[Federal Register Volume 66, Number 116 (Friday, June 15, 2001)]
[Rules and Regulations]
[Pages 32571-32575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15136]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[WO-320-1990-PB-24 1A]
RIN 1004-AD22


Mining Claims Under the General Mining Laws; Surface Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) is issuing this final rule 
to amend at this time only one provision of its regulations for surface 
management of mining operations conducted under the Mining Laws. This 
final rule changes the date by which operators with plans of operation 
approved by BLM before January 20, 2001, must provide a financial 
guarantee--from July 19, 2001, to November 20, 2001, for operations 
that already have financial guarantees, and to September 13, 2001 for 
operations without any financial guarantee.
    The amendment is necessary because BLM field offices and the State 
governments with which we cooperate are not able to implement the 
financial guarantee requirements in the existing regulations to enable 
operators to comply by the deadline in those regulations. Changing the 
deadline will better enable BLM and the States to implement fully the 
financial guarantee requirements in the BLM surface management 
regulations. BLM intends to retain the financial guarantee (sometimes 
referred to as ``bonding'') provisions in these regulations that became 
effective on January 20, 2001. BLM will issue a final rule addressing 
other issues identified in its March 23, 2001, notice of proposed 
rulemaking at a later date.

EFFECTIVE DATE: July 16, 2001.

ADDRESSES: You may send inquiries or suggestions to Director (320), 
501LS, Bureau of Land Management, 1849 C St., NW, Washington, DC 20240.

[[Page 32572]]


FOR FURTHER INFORMATION CONTACT: Bob M. Anderson, Deputy Assistant 
Director for Minerals, Realty, and Resource Protection, at (202) 208-
4201, or Michael H. Schwartz, Group Manager for Regulatory Affairs, at 
(202) 452-5198. Persons who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-
800-877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

I. Background
II. Reasons for This Final Rule
III. Procedural Matters

I. Background

    On November 21, 2000 (65 FR 69998), BLM published a final rule 
completely revising 43 CFR subpart 3809 (the 2000 regulations). Among 
its features, that final rule contained financial guarantee 
requirements for operators whose plans of operations BLM approved 
before the effective date of the rule, January 20, 2001. The rule 
contained regulations requiring such operators to provide financial 
guarantees that comply with the new regulations by July 19, 2001.
    The 2000 regulations were issued following a complex procedural 
history. In the 1998 Omnibus Consolidated and Emergency Supplemental 
Appropriations Act (Pub. L. 105-277, sec. 120(a)), Congress directed 
the National Academy of Sciences (``NAS'') to review the adequacy of 
existing regulations of hardrock mining on Federal lands in each State 
in which it occurs, without regard to BLM's proposed regulations. The 
law directed the National Research Council (``NRC''), within the NAS, 
to complete the study by July 31, 1999. In the 1999 Emergency 
Supplemental Appropriations Act (Pub. L. 106-31, Sec. 3002, 113 Stat. 
57, 89-90), Congress prohibited Interior from both completing its work 
on the February 9, 1999, proposed rule and issuing a final rule until 
Interior provided at least 120 days for public comment on the proposed 
rule, subsequent to the publication of the NRC study. The NRC completed 
and published its report, entitled Hardrock Mining on Federal Lands 
(``NRC study''), in late September 1999.
    In addition, Congress enacted a series of provisions in Interior 
appropriations acts beginning in 1997 that pertain to the 3809 rules. 
The last one, in the FY 2001 Interior Appropriations bill, provides as 
follows:

    None of the funds in this Act or any other Act shall be used by 
the Secretary of the Interior to promulgate final rules to revise 43 
CFR subpart 3809, except that the Secretary, following the public 
comment period required by section 3002 of Public Law 106-31, may 
issue final rules to amend 43 CFR Subpart 3809 which are not 
inconsistent with the recommendations contained in the National 
Research Council report entitled ``Hardrock Mining on Federal 
Lands'' so long as these regulations are also not inconsistent with 
existing statutory authorities. Nothing in this section shall be 
construed to expand the existing statutory authority of the 
Secretary.

FY 2001 Interior Appropriations Act, Pub. L. No. 106-291, Sec. 156, 114 
Stat. 922, 962-63 (Oct. 11, 2000).
    After the 2000 rules were issued, four lawsuits were filed 
challenging those rules; three in the U.S. District Court for the 
District of Columbia, and one in the U.S. District Court for the 
District of Nevada. In one of those lawsuits, National Mining 
Association v. Department of the Interior, No. 1:00CV02998 (D.D.C., 
filed December 15, 2000), the plaintiffs sought to enjoin the 
effectiveness of all of the 2000 rules, except for the bonding 
provisions. On January 19, 2001, the judge denied the plaintiff's 
motion for a preliminary injunction. The litigation has been stayed 
until September 4, 2001, pending a decision on the proposal described 
in the next paragraph.
    On March 23, 2001, BLM published a proposed rule, 66 FR 16162, to 
suspend, in whole or in part, the 2000 regulations. As stated in the 
proposal, the suspension would provide BLM the opportunity to review 
some of the requirements of the new rule in light of issues the 
plaintiffs raised in the legal challenges to the rules and concerns 
expressed by others, including the Governor of Nevada. BLM proposed to 
reinstate the previous rules (commonly referred to as the ``1980 
regulations''). We also requested comment on whether we should retain 
some combination of the 2000 regulations and the 1980 regulations. The 
45-day comment period on the proposal closed on May 7, 2001. BLM has 
received more than 25,000 comments. BLM is currently considering what 
action to take next on the proposal, and intends to issue a final rule 
in the next few months.
    In advance of decisions involving the rest of the rulemaking, and 
for the reasons explained below, BLM is issuing this final rule now to 
address one issue--the timing of the financial guarantee requirements 
for operations for which BLM approved a plan of operations before 
January 20, 2001.

II. Reasons for This Final Rule

General Financial Guarantee Comments and BLM Position

    The overwhelming majority of comments expressed support for the 
financial guarantee provisions in the 2000 rules. Many comments filed 
by individuals and environmental groups urged the retention of the 2000 
regulations, including the financial guarantee provisions. There were, 
however, some dissenting views. A number of comments, some of which 
were filed by representatives of the mining industry and by states 
which contain hardrock mining operations covered by 43 CFR subpart 
3809, urged reinstatement of the 1980 regulations. Many of these latter 
respondents recognized, however, that the BLM rules must comply with 
recent congressional enactments and not be inconsistent with the 
recommendations of the NRC study. Accordingly, most agreed that the 
final rule could reflect the so-called ``NRC Alternative,'' which was 
Alternative 5 in BLM's final environmental impact statement for the 
2000 regulations. This alternative included provisions reflecting only 
the NRC study's recommended regulatory changes.
    A number of small miners expressed concern over their financial 
ability to meet the requirements of the rule if they have to post a 
financial guarantee for notice level activities. Comments also 
suggested that, at least for notice level activities, BLM should 
establish a standard bond amount as suggested by the NRC study. In 
addition, the State of Alaska (see below) expressed concern about 
effect of the rules on its bond pool. We received one industry comment 
suggesting that BLM phase out existing corporate guarantees.
    Addressing a regulatory gap, the NRC Study recommended that 
``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.'' (NRC Study, Recommendation 1, pp. 8, 93.) The principal 
import of this recommendation was to require financial assurances for 
``notice-level'' activities, that is, those operations disturbing less 
than 5 acres of public lands on which reclamation has not been 
completed, for which the previous rules did not authorize the posting 
of financial assurances. The NRC study also included other discussions 
to achieve its stated objective of guaranteeing financial assurance, 
such as the establishment of standard bond amounts for certain types of 
activities on specific kinds of terrain. (NRC study, pp. 94-95.)
    As a general matter, BLM intends to follow the NRC study 
recommendation, and has concluded that we should retain the financial 
guarantee provisions of the 2000 regulations to ensure that

[[Page 32573]]

sound financial guarantees will exist. With respect to the comments 
advocating that BLM eliminate the financial guarantee requirement for 
notice level activities, we cannot do so. This would be inconsistent 
with the NRC Study recommendation and therefore prohibited by the FY 
2001 Interior and Related Agencies Appropriations Act.
    BLM also continues to believe that the rules provide sufficient 
flexibility to establish standard bond amounts for particular 
activities on specific kinds of terrain. The preamble of the 2000 rule 
(See 65 FR 70066, column 2) explains that the ``final rule is broad 
enough to allow BLM field managers to establish and accept standard 
financial guarantee amounts.'' However, even if BLM field managers do 
this, financial guarantees must meet the likely cost of reclamation for 
the specific activity. As to the use of bond pools, the preamble to the 
2000 rule (See 65 FR 70073) clearly supports the use of State bond 
pools if the BLM State Director determines the pool is sound. We 
continue to adhere to this position.
    Although under the 1980 regulations, the bonding provision for 
plans of operations was discretionary with BLM, most operators having 
plans of operation that were approved under the previous rules did post 
financial guarantees with BLM or the state. Thus the 2000 regulations 
codified an existing practice for most plan-level operations, and, 
consistent with the NRC study, made the posting of a sufficient 
financial guarantee compulsory for disturbances caused by all mining 
activities beyond casual use.

Current Implementation Issue

    The problem BLM currently faces is how to complete the transition 
from the previous financial guarantee requirements to the ones in the 
2000 regulations for operations under plans that BLM approved before 
January 20, 2001. The 2000 rule at section 3809.505 establishes July 
19, 2001, as the date by which mining operations with plans of 
operations approved before January 20, 2001, must come into compliance 
with the new financial assurance provisions of the 2000 regulations. 
Implementation of the provision by that date has proven to be 
difficult.
    The reasons for the problem vary. In many states, BLM implements 
bonding and financial guarantee requirements in cooperation with State 
agencies. In some States, BLM accepts State-approved bonds to satisfy 
these requirements. In at least 6 States, either BLM or the State or 
both will be unable to implement the financial guarantee requirement by 
the July 19, 2001, deadline. Reasons for this inability include an 
unrealistic deadline to start with, uncertainty over the fate of the 
2000 rules caused by the pending lawsuits, and a multiplicity of State 
agencies with which BLM must coordinate. BLM cooperates with State 
governments through memoranda of understanding (MOUs). Many of these 
MOUs need updating to meet the requirements of the new regulations and, 
in some cases, States will need to revise their laws. Thus, on July 19, 
2001, for reasons beyond their control, a number of operators would not 
be in compliance with the 2000 regulations unless BLM changes that 
date.
    For example, in Alaska, the State legislature authorized a State 
bond pool covering bonds under the 1980 regulations. Most small scale 
operators in Alaska are unable to get bonds from any source other than 
the State bond pool. The MOU under which BLM accepts these State bond 
pool bonds expires July 17, 2001. Although the MOU could be renewed in 
its present form, it would not be in compliance with the 2000 
regulations. The BLM Alaska State Office is not able to modify the MOU 
to make it consistent with the 2000 regulations by July 17 or July 19, 
2001. The consequences of failing to make this deadline would be that 
miners in Alaska would be left without a source of bonds, potentially 
resulting in a general shutdown in the middle of the placer mining 
season.
    In Arizona, there is no single State program with which BLM 
coordinates. Rather, many agencies exist with different standards and 
requirements. Further, no single acceptable State financial guarantee 
exists that is intended to cover entire mining operations from 
exploration to reclamation and termination. We need to review all 
mining financial guarantees in the State for compliance with the 2000 
regulations, and notify operators of deficiencies. BLM does not expect 
to complete this review by July 19, 2001, despite its best efforts to 
do so.
    To remedy this implementation problem, this final rule extends the 
effective date of the financial guarantee requirements in section 
3809.505 of the 2000 regulations from July 19, 2001, to November 20, 
2001, for operations with plans of operations that BLM approved before 
January 20, 2001, that have a financial guarantee in place. BLM is also 
extending the deadline for acquiring an initial financial guarantee. 
Those operators with ongoing activities who had plans of operations 
approved before January 20, 2001, but who did not have a financial 
guarantee, must provide a financial guarantee by September 13, 2001. 
This latter date establishes a shorter time period to comply with the 
financial guarantee requirements in the 2000 rule than BLM is giving 
those operators who already have an approved financial guarantee.
    We are taking today's action separate and apart from the rest of 
the rulemaking because we want to ensure that BLM properly implements 
the transfer to the financial guarantee system contained in the 2000 
rule. As stated above, unless further analysis of comments on our March 
23, 2001, proposed rule discloses significant new information strongly 
supporting a change in the approach to financial guarantees, it is our 
intention to continue with the current framework for financial 
guarantees. Once we complete review and analysis of the many comments 
received in response to the March 23, 2001, proposal (66 FR 16162), we 
expect to issue a final rule addressing other matters related to the 
2000 regulations.

III. Procedural Matters

    In its March 23, 2001, proposal, BLM stated that it intends to rely 
on the support documents prepared for the 2000 regulations for its 
final actions. We explain below how we have met the procedural 
requirements related to this final rule, and the extent to which those 
earlier documents support this final rule.

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget reviewed the 2000 regulations 
under Executive Order 12866. The Federal Register preamble to the final 
2000 regulations discussed the impacts of those regulations. The 
incremental impact of today's action is minimal. Extending the deadline 
for implementing the financial assurance requirements for existing 
operations with plans approved before January 20, 2001, will not have 
an effect on the economy in excess of $100 million. It will not 
adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities. The rule will not create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency. It does not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the right or 
obligations of their recipients; nor does it raise novel legal or 
policy issues.

[[Page 32574]]

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. We invite your comments on how 
to make these regulations easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
regulations clearly stated? (2) Do the regulations contain technical 
language or jargon that interferes with their clarity? (3) Is the 
description of the regulations in the SUPPLEMENTARY INFORMATION section 
of this preamble helpful in understanding the regulations? How could 
this description be more helpful in making the regulations easier to 
understand?
    Please send any comments you have on the clarity of the regulations 
to the address specified in the ADDRESSES section.

National Environmental Policy Act

    This final rule amends regulations that 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) for the 2000 regulations, which is 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. The effect of this final rule is to postpone a 
deadline in the regulations that cannot be met. The impacts of this 
change are minimal and are covered by the final EIS for the 2000 
regulations. Thus this final rule does not constitute a major Federal 
action that would have a significant effect upon the quality of the 
human environment.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as 
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. This final rule is covered by the 
regulatory flexibility analysis of the 2000 regulations (see 65 FR 
70103, and particularly the discussion of bonding beginning on page 
70104). This rule merely extends the deadline for compliance, making 
compliance easier for small entities.
    Therefore, BLM has determined under the RFA that the incremental 
effects of this final rule would not have a significant economic impact 
on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This final rule is not a ``major rule'' as defined at 5 U.S.C. 
804(2). The rule merely extends a deadline on a regulatory requirement 
that was already established after completion of an analysis BLM did to 
comply with SBREFA.

Unfunded Mandates Reform Act

    This final rule does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year; nor does it have a significant or unique effect on 
State, local, or tribal governments or the private sector. The rule 
merely extends a deadline for operators with approved plans of 
operations predating January 20, 2001. It imposes no requirements on 
State, local, or tribal entities. Therefore, BLM is not required to 
prepare a statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.).

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

    The final rule does not represent a government action capable of 
interfering with constitutionally protected property rights. The rule 
merely extends a deadline on a regulatory requirement that is already 
established. 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

    As part of the process establishing the 2000 regulations, which 
this final rule amends, BLM prepared a Federalism Assessment (see 65 FR 
70109). The final rule 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. It continues in effect the present 
procedural arrangements between BLM and the various western States in 
providing for financial guarantees for mining operations--the 
memorandum of understanding process. It merely provides additional time 
for both BLM and the States to prepare for implementation of new 
regulatory requirements for financial guarantees for mining operations. 
Therefore, in accordance with Executive Order 13132, BLM has determined 
that this final rule does not have sufficient Federalism implications 
to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

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

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have found that this 
final rule does not include policies that have tribal implications. 
Providing additional time for both BLM and the States to prepare for 
implementation of new regulatory requirements for financial guarantees 
for mining operations will not have an impact on Tribes.

Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not a significant energy action. It will not have an 
adverse effect on energy supplies. The rule applies only to the date by 
which operators must comply with financial guarantee provisions of 
these regulations.

Paperwork Reduction Act

    These regulations do not contain information collection 
requirements that the Office of Management and Budget must approve 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

Author

    The principal author of this rule is Richard Deery, Solid Minerals 
Group, assisted by Ted Hudson of the Regulatory Affairs Group, 
Washington Office, Bureau of Land Management, and Joel Yudson, Office 
of the Solicitor, Department of the Interior.

List of Subjects for 43 CFR part 3800

    Administrative practice and procedure, Environmental protection, 
Intergovernmental relations, Mines, Public lands-mineral resources, 
Reporting and recordkeeping requirements, Surety bonds, Wilderness 
areas.


[[Page 32575]]


    Dated: June 1, 2001.
Piet deWitt,
Acting Assistant Secretary of the Interior.


    For the reasons stated in the Preamble, and under the authorities 
cited below, subpart 3809, part 3800, Subchapter C, Chapter II, 
Subtitle B, Title 43 of the Code of Federal Regulations is amended as 
set forth below:

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

Subpart 3809--Surface Management

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

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


    2. Revise Sec. 3809.505 to read as follows:


Sec. 3809.505  How do the financial guarantee requirements of this 
subpart apply to my existing plan of operations?

    For each plan of operations approved before January 20, 2001, for 
which you or your predecessor in interest posted a financial guarantee 
under the regulations in force before that date, you must post a 
financial guarantee according to the requirements of this subpart no 
later than November 20, 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. 
If you are conducting operations under a plan of operations approved 
before January 20, 2001, but you have not provided a financial 
guarantee, you must post a financial guarantee under Sec. 3809.551 by 
September 13, 2001.

[FR Doc. 01-15136 Filed 6-14-01; 8:45 am]
BILLING CODE 4310-84-P