in paragraphs (a) and (b) of

this section.

You may provide evidence of an existing financial guarantee under

State law or regulations. See §§ 3809.570 through 3809.573 for

more information.

Individual Financial Guarantee

§ 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, postmining 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.

§ 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.

§ 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.

§ 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.

§ 3809.556 What special requirements

apply to financial guarantees described in

§ 3809.555(e)?

(a) If you choose to use the

instruments permitted under

§ 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

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

§ 3809.560 Under what circumstances may

I provide a blanket financial guarantee?

(a) If you have more than one noticeor 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

§ 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.

§ 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 §§ 3809.570 and 3809.574:

(a) The kinds of individual financial

guarantees specified under § 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

§ 3809.574.

§ 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 Stateapproved 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.

§ 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.

§ 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

§ 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

§ 3809.331 or § 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 § 3809.552.

(b) If you modify a notice or an

approved plan of operations under

§ 3809.331 or § 3809.431 respectively,

and your estimated reclamation cost

decreases, you may request BLM

decrease the amount of the financial

guarantee for your operations.

§ 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

70128 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

bond was in effect unless the

replacement financial guarantee covers

such obligations to BLM’s satisfaction.

§ 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 § 3809.320 (for notices), including

any measures identified as the result of

consultation with BLM under

§ 3809.313, or § 3809.420 (for plans of

operations).

Release of Financial Guarantee

§ 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 § 3809.591, or

the reclamation is acceptable, or both.

§ 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

§ 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 § 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.

§ 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.

§ 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

§ 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.

§ 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

§ 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.

§ 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

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

§ 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 § 3809.596, and you fail to appeal

the forfeiture decision under

§§ 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.

§ 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.

§ 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

§ 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 § 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.

§ 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.

§ 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

§ 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.

§ 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

70130 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

local BLM field office having

jurisdiction over the lands involved.

§ 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 §§ 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 §§ 3809.601 and 3809.602

and the penalties described in

§§ 3809.700 and 3809.702.

(b) If you fail to timely comply with

a noncompliance order issued under

§ 3809.601(a), and remain in

noncompliance, BLM may order you to

submit plans of operations under

§ 3809.401 for current and future noticelevel operations.

§ 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 § 3809.21 or receive an

approved plan of operations as required

by § 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 (§ 3809.334),

when your notice expires (§ 3809.335),

or when you stop conducting operations

under an approved plan of operations

(§ 3809.424);

(f) Failing to comply with any

applicable performance standards in

§ 3809.420;

(g) Failing to comply with any

enforcement actions provided for in

§ 3809.601; or

(h) Abandoning any operation prior to

complying with any reclamation

required by this subpart or any order

provided for in § 3809.601.

Penalties

§ 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.

§ 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.

§ 3809.702 What civil penalties apply to

violations of this subpart?

(a)(1) Following issuance of an order

under § 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 § 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.

§ 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

§ 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 § 3809.801.

§ 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:

Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70131

If— And— Then if you intend to appeal, you must file a notice of appeal with OHA—

(1) You do not request State Director review ........................................................................ Within 30 calendar days after the date you receive the original decision.

(2) You request State Director review ............ The State Director does not accept your request for review.On the original decision within 30 calendar days

of the date you receive the State Director’s decision not to review.

(3) You request State Director review ............ The State Director has accepted your request for review, but has not made a decision on the merits of the appeal.On the original decision before the State Director

issues a decision.

(4) You request State Director review ............ The State Director makes a decision on the

merits of the appeal.

On the State Director’s decision within 30 calendar days of the date you receive, or are notified of, the State Director’s decision.

(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.

§ 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).

§ 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

§ 4.21(b) of this title.

§ 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.

§ 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.

§ 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

§ 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.

§ 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.

§ 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 § 4.21 of this title.

§ 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

§ 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

70132 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations

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 § 9263.1 to read as follows:

Subpart 9263—Minerals Management

§ 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