[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Proposed Rules]
[Pages 6422-6468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2710]
[[Page 6421]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Bureau of Land Management
_______________________________________________________________________
43 CFR Part 3800
Mining Claims Under the General Mining Laws: Surface Management;
Proposed Rule
Federal Register / Vol. 64, No. 26 / Tuesday, February 9, 1999 /
Proposed Rules
[[Page 6422]]
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3800
[WO-300-1990-00]
RIN 1004-AD22
Mining Claims Under the General Mining Laws; Surface Management
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Land Management (BLM) proposes to revise its
regulations governing mining operations involving metallic and some
other minerals on public lands administered by BLM. BLM is revising the
regulations to improve their clarity and organization, address
technical advances in mining, incorporate policies developed after the
previous regulations were promulgated, and better protect natural
resources and our Nation's natural heritage lands from the adverse
impacts of mining. The regulations are intended to prevent unnecessary
or undue degradation of BLM-administered lands by mining operations
authorized by the mining laws.
DATES: Comments. Send your comments to reach BLM on or before May 10,
1999.
Public Hearings. BLM plans to hold public hearings in conjunction
with this proposed rule. The dates and times of the hearings are in the
SUPPLEMENTARY INFORMATION section under Public Hearings.
ADDRESSES: Comments. You may mail comments to Bureau of Land
Management, Administrative Record, Nevada State Office, P.O. Box 12000;
Reno, Nevada 89520-0006. You may hand deliver comments to BLM at 850
Harvard Way, Reno, Nevada. Submit electronic comments and other data to
WOC[email protected]. For other information about filing comments
electronically, see the SUPPLEMENTARY INFORMATION section under
``Electronic access and filing address.''
Public Hearings. The locations of the public hearings that BLM is
holding in conjunction with this proposed rule are in the SUPPLEMENTARY
INFORMATION section under Public Hearings.
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 Mr. Anderson
or Mr. Schwartz by calling the Federal Information Relay Service at 1-
800-877-8339 between 8:00 a.m. and 4:00 p.m. Eastern time, Monday
through Friday, excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
I. How Can I Comment on this Proposal?
II. What is the Background of this Rulemaking?
III. What are the Contents of the Proposal?
IV. How did BLM Meet its Procedural Obligations?
I. How Can I Comment on this Proposal?
Electronic Access and Filing Address
You may view an electronic version of this proposed rule at BLM's
Internet home page: www.blm.gov. You may also comment via the Internet
to: WOC[email protected]. Please also include ``Attention: RIN 1004-
AD22'' and your name and return address in your Internet message. If
you do not receive a confirmation from the system that we have received
your Internet message, contact us directly at (202) 452-5030. BLM is
working to set up a system that would allow commenters to send comments
via the Internet and to view already submitted comments. When this
system is available, we will publish a notice in the Federal Register.
Written Comments
Your written comments on the proposed rule should be specific,
confined to issues pertinent to the proposed rule, and should explain
the reason for any recommended change. Where possible, you should
reference the specific section or paragraph of the proposal that you
are addressing. BLM may not necessarily consider or include in the
Administrative Record for the final rule comments that BLM receives
after the close of the comment period (see DATES) or comments delivered
to an address other than those listed above (see ADDRESSES).
BLM will make comments, including names, street addresses, and
other contact information of respondents, available for public review
at this address during regular business hours (8:00 a.m. to 4:00 p.m.),
Monday through Friday, except Federal holidays. BLM will also post all
comments on its Internet home page (www.blm.gov) at the end of the
comment period. Individual respondents may request confidentiality. If
you wish to request that BLM consider withholding your name, street
address, and other contact information (such as: Internet address, FAX
or phone number) from public review or from disclosure under the
Freedom of Information Act, you must state this prominently at the
beginning of your comment. BLM will honor requests for confidentiality
on a case-by-case basis to the extent allowed by law. BLM will make
available for public inspection in their entirety all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses.
Public Hearings
BLM will hold public hearings at the following locations on the
dates and local times specified.
Alaska
Fairbanks--March 30, 1999--Carlson Center, 2010 Second Avenue; 1:00
p.m. and 7:00 p.m.
Arizona
Phoenix--March 30, 1999--Sheraton Hotel, 2620 Dunlap Avenue; 1:00
p.m. and 6:00 p.m.
California
San Francisco--April 20, 1999--Holiday Inn Civic Center, 50 Eighth
Street; 1:00 p.m. and 6:00 p.m.
Ontario--April 21, 1999--Doubletree Hotel; times to be determined.
Sacramento--April 22, 1999--Red Lion Inn, 1401 Arden Way; 1:00 p.m.
and 6:00 p.m.
Colorado
Lakewood--March 30, 1999--Sheraton Denver West Hotel and Conference
Center, 360 Union Blvd., Golden Room; 1:00 p.m. and 7:00 p.m.
Washington, D.C.
April 14, 1999--Washington Plaza Hotel, 10 Thomas Circle, NW,
Monroe Room; 12:30 p.m.
Idaho
Boise--April 27, 1999--BLM State Office, 1387 S. Vinnell Way,
Sagebrush-Ponderosa Conference Room; 6:00 p.m.
Montana
Helena--April 14, 1999--Colonial Inn, 2301 Colonial Drive; 1:30
p.m. and 7:00 p.m.
New Mexico
Socorro--March 31, 1999--Macey Center, 801 Leroy, Galina Room; 3:00
p.m.
Nevada
Reno--March 23, 1999--Silver Legacy Hotel; 2:00 p.m. and 7:00 p.m.
Elko--March 24, 1999--Convention Center; 1:00 p.m. and 6:00 p.m.
Oregon
Eugene--April 22, 1999--BLM District Office, 2890 Chad Street,
Conference Room; times to be determined.
Utah
Salt Lake City--April 7, 1999--Department of Natural Resources,
1594 West North Temple, Rooms 1040/50, 1:00 p.m. and 6:00 p.m.
Washington
[[Page 6423]]
Spokane--April 20, 1999--Doubletree Inn; times to be determined.
Wyoming
Casper--March 31, 1999--Casper Parkway Plaza Inn, 123 West E
Street; 2:00 p.m. and 7:00 p.m.
In order to assist the transcriber and to ensure an accurate
record, BLM requests that persons who testify at a hearing give the
transcriber a copy of their testimony. The meeting sites are accessible
to individuals with disabilities. An individual with a disability who
will need an auxiliary aid or service to participate in the hearing,
such as interpreting service, assistive listening device, or materials
in an alternate format, must notify the person listed under FOR FURTHER
INFORMATION CONTACT two weeks before the scheduled hearing date.
Although BLM will attempt to meet a request received after that date,
the requested auxiliary aid or service may not be available because of
insufficient time to arrange it.
II. What is the Background of this Rulemaking?
Under the Constitution, Congress has the authority and
responsibility to manage public land. See U.S. Const. art. IV, Sec. 3,
cl. 2. Through statute, Congress has delegated this authority to
agencies such as the Bureau of Land Management (BLM). The Federal Land
Policy and Management Act of 1976 (FLPMA) 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. The law
gives the Secretary of Agriculture responsibility for promulgating
rules and regulations applicable to lands within the National Forest
System. For this reason, none of the regulatory changes discussed in
this proposal would apply to the National Forests. See 36 CFR part 228
for regulations governing mining operations on National Forests. These
proposed regulations are 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.''
Under this statutory authority, BLM issued regulations in 1980 to
ensure that public lands are protected from unnecessary or undue
degradation and that areas disturbed during the search for and
extraction of mineral resources are reclaimed. See 45 FR 78902-78915,
November 26, 1980. These regulations were BLM's first specific
regulations to govern surface-disturbing activities on public lands
resulting from operations under the mining laws. The basic framework
established by the 1980 regulations separates mining activities into
three distinct categories based on increasing levels of disturbance,
casual use, notice-level operations, and plan-level operations--each
with a correspondingly increasing level of BLM involvement.
In recognition of the fact that the 1980 regulations were a first
attempt at regulating mining activities on public lands, BLM
acknowledged that implementation of the regulations would involve
monitoring and a cooperative effort by BLM, the States, the mining
industry, and the public. BLM pledged to reassess the regulations and
amend them at the end of two years, as necessary to ensure that they
protect public lands from unnecessary or undue degradation (45 FR
78903).
Subsequently, a series of developments occurred that collectively
had the effect of focusing increased attention on Federal minerals
management under the mining laws and on mining law reform in general.
One of the most important developments was the widespread use of
cyanide leaching technology to extract gold from relatively low-grade
ores. According to the U.S. Geological Survey, in 1980 about two-thirds
of the 960,000 troy ounces of gold mined in the U.S. was produced using
cyanide technology. In 1997, virtually all the 10 million troy ounces
of U.S. gold production came through the use of cyanide technology. See
Minerals Information--Gold, U.S.G.S. (various years) and Minerals
Commodities Summaries--Gold, U.S.G.S. (Jan. 1988). The mining
operations using this technology process relatively large quantities of
ore and often disturb large areas, create large pits, require large
spoil and waste rock depositories, and utilize a significant amount of
water. At the same time, there was concern over migratory birds and
other wildlife being killed through contact with cyanide-containing
solutions in ponds and impoundments. There was also public concern
about the possible effects on human health of the use of cyanide by
mining operations. The General Accounting Office issues a series of
reports highlighting, among other things, abuses from hardrock mining,
the need for bonding of mining operations, and the need for better
reclamation. See GAO/RCED 86-48, GAO/RCED 87-157, GAO/RCED 88-21, and
GAO/RCED 88-123BR. As a result, in January 1989, the Director of BLM
established a task force to recommend ways to address the issues that
had been raised. See also GAO/RCED 91-145.
In late 1989, the task force recommended that BLM (1) expand its
bonding policy for exploration and mining, (2) develop a cyanide
management program, (3) review current reclamation practices, and (4)
address pre-1981 mining operations that have been abandoned. BLM took a
number of steps to implement these recommendations, including
development of a cyanide policy (BLM Instruction Memorandum 90-566,
August 6, 1990, amended November 1, 1990); issuance of a proposed rule
to revise the bonding regulations (56 FR 31602, July 11, 1991); and
completion of the Solid Minerals Reclamation Handbook (BLM Manual
Handbook H-3042-1, February 7, 1992, as amended). However, BLM had not
yet conducted a comprehensive review of the 1980 regulations, and the
Director decided in July 1991 that the time had come.
Thus, on October 23, 1991, BLM published a notice of intent to
propose rulemaking. See 56 FR 54815-54816. The notice solicited
comments on a number of issues, including--
Whether the five-acre threshold for notices should be
modified or eliminated,
Whether the definition of ``unnecessary or undue
degradation'' should be revised,
Whether the regulations should specify prohibited acts
subject to civil and criminal enforcement,
Whether time frames for review of plans and processing of
notices should be specified,
Whether additional environmental and reclamation
requirements should be added to the regulations,
Whether the regulations should clarify or elaborate the
activities authorized under casual use, and
Whether the regulations should provide for improved
coordination and cooperation with States.
As a part of the review, BLM conducted four public workshops in
December 1991, in Anchorage, Alaska; Spokane, Washington; Denver,
Colorado; and Reno, Nevada. BLM received about 140 written comments,
along with petitions containing about 250 signatures. About 250 people
attended the four workshops. Following the close of the comment period
on
[[Page 6424]]
January 3, 1992, a task force of BLM employees began work on proposed
revisions to the 1980 regulations. The task force completed its work
and presented its recommendations to the Director of BLM in April 1992.
The recommendations included changing the five-acre threshold to give
BLM greater management control over special areas, sensitive resource
values, processing operations, and reclamation and adding enforcement
provisions to the regulations.
However, BLM put the initiative on hold due to the legislative
proposals for mining law reform then under consideration by the
Congress. The legislative changes would have superseded any changes to
the 1980 regulations. Ultimately, neither the 103rd (1993/1994) nor the
104th (1995/1996) Congress produced legislative changes. In the
meantime, BLM moved forward to complete and implement other proposals
that stemmed from initiatives begun earlier, including:
An acid mine drainage policy to ensure uniform
consideration of this issue in plans of operations (BLM Instruction
Memorandum 96-79, April 2, 1996);
A final rule tightening standards and strengthening
enforcement against improper use and occupancy of mining claims (61 FR
37116, July 16, 1996); and
A final rule to strengthen bonding requirements (62 FR
9093, February 28, 1997).
On January 6, 1997, the Secretary of the Interior, expressing the
view that, ``It is plainly no longer in the public interest to wait for
Congress to enact legislation that corrects the remaining shortcomings
of the 3809 regulations,'' directed BLM to restart the rulemaking
process. The Secretary identified several regulatory revisions that
should be proposed for public comment, including:
Rewriting the definition of ``unnecessary or undue
degradation;''
Developing performance standards for the conduct of mining
and reclamation;
Proposing alternative ways of addressing the issue of
notice-level operations; and
Coordinating with State regulatory programs to minimize
duplication and promote cooperation.
On April 4, 1997, BLM issued a notice informing the public of the
agency's intent to prepare an environmental impact statement (EIS) for
the revision of the 3809 regulations and requesting comments on the
scope of the EIS. See 62 FR 16177. To collect a wide range of comments,
BLM held public meetings at 11 locations throughout the Western United
States. BLM also held a public meeting in Washington, D.C. Over 1,000
people attended the public meetings. In addition to the verbal comments
collected at the public meetings, BLM also received more than 1,800
comment letters from individuals and representatives of State and local
governments, the mining industry, and citizens' groups.
As highlighted earlier in this discussion, BLM revised the
financial guarantee requirements of the 1980 regulations in a final
rule issued on February 28, 1997. See 62 FR 9093. The changes included
requiring financial guarantees for all plan-level operations, requiring
certification of the existence of financial guarantee for all notice-
level operations, requiring third-party certification of reclamation
cost estimates, setting minimum per-acre financial guarantee amounts,
and expanding the kinds of financial instruments that can be used as
financial guarantees. The 1997 financial guarantee changes were
challenged by an industry association. On May 13, 1998, a Federal Court
remanded the revised regulations on procedural grounds. See Northwest
Mining Association v. Babbitt, No. 97-1013 (D.D.C. May 13, 1998). This
action reinstated the regulations that were in place prior to the 1997
final rule. A significant aspect of this rulemaking is to respond to
the remand by re-promulgating strengthened financial guarantee
provisions. See the discussion of the proposed financial guarantee
regulations in the section-by-section description of the proposed
regulations later in this preamble.
Despite the foregoing history and developments related to subpart
3809 which would justify a rulemaking to update subpart 3809, it has
been asserted that BLM has not demonstrated a need to revise subpart
3809 in light of improvements in State regulation of locatable minerals
mining since 1980. BLM disagrees. 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. See the Secretary's January 6,
1997 memorandum.
To the extent an overlap with State regulations would exist, BLM is
proposing a general set of standards that is intended to set a national
floor, but in a manner that will accommodate most State standards.
Thus, for the most part, these proposed rules would not mandate
specific designs or contain numeric standards. This has been done
intentionally so as not to unnecessarily interfere with the current
regulation of mining operations in situations where it is working
successfully. Also, BLM is proposing a procedure under which BLM would
be able to defer in large part to State regulation of locatable
minerals mining.
In the development of this proposed 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 has 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 in April
[[Page 6425]]
1997, February 1998, and September 1998.
BLM also met with representatives of the Environmental Protection
Agency and the Small Business Administration. 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 those Internet postings. We also had a
series of meetings to receive comments from constituent groups, such as
industry representatives and citizens and environmental groups. BLM
made many revisions in response to the consultations with States and
the informal comments received from constituents. In this preamble, we
do not respond to every comment we received. To do so would result in
an unnecessarily long and complicated document. In the preamble to the
final rule, BLM will respond only to substantive comments received
during the comment period on this proposed rule.
III. What are the Contents of the Proposal?
Organization and Format
Using the principles of plain language, BLM is proposing to
reorganize and rewrite the surface management regulations to make
information easier to find and, once found, easier to understand. From
an organizational standpoint, we have arranged the information in the
proposed subpart in sequence from the general to the specific and from
the less complex to the more complex. Thus, the subpart would first
provide general information, including the definitions of terms
(proposed Sec. 3809.5) and the circumstances under which an operator
must submit either a notice or a plan of operations (proposed
Sec. 3809.11). Following that, there are four ``200'' series sections
(proposed Secs. 3809.201 through 3809.204) that would address
agreements between BLM and the States concerning regulation of mining.
In the ``300'' series of sections (proposed Secs. 3809.300 through
3809.336), the subpart would address operations conducted under
notices. The proposed regulations governing notice-level operations are
arranged sequentially so that a person interested in conducting a
notice-level operation would first encounter information related to
initiating operations, followed by information related to conducting,
modifying, and closing operations.
The ``400'' series of sections of the proposed rule addresses
operations conducted under a plan of operations and is divided into two
parts. The first part (proposed Secs. 3809.400 to 3809.424) would
sequentially cover topics related to initiating, conducting, and
closing plan-level operations. The second part (proposed Secs. 3809.430
to 435) would cover topics related to modifying a plan of operations.
The ``500'' series (proposed Secs. 3809.500 through 3809.599) covers
financial guarantees and is arranged sequentially from the various
kinds of acceptable financial guarantees and how to obtain them through
modifying, releasing, and forfeiting a financial guarantee. Finally, in
the ``600,'' ``700,'' and ``800'' series, we have placed provisions
that would govern inspection and enforcement, penalties, and appeals
respectively.
Underneath the series described above, we propose to divide the
information into smaller ``bites.'' The reader will notice that the
proposal contains many more sections than the existing regulations. The
purpose of this is to make the table of contents and the section
headings themselves more informative so that the reader will be able to
more easily locate specific information without having to read a great
deal of non-pertinent text.
Another aspect of the proposal that readers will quickly notice is
that the section headings are phrased as questions that readers might
ask themselves, complete with first-person personal pronouns. For
example, the heading of proposed Sec. 3809.430 is ``May I modify my
plan of operations?'' The text of each section contains the answer to
the question posed in the heading. Frequently, the answer is stated in
terms of what ``you'' (the reader) must do. For example, the answer to
``May I modify my plan of operations?'' is, ``Yes. You may request a
modification of the plan at any time during operations under an
approved plan of operations.'' We propose to use this format because we
believe that the regulations are more effective when they speak
directly to the reader. Within the text of each section, we are
proposing to favor clear and simple language at the expense of jargon
and to use active voice in preference to passive voice, among other
things, all of which we believe will make the regulations easier to
understand. We specifically invite your comments on the organization
and format of the proposed rule.
As a result of the reorganization of the subpart, we are proposing
to move many of the provisions of the existing regulations. To assist
the reader to understand the changes we are proposing, we have prepared
the following table that shows the proposed counterpart to each
existing provision down to the paragraph level.
----------------------------------------------------------------------------------------------------------------
Existing regulations Proposed regulations
----------------------------------------------------------------------------------------------------------------
Sec. 3809.0-1............... Sec. 3809.1.
Sec. 3809.0-2............... Sec. 3809.1.
Sec. 3809.0-3............... Authority citation.
Sec. 3809.0-5............... Sec. 3809.5.
Sec. 3809.0-6............... Sec. 3809.1.
Sec. 3809.1-1............... Secs. 3809.11(a) and 3809.415.
Sec. 3809.1-2............... Sec. 3809.11(a).
Sec. 3809.1-3(a)............ Secs. 3809.11(b) and 3809.301(a).
Sec. 3809.1-3(b)............ Secs. 3809.312 and 3809.313(c).
Sec. 3809.1-3(c)............ Secs. 3809.301(b) and 3809.313(c).
Sec. 3809.1-3(d)............ Secs. 3809.320 and 3809.420.
Sec. 3809.1-3(e)............ Sec. 3809.600(a).
Sec. 3809.1-3(f)............ Sec. 3809.601(a).
Sec. 3809.1-4(a)............ Sec. 3809.11(c).
Sec. 3809.1-4(b) and (c).... Sec. 3809.11(d) and (k).
Sec. 3809.1-5............... Sec. 3809.401.
Sec. 3809.1-6(a), (b), and Sec. 3809.411(a).
(c).
Sec. 3809.1-6(d)............ Sec. 3809.411(b).
Sec. 3809.1-6(e)............ Sec. 3809.593.
Sec. 3809.1-7(a)............ Secs. 3809.430 and 3809.431(a).
Sec. 3809.1-7(b) and (c).... Sec. 3809.432.
[[Page 6426]]
Sec. 3809.1-8............... Secs. 3809.300 and 3809.400.
Sec. 3809.1-9(a)............ Sec. 3809.500(a).
Sec. 3809.1-9(b)............ Secs. 3809.500(b), 3809.551(a) and (c), Sec. 3809.552(a), and Sec. 3809.570.
Sec. 3809.1-9(c)............ Sec. 3809.555.
Sec. 3809.1-9(d)............ Secs. 3809.551(b) and 3809.560.
Sec. 3809.1-9(e)............ Sec. 3809.580.
Sec. 3809.1-9(f)............ Sec. 3809.590.
Sec. 3809.1-9(g)............ Sec. 3809.594.
Sec. 3809.2-1............... None.
Sec. 3809.2-2(a)............ Sec. 3809.420(b)(1).
Sec. 3809.2-2(b)............ Sec. 3809.420(b)(2).
Sec. 3809.2-2(c)............ Sec. 3809.420(c)(8).
Sec. 3809.2-2(d)............ Sec. 3809.420(b)(6).
Sec. 3809.2-2(e)............ Sec. 3809.420(b)(7).
Sec. 3809.2-2(f)............ Sec. 3809.420(c)(11).
Sec. 3809.3-1(a)............ Sec. 3809.3.
Sec. 3809.3-1(b)............ None.
Sec. 3809.3-1(c)............ Sec. 3809.201.
Sec. 3809.3-2............... Secs. 3809.601, 3809.603, and 3809.604.
Sec. 3809.3-3(a)............ None.
Sec. 3809.3-3(b)............ Secs. 3809.301(b)(2), 3809.401(b)(2), and 3809.420(c)(1).
Sec. 3809.3-4............... Sec. 3809.420(c)(9).
Sec. 3809.3-5............... Sec. 3809.420(c)(10).
Sec. 3809.3-6............... Sec. 3809.600.
Sec. 3809.3-7............... Secs. 3809.334 and 3809.424.
Sec. 3809.4................. Sec. 3809.800.
Sec. 3809.5................. Sec. 3809.111.
Sec. 3809.6................. Sec. 3809.2.
----------------------------------------------------------------------------------------------------------------
Readers should note that the above table does not include
provisions we promulgated in 1997 that were remanded on procedural
grounds. Also, the proposal contains many new provisions that are not
present in the existing regulations. The following section of the
preamble describes both the new provisions and changes to existing
regulations. We use the terms ``BLM'' and ``we'' interchangeably in
this preamble to refer to the Bureau of Land Management.
General Information
This portion of the proposed rule (Secs. 3809.1 through 3809.116)
would provide the reader with general information, including what
activities the regulations apply to, how to handle conflicts with State
laws, definitions of certain terms, and when you must submit a notice
or plan of operations. Consistent with the Secretary of the Interior's
January 6, 1997, memorandum, the proposed rule offers two alternatives
for regulating mining operations on BLM lands. See the two sections
numbered 3809.11. The first alternative preserves BLM's existing scheme
of classifying operations according to the scale of their impacts as
casual use, notice-level, or requiring a plan of operations. The second
alternative incorporates the approach used by the Forest Service to
regulate mining operations on National Forests and other lands it
manages. Both alternatives are described more fully below. This portion
of the proposal also includes two new sections that would address
mining operations on segregated or withdrawn lands (proposed
Sec. 3809.100) and situations where it is not clear whether the
minerals sought are locatable or common variety (proposed
Sec. 3809.101).
Section 3809.1 What Are the Purposes of This Subpart?
This proposed section combines language from existing Secs. 3809.0-
1, 3809.0-2, and 3809.0-6. We have edited the wording for brevity and
clarity. The purposes of the subpart would continue to be to prevent
unnecessary or undue degradation of the public lands and to coordinate
with responsible State agencies to avoid duplication of efforts.
We considered, but decided not to propose an idea that was
suggested by many commenters in the development of this proposal: The
regulations should prevent or preclude mining where it would conflict
with other uses or resources. The mining laws, which consist of the
1872 Mining Law, as amended and interpreted (30 U.S.C. 22 et seq.),
provide (in part) that all valuable mineral deposits in lands belonging
to the United States shall be free and open to exploration and
purchase, unless otherwise provided. BLM does not have the authority to
issue a regulation that would nullify or modify the mining laws. For
that reason, the proposed regulations focus on managing the impacts of
mining operations. The regulations would not address the question of
whether a particular area or class of areas is considered, as a zoning
matter, to be suitable or unsuitable for hardrock mining. That is a
matter that can be addressed through other means, such as withdrawal
and the BLM land-use planning process.
We also considered whether to carry over from existing Sec. 3809.0-
6 the expression of Departmental policy to encourage development of
Federal mineral resources and reclamation of disturbed lands. For the
purposes of simplicity and clarity, we decided not to include this
policy statement in this proposal. We are limiting proposed subpart
3809 to operational regulatory provisions.
Section 3809.2 What is the Scope of This Subpart?
This proposed section combines language from the existing
definition of ``Federal lands'' at Sec. 3809.0-5 and existing
Sec. 3809.6. Proposed paragraph (a) would apply this subpart to all
operations under the mining laws on public lands, including Stock
Raising Homestead Lands, as provided in Sec. 3809.11(i), where the
mineral interest is reserved to the United States. This provision would
allow BLM to approve the use or occupancy, without a millsite, of non-
mineral land for milling,
[[Page 6427]]
processing, beneficiation, or other operations in support of mining.
BLM would approve the use or occupancy of such areas through a plan of
operations and only to the extent the activities would support
operations on public lands. The mining laws and section 302(b) of
FLPMA, 43 U.S.C. 1732(b), allow this type of authorization. We mention
it because of a recent legal opinion by the Department of the Interior
Solicitor ( Limitations on Patenting Millsites under the Mining Law of
1872, M-36988, Nov. 7, 1997) interpreting limits in the millsite
provision of the mining laws, 30 U.S.C. 42. BLM's existing policy
guidance on this issue may be found in BLM's Instruction Memorandum No.
98-154, dated Aug. 17, 1998, which is posted on BLM's Internet website
at www.blm.gov/nhp/efoia/wo/fy98/im98-154.html.
One substantive change we are proposing is to apply the subpart to
all operations under the mining laws on Stock Raising Homestead Act
lands where the mineral interest is reserved to the United States,
subject to proposed Sec. 3809.11(i), discussed below. On these lands,
the surface is privately owned, and the minerals are owned by the
United States. Applying this subpart to those lands would enable BLM,
in cases where surface owner consent is not obtained, to manage surface
impacts. This would be in accord with recent amendments to the Stock
Raising Homestead Act (Pub. L. 103-23). See 43 U.S.C. 299.
Proposed paragraph (c) would incorporate existing Sec. 3809.6,
which applies the surface management regulations to operations on all
patents issued on mining claims located in the California Desert
Conservation Area (CDCA) after the enactment of FLPMA. We are proposing
to modify this existing provision by incorporating the concept of valid
existing rights from section 601(f) of FLPMA (43 U.S.C. 1781(f)). That
is, this subpart would not apply to operations on any patent issued
after October 21, 1976, for which a right to the patent vested before
that date.
Despite the urging of certain commenters, BLM is not proposing
additional regulations to implement the ``undue impairment'' standard
of section 601(f) of FLPMA. BLM has tentatively concluded that the
standards of proposed subpart 3809, plus the specific reference in the
definition of ``unnecessary or undue degradation'' to the stated level
of protection for the CDCA, would provide BLM sufficient authority and
flexibility to achieve the statutory level of protection.
Proposed paragraph (d) would inform the general reader about the
kinds of minerals that are regulated under this subpart. The subpart
would apply to minerals that can be ``located'' under the mining laws.
These ``locatable'' minerals are sometimes referred to as ``hardrock''
minerals. This section would direct the reader to other parts of BLM's
regulations for ``leasable'' and ``salable'' minerals. This is an
informational section that has no regulatory content, but simply helps
the reader understand the scope of the subpart.
Section 3809.3 What Rules Must I Follow if State Law Conflicts With
This Subpart?
This proposed section corresponds to existing Sec. 3809.3-1(a),
which provides that this subpart shall not be construed to effect a
pre-emption of State laws or regulations relating to the conduct of
mining operations. BLM recognizes that States may apply their laws to
operations on public lands. This proposed section addresses situations
where State and Federal law conflict. In the proposal, we are changing
the wording to clarify that if State laws or regulations conflict with
this subpart, an operator would have to follow the requirements of this
subpart. If State laws or regulations require a higher standard of
protection for public lands than this subpart provides, then there
would be no conflict. The proposed language is in accord with the
preamble to the existing regulations, where BLM stated that, ``It has
been the view of the Department of the Interior that under section 3 of
the 1872 Mining Law (30 U.S.C. 26), the States may assert jurisdiction
over mining activities on Federal lands in connection with their own
State laws. This may be done as long as the laws of the State are not
in conflict or inconsistent with Federal law.'' (45 FR 78908, November
26, 1980)
In developing the proposed language, we have been guided by the
Supreme Court's pre-emption analysis, as expressed in the Granite Rock
case, which provides that State 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
(such as in the case of the mining laws), State law is pre-empted to
the extent it actually conflicts with Federal law. A conflict occurs
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. See California Coastal
Commission, et al. v. Granite Rock Co., 480 U.S. 572, 581 (1987). The
Supreme Court urged agencies to include their position regarding pre-
emption in their regulations. For that reason, BLM proposes to
incorporate the 1980 final rule preamble position into the text of
subpart 3809.
Section 3809.5 How Does BLM Define Certain Terms Used in This Subpart?
We propose to eliminate the following existing definitions:
``Authorized officer,'' ``Federal lands,'' and ``King Range
Conservation Area.'' We propose to change some existing definitions and
add the following new definitions, as discussed below: ``Minimize,''
``Mitigation,'' ``Most appropriate technology and practices,'' ``Public
lands,'' ``Riparian area,'' and ``Tribe.''
Casual use. This proposed definition is based on the existing
definition. To address situations that have arisen since the 1980
regulations came out, we propose to add examples of activities that are
generally considered ``casual use,'' including collection of mineral
specimens using hand tools, hand panning, and non-motorized sluicing.
We also propose to expand the list of examples of activities that are
not generally considered ``casual use'' by adding use of truck-mounted
drilling equipment, portable suction dredges, and chemicals;
``occupancy'' as defined in 43 CFR 3715.0-5; and hobby or recreational
mining in areas where the cumulative effects of the activities result
in more than negligible disturbance. These activities normally would
result in greater-than-negligible disturbance and should not be
considered ``casual use.''
Minimize. We are proposing to define the term ``minimize'' as it is
used in a number of the performance standards in proposed Sec. 3809.420
as reducing the adverse impact of an operation to the lowest practical
level. During BLM's review of proposed operations, either notice- or
plan-level, BLM may determine that ``minimize'' means to avoid or
eliminate specific impacts. BLM would determine the lowest practical
level of a particular impact (or whether it should be avoided or
eliminated) on a case-by-case basis.
Mitigation. We propose to incorporate with minor editing the
Council on Environmental Quality's (CEQ) government-wide definition of
``mitigation'' as it appears in 40 CFR 1508.20. An operator who must
``mitigate'' damage to wetlands or riparian areas (See proposed
Sec. 3809.420(b)(3).) or who must take
[[Page 6428]]
appropriate ``mitigation'' measures for a pit or other disturbance that
is not backfilled (See proposed Sec. 3809.420(c)(7).), would have to
take mitigation measures, which may include the measures listed in the
proposed definition. BLM does not intend any portion of this
definition, including ``avoiding the impact altogether by not taking a
certain action,'' to preclude or prevent mining. However, an operator
may have to avoid locating certain facilities in sensitive areas to
avoid unnecessary impacts. Under the CEQ definition, compensating for
an impact by replacing, or providing substitute, resources or
environments is an acceptable form of mitigation. We specifically
solicit comments on when compensation would be appropriate, how best to
evaluate the amount of compensation, and whether compensation should be
voluntary or mandatory.
Most appropriate technology and practices (MATP). We propose to
define MATP as equipment, devices, or methods that have demonstrable
feasibility, success, and practicality in meeting the standards of this
subpart. MATP would include the use of equipment and procedures that
are either proven or reasonably expected to be effective in a
particular region or location. MATP would not necessarily require the
use of the most expensive technology or practice. BLM would determine
whether the requirement to use MATP is met on a case-by-case basis
during its review of a notice or plan of operations. We developed this
concept in response to the Secretary of the Interior's direction that
the rules should more clearly require the use of ``best available
technology and practices'' or other similar technology-based standards
(January 7, 1997 memorandum). However, we received many comments during
public meetings asserting that BLM could not successfully apply a best
available technology standard on the national level to an industry that
is active in a variety of regions and uses a variety of mining
techniques. In response, we developed MATP, which would be applied on a
case-by-case basis.
Proposed Sec. 3809.420(a)(2) would require an operator to use MATP
to meet the standards of this subpart. We developed the concept of MATP
in an attempt to allow operators flexibility in deciding how to carry
out operations while assuring that the methods that operators employ
have reasonable probability of effectiveness and success. We do not
expect that the concept of MATP will adversely affect operators'
ability to meet the outcome-based performance standards of proposed
Sec. 3809.420.
Operator. This proposed definition is based on the existing
definition, but we propose to extend it to include a parent entity or
an affiliate who materially participates in the management, direction,
or conduct of operations at a project area. This is in accord with the
Supreme Court's recent decision explaining the term ``operator'' in the
Best Foods case (U.S. v. Best Foods et al., 118 S.Ct. 1876, 141 L.Ed.
2d 43). In discussing the concept of direct parental liability for a
facility, the court said that, ``The question is not whether the parent
operates the subsidiary, but rather whether it operates the facility,
and that operation is evidenced by participation in the activities of
the facility, not the subsidiary.''
Project area. We are proposing to revise the existing definition to
eliminate the idea that a ``project area'' is a single tract of land
upon which an operator conducts operations (Emphasis added.). Based on
comments from BLM field staff, we believe that limiting a project area
to a single tract of land creates an increase in the amount of notices
without any concomitant benefits to lands or resources.
Public lands. The proposed definition of ``public lands'' would
replace the existing definition of ``Federal lands.'' We are proposing
to use the definition of ``public lands'' found in FLPMA throughout
this subpart for the sake of consistency and clarity.
Reclamation. We are proposing to change the existing definition of
``reclamation'' to mean measures required by this subpart following
disturbance of public lands caused by operations to meet applicable
performance standards and achieve conditions at the conclusion of
operations required by BLM. The definition would also provide a list of
some of the components of reclamation. Finally, the proposed definition
would advise that a separate definition of ``reclamation'' exists for
operations conducted under the mining laws on Stock Raising Homestead
Act lands. This latter definition is part of another rulemaking that
BLM is currently working on.
Riparian area. We are proposing to add a definition of ``riparian
area'' to this subpart. The proposed definition would identify 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
proposed definition would give some examples of riparian areas and
would exclude ephemeral streams or washes that do not exhibit the
presence of vegetation dependent upon free water in the soil. Proposed
Sec. 3809.420(b)(3) would require an operator to avoid locating
operations in riparian areas, where possible; minimize unavoidable
impacts; and mitigate damage to riparian areas. It would also require
an operator to return riparian areas to proper functioning condition
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
1737, Dec. 10, 1992), and we are proposing to include it in this
subpart for the convenience of the public.
Tribe. We are proposing to define ``tribe'' or ``tribal'' as
referring to a Federally recognized Indian tribe.
Unnecessary or undue degradation (UUD). We are proposing a revised
definition of UUD that eliminates the current reference to the
``prudent operator'' standard because we believe it is too vague and
subjective, and it may not be sufficient to prevent UUD, as required by
section 302(b) of FLPMA. Instead, the proposed definition would define
UUD in terms of failure to comply with the performance standards of
this subpart (proposed Sec. 3809.420), the terms and conditions of an
approved plan of operations, the operations described in a complete
notice, and other Federal and State laws related to environmental
protection and protection of cultural resources. UUD would also mean
activities that are not ``reasonably incident to prospecting, mining,
or processing operations as defined in existing 43 CFR 3715.0-5. We
believe the proposed definition is more straightforward and easily
measured than the ``prudent operator'' standard.
BLM wishes to emphasize one conceptual difference between the
existing and proposed definitions of UUD. The existing definition
assumes that a valid operation exists at a location, and the impacts
may not exceed those that would be caused by a prudent operator. The
proposed definition would recognize that FLPMA amended the mining laws,
subject to valid existing rights, by limiting the right to develop
locatable minerals to those operations that prevent UUD. Our inclusion
of the proposed performance standards in the proposed definition of UUD
means that in some situations, BLM could disapprove operations that
would fail to satisfy the performance standards. An operator does not
have an unfettered right under the mining laws
[[Page 6429]]
to develop locatable minerals regardless of the level of surface
disturbance.
One commenter on an early draft of this proposed rule that we made
publicly available on the Internet objected to the definition of UUD.
The commenter asserted that in using the term UUD in section 302(b) of
FLPMA, Congress was referring to surface disturbances caused by mining
and did not authorize BLM to regulate impacts of mining operations on
surface- or ground-water quality. The commenter cited section 603(c) of
FLPMA, which deals with lands recommended for designation as wilderness
areas, as supporting the assertion. Section 603(c) provides (in part)
that the Secretary may take any action to prevent [UUD] of the lands
and their resources or to afford environmental protection. (Emphasis
added.) The commenter interpreted this language to mean that Congress
was consciously not giving BLM environmental authority over mining
operations on public lands not recommended for designation as
wilderness areas. Since FLPMA was enacted, BLM has not ever agreed with
with the commenter's view, and does not agree with it now. Section
603(c) establishes a non-impairment standard for wilderness study
areas. This is a more environmentally protective standard than UUD. The
cited language relates to managing existing uses under the non-
impairment standard and providing additional protection to preserve
wilderness values. BLM agrees that a non-impairment standard for
preserving wilderness values is different from a UUD standard, but does
not agree that a UUD standard contains no elements of environmental
protection.
Section 3809.10 How Does BLM Classify Operations?
This is a new section that would simply inform the reader of BLM's
existing scheme for classifying operations in three categories: casual
use, notice-level, and plan-level. For casual use, an operator
generally 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
proposed Sec. 3809.11(h). For plan-level, an operator must submit a
plan of operations and obtain BLM's approval before beginning
operations.
Section 3809.11 When Does BLM Require That I Submit a Notice or a Plan
of Operations?
Proposed Sec. 3809.11 is in the form of a table that would clarify
when an operator would need to submit a notice or a plan of operations
to BLM. The table also would provide informative references to other
applicable sections of BLM's regulations. We propose to use tables
throughout this subpart to reduce complexity and to make it easier for
the reader to understand proposed requirements. This proposed section
preserves BLM's three distinct levels of involvement dependent on the
level of mining activity the operator proposes to conduct: casual use,
notice-level, and plan-level.
Proposed Sec. 3809.11(b) would continue the existing five-acre
threshold for notice-level operations. See existing Sec. 3809.1-3(a).
We are proposing two changes that would clarify exactly how the five-
acre threshold would work. First, the threshold would be ``unreclaimed
surface disturbance of 5 acres or less of public lands.'' This would
clarify some diverse interpretations of the existing threshold wherein
some believe that any disturbance greater than five acres, even if it
is reclaimed, requires a plan of operations. Other BLM offices have
interpreted the existing threshold to mean that once a disturbance
within the 5 acres is properly reclaimed, the operator can ``roll
over'' that area and disturb an equivalent area without getting a new
notice. BLM believes that the latter interpretation is correct, as long
as any disturbance is reclaimed to the standards of this subpart,
including the appropriate period of time for establishment of
vegetation.
We are also proposing to change the amount of advance notice that
an operator planning to conduct notice-level operations must give BLM
from 15 ``calendar'' days to 15 ``business'' days before the operator
plans to start operations. We are proposing this change to allow BLM
field staff more time to review notices.
This proposed section also includes several new concepts as
follows.
Proposed Sec. 3809.11(e) would require the representative of a
recreational mining group to contact the local BLM office with
jurisdiction over the lands involved at least 15 business days before
initiating activities to find out if the group must submit a notice or
plan of operations. This would address situations where there are
concentrations of recreational mining activities on public lands with
resultant surface disturbances. Recreational mining tends to
concentrate surface disturbance in areas popular for gold panning and
other uses that, on an individual basis, are generally considered
casual use. However, BLM is concerned that sustained or aggregated use
in certain areas could cause cumulative impacts greater than casual
use. Therefore, the intent of 3809.11(e) is for recreational mining
groups to consult with BLM before conducting operations within a
project area to ensure that any necessary steps are taken to reclaim
impacts of the groups' activities. Under the proposal, the recreational
mining group would not have to consult with BLM if it submitted a
notice or plan of operations.
Proposed Sec. 3809.11(f) would require an operator to submit a plan
of operations for an operation involving any leaching or storage,
addition, or use of chemicals in milling, processing, beneficiation, or
concentrating activities, regardless of the amount of acreage that the
operation would disturb. This would not include chemicals used for fuel
or as lubricants for equipment. The potential impacts associated with
use of leaching processes and chemicals are greater than the impacts
that would be associated with operations that do not involve leaching
or chemical use. Some of the chemicals used in leaching and processing,
such as cyanide and mercury, are highly toxic. For this reason, BLM
believes that the greater scrutiny given to plans of operations is
warranted.
Proposed Sec. 3809.11(h) would not require an operator to submit a
notice or a plan of operations, if--
The operations involve use of a portable suction dredge
with an intake diameter of 4 inches or less,
The State in which the operations occur requires
authorization for its use, and
BLM and the State have an agreement under proposed
Sec. 3809.201 addressing suction dredging.
This provision would be an exception to the general rule that all
use of suction dredges requires either a notice or plan of operations,
whichever is applicable. See also the definition of ``casual use'' in
proposed Sec. 3809.5. The impacts of use of the smallest suction
dredges (under 4 inches intake diameter) under a State permit and
within the parameters of a BLM/State agreement under proposed
Sec. 3809.201 would be controlled to the extent that BLM need not also
regulate each operation. BLM believes that to also require a notice or
plan of operations would be unnecessarily duplicative of State
permitting requirements. We specifically request comments on the
adequacy of State permitting requirements for suction dredges.
Proposed Sec. 3809.11(i) would cross-reference regulations that BLM
plans to promulgate under 43 CFR part 3810, subpart 3814, for
operations proposed
[[Page 6430]]
on lands where the surface was patented under the Stock Raising
Homestead Act and the minerals were reserved to the United States.
Under FLPMA, such split-estate lands are ``public lands'' and are
subject to BLM management. If an operator does not have written surface
owner consent to conduct mineral activities, the operator would have to
submit a plan of operations to BLM. This proposed addition reflects the
requirements of the Stock Raising Homestead Amendments Act (Pub. L.
103-23, 43 U.S.C. 299, as amended) which became effective after the
effective date of the existing 3809 regulations.
Proposed Sec. 3809.11(j) corresponds to existing Sec. 3809.1-4 and
lists special status areas where BLM would require a plan of operations
for all operations greater than casual use. We are proposing the
following additions: areas specifically identified in BLM land-use or
activity plans where a plan of operations would be required to allow a
more detailed review of the effects of proposed operations on values
listed in the section (proposed Sec. 3809.11(j)(6)); National Monuments
and National Conservation Areas administered by BLM (proposed
Sec. 3809.11(j)(7)); and all lands segregated in anticipation of a
mineral withdrawal or withdrawn from operations under the mining laws
(proposed Sec. 3809.11(j)(8)). These areas have officially recognized
special values, such as wildlife habitat and cultural resources, where
BLM believes it is appropriate to take a closer look at the potential
effects of proposed operations in these areas and not to allow
operations to begin before BLM approval.
Section 3809.11 ``Forest Service'' alternative) When Does BLM Require
that I Submit a Notice or a Plan of Operations?
Proposed Sec. 3809.11 is an alternative to the one discussed
immediately above. Under this alternative, an operator would have to
submit to BLM a complete notice of intention to operate 15 days before
planned start-up if activities would be greater than those described in
paragraph (a) of the table. After reviewing the notice of intention to
operate, BLM would determine if proposed operations would be likely to
cause significant surface disturbance. If so, the operator would have
to submit a plan of operations and obtain BLM approval prior to
commencing operations. This alternative would closely align procedures
in subpart 3809 with Forest Service mining claim regulations, thereby
providing a more consistent regulatory frame work for the public in the
area of mining law surface management. See existing Forest Service
regulations in 36 CFR part 211.
We specifically request public comments on the pros and cons of
selecting this alternative in lieu of the first one. One advantage we
perceive is that adoption of the Forest Service alternative would make
BLM's and the Forest Service's mining regulations correspond more
closely and require an operator to be familiar with only one, rather
than two, sets of threshold regulations. It could also simplify a
situation where a mining claim overlaps the boundary between land
administered by BLM and a National Forest. One disadvantage we perceive
is that adoption of the Forest Service alternative could result in an
increase in BLM's workload. The increase could come from having to
review notices of intention for each proposed operation and possibly
from an increased number of plans of operations based on determinations
of significant disturbance.
Section 3809.100 What Special Provisions Apply to Operations on
Segregated or Withdrawn Lands?
We are proposing to add a new Sec. 3809.100 to govern proposed
operations on pre-existing claims on segregated or withdrawn lands.
Currently, BLM does not have any regulations to address this topic
directly. The proposal would enable BLM to deal with operations on
lands where additional protection has been deemed necessary through
segregations or withdrawals. We would suspend the time frames for BLM
approval of a plan of operations until we complete a validity
examination report. Segregations or withdrawals would close lands to
operation of the mining laws, subject to valid existing rights. The
purpose of this provision is to ensure that BLM approves only mining
operations based on valid claims in segregated or withdrawn areas. This
furthers the purpose of the segregation or withdrawal in closing the
land under the mining laws and prevents disturbance from occurring on
claims subsequently determined to be invalid. Preparation of a mineral
examination report would be discretionary for segregated lands because
some segregations, for example, those in advance of a realty action,
occur for purposes other than environmental protection.
If BLM has not completed the mineral examination report, 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, BLM would only approve a plan of operations for
the purpose of sampling to corroborate discovery points or to comply
with assessment work requirements. We considered an alternative
approach that would allow BLM the option to approve a plan of
operations pending the outcome of a validity determination. We decided
not to propose this option because of the potential for unnecessary
disturbance of segregated or withdrawn public lands.
Section 3809.101 What Special Provisions Apply to Minerals That May be
Common Variety Minerals, Such as Sand, Gravel, and Building Stone?
Proposed Sec. 3809.101 would address the long-standing issue of
proposed mining of ``common variety minerals'' as defined in 3711.1(b)
of this title, under the mining laws. Common variety minerals are not
locatable under the mining laws and are normally sold at fair market
value by BLM to an operator under 43 CFR part 3600. New language would
prohibit operations for minerals that may be common variety until BLM
has prepared a mineral examination report on the mining claims
involved. This new requirement for a mineral report before allowing
operations for minerals that may be common varieties would help ensure
the public interest and the Federal treasury are protected because it
would avoid giving away for free what the law on common varieties says
must be disposed of for fair market value. See 30 U.S.C. 601 and 611
and 43 CFR part 3600.
If the report were to conclude that the minerals are common
variety, the operator would either relinquish the mining claims, or BLM
would initiate contest proceedings. Until BLM prepares a mineral
examination report, interim operations could be authorized for
sampling, performing minimum necessary annual assessment work, or for
mining if an acceptable escrow account was established to cover the
fair market value of the common variety mineral. We are proposing that
BLM have the authority to dispose of common variety minerals from
unpatented mining claims with a written waiver from the mining
claimant. This proposal would require that 43 CFR 3601.1-1, concerning
mineral material sales on mining claims, be amended to allow disposal.
If we adopt this proposed provision, we will make conforming changes to
43 CFR part 3600.
[[Page 6431]]
Section 3809.116 As a Mining Claimant or Operator, What are my
Responsibilities Under This Subpart for my Project Area?
This is a new section that would set forth clearly the
responsibilities under subpart 3809 of mining claimants and operators
for their project areas. We are adding this section in response to
comments we received during development of this proposal that suggested
that there is confusion as to exactly what responsibility mining
claimants and operators have for their project areas under subpart
3809, particularly when a project area has been abandoned. Absent a
clear assignment of responsibility, society as a whole could have to
bear the cost of any problems associated with abandoned operations.
Proposed paragraph (a) would establish the principle that mining
claimants and operators have joint and several liability for
obligations under this subpart that accrued while they held their
interests. This means that all mining claimants and operators would be
responsible together and individually for obligations, such as
reclaiming the project area. In the event obligations are not met, BLM
would have the ability to take any action authorized under this subpart
against either the mining claimant(s) or the operator(s), or both.
We do not intend proposed Sec. 3809.116 to address or affect in any
way obligations established under laws other than FLPMA and the mining
laws.
Under proposed paragraphs (b) and (c), we discuss how
relinquishment, forfeiture, or abandonment of a mining claim or
transfer of a mining claim or operations would affect the liability set
forth in proposed paragraph (a). Relinquishment, forfeiture, or
abandonment would not relieve a mining claimant's or an operator's
responsibility for obligations or conditions created while the mining
claimant or operator was responsible for operations on a mining claim
or in a project area. Transfer of a mining claim or operation would
relieve responsibility if the transferee accepts responsibility and BLM
accepts adequate replacement financial guarantee. The parties to the
transfer would have to send to BLM documentation that the transferee
accepts responsibility. This documentation could take the form of a
copy of the transfer agreement.
Federal/State Agreements
This portion of the proposed rule (Secs. 3809.201 through 3809.204)
would set forth the types of agreements that BLM and a State may enter
to prevent administrative delay and avoid duplication of effort. It
would also establish the procedure for setting up an agreement under
which BLM would defer to State regulation of mining operations, the
limitations on that type of agreement, and the effect of this subpart
on existing agreements.
Section 3809.201 What Kinds of Agreements may BLM and a State Make
Under This Subpart?
This section would allow BLM and a State to make two kinds of
agreements, one for a joint Federal/State program and one under which
BLM would defer to State administration of the requirements of this
subpart, subject to the limitations in proposed Sec. 3809.203. This
section would incorporate existing Sec. 3809.3-1(c), which provides for
setting up joint Federal/State programs.
The authority for BLM to defer to State administration of their
surface management provisions relating to the regulation of operations
derives from section 303(d) of FLPMA, 43 U.S.C. 1733(d). Under that
section, BLM may allow States to assist in the ``administration and
regulation of use and occupancy of the public lands.'' In connection
with the administration and regulation of the use of the public lands,
Section 303(d) authorizes the Secretary to cooperate with States'
regulatory and law enforcement officials in the enforcement of State
law.
Under proposed Sec. 3809.202, States would provide the assistance
envisioned in FLPMA by regulating mining operations on public lands
under their laws and regulations in lieu of BLM administration of
subpart 3809. Despite such deferrals to States, BLM would not delegate
its public land management responsibility under FLPMA and would retain
certain responsibilities and authorities. These would include
concurrence on approval of each plan of operations, concurrence on the
approval and release of financial guarantees, and retention of
necessary enforcement authority. This cooperative approach would
provide meaningful responsibilities to the States, yet maintain both
case-by-case and, under proposed Sec. 3809.203(e), programmatic
oversight by BLM.
State officials have inquired as to the availability of Federal
funding for their activities if they were to enter into agreements
under proposed Sec. 3809.202. Although section 303(d) of FLPMA
authorizes the Secretary to reimburse States for expenditures incurred
by them in connection with activities which assist in the
administration and regulation of use and occupancy of the public lands,
no such reimbursement could occur without Congressional appropriation.
SECTION 3809.202 Under What Condition Will BLM Defer to State
Regulation of Operations?
This is a new section that sets forth the procedure for a State to
request and BLM to approve an agreement under which BLM would defer to
State regulation of operations. A State would request an agreement from
the BLM State Director. The State Director would provide an opportunity
for public comment and would review the request to determine if the
State's requirements are consistent with the requirements of this
subpart. In determining consistency, the State Director would look at
whether non-numerical State standards are functionally equivalent to
BLM's counterparts; and whether numerical State standards, such as the
five-acre threshold for plans of operations, are the same as
corresponding BLM standards, except that State review and approval time
frames do not have to be the same as the corresponding Federal time
frames. The State Director would consider a State environmental
protection standard that exceeds a corresponding Federal standard to be
consistent with the requirements of this subpart. The State Director
would make a written decision that could be appealed to the Assistant
Secretary for Land and Minerals Management, Department of the Interior.
Section 3809.203 What are the Limitations on BLM Deferral to State
Regulation of Operations?
This is a new section that would establish limitations on deferral
agreements. Even if BLM deferred to State regulation, BLM would have to
concur with each State decision approving a plan of operations. This
would enable BLM to fulfill its responsibility to assure compliance
with this subpart and the National Environmental Policy Act. In
comments on an earlier draft, States urged that, in an effort to reduce
duplication of effort, BLM base its concurrence on any written findings
the State may have prepared to support the State's decision approving a
plan of operations. We specifically solicit comments as to whether this
would be appropriate.
BLM would 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. BLM would continue to have
the ability to
[[Page 6432]]
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. However, BLM would generally avoid subjecting an
operator to Federal enforcement action for a violation where a State
has already issued an enforcement action for the violation. The amount
of the financial guarantee would be calculated based on the completion
of both Federal and State reclamation requirements, but could be held
as one instrument. If the financial guarantee is held as one
instrument, it would have to be redeemable by both the Secretary and
the State. BLM would have to concur in the approval and release of a
financial guarantee for public lands. If BLM determined that a State
was not in compliance with all or part of its Federal/State agreement,
BLM would notify the State and provide a reasonable time for the State
to comply. If a State does not comply, BLM would take appropriate
action, which could include termination of all or part of the
agreement. BLM anticipates that it would not look at isolated incidents
in determining that a State is not in compliance with a Federal/State
agreement. We would consider patterns, trends and programmatic issues
more important indicators of State performance than isolated incidents.
A State could terminate an agreement by notifying BLM 60 days in
advance.
Section 3809.204 Does This Subpart Cancel an Existing Agreement Between
BLM and a State?
This is a new section that would allow existing joint program
agreements to continue while BLM and a State perform a review to
determine whether revisions are required under this subpart. The time
frame for completing the review and making any necessary revisions to
an agreement would be one year from the effective date of the final
rule. We specifically request comments on whether the time frame is too
long, too short, about right, or whether there should be a provision
for extension of the one-year period. We also request comments on
whether, and to what extent, there should be public participation in
the review of existing agreements.
Operations Conducted Under Notices
This portion of the proposal (proposed Secs. 3809.300 through
3809.336) would govern operations conducted under notices. It is based
primarily on existing Sec. 3809.1-3. We are proposing to use two
tables: One would cover applicability of this subpart to existing
notice-level operations (See proposed Sec. 3809.300.). This is a
transition section to address notices in existence when a final rule
becomes effective. The other table would govern when an operator may
begin operations after submitting a notice (See proposed
Sec. 3809.313.). For the sake of simplicity, we are not proposing a
separate set of performance standards applicable only to notices.
Instead, proposed Sec. 3809.320 simply references the plan-level
performance standards of proposed Sec. 3809.420, where applicable. In
many cases, some of the performance standards will not be applicable to
notice-level operations. See the discussion of the performance
standards of proposed Sec. 3809.420 later in this preamble. Notices
would have two-year expiration dates, unless extended. This would
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?
Proposed Sec. 3809.300 would allow operators identified in an
existing notice already on file with BLM to continue operations for two
years. After 2 years, the notice could be extended under proposed
Sec. 3809.333. New operators would have to conduct operations under
this subpart. If a notice has expired, the operator would have to
immediately reclaim the project area or promptly submit a new notice
under this subpart.
Section 3809.301 Where Do I File My Notice and What Information Must I
Include in It?
Proposed Sec. 3809.301 would replace the notice-content
requirements of existing Sec. 3809.1-3. If the required information
were not incorporated in the notice, BLM would not consider it to be
complete and operations could not commence (See also proposed
Sec. 3809.312.). Requirements for information about the operator would
clarify the need for one individual point of contact if a corporation
is named as the operator. The proposal would require a description of
proposed operations, schedule of activities, and a map, as are
generally found in existing section 3809.1-3. However, we are proposing
several new requirements. The operator would have to describe measures
to be taken to prevent unnecessary or undue degradation during
operations. In contrast, existing section 3809.1-3(c)(4) requires only
a statement that reclamation will be completed to the required
standards, and that reasonable measures will be taken to prevent
unnecessary or undue degradation during operations. The operator would
have to submit a reclamation plan, not as a separate plan, but as part
of the notice. The operator would have to describe how reclamation
would be completed to the standards outlined in proposed Sec. 3809.420,
as applicable. In addition, the operator would have to submit an
estimate of the cost to implement the reclamation as planned. Also, the
operator would have to notify BLM within 30 days of either a change of
operator, point of contact or mailing address. These requirements are
the minimum information needed by BLM to identify who will be
conducting operations on the site, what activities are planned, and how
reclamation will be accomplished.
Section 3809.311 What Action Does BLM Take When It Receives My Notice?
Proposed Sec. 3809.311 would outline actions BLM would take when it
receives a notice. BLM would have 15 ``business'' days from the time
that we receive a notice to review it, compared to the existing 15-
calendar day time frame (See existing Sec. 3809.1-3(a).). If BLM were
to determine that a submitted notice is incomplete, we would inform the
operator of what additional information would be needed to comply with
proposed Sec. 3809.301. A new 15-business day review period would
commence upon receipt of each re-submittal of a notice, although where
feasible, BLM would try to perform its review of the revised notice in
a shorter time frame.
Section 3809.312 When May I Begin Operations After My Notice is
Complete?
Proposed Sec. 3809.312 would specify that an operator would be able
to commence operations 15 business days after BLM receives a complete
notice from that operator, or earlier if BLM informs the operator that
it has completed its review, and after the operator provides a
financial guarantee that meets the requirements of this subpart. This
proposed would also alert the operator that operations may be subject
to approval under 43 CFR part 3710, subpart 3715, which governs
occupancy of public lands.
Section 3809.313 Under What Circumstances May I not Begin Operations 15
Business Days After Filing my Notice?
Proposed Sec. 3809.313 would outline, in table format, cases in
which BLM may extend the time to process a notice. Under proposed
paragraph (a), if BLM
[[Page 6433]]
needs additional time to complete it review of a notice, we would
notify the operator of the additional period, not to exceed 15 business
days, needed for completing our review. We are proposing to add this
provision allowing extension of the notice review period in recognition
of the fact that BLM occasionally has difficulty in performing its
review within the current 15-day review time period. These cases
typically have been due to the complexity of the proposed operations,
the proposed location, or the fact that BLM staff specialists needed
for the review were not available during the review period.
Under proposed paragraph (b), we would clarify that BLM may require
an operator to modify a notice before commencing operations if we
believe the operations would likely cause unnecessary or undue
degradation. We believe that an express reference to BLM's ability to
require changes in notices will avoid administrative processing delays.
Under proposed paragraph (d), BLM could notify an operator that
operations may not start until BLM visits the site, and agency concerns
about prevention of unnecessary or undue degradation arising from the
visit are satisfied. We make an attempt to visit the site of any notice
submitted for review to gather information and to consider whether any
site-specific factors are present that should be taken into account
during review of a notice. Sometimes, due to weather conditions that
limit access or scheduling problems, we are unable to conduct the site
visit within the 15-day review period. On the theory that an ounce of
prevention is worth a pound of cure, we believe that any costs
associated with delaying notice-level operations to conduct a site
visit would be offset by the benefits of identifying and dealing with
site-related problems before they occur.
Section 3809.320 Which Performance Standards Apply to My Notice-Level
Operations?
Proposed Sec. 3809.320 would require that notice-level operations
meet all applicable performance standards listed in proposed
Sec. 3809.420. See the discussion of performance standards later in
this preamble under proposed Sec. 3809.420.
Section 3809.330 May I Modify My Notice?
Proposed Sec. 3809.330 is a new provision that would clarify that
an operator may modify an existing notice to reflect proposed changes
in operations. BLM would review the modification under the same time
frames proposed in Secs. 3809.311 and 3809.313. This provision
addresses confusion over whether a notice may be modified. The existing
regulations are silent on this topic.
Section 3809.331 Under What Conditions Must I Modify My Notice?
Proposed Sec. 3809.331 would require that an operator 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. We would interpret material changes to be changes that
would disturb areas not described in the existing notice, or result in
impacts of a different kind, degree or extent than those described in
the existing notice. Where an operator plans to make material changes,
the operator would have to submit the modification 15 business 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.
Section 3809.332 How Long Does My Notice Remain in Effect?
Proposed Sec. 3809.332 would provide for an effective period of 2
years for a notice, unless extended under proposed section 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. We are proposing this new provision to
address the situation where notices with no expiration dates remain
``active'' on BLM records even if no operations are being conducted. An
operator's obligation to meet all applicable performance standards,
including reclamation, would not terminate until the operator has in
fact satisfied the obligation.
Section 3809.333 May I Extend My Notice, and, if so, How?
Section 3809.333 would contain a new provision to allow notices to
be extended beyond the 2-year effective period outlined in proposed
section 3809.332. This provision would accommodate notice-level
operations that cannot be completed within 2 years. We are specifically
requesting comments on whether the 2-year period is too long, too
short, or about right.
Section 3809.334 What if I Temporarily Stop Conducting Operations Under
a Notice?
Proposed Sec. 3809.334 would expand existing Sec. 3809.3-7, which
addresses periods of non-operation. The proposal would clarify that
during such periods, the operator must take all steps necessary to
prevent unnecessary or undue degradation as well as maintain an
adequate financial guarantee. BLM would require in writing that the
operator take such steps if the agency determines that unnecessary or
undue degradation would be likely to occur.
Section 3809.335 What Happens When My Notice Expires?
Proposed Sec. 3809.335 is a new provision that tells what must
occur when a notice expires and is not extended. The operator would
have to cease operations, except reclamation, and promptly complete
reclamation as described in the notice. The operator's responsibility
to complete reclamation would continue beyond notice expiration, until
such responsibilities are satisfied. This provision would help address
the problem of abandoned operations by clearly establishing the
operator's responsibilities.
Section 3809.336 What if I Abandon My Notice-Level Operations?
Proposed Sec. 3809.336 is a new provision that would outline what
characteristics BLM would use to determine if it considers an operation
to be abandoned. The section would also specify that BLM may, upon a
determination that operations have been abandoned, initiate forfeiture
of an operator's financial guarantee. BLM could complete reclamation if
the financial guarantee were found to be inadequate, with the operator
and all other responsible persons liable for the cost of reclamation.
We intend that this provision will also address the problem of
abandoned operations by clarifying the steps BLM could take to reclaim
abandoned project areas.
Operations Conducted Under Plans of Operations
This portion of the proposed rule (Secs. 3809.400 through 3809.424)
contains regulations that would govern operations conducted under plans
of operations.
Section 3809.400 Does This Subpart Apply to My Existing or Pending Plan
of Operations?
In developing this proposed rule, BLM has been mindful of the
difficulty inherent in applying new rules to existing operations,
particularly the type
[[Page 6434]]
of long-term, large scale operations that make up a significant portion
of today's mining on public lands. Accordingly, in proposed
Sec. 3809.400 and other proposed sections discussed later in this
preamble, BLM would apply the performance standards and information
collection requirements of this subpart to new operations and
modifications and would limit the circumstances where they would apply
to pending applications for operations and modifications. The first of
these transition sections is in the form of a table that explains how
this subpart would affect plans of operations that (1) BLM approved
before this subpart becomes effective, or (2) are pending at the time
this subpart becomes effective. For plans of operations already
approved, these regulations would not change the applicable performance
standards. This approach would prevent operators from having to make
potentially costly changes in existing facilities and operations. The
remaining provisions of this proposed subpart, such as those related to
inspection and enforcement, would apply to existing operations.
Similar transition provisions applicable to modifications of plan
of operations would be set forth at proposed Secs. 3809.433-435. A
transition period for financial guarantees for existing operations
would be set forth at proposed Sec. 3809.505.
Where an operator has submitted a plan of operations for BLM
review, but BLM has not yet approved it when these regulations go into
effect, we are proposing a cutoff date under Sec. 3809.400 after which
the plan content requirements and performance standards of this subpart
would apply to the pending plan of operations. If BLM has already made
available to the public an environmental assessment (EA) or draft
environmental impact statement (EIS) by the effective date of the final
rule, a plan of operations would not be subject to the new content
requirements or performance standards since the operator and BLM would
have already committed considerable time and resources towards
developing the plan under the existing regulations. If BLM had not
processed a pending plan of operations to the point where it has made
an EA or draft EIS available by that date to the public, then the plan
would be subject to all provisions of the proposed regulations.
We considered proposing an 18-month cutoff for pending plans, that
is, if BLM had been reviewing a plan for 18 months or more when this
subpart becomes effective, the plan would not be subject to the plan
content requirements or performance standards of this subpart. However,
we believe that a process milestone (the EA or EIS publication date) is
less arbitrary than a fixed amount of time. A process milestone takes
into account the specific circumstances of each plan review in a way
that a fixed amount of time cannot.
Section 3809.401 Where do I File My Plan of Operations and What
Information Must I Include With it?
This section is the counterpart of existing Sec. 3809.1-5 and would
tell operators what to include in a plan of operations and what
supporting information BLM may also require to conduct its review of a
plan. Based on our experience since 1980, the existing regulations do
not require enough information about what an operator must submit. As a
result, operators frequently do not initially submit the information
BLM needs to review the anticipated impacts of a proposed operation,
and time and resources are wasted on both sides in an effort to obtain
the necessary information. Further, we believe that more specific
information requirements will help to ensure that the information
submitted in a proposed plan of operations is consistent from State to
State. The proposal would require operator information; a description
of proposed operations, including a map and a schedule of activities;
and a reclamation plan, as are generally found in existing section
3809.1-5. However, we are proposing several new requirements, discussed
below.
The introductory language of proposed paragraph (b) would require
an operator or mining claimant to demonstrate that the proposed
operations would not result in unnecessary or undue degradation of
public lands. We intend this provision to place the responsibility for
showing no unnecessary or undue degradation on those who are seeking to
conduct operations. This provision does not appear in the existing
regulations, and some have taken the position that BLM must approve a
plan unless BLM can prove the plan will cause unnecessary or undue
degradation. The proposal would clarify that the burden is on the
operator or mining claimant to make an acceptable demonstration. If the
operator or mining claimant fails to do so, BLM would require submittal
of additional information, submittal of a modified proposal, or would
disapprove the plan.
Proposed paragraph (b)(1) would add to the information that BLM
requires to identify an operator the requirement to submit the social
security number or corporate identification number of the operator(s),
the BLM serial numbers of any unpatented mining claim(s) where
disturbance would occur, and a corporate point of contact. This
information is necessary to identify the operator(s), identify and
locate the claim(s) involved, and enable contact with the operator.
This proposed paragraph would also require the operator to notify BLM
in writing within 30 days of any change in the operator, the corporate
point of contact, or their addresses. This requirement will allow BLM
to maintain an accurate list of contacts.
Proposed paragraph (b)(2) would specify the types of plans that an
operator must submit to adequately describe proposed operations,
including water management plans, rock handling plans, quality
assurance plans, and spill contingency plans, among other things. These
plans and the other items listed in this paragraph are necessary for
BLM to review and approve a plan of operations. We intend that the
information submitted in response to these requirements will be
sufficient to fully describe the proposed operations. At the same time,
we recognize that in the initial phase of developing a mining
operation, complete, detailed designs and plans are not always
available. If we adopt this proposal, we would encourage anyone
planning to submit a plan of operations for review to contact the local
BLM office beforehand to discuss the level of detail that would be
responsive to these information requirements.
Proposed paragraph (b)(3) incorporates and expands existing
Sec. 3809.1-5(c)(5), which requires measures to prevent unnecessary or
undue degradation and to reclaim disturbed areas. We are proposing to
add a list of items that the reclamation plan must address, where
applicable, including drill-hole plugging, regrading, mine reclamation,
riparian mitigation, and wildlife habitat rehabilitation, among other
things. This list is not all-inclusive. It is intended to be used as a
checklist by the operator to ensure that reclamation activities are
adequately described. Depending on the nature of the proposed
operations, the reclamation plan might also contain information related
to other topics.
Proposed paragraph (b)(4) would require an operator to submit a
plan for monitoring the effect of operations. Under this provision, BLM
could expressly require an operator to collect data to detect potential
adverse impacts before they cause extensive or irreversible damage.
Because the existing regulations do not specifically
[[Page 6435]]
and explicitly require a monitoring plan, some BLM offices have been
reluctant to ask for, and some operators have been reluctant to
provide, this type of information, thereby foregoing an important tool
for preventing unnecessary or undue degradation. This requirement
should benefit both the operator and the Nation as a whole since it is
far less costly to remedy a problem when it is detected early.
Proposed paragraph (c) would require an operator to submit certain
operational and baseline environmental information to enable BLM to
analyze potential environmental impacts as required by the National
Environmental Policy Act (NEPA). There is no counterpart to this
provision in the existing regulations. BLM must collect this
information to fulfill its NEPA responsibilities, as well as to analyze
a proposed plan of operations. For the most part, BLM currently
collects this information, but this proposed provision would clarify
BLM's authority. This proposed provision would also clarify BLM's
authority to collect information concerning impacts and activities on
non-public lands if BLM needs the information to analyze a plan of
operations. This provision is not included in the existing regulations
and would clarify the extent of BLM's authority with regard to non-
public lands. This provision is not intended to extend BLM's regulatory
authority to non-public lands. However, BLM may need information
concerning non-public lands that are adjacent to or near proposed
operations on public lands to analyze the impact of the operations and
the operations' potential for unnecessary or undue degradation of
public lands.
The existing financial guarantee regulations do not specify who
prepares the financial guarantee calculations, though in many cases the
operator has been providing the initial estimate. Proposed paragraph
(d) would address any confusion by clearly putting the burden of
preparing the initial reclamation cost estimate on the operator. The
estimate would be subject to BLM review and acceptance as provided in
proposed Sec. 3809.554(b). Because the reclamation cost estimate would
likely depend on mitigation measures developed in the NEPA compliance
process, the operator would not have to submit the estimate with the
initial plan of operations. BLM would tell the operator when to submit
the reclamation cost estimate.
Section 3809.411 What Action will BLM Take When it Receives My Plan of
Operations?
Proposed Sec. 3809.411 would outline the range of actions BLM could
take when it receives a proposed plan of operations. This section
corresponds to existing Sec. 3809.1-6, which has been reorganized and
edited for clarity. In summary, BLM would review the plan of operations
within 30 business days and could--
Approve the plan of operations as submitted;
Request additional information;
Approve the plan of operations subject to required
changes;
Delay approving the plan of operations until certain
additional steps are completed, for example, NEPA compliance and
Endangered Species Act consultation; or
Disapprove the plan of operations.
The existing regulations provide for approval of a plan of
operations within 30 (calendar) days. The proposed regulations would
require BLM to review a proposed plan of operations within 30
``business'' days and would remove the time frame by which BLM
previously had to approve plan of operations that required preparation
of an environmental impact statement. This is not so much a change in
procedures as a recognition of current practices. Due to workload
demands, staffing levels, NEPA compliance activities, and the
increasing need to consult with outside agencies or Tribal governments,
setting a review time limit on plans of operations is no longer
practical.
The existing regulations do not say under what circumstances BLM
will withhold approval or disapprove a plan of operations. As a result,
some BLM staff have assumed, and some prospective operators have
asserted, that BLM cannot deny a plan of operations. Proposed paragraph
(c) would clarify that BLM has the authority to withhold approval for,
or disapprove, a plan of operations under certain circumstances to
prevent unnecessary or undue degradation.
We considered a provision that would have required BLM to
disapprove a plan of operations if it would have predicted permanent
water treatment to meet water quality standards. We provided a draft
rule with this provision to State and Federal agencies and posted the
draft on the Internet on BLM's web page. This provision generated much
public interest; many commenters opposed inclusion of it.
We decided not to propose it for a number of reasons. It is often
difficult to determine in advance when permanent treatment will be
necessary. If an unanticipated need for permanent treatment becomes
apparent during the course of operations, it is too late to disapprove
the plan of operations. Precluding operations involving permanent
treatment could have the unintended effect of encouraging prospective
operators to claim that permanent treatment would not be necessary
when, in fact, it would. We concluded that it would make more sense to
discuss the nature of required treatment and assurances that it would
continue than to argue over whether treatment would be permanent. Under
a permanent treatment prohibition, if BLM approves the plan of
operations based on a finding that no permanent treatment would be
necessary, and it later becomes apparent that permanent treatment is
necessary, none of the treatment measures and infrastructure would be
in place. Where treatment is the only available technology that will
achieve compliance with the water quality standards, a trust fund or
other long-term funding mechanism effectively ensures permanent
treatment requirements are met. Thus, the proposed regulations would
emphasize use of source control methods over long-term or permanent
treatment and would allow permanent treatment only after source control
methods have been fully applied, or as a backup technology, and only
with an adequate long-term funding mechanism in place.
Proposed paragraph (d) would require that before BLM approves a
plan of operations, BLM will publish the reclamation financial
guarantee amount and an explanation of the basis for the amount in a
local newspaper of general circulation or in a NEPA document, and
accept comments for 30 days. A NEPA document could be an environmental
assessment or an environmental impact statement (EIS). This is a new
requirement that would increase the level of public participation in
the plan approval process by giving the public access to the cost
estimating sources and assumptions used to arrive at the reclamation
financial guarantee amount. We are proposing this provision because we
believe public participation will result in better informed decisions
by BLM in its role as manager of public lands. We specifically request
comments on--
Whether, and to what extent, obtaining public comments on
the financial guarantee amount should be integrated into the NEPA
process;
Whether, and to what extent, the public would be
interested in
[[Page 6436]]
commenting on proposed financial guarantee amounts;
Whether the 30-day comment period is too long or too
short;
Whether the opportunity for public comment should be
limited to operations for which an EIS is prepared; and
Whether there is any benefit to publication of financial
guarantee amounts for small exploration operations.
Section 3809.412 When May I Operate Under a Plan of Operations?
Proposed Sec. 3809.412 would specify that BLM must approve a plan
of operations, and the operator must provide the required financial
guarantee before the operator may begin conducting operations. This
provision would clarify the existing regulations, which, while
requiring a plan of operations and reclamation financial guarantee, do
not specifically prohibit conducting operations until these
requirements are met. A small number of operators have assumed they
could proceed with operations prior to plan approval or posting of the
financial guarantee.
Section 3809.415 How Do I Prevent Unnecessary or Undue Degradation
While Conducting Operations on Public Lands?
The existing regulations define the term, ``unnecessary or undue
degradation,'' but do not specify what the operator is expected to do
in order to prevent it. Proposed Sec. 3809.415 would provide specific
guidance to operators in understanding their obligations by tying all
of the components of the definition to an enforceable requirement. BLM
anticipates that the clarity of this provision, plus the enumeration of
performance standards in proposed Sec. 3809.420, will improve
compliance.
Section 3809.420 What Performance Standards Apply to My Notice or Plan
of Operations?
The existing regulations provide general performance standards in
areas such as performing reclamation and complying with all applicable
State and Federal environmental requirements. In reviewing the existing
regulations, BLM determined that additional detailed standards would
assist both operators and BLM in defining and preventing unnecessary or
undue degradation. We considered several alternative approaches for
developing standards. One alternative was to create standards that
would specify the design and operating requirements for exploration,
mining, and reclamation components. These requirements would then serve
as minimum national requirements that would apply to all operations,
specifying how operations had to be designed, constructed, and
operated. We rejected this approach as too inflexible and impractical
given the range of environmental settings on the public lands and the
wide variety of exploration and mining activities.
The approach generally chosen for the proposed regulations is to
focus on the outcome or accomplishment that the operator must achieve.
These ``outcome-based'' performance standards put minimum emphasis on
how the operator conducts the activity so long as the desired outcome
is met. This allows the operator maximum flexibility, encourages
innovation, and fosters the development of low-cost solutions. In
implementing the proposed regulations, BLM would review the notice or
proposed plan of operations to determine if it is reasonably likely to
meet each outcome-based performance standard, but we would not require
any specific design be used.
We are proposing to divide the performance standards in this
section of the proposed regulations into three groups:
General performance standards,
Environmental performance standards, and
Operational performance standards.
This would be done to distinguish the broad performance standards such
as concurrent reclamation and land use plan conformance from the
environmental performance standards that are specific to certain media
like air or water; or from the operational standards which describe
what operational components of a project must achieve.
General performance standards. Proposed paragraph (a) contains the
general performance standards, which would clarify how an operator must
conduct overall operations. Proposed paragraph (a)(1) would require an
operator to use most appropriate technology and practices (MATP) to
meet the standards of this subpart. Commenters on early drafts of this
subpart expressed confusion over the relationship between the
requirement to use MATP and the requirement to meet the performance
standards. We intend that all operations must fully achieve the
performance standards. As discussed earlier in this preamble, MATP
would be established on a case-by-case basis, which would allow
operators to demonstrate that their activities constitute MATP.
Proposed paragraph (a)(2) would require operators to avoid
unnecessary impacts by following a reasonable and customary mineral
exploration, development, mining, and reclamation sequence. This
provision would expand on the ``unnecessary'' part of the existing
definition of ``unnecessary or undue degradation.'' There have been
past instances where operators have created unnecessary impacts by not
following a reasonable and customary sequence. This requirement would
prevent activity from being conducted that was substantially out of
sequence with reasonable and customary mineral development practices,
resulting in unnecessary impacts. We intend that this performance
standard would be applied on a large scale as it relates to sequencing.
For example, we do not intend it to be used to regulate the precise
number of drill holes needed to define an ore deposit, or the size of a
leach pad or waste rock disposal area. We intend it to be applied in
those extreme cases where an operator intends to construct extensive
access, infrastructure systems, or initiate mining, without having
first done any exploration activity to determine whether a mineral
deposit is present.
Proposed paragraph (a)(3) would require an operator, consistent
with the mining laws, to comply with applicable BLM land-use plans and
activity plans and with coastal zone management plans, as appropriate,
where such plans have been prepared. Land-use plans, including
Management Framework Plans, Resource Management Plans and activity
plans, are BLM's main guidance documents for multiple use management of
the public lands. The existing regulations do not integrate activities
conducted under the authority of the mining laws with resource
management guidance developed through the land-use planning process.
The purpose of this proposed performance standard is to use the
resource information and management guidance developed during the
planning process to provide for appropriate consideration of other
resources.
Mining industry representatives have asserted that land-use
planning does not apply to operations under the mining laws because
section 302 of FLPMA states that, with certain exceptions (including
the UUD prohibition), FLPMA did not amend the mining laws. BLM
disagrees to the extent that BLM's land-use planning can be integrated
with the subpart 3809 surface management requirements without impairing
rights established under the mining laws. For instance, the management
guidance or prescriptions
[[Page 6437]]
included in land-use plans cannot be so stringent as to deny rights
obtained under the mining laws. Other processes, such as a withdrawal
action and/or mineral contest, must be used in areas where mining has
to be excluded, subject to valid existing rights, to protect other
resource values.
Some commentors on early drafts of this proposed subpart expressed
confusion about how the performance standards would mesh 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 proposed Sec. 3809.420. These
performance standards will ensure that rangeland health standards can
be met. To the extent that the standards and guidelines are
incorporated into BLM's land-use plans, they will be reflected in the
plans of operations that BLM approves under this subpart. BLM, in its
role as manager of the public lands over the long term, will assess
lands affected by operations for progress towards achieving rangeland
health after reclamation is completed.
Proposed paragraph (a)(4) would require an operator to take
mitigation measures specified by BLM to protect public lands. This
requirement is not found in the existing regulations, but would
recognize current practice. See also the definition of ``mitigation''
at proposed Sec. 3809.5. BLM would determine the required mitigation on
a case-by-case basis to minimize the impacts and environmental losses
from operations. The measures could be developed through the NEPA
process.
Environmental performance standards. Proposed paragraph (b)
contains environmental performance standards that would describe the
outcome an operation must achieve relative to each environmental
resource. Many of the proposed environmental performance standards
would incorporate a requirement to comply with other State and Federal
laws and regulations. The existing regulations currently use this
approach so that BLM does not become involved in setting standards in
areas where Congress has authorized other agencies to do so. A few
commenters on early drafts of this proposed subpart thought BLM was
trying to inappropriately extend its jurisdiction or responsibility. We
do not agree, and in certain respects, we are merely carrying over
existing language into the proposal. See, for example, existing
Sec. 3809.2-2(a), (b), and (c).
For some of the standards, the proposed regulations elaborate on
the desired approach to achieve the standard. This is consistent with
BLM's authority and responsibility as manager of public lands. In
accord with the proposed outcome-based regulatory scheme, however, we
generally do not require a particular approach. For example, one
standard would require an operator to give preference to the use of
pollution prevention technologies (source control) over pollution
treatment or remediation, but would not specify what source control
techniques the operator must use.
For proposed paragraph (b)(2), the water resources performance
standard, we considered an alternative approach that would have
established a numeric standard for groundwater affected by operations.
Currently, there is no Federal groundwater standard, and some States do
not have their own groundwater standards. We decided not to propose a
numeric standard because of the difficulty of designing a nationwide
numeric standard relevant to the range of groundwater conditions and
public-use levels near minesites. We believe the States are better
positioned to develop groundwater standards applicable within their
borders. Instead, the proposed regulations would adopt a pollution
prevention requirement, in preference to treatment or remediation, and
rely on applicable State standards for groundwater protection where
they are present.
The existing regulations do not have a performance standard for
wetlands or riparian areas. We recognize that dredge and fill
activities in ``jurisdictional wetlands'' are regulated by the U.S.
Army Corps of Engineers (COE). We are not proposing to duplicate the
existing COE regulatory scheme under section 404 of the Clean Water
Act. However, not all riparian areas contain vegetation dependent on
saturated soil that qualifies them as jurisdictional wetlands. The COE
regulates activities that occur in or that impact jurisdictional
wetlands. BLM, as a land management agency, manages wetlands and
riparian areas to maintain their proper functioning condition. This
role is different from and not duplicative of the COE responsibility
over jurisdictional wetlands.
This standard would govern wetlands and riparian areas that are not
considered ``jurisdictional wetlands.'' Wetland and riparian areas are
extremely valuable to the ecosystem, especially in the arid west.
Wetlands and riparian areas often occur in the topographically low
portions of the project area, which are also preferred by mine
operators as natural containment basins for waste rock placement or
construction of tailings impoundments or leaching facilities, and, of
course, placer operations almost exclusively operate in these areas.
Proposed paragraph (b)(3) would establish a hierarchy of (1) avoiding
locating in, (2) minimizing impacts to, and (3) mitigating damage to
wetland and riparian areas. This provision would minimize, to the
extent feasible, disturbance in these areas and promote restoration of
unavoidable disturbance. In applying this hierarchy, we intend that
activities directly involved with ore recovery would not be treated the
same as activities associated with access, processing, and waste
handling. That is, while ore recovery activities might have to be
located in a wetland due to their site-specific nature, we would expect
operators to avoid locating other activities, such as roads and waste
dumps, in wetlands.
Proposed paragraph (b)(5) would incorporate and expand upon the
revegetation requirement in the existing regulations. Since BLM issued
the existing regulations in 1980, there has been considerable
development in the science of revegetation and an increased awareness
as to the importance of achieving successful revegetation. The proposed
revegetation performance standard would incorporate the concepts of
adequate revegetation diversity and density, use of native species,
timeliness of reclamation, and the importance of controlling noxious
weed infestations into the reclamation requirements. At the same time,
the proposal would recognize that where revegetation is not possible,
other techniques must be used to prevent erosion and stabilize
disturbed areas.
Proposed paragraph (b)(6) would not materially change existing
Sec. 3809.2-2(d), the performance standard for fish and wildlife
protection. We considered requiring an operator to ``enhance'' wildlife
habitat during reclamation (and included the provision in a draft that
we made publicly available). We decided not to propose it because of
the subjectivity involved in determining what is an enhancement and
because it can be inequitable or impractical to require the operator to
improve habitat values above pre-disturbance conditions.
Proposed paragraph (b)(7) would make several changes to existing
Sec. 3809.2-2(e) regarding protection of cultural and paleontologic
resources. We are proposing to give the same level
[[Page 6438]]
of protection to cave resources as the existing regulations give to
cultural and paleontological resources. The terms ``cave'' and ``cave
resources'' are defined at 43 CFR 37.4. Caves may contain important
cultural, biological, and geological resources. These resources should
be identified before initiating operations so that mitigating measures
can be incorporated into proposed operations. We considered adding a
separate performance standard for cave resources, but decided to
combine this standard with the cultural and paleontological resources
standard due to the similarity in procedures used to consider cave
resources, and the overlap between the occurrence of cave resources and
cultural or paleontological resources.
Proposed paragraph (b)(7)(i) would clarify and make explicit BLM's
interpretation of existing Sec. 3809.2-2(e)(1). The existing paragraph
provides that operators shall not knowingly disturb, alter, injure, or
destroy any scientifically important paleontologic remains or any
historical or archaeological site, structure, building or object on
Federal lands. This has been construed to preclude such activities by
operators, unless such actions are approved in advance by BLM after
appropriate site investigation, and necessary actions to protect,
remove, or preserve the resource. This procedure would be codified in
the proposed rules.
Proposed paragraph (b)(7)(ii) would change the time frame for
action on cultural, paleontologic, and cave resources that are
discovered after initiating operations from a mandatory 10 working days
to 20 working days, unless otherwise agreed to by the operator and BLM,
or unless otherwise provided by law. The time frame at existing
Sec. 3809.2-2(e)(2) is not adequate to accomplish the site
investigation, data recovery, and consultation required with State and
Federal cultural resource agencies, or with interested parties. We
considered proposing an open-ended suspension of operations until
investigation and data recovery is complete. We decided not to propose
this alternative due to the possible adverse impacts an indefinite
suspension could have on an operator.
In proposed paragraph (b)(7)(iii), we would change the
responsibility for costs associated with investigation, recovery, and
preservation of resources discovered during operations from the
government to the operator. BLM believes that since the operator is
responsible for the disturbance and is generating revenue from the
extraction of publicly owned locatable minerals, the operator receives
a benefit from the investigation and recovery (the ability to continue
to operate) and, thus, generally should be responsible for the costs as
a cost of doing business on public lands. If BLM were to incur costs
from the investigation, recovery, and preservation of discovered
resources, the proposal would provide that BLM will recover the costs
as determined on a case-by-case basis after an evaluation of the
reasonableness of doing so under the factors set forth in section
304(b) of FLPMA, 43 U.S.C. 1734(b). BLM may decide to recover less than
all of the actual costs on a case-by-case basis depending upon the
nature of the discovery and the potential benefit to the general public
and the other factors specified in section 304(b) of FLPMA .
Operational performance standards. Proposed paragraph (c) contains
operational performance standards that describe the outcome that must
be achieved by the various project components or facilities associated
with mineral exploration and development. Proposed paragraph (c)(1)
would incorporate existing Sec. 3809.1-3(d) and a portion of existing
Sec. 3809.3-3(b). It would also require an operator to design,
construct, and maintain roads and structures to control or prevent
erosion, siltation, and air pollution and minimize impacts to
resources. Access roads frequently make up the majority of acreage
disturbed by exploration and smaller mining operations. For this
reason, it is important to control the impacts associated with roads.
Many of the operational performance standards are standard
operating practices currently used by the industry. For example,
proposed paragraph (c)(2) would require an operator to control drill
fluids and cuttings and correctly plug drill holes. This would be a new
requirement in the regulations, but one that is already being followed
by the majority of operators.
Proposed paragraphs (c)(3) and (4) consist of requirements from
BLM's existing acid mine drainage policy (BLM Instruction Memorandum
96-79, April 2, 1996) and cyanide management policy (BLM Instruction
Memorandum 90-566, August 6, 1990, amended November 1, 1990),
respectively. Incorporating these policies into the proposed
regulations will make them more readily available to operators and
provide for a more consistent application of the requirements.
While not requiring a specific design, the performance standard for
mine components that contain acid-forming, toxic, or other deleterious
materials (proposed Sec. 3809.420(c)(3)) requires an operator to make
source control and pollution prevention measures the priority
consideration in facility design and operations. It is in this one area
that the proposed performance standards go beyond a purely outcome-
based standard and require a certain technical approach be taken to
meet the applicable water quality standards. BLM believes this is
justified because of the long-term, and perhaps permanent, commitment
of resources that accompanies proposals for the post-reclamation
collection and treatment of acidic, toxic, or other deleterious
drainage. Several commenters on early drafts of this proposed rule
suggested we provide a definition of ``deleterious.'' We note that the
word is found in the existing regulations (Sec. 3809.1-3(d)(2)), which
have been in place for nearly two decades. In the interest of brevity,
we decided not to propose a definition at this time.
Proposed paragraph (c)(4), the performance standard for leaching
operations and impoundments, would include requirements from the
existing BLM cyanide management policy. The requirement for leaching
systems to contain precipitation from the local 100-year, 24-hour storm
event would be modified slightly from the policy to remove the
qualifier ``* * * unless otherwise specifically authorized for such
facilities under State or Federal law.'' BLM believes modification of
the policy requirement is appropriate and that the ability to contain
the precipitation of a 100-year, 24-hour storm event is the minimum
performance acceptable for use of leaching systems on public lands.
There were some early comments on drafts that we made publicly
available that because this performance standard contains a number, it
is really a design standard. We do not agree. The standard is the
ability to contain a certain excess amount of solution that enters the
process circuit as precipitation, thus preventing overflow and release
to the environment. The standard does not specify how containment is to
be accomplished or what design to use, only the performance that must
be achieved. The local 100-year, 24-hour storm event is a way to
describe the amount of precipitation that must be contained. The actual
size of this storm event varies from location to location.
Proposed paragraph (c)(5) would require an operator to 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 feasible, blend
with pre-mining, natural topography. This proposed provision
[[Page 6439]]
expands upon existing Sec. 3809.1-3(d)(2), which requires prevention of
UUD and adherence to applicable laws in disposing tailings, dumps,
deleterious materials or substances, and other waste.
Proposed paragraph (c)(6) is the stability, grading, and erosion
control performance standard. Under proposed paragraph (c)(6)(1), an
operator would have to grade or otherwise engineer all disturbed areas
to a stable condition to minimize erosion and facilitate revegetation.
This provision is a restatement of existing Sec. 3809.1-3(d)(4)(iv).
Existing Sec. 3809.1-3(d)(3) allows disturbed areas to remain
unreclaimed to preserve evidence of mineralization. Proposed paragraph
(c)(6)(ii) would modify this provision by stating that disturbed areas
may ``temporarily'' remain unreclaimed to preserve evidence of
mineralization. We are proposing this change to ensure that disturbed
areas are not left unreclaimed indefinitely. There are legitimate
reasons that certain areas must remain open to show evidence of
mineralization (for example, patenting). However, the operator must
reclaim all areas for which the operator is responsible. BLM
anticipates that the operator will describe any areas left open to
establish mineralization in the reclamation plan, along with a time
frame for completion of final reclamation.
The existing regulations do not specify a performance standard for
mine pit reclamation, stating only the reclamation measures that must
be used ``where reasonably practicable.'' Proposed paragraph (c)(7)(i)
would require an operator to backfill mine pits unless the operator
demonstrates it is not feasible for economic, environmental, or safety
reasons. The proposal would change the assumption from generally
regarding backfilling as impractical, to one of assuming it is
practical unless demonstrated otherwise. BLM believes that the burden
of proof regarding the feasibility of pit backfilling should be on the
operator to say why backfilling is not practical. The proposal would
ensure that operators consider backfilling options for all operations.
We do not intend the economic feasibility determination anticipated
under the proposed pit backfilling requirement to be a detailed review
of the project economics, such as rate of return on investment. BLM
does not intend to determine what is a reasonable profit margin for
mine operators. The fact that an operator could conduct complete
backfilling and still show a profit does not automatically mean BLM
would require backfilling. Nor does it mean that an operation which
appears to be uneconomic, even without any backfilling, is exempt from
performing backfilling. When considering the economic feasibility of
pit backfilling, BLM would weigh the anticipated environmental benefits
in relation to operational economic factors such as: whether the
project is a single or multiple pit operation, the distance and grade
from mine site to waste rock storage versus backfill location, the
direct haul cost versus temporary storage and rehandling cost, and the
reclamation costs as a function of disturbance area size.
Proposed paragraph (c)(7)(ii) would require mitigation for pit
areas that are not backfilled. The type of mitigation anticipated is
not a dollar-for-dollar cost compensation (That is, for every dollar of
backfill cost saved, one dollar must be spent on mitigation.) or
necessarily an acre-for-acre compensation (For every acre of
unreclaimed pit, one acre must be provided as mitigation.). Instead,
the intent of the mitigation requirement is to insure that the impacts
associated with not backfilling pit areas are mitigated. For example,
if leaving a pit highwall creates a safety hazard, required mitigation
may include erecting perimeter fencing and posting hazard signs. If the
pit area is in critical wildlife habitat that cannot be restored unless
backfilled, then the mitigation may require providing replacement
habitat at another location.
Proposed paragraphs (c)(8), (9), (10), and (11) are the performance
standards for solid waste, fire prevention and control, maintenance and
public safety, and protection of survey monuments respectively. We have
carried them over from the existing regulations with minor editing. See
Secs. 3809.2-2(c), 3809.3-4, 3809.3-5, and 3809.2-2(f) respectively.
Section 3809.423 How Long Does My Plan of Operations Remain in Effect?
Proposed Sec. 3809.423 would provide that a plan of operations
remains in effect as long as the operator conducts operations, unless
BLM suspends or revokes the plan of operations for failure to comply
with this subpart. BLM's suspension and revocation provisions are found
in proposed Secs. 3809.601 and 3809.602, which are discussed later in
this preamble. There is no counterpart to this provision in the
existing regulations, which has the effect of allowing a plan of
operations to remain in effect indefinitely.
Section 3809.424 What Are My Obligations if I Stop Conducting
Operations?
Proposed Sec. 3809.424 would establish an operator's obligations if
the operator stops conducting operations. This section appears in table
format and would incorporate existing Sec. 3809.3-7 with the changes
and additions discussed below.
Proposed paragraph (a)(1) would add two requirements to the
existing requirement to maintain the site of operations in a safe and
clean condition during any non-operating periods. An operator would
also have to take all necessary action to prevent unnecessary or undue
degradation and would have to maintain an adequate financial guarantee.
Action to prevent unnecessary or undue degradation could include
providing adequate maintenance, monitoring, and security and
detoxifying process solutions, if any. BLM believes these are the
minimum measures necessary to stabilize the site and prevent
unnecessary or undue degradation. Proposed paragraph (a)(2)
incorporates existing Sec. 3809.3-7, with minor editing.
Proposed paragraph (a)(3) would provide that BLM will review an
operation after five consecutive years of inactivity to determine if we
should terminate the plan of operations and require final reclamation
and closure. We are proposing this provision in an effort to clear the
books of long-term, inactive plans of operations. These sites require
attention and resources that we believe we could more productively
direct at sites where operations are active. It is important to note
that if BLM terminated a plan based on inactivity, that action would
not affect the status of the mining claim, if any; nor would it prevent
the operator from submitting a new notice or proposed plan of
operations, as appropriate, for the same project area. Terminating a
plan of operations would limit an operator's operations to activities
designed to fulfill the operator's reclamation obligation, which
continues until satisfied. We specifically request comments on whether
the 5-consecutive-year period of inactivity, which would be a
prerequisite to BLM's review for possible termination, is too long, too
short, or about right.
Proposed paragraph (a)(4) describes the process BLM would follow if
we determine that an operator has abandoned an operation. Relying on
the indicators of abandonment set forth in proposed Sec. 3809.336(a),
BLM would take steps to collect any financial guarantee for the
operation. If the
[[Page 6440]]
collected financial guarantee were insufficient to pay for reclamation,
the operator and all other responsible parties would be held liable for
the costs of reclamation not covered by the forfeited amount.
Proposed paragraph (b) would establish the policy that an
operator's or mining claimant's reclamation and closure obligations
continue until satisfied. This provision is not explicitly stated in
the existing regulations, but is necessary to clear up confusion about
whether the operator or mining claimant has any residual obligations
after financial guarantee forfeiture. Some have argued that financial
guarantee forfeiture ends the obligation to reclaim, but in cases where
the financial guarantee does not cover the costs of reclamation, this
position effectively enables an operator to evade full responsibility
for reclamation and closure. BLM believes that operators and mining
claimants should not be able to pass the costs of reclamation resulting
form their activities to the Nation as a whole. We intend this
provision to ensure that they do not.
Modifications of Plans of Operations
This portion of the proposal (proposed Secs. 3809.430 through
3809.435) contains provisions governing modification of a plan of
operations. Most of these proposed sections are derived without
substantive change from existing Sec. 3809.1-7. We discuss changes and
new material below.
Section 3798,432 What Process Will BLM Follow in Reviewing a
Modification of My Plan of Operations?
Proposed Sec. 3809.432 is the counterpart of existing Sec. 3809.1-
7(b) and would set forth the processes BLM would use in reviewing a
proposed modification of a plan of operations. Under proposed paragraph
(a), BLM would review and approve a modification in the same manner as
we did for the initial plan, except that we would not solicit public
comment on the financial guarantee amount if the modification does not
change the financial guarantee amount, or only changes it minimally. We
specifically solicit comments on how we should interpret the term
``minimally,'' such as using a dollar threshold. We did not include in
this proposed rule the procedures contained in existing Sec. 3809.1-
7(c) relating to BLM State Director review of proposed required
modifications. These procedures are unnecessarily detailed and
cumbersome. The proposal would allow BLM field staff flexibility to
streamline the modification review process.
Under proposed paragraph (b), BLM would accept a modification
without formal approval if it does not constitute a substantive change
and does not require additional analysis under the National
Environmental Policy Act. We are proposing this procedure to expedite
processing of non-substantive modifications.
Section 3809.433 Does This Subpart Apply to a New Modification of My
Plan of Operations?
Proposed Sec. 3809.433 sets forth the guidelines that BLM would use
in applying this subpart to a new modification of a plan of operations.
This material is not included in the existing regulations, but BLM
believes it is necessary to give operators and the public a clear idea
of how and under what circumstances this subpart would apply to
modified operations. For the purposes of this section, a ``new''
modification is one that an operator submits to BLM after the effective
date of this subpart.
Under proposed paragraph (a), for a new modification that proposes
to add a discrete new facility to an existing operation, the plan
contents requirements (proposed Sec. 3809.401) and performance
standards (proposed Sec. 3809.420) of this subpart would apply to the
new facility. The facilities and areas already existing would continue
to operate under the existing plan of operations. We believe that it
would not be unduly burdensome to subject a new facility, such as a
waste rock repository, leach pad, impoundment, drill site, or road, to
any new requirements contained in this subpart. We specifically request
comments on whether we 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.
Under proposed paragraph (b), for a new modification that proposes
to modify an existing facility, the plan contents requirements
(proposed Sec. 3809.401) and performance standards (proposed
Sec. 3809.420) of this subpart would apply to the modified facility.
However, the operator would have the option of demonstrating to BLM's
satisfaction that it is not feasible to apply the plan content
requirements and performance standards of this subpart for
environmental, safety, or technical reasons. If BLM agrees, then the
plan contents requirements and performance standards in effect
immediately before the effective date of this subpart would apply to
the plan of operations. We are proposing to give an operator this
option for a modification of existing facilities, such as expansion of
a waste rock repository, leach pad, or impoundment; layback of a mine
pit; or widening of a road, because in some cases, it may be burdensome
or unnecessarily complicated to apply two sets of regulations to a
single facility.
Section 3809.434 Does This Subpart Apply to My Pending Modification for
a New Facility?
Proposed Sec. 3809.434 sets forth the guidelines that BLM would use
in applying this subpart to a pending modification of a plan of
operations to add a new facility. This material is not included in the
existing regulations, but BLM believes it is necessary to give
operators and the public a clear idea of how and under what
circumstances this subpart would apply to modified operations. For the
purposes of this section, a pending modification is one that an
operator submitted to BLM before the effective date of this subpart,
and BLM had not made a final decision by that date.
Under proposed paragraph (a), if an operator submitted a proposed
modification of an existing plan of operations to construct a new
facility before the effective date of this subpart, and BLM made an
environmental assessment (EA) or environmental impact statement (EIS)
available to the public before that date, then the new facility would
not be subject to the plan content requirements and performance
standards of this subpart. In contrast, under proposed paragraph (b),
if BLM had not made the EA or EIS publicly available by that date, then
the plan content requirements and performance standards of this subpart
would apply to the new facility. This is the same cutoff that we
propose to apply to pending proposed plans of operations. See the
discussion of proposed Sec. 3809.400 earlier in this preamble. The
reason for choosing this cutoff date is that by the time an EA or EIS
is published, an operator and BLM would have already committed
considerable time and resources towards developing the modification
under the existing regulations.
Section 3809.435 Does This Subpart Apply to My Pending Modification For
an Existing Facility?
Proposed Sec. 3809.435 sets forth the guidelines that BLM would use
in applying this subpart to a pending modification of a plan of
operations to modify an existing facility. This material is not
included in the existing regulations, but BLM believes it is necessary
to give operators and the public a clear idea of how and under
[[Page 6441]]
what circumstances this subpart would apply to modified operations. For
the purposes of this section, a pending modification is one that an
operator submitted to BLM before the effective date of this subpart.
Under proposed paragraph (a), if an operator submitted a proposed
modification of an existing plan of operations to modify an existing
facility before the effective date of this subpart, and BLM made an
environmental assessment (EA) or environmental impact statement (EIS)
available to the public before that date, then the new facility, when
approved, would not be subject to the plan content requirements and
performance standards of this subpart. Under proposed paragraph (b), if
the EA or EIS had not been published, then the plan content
requirements and performance standards of this subpart would apply to
the modified facility, unless the operator demonstrates to BLM's
satisfaction that it is not feasible to apply it for environmental,
safety, or technical reasons.
Financial Guarantee Requirements--General
This proposed rule would establish mandatory provisions for
financial guarantees for all activities greater than casual use, expand
the types of financial guarantees available, and establish the
circumstances and procedures under which BLM would pursue forfeiture of
a guarantee. It would also require that financial guarantees be
redeemable by the Secretary while allowing BLM to accept financial
guarantees posted with the State in which operations take place,
provided the level of protection is compatible with this subpart. The
rule would also authorize BLM to require the establishment of a trust
fund in those circumstances where long term, post-mining water
treatment will be necessary. Included in the proposal is a description
of when current operations would have to comply with these rules.
On February 27, 1997, BLM published rules affecting financial
guarantees under this subpart (62 FR 9093). Those rules were challenged
in Northwest Mining Association v. Babbitt, 5 F. Supp. 2d 9 (D.D.C. May
13, 1998) and remanded on procedural grounds. The effect of the remand
is to reinstate the previous financial guarantee regulations. The
proposed rules are different from the invalidated rulemaking in several
substantial ways:
1. The proposed rule would not differentiate between notice- and
plan-level operations.
2. The proposed rule would require all financial guarantees be
actual guarantees, rather than certification that the guarantee exists.
3. The proposed rule would eliminate the requirement that a third
party professional engineer certify the amount of the financial
guarantee.
4. The proposed rule would require that financial guarantees be
posted for the actual amount of the estimated reclamation cost. Thus,
if the estimated cost is $500 per acre, the financial guarantee to be
posted must be $500 times the number of acres disturbed (rounded to the
next highest acre). This differs from the remanded requirement that
minimum financial guarantee amounts be posted.
5. The rule would also allow for additional types of financial
instruments to be used when posting a guarantee.
6. The rule would permit BLM to require the operator to establish a
long-term funding mechanism for water treatment and other post-mining
maintenance requirements.
7. The rule would establish time frames for existing operations to
comply with the financial guarantee requirements.
8. As discussed in the enforcement section of this preamble, BLM
would not require a second financial guarantee for operations in non-
compliance.
In the section-by-section analysis that follows, we compare the
proposal to the regulations in place prior to the remanded 1997
regulations. Readers should note that when we talk about the
``existing'' financial guarantee regulations in this preamble, we are
not referring to the financial guarantee regulations in the current
(1997) edition of the Code of Federal Regulations (CFR), which contains
the remanded rules (Sec. 3809.1-9(a)-(q)). Instead, we are referring to
the financial guarantee regulations in the 1996 edition of the CFR
(Sec. 3809.1-9(a)-(g)).
Section 3809.500 In General, What Are BLM's Financial Guarantee
Requirements?
Proposed Sec. 3809.500 would change existing Secs. 3809.1-9(a) and
3809.1-9(b) by requiring operators to provide financial guarantees in
advance for all operations other than casual use. The existing
regulations make the posting of a financial guarantee discretionary for
plans of operations and do not address financial guarantee for notice-
level operations. BLM believes that a requirement to provide a
financial guarantee for notice- and plan-level operations would ensure
that operators will reclaim project areas to the standards of this
subpart. We recognize that this requirement imposes a cost on those
conducting operations on public lands. (We have analyzed the cost of
this requirement in the course of complying with Executive Order 12866
and the Regulatory Flexibility Act. See part IV of this preamble which
discusses how BLM has met its procedural obligations.) We believe that
the cost of this requirement is greatly outweighed by the benefits that
it produces, namely avoiding the creation of new sources of land and
water pollution on public lands.
Section 3809.503 When Must I Provide a Financial Guarantee for My
Notice-Level Operations?
Proposed Sec. 3809.503 is a new section that governs when a notice-
level operator must provide a financial guarantee. It would not require
a current notice-level operator to provide a financial guarantee unless
the notice is modified or extended. This provision would minimize the
impact of the financial guarantee requirement on existing notice-level
operations as long as they are unchanged. It would also make clear that
persons filing notices after the effective date of a final rule must
provide the financial guarantee before beginning operations.
Section 3809.505 How Do the Financial Guarantee Requirements of This
Subpart Apply to My Existing Plan of Operations?
Proposed Sec. 3809.505 is a new section that would allow those
operating under an existing plan of operations 180 days from the
effective date of a final rule to comply with the financial guarantee
requirements of this rule if they have not already done so. We are
proposing the 180-day grace period to ensure an orderly transition to
the new requirements. We specifically request comments on whether the
180-day time frame is too long, too short, or about right.
Section 3809.551 What Are My Choices for Providing BLM With a Financial
Guarantee?
Proposed Sec. 3809.551 restates the requirements of existing
Sec. 3809.1-9(b) and (d) in the form of a table. It would 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 to provide evidence of an existing
financial guarantee under State law or regulations.
Individual Financial Guarantee
This portion of the proposed rule (Secs. 3809.552 through 3809.556)
contains
[[Page 6442]]
provisions applicable to financial guarantees that cover the
reclamation obligations associated with a single notice or plan of
operations.
Section 3809.552 What Must My Individual Financial Guarantee Cover?
Proposed Sec. 3809.552 would require that an individual financial
guarantee cover reclamation costs as if BLM were to contract for
reclamation with a third party. This clarifies current BLM policy under
existing Sec. 3809.1-9(b), which does not expressly address the cost of
contracting with a third party for reclamation. We are proposing this
clarification because the administrative cost of contracting, including
overhead, can be significant and may otherwise have to be subtracted
from the funds available for on-the-ground work. This might result in
on-the-ground reclamation work being incomplete or substandard. The
proposal would also clarify that the financial guarantee covers all
reclamation obligations arising from an operation, regardless of the
areal extent or depth of activities described in the notice or approved
plan of operations.
In light of our recent experience with operators who file for
bankruptcy protection, BLM intends that reclamation obligations
continue and that BLM could forfeit a financial guarantee and use it to
meet reclamation obligations in a bankruptcy situation unless
specifically precluded by court order. Likewise, in situations where an
operator experiences financial problems short of bankruptcy and is
unable to meet ongoing environmental protection obligations, BLM
intends that we could forfeit a portion of the financial guarantee to
satisfy such obligations. This would include, for instance, partial
forfeiture to keep pumps running and prevent overflow of ponds in the
event an operator ceases operations. In this context, BLM construes the
ongoing maintenance activity intended to prevent unnecessary or undue
degradation as a reclamation obligation subject to coverage by the
financial guarantee. We specifically request comments on whether BLM
should require additional funding mechanisms to meet operational or
environmental contingencies.
Proposed paragraph (b) of this section is a new provision that
would establish the goal of periodic BLM review of the adequacy of the
estimated reclamation cost and the long-term funding mechanism, if any,
and require increased coverage, if necessary. The purpose of this
review is to ensure that the estimated reclamation cost and amount of
financial guarantee remain sufficient throughout the life of the
operation. There are many variables inherent in mining operations that
can affect the reclamation cost, and we believe there should be a
mechanism to take this inherent variability into account and allow
appropriate adjustments. We do not want to create the incentive for an
operator to forfeit the financial guarantee and walk away from a
project area because the reclamation cost has become greater than the
financial guarantee amount. We are not proposing a specific frequency
for review of the estimated reclamation cost, and by using ``will''
instead of ``must,'' we do not intend to create an obligation for BLM
to conduct any particular review. Accomplishing the goal of
periodically reviewing reclamation cost estimates is subject to the
availability of resources.
Proposed paragraph (c) of this section would authorize BLM to
require an 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 for other long-term, post-mining
maintenance requirements. The funding would have to 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
would identify the need for a trust fund or other funding mechanism
during plan review or later. This would be a new requirement designed
to deal with the situation where an otherwise fully reclaimed mining
operation will continue for the foreseeable future to discharge
pollutants, such as acid mine drainage, into surface waters. To avoid
unnecessary or undue degradation, we believe there must be some
mechanism to fund long-term treatment of the discharge. Under this
provision, the operator would have to set aside funds that would be
invested to produce income sufficient to pay for the ongoing cost of
whatever treatment is required to meet applicable water quality
standards for as long as the treatment is necessary. We anticipate that
any prediction that long-term treatment will be necessary would have to
be based on adequate sampling to determine the acid-generating
potential of the ore body and surrounding rock. Under this provision
and proposed Sec. 3809.401(c), BLM would have the authority to require
an operator to collect and analyze enough samples to ensure that any
prediction is based on a statistically adequate number of samples. We
are particularly interested in commenters' views on how well this
mechanism would work and on alternate approaches to address the problem
of post-mining acid mine drainage.
Section 3809.553 May I Post a Financial Guarantee for a Part of My
Operations?
Proposed Sec. 3809.553(a) would provide that financial guarantees
may be provided on an incremental basis to cover only those areas being
disturbed. This new provision is intended to address confusion about
whether an operator has to provide financial guarantee for the entire
area to be affected by operations all at once. We believe that where an
operation is large or is of long duration or will be developed in
phases, there is no need to require financial guarantee for areas that
will not be immediately disturbed. The purpose of the financial
guarantee requirement is to ensure reclamation of disturbed surface
areas. To the extent that the surface is not disturbed, no financial
guarantee is needed. However, at any one time, an operator would have
to maintain enough financial guarantee to cover all estimated
reclamation costs.
Proposed paragraph (b) of this section would establish BLM's goal
of reviewing the financial guarantee for each increment of an operation
at least annually. We do not consider this provision as creating an
obligation for BLM to review any particular increment annually. The
number of reviews we conduct annually is subject to available
resources.
Section 3809.554 How Do I Estimate the Cost To Reclaim My Operations?
Proposed Sec. 3809.554 would require an operator to estimate the
cost to reclaim an operation as if BLM were hiring a third-party
contractor to perform reclamation of the operation after the operator
had vacated the project area. The estimate would have to include BLM's
cost to administer the reclamation contract. An operator could contact
BLM to obtain the administrative cost information. The purpose of this
new provision 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.
In that event, BLM would most likely have to contract for the
reclamation work and would incur administrative costs. 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
[[Page 6443]]
could result in incomplete or substandard reclamation.
Section 3809.555 What Forms of Individual Financial Guarantee Are
Acceptable to BLM?
Proposed Sec. 3809.555 would expand the kinds of instruments that
are acceptable as financial guarantees under existing Sec. 3809.1-9(c).
In addition to surety bonds, cash, and negotiable securities, which are
acceptable under the existing regulations, the expanded list of
acceptable instruments would include letters of credit, certificates of
deposit, State and municipal bonds, and investment-grade rated
securities. We believe that expanding the list of acceptable
instruments will make it easier for an operator to provide the required
financial guarantee. In proposed paragraph (a), we are proposing to
change the wording to specify that only non-cancelable surety bonds
would be acceptable. The intent of this change is to preclude
cancellation of a surety bond without the existence of a replacement
financial guarantee.
Section 3809.556 What Special Requirements Apply to Financial
Guarantees Described in Section 3809.555(e)?
Proposed Sec. 3809.556 is a new section that we intend to ensure
that market fluctuations do not erode the security provided by
financial guarantees and other instruments that fluctuate in value.
Proposed paragraph (a) would require an operator to provide BLM a
statement describing the market value of a financial guarantee which is
in the form of traded securities. The operator would have to provide
the statement before beginning operations and at the end of each
calendar year thereafter. Proposed paragraph (b) would require the
operator to review annually the value of the guarantee and to post an
additional financial guarantee if the value declines by more than 10
percent or if BLM determines that a greater guarantee is necessary.
Proposed paragraph (c) would allow the operator to ask BLM to authorize
the release of that portion of an account exceeding 110 percent of the
required financial guarantee. BLM would honor the request if the
operator is in compliance with the terms and conditions of the
operator's notice or approved plan of operations.
Blanket Financial Guarantee
This portion of the proposed rule contains one section (proposed
Sec. 3809.560) that addresses blanket financial guarantees. We are
proposing to continue the practice of accepting blanket financial
guarantees.
Section 3809.560 Under What Circumstances May I Provide a Blanket
Financial Guarantee?
Proposed Sec. 3809.560 is identical to existing Sec. 3809.1-9(d),
with minor editorial changes, and would permit the operator to provide
a blanket guarantee covering state-wide or nation-wide operations. BLM
will accept a blanket financial guarantee if we determine that its
terms and conditions are sufficient to comply with this subpart. The
amount of any blanket financial guarantee would have to be sufficient
to cover all of an operator's reclamation obligations.
State-Approved Financial Guarantee
This portion of the proposed rule contains four sections (proposed
Secs. 3809.570 through 3809.573) that address State-approved financial
guarantees. We are proposing to continue the practice of accepting
State-approved financial guarantees.
Section 3809.570 Under What Circumstances May I Provide a State-
Approved Financial Guarantee?
Proposed Sec. 3809.570 would deem acceptable 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 proposing that
any State-approved financial guarantee be redeemable by the Secretary
so that, in case of failure to reclaim, we can initiate forfeiture of
the financial guarantee to ensure reclamation of public lands. The
redeemability requirement would not apply to State financial guarantee
pools. See proposed Sec. 3809.571.
Section 3809.571 What Forms of State-Approved Financial Guarantee Are
Acceptable to BLM?
Under proposed Sec. 3809.571, BLM would accept a State-approved
financial guarantee in any of the forms specified under proposed
Sec. 3809.555. BLM would also accept participation in a State financial
guarantee pool if the State agrees that, upon BLM's request, the State
will use part of the pool to meet reclamation obligations on public
lands, and the BLM State Director determines that the pool provides the
level of protection required by this subpart. BLM is also proposing to
accept a corporate guarantee if it is acceptable to the State, is
redeemable by or guaranteed to the Secretary, and the BLM State
Director determines that the corporate guarantee provides a level of
protection equal to the estimated cost of reclamation, considering the
operator's net income, net working capital and intangible net worth,
and total liabilities and assets. We specifically request comments or
suggestions on what would be an appropriate standard for an acceptable
corporate guarantee.
Section 3809.572 What Happens if BLM Rejects a Financial Instrument in
My State-Approved Financial Guarantee?
Under proposed Sec. 3809.572, BLM would notify an operator in
writing within 30 days of BLM's receipt of evidence of an operator's
State-approved financial guarantee whether the guarantee was
acceptable. If BLM rejected a financial instrument in an operator's
State-approved financial guarantee, the operator would have to provide
BLM with a financial guarantee equal to the amount of the financial
guarantee rejected.
Section 3809.573 What Happens if the State Makes a Demand Against My
Financial Guarantee?
Under proposed Sec. 3809.573, if the State makes a demand against
an operator's financial guarantee and reduces the available balance,
the operator would have to replace or augment the financial guarantee
to cover the remaining reclamation cost.
Modification or Replacement of a Financial Guarantee
This portion of the proposed rule (proposed Secs. 3809.580 through
3809.582) addresses modification or replacement of a financial
guarantee.
Section 3809.580 What Happens if I Modify My Notice or Approved Plan of
Operations?
Proposed Sec. 3809.580 incorporates existing Sec. 3809.1-9(e) and
would require an operator to increase the financial guarantee if the
operator modifies a plan or a notice and the estimated reclamation cost
increases. This section would not preclude an operator from requesting
BLM's approval for a decrease in the financial guarantee if the
estimated reclamation cost decreases as a result of a modification.
Section 3809.581 Will BLM Accept a Replacement Financial Instrument?
Proposed Sec. 3809.581 covers the procedure for review and approval
of a replacement financial instrument. This topic is not addressed in
the existing regulations. If an operator wants to replace a financial
instrument any time after BLM's approval of the initial
[[Page 6444]]
instrument, the operator would request BLM review of the replacement.
Within 30 days of the request, BLM would complete its review and, if we
reject the request, issue a decision in writing.
Section 3809.582 How Long Must I Maintain My Financial Guarantee?
Proposed Sec. 3809.582 would establish a requirement for
maintaining the financial guarantee. This topic is not addressed in the
existing regulations. An operator would have 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
completion of successful reclamation.
Release of Financial Guarantee
This portion of the proposed rule (Secs. 3809.590 through 594)
addresses when and how BLM releases a financial guarantee after
completion or transfer of operations. As noted below, the proposal
would incorporate several portions of the existing regulations. In
general, the process for release of financial guarantee described in
this portion of the proposal would apply to all operations once this
subpart becomes effective. However, for existing operations that are
not subject to the performance standards of this subpart (See proposed
Sec. 3809.400), the standards for release would be those included in
the existing plan of operations.
Section 3809.590 When Will BLM Release or Reduce the Financial
Guarantee for My Notice or Plan of Operations?
Proposed Sec. 3809.590 incorporates existing Sec. 3809.1-9(f) with
the substantive changes discussed below. When the operator completes
all or any portion of the reclamation of an operation according to the
notice or approved plan of operations, the operator would 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. BLM will then promptly inspect the reclaimed area. Under the
proposal, BLM would encourage the operator to accompany the BLM
inspector. Under the existing regulations, BLM is required to inspect
the operation with the operator. This change would not preclude the
operator from accompanying the BLM inspector and would facilitate final
inspections where the operator is unable to be present. Subsequently,
BLM would notify the operator, in writing, whether the reclamation is
acceptable and whether the operator may reduce the financial guarantee
under Sec. 3809.591.
Under proposed paragraph (c), BLM would publish notice of final
release of financial guarantee in a local newspaper of general
circulation and accept comments for 30 days. This would give the public
an opportunity to participate in the financial guarantee release
process. BLM believes that this opportunity for public participation
could result in information pertinent to financial guarantee release
coming to BLM's attention. We specifically request comments on whether
the proposed 30-day comment period is too long, too short, or about
right.
Section 3809.591 What Are the Limitations on the Amount by Which BLM
May Reduce My Financial Guarantee?
Proposed Sec. 3809.591 would govern incremental financial guarantee
release, a topic that is not covered by the existing regulations.
Proposed paragraph (a) would provide that this section does not apply
to any long-term funding mechanism. The financial guarantee release
provisions in this section apply only to the financial guarantee.
Under proposed paragraph (b), BLM could reduce the financial
guarantee by not more than 60 percent of the total guarantee when the
operator completes backfilling, regrading, establishment of drainage
control; and stabilization and detoxification of leaching solutions,
heaps, tailings, and similar facilities. An operator could apply for
financial guarantee release for a portion of the project area. For
example, if an operator completed regrading on 50 acres of a 100-acre
project area, the operator could seek release of 60 percent of the
financial guarantee applicable to the 50 acres.
Under proposed paragraph (c), BLM could release the remainder of
the financial guarantee for a portion of the project area when BLM
determines that the operator has successfully completed reclamation,
including revegetation, and water quality standards have been met for
one year without need for further water treatment unless a long-term
funding mechanism under proposed Sec. 3809.552(c) has been established.
If so, BLM could release the financial guarantee (but not the long-term
funding mechanism) when water quality standards have been achieved for
one year regardless of whether the discharge is being treated.
Section 3809.592 Does Release of My Financial Guarantee Relieve Me of
All Responsibility for My Project Area?
BLM intends proposed Sec. 3809.592 to address the issue of whether
a mining claimant or operator has any residual responsibility for a
project area after final release of the financial guarantee. This is an
issue that is not addressed in the existing regulations and has come up
many times since BLM issued them in 1980. Under proposed paragraph (a),
an operator's (or mining claimant's) liability would not terminate upon
release of the financial guarantee if reclamation should fail to meet
the standards of this subpart. We believe that this provision is
necessary to cover situations where, for example, a totally regraded
and revegetated slope begins to slump or fail. 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. BLM does not anticipate
a large number of cases of this type and, in any event, must balance an
operator's reasonable expectation of the finality of final financial
guarantee release with BLM's responsibility to prevent unnecessary or
undue degradation.
In a similar manner, proposed paragraph (b) would provide that
release of the financial guarantee under subpart 3809 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., or under any other applicable statutes
or regulations. We intend this provision to clarify this aspect of the
relationship between this subpart and other laws and regulations.
Release of an operator's financial guarantee under this subpart does
not affect any responsibility that an operator may have under other
laws, such as laws governing handling and disposal of hazardous waste.
This is not a new concept, but it is an important one that, in BLM's
experience, operators sometimes are not aware of.
Section 3809.593 What Happens to My Financial Guarantee if I Transfer
My Operations?
Proposed Sec. 3809.593 would incorporate and expand existing
Sec. 3809.1-6(e), which provides that in the event of a change of
operators involving an approved plan of operations, the new operator
shall satisfy the financial guarantee requirements. The existing
regulations do not address whether the original
[[Page 6445]]
operator or transferee is responsible for obligations created before
the transfer, nor at what point after the transfer BLM should release
the original financial guarantee. Thus, the proposal would provide that
when an operator transfers an operation, the operator remains
responsible for obligations or conditions created while that operator
conducted operations, unless the transferee accepts responsibility and
BLM accepts an adequate replacement financial guarantee. Therefore, the
original operator's financial guarantee would remain in effect until
BLM determines that the original operator is no longer responsible for
all or part of an operation. The proposal would allow for incremental
release of the original financial guarantee. The proposal also would
provide that the new operator may not begin operations until BLM
accepts the new operator's financial guarantee. BLM believes it is
important to establish clear responsibility for reclamation of all
portions of a transferred operation to ensure that responsible parties
carry our their reclamation obligations. Otherwise, the transfer could
cause confusion over who is responsible for reclaiming different areas
and delays in achieving the necessary reclamation.
Section 3809.594 What Happens to My Financial Guarantee When My Mining
Claim Is Patented?
Proposed Sec. 3809.594 incorporates existing Sec. 3809.1-9(g) with
minor editorial changes and sets forth the conditions under which BLM
would release a financial guarantee when a mining claim is patented.
Forfeiture of Financial Guarantee
This portion of the proposed rule (Secs. 3809.595 through 3809.599)
addresses when and how BLM carries out forfeiture of a financial
guarantee. This topic is not addressed by the existing regulations.
This portion of the proposal incorporates the remanded 1997 regulations
governing forfeiture. We are incorporating these procedures to ensure a
degree of uniformity in the procedures used by various BLM offices to
collect and use financial guarantees and to complete the logical
sequence of events that encourage reclamation.
Section 3809.595 When Will BLM Initiate Forfeiture of My Financial
Guarantee?
Under proposed Sec. 3809.595, BLM would initiate forfeiture of all
or part of a financial guarantee for any project area or portion of a
project area if the operator refuses or is unable to complete
reclamation as provided in the notice or 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.
BLM believes these provisions are the minimum necessary to ensure that
BLM initiates forfeiture in appropriate circumstances.
Section 3809.596 How Does BLM Initiate Forfeiture of My Financial
Guarantee?
Proposed Sec. 3809.596 describes the process that BLM would follow
to initiate forfeiture of a financial guarantee and the contents of the
written forfeiture notice BLM would send. The section also explains
that once an operator receives a forfeiture notice, the operator could
avoid forfeiture by demonstrating, in writing, to BLM that the operator
or another person will complete reclamation or by obtaining written
permission from BLM for a surety to complete reclamation. BLM believes
that sending an operator a forfeiture notice and giving the operator an
opportunity to avoid forfeiture balances the need to provide a fair
process with BLM's responsibility to quickly obtain funding for
necessary reclamation work.
Section 3809.597 What if I Do Not Comply With BLM's Forfeiture Notice?
Under proposed Sec. 3809.597, the next step in the forfeiture
process would occur. If an operator fails to meet the requirements of
the forfeiture notice, fails to appeal the notice, or if the decision
appealed is affirmed, BLM would collect the forfeited amount and use
the funds collected to implement the reclamation plan on the area or
portion of the area to which the financial guarantee applies. An
operator could appeal a forfeiture notice under the procedures outlined
in proposed Sec. 3809.800.
Section 3809.598 What if the Amount Forfeited Will Not Cover the Cost
of Reclamation?
Under proposed Sec. 3809.598, if the amount of the financial
guarantee forfeited is insufficient to pay the full cost of
reclamation, the operator(s) and mining claimant(s) would be jointly
and severally liable for the remaining costs. As discussed under
proposed Sec. 3809.116, joint and several liability means that the
mining claimant(s) and operator(s) would be responsible together and
individually for the remaining cost of reclamation. BLM would have the
ability to take action to recover the remaining reclamation cost
against either the mining claimant(s) or the operator(s), or both.
Section 3809.599 What if the Amount Forfeited Exceeds the Cost of
Reclamation?
Under proposed Sec. 3809.599, BLM would return the unused portion
of a forfeited guarantee to the party from whom we collected it if the
reclamation costs are less than the amount forfeited.
Inspection and Enforcement
This portion of the proposed rule (proposed Secs. 3809.600 through
3809.604) would set forth BLM's policies applicable to inspection of
operations under subpart 3809, including the possibility of allowing
members of the public to accompany BLM inspectors to the site of a
mining operation. It would also set forth the procedures BLM would use
to enforce the subpart, including identifying several types of
enforcement orders, specifying how they would be served, and outlining
the consequences of noncompliance. The inspection and enforcement rules
would apply to all operations on the effective date of the final rule.
Section 3809.600 With What Frequency Will BLM Inspect My Operations?
Proposed Sec. 3809.600 would clarify 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. This
section would incorporate existing Secs. 3809.1-3(e) and 3809.3-6.
Paragraph (a) would provide that at any time, BLM may inspect
operations, including all structures, equipment, workings, and uses
located on the public lands. The inspection may include verification
that the operations comply with this subpart.
BLM is proposing a new provision in paragraph (b) that would allow
a member of the public to accompany the BLM inspector if the presence
of the public does not materially interfere with the mining operations
or with BLM's administration of this subpart, or create safety
problems. When BLM authorizes a member of the public to accompany the
inspector, the operator would have to provide access to operations.
This section would be added to provide a degree of openness to BLM's
program and to satisfy the public's interest in the administration of
BLM's surface management rules. BLM does not intend this provision to
create an obligation for BLM to allow the public to accompany
inspectors, nor does BLM intend it to confer on the public the right to
accompany an inspector. The decision
[[Page 6446]]
to allow the public to accompany a BLM inspector would be at BLM's
discretion. The public should be aware that mine sites are frequently
located in remote areas and where access is difficult. Once on a mine
site, a member of the public may be exposed to dust, noise, vibration,
heavy equipment, and rocky or uneven ground. BLM expects that members
of the public who accompany BLM inspectors would knowingly and
voluntarily assume liability risks associated with their activities. In
addition, an operator may ask a member of the public to sign a release
of liability for injury and to wear protective equipment.
Proposed paragraph (c) would incorporate existing BLM policy with
regard to inspection of those operations at which greater potential
hazard exists. See Cyanide Management Policy, Instruction Memorandum
90-566, August 6, 1990, amended November 1, 1990. It would provide 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. 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.
Section 3809.601 What Type of Enforcement Action May BLM Take if I Do
Not Meet the Requirements of This Subpart?
Proposed Sec. 3809.601 would specify the types of enforcement
orders that BLM May issue.
Noncompliance orders. Existing Sec. 3809.3-2, provides for the
discretionary issuance of notices of non-compliance for failure to file
a notice or plan of operations (Sec. 3809.3-1(a)) or for a failure to
reclaim (Sec. 3809.3-2(b)). Proposed Sec. 3809.601(a) would provide for
the discretionary issuance of noncompliance orders, which are
equivalent to notices of noncompliance. Noncompliance orders could be
issued for operations that do not comply with any provision of a
notice, plan of operations, or any requirement of subpart 3809.
Administrative enforcement--suspension orders. The existing rules
do not provide for administrative orders to enforce notices of
noncompliance. Existing Sec. 3809.3-2(c) provides for judicial
enforcement of notices of noncompliance. Judicial enforcement is not
always practical, however. The agency must work with the local United
States Attorney to bring judicial actions, which can result in delays,
or in some cases no enforcement at all. Administrative enforcement is
available to BLM under section 302(c) of FLPMA, which provides for
suspensions or revocations of instruments providing for the use
occupancy or development of the public lands.
Existing subpart 3809 does not address the suspension or revocation
authority of section 302(c) of FLPMA, but the proposed rule would. The
proposed rules would establish BLM's suspension or revocation authority
without requiring insertion of such language into each notice or plan
of operations. Inclusion of language in the rule would be more
convenient than requiring operators to insert the necessary text into
the notices and plans of operations that they submit to BLM, and would
not be substantively different.
In comments on earlier versions of the rule, industry
representatives asserted that section 302(c) of FLPMA does not apply to
notices and plans of operations under subpart 3809. BLM disagrees.
Plans of operations constitute FLPMA authorizations. See James C.
Mackey, 96 IBLA 356. Although notices under subpart 3809 are not
considered as Federal actions or authorizations (See Sierra Club v.
Michael Penfold, 857 F.2d 1307 (9th Cir. 1988)), they can be considered
as instruments providing for a use under the language of FLPMA.
Proposed Sec. 3809.601(b) would provide for the issuance of
suspension orders for all or any part of operations that fail to timely
comply with a noncompliance order for a significant violation issued
under Sec. 3809.601(a). Although section 302(c) does not require that
BLM first issue a noncompliance order or make the distinction between
significant and non-significant violations, BLM believes that an
operator should ordinarily be given an opportunity to abate a violation
before having its operations suspended and that non-significant
violations should not result in suspensions. The proposal would define
a significant violation as 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.
Under the proposal, before the issuance of a suspension order, BLM
would notify an operator of its intent to issue a suspension order; and
provide the operator an opportunity for an informal hearing before the
BLM State Director to object to a suspension.
The informal hearing requirement before the BLM State Director is
included to satisfy the hearing requirement of FLPMA section 302(c). In
the case of Dvorak Expeditions, 127 IBLA 145, 155 (1993), the Interior
Board of Land Appeals (IBLA) addressed the type of a hearing that is
required by section 302(c) of FLPMA, and the BLM's responsibilities.
The IBLA concluded that section 302(c) does not require a hearing ``on
the record.'' A hearing before an administrative law judge is not
required before issuance of a suspension order. Thus, the proposed rule
would be consistent with section 302(c). Like other BLM orders,
suspension orders would be appealable to the IBLA.
Temporary immediate suspensions. Section 302(c) contains a proviso
allowing for temporary immediate suspensions prior to a hearing or
final administrative finding upon a determination that such a
suspension is necessary to protect health or public safety or the
environment. Proposed Sec. 3809.601(b)(2) would implement this proviso.
Under this paragraph, BLM would be authorized to order an immediate,
temporary suspension of all or any part of an operation without issuing
a noncompliance order, notifying an operator in advance, or providing
the operator an opportunity for an informal hearing if the operator
does not comply with any provision of a notice, plan of operations, or
subpart 3809; and an immediate, temporary suspension is necessary to
protect health, safety, or the environment from imminent danger or
harm. Although FLPMA does not expressly mention imminent danger or
harm, BLM views an element of imminence as necessary to forgo the
normal procedures for an advance hearing.
The proposed rule would include a provision that BLM may presume
that an immediate suspension is necessary if a person conducts plan-
level operations without an approved plan of operations or conducts
operations other than casual use without submitting a complete notice.
Plans of operation and notices are essential to assure that operations
proceed in an orderly manner without causing environmental harm. The
conduct of mining operations in the absence of an approved plan or a
complete notice on file with BLM is a reasonable basis to conclude that
a threat exists to the health, safety or the environment, and that a
temporary immediate suspension is warranted.
Proposed Sec. 3809.601(b)(3) would specify that BLM will terminate
a suspension order under Sec. 3809.601(b)(1) or (b)(2) no later than
the date by which an operator corrects the violation. This provision
would implement a proviso of FLPMA section 302(c).
[[Page 6447]]
Contents of enforcement orders. Proposed Sec. 3809.601(c) would
enumerate the contents of enforcement orders. In part, it is based on
existing Sec. 3809.3-2(d). It would provide that enforcement orders
will specify (1) how an operator is failing or has failed to comply
with the requirements of subpart 3809; (2) the portions of the
operations, if any, that must be suspended; (3) the actions necessary
to correct the noncompliance and the time, not exceed 30 days, within
which corrective action must begin; and (4) the time to complete
corrective action. These items would provide the information that an
operator receiving the order should know.
Portion of remanded section 3809.3-2 not re-proposed. Section
3809.3-2(e) of the rules remanded in May 1998 contained a provision
requiring operators with records of noncompliance to provide financial
guarantees to BLM for all of their operations, and that financial
guarantees held by a State were not acceptable for purposes of that
section. Upon consideration, BLM has decided not to re-propose this
remanded provision. BLM has concluded that if a State is holding an
adequate financial guarantee that is otherwise acceptable, no good
reason exists to require an operator to provide a second separate
financial guarantee with BLM.
Section 3809.602 Can BLM Revoke My Plan of Operations or Nullify My
Notice?
Proposed Sec. 3809.602 would be a new section and would implement
the revocation portion of FLPMA section 302(c). It would provide 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 operator has failed to correct the
violation within the time specified in the enforcement order issued
under Sec. 3809.601; or (2) a pattern of violations exists at the
operations. The finding would not be effective until BLM notifies the
operator of its intent to revoke the plan of operations or nullify the
notice, and affords the operator with an opportunity for an informal
hearing before the BLM State Director. The provision would specify 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.
Section 3809.603 How Does BLM Serve Me With an Enforcement Action?
Proposed Sec. 3809.603 would identify 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
existing service provision appears in Sec. 3809.3-2(b)(1).
Under the proposal, service would be made on the person to whom it
is directed or his or her designated agent, either by (1) 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. Optionally 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. The service rules would 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 would be served.
The proposal would allow a mining claimant or operator to designate
an agent for service of notifications and orders. A written designation
would have to be provided in writing to the local BLM field office
having jurisdiction over the lands involved.
Section 3809.604 What Happens If I Do Not Comply With a BLM Order?
Proposed Sec. 3809.604(a) would reiterate the provision of existing
Sec. 3809.3-2(c) that failure to comply with a BLM enforcement order
could lead to judicial enforcement. Under the proposed rule, if a
person does not comply with a BLM order issued under Secs. 3809.601 or
3809.602, the Department of the Interior may request the United States
Attorney to institute a civil action in United States District Court
for an injunction or order to enforce its order, prevent the person
from conducting operations on the public lands in violation of subpart
3809, and collect damages resulting from unlawful acts. This judicial
relief may be in addition to the enforcement actions described in
proposed Secs. 3809.601 and 3809.602 and the penalties described in
Secs. 3809.700 and 702.
Proposed Sec. 3809.604(b) would embody the substance of existing
Sec. 3809.3-2(e). It would provide that if an operator fails to timely
comply with a noncompliance order issued under Sec. 3809.601(a), and
remains in noncompliance, BLM may require submittal of plans of
operations for current and future notice-level operations.
Penalties
This portion of the proposed rule (Secs. 3809.700 through 3809.703)
would set forth the penalties applicable to violations of this subpart.
These penalty provisions would apply to existing operations as of the
effective date of the final rule.
Section 3809.700 What Criminal Penalties Apply to Violations of This
Subpart?
Proposed Sec. 3809.700 would be included for information purposes
and identify the criminal penalties established by statute for
individuals and organizations for violations of subpart 3809. It was
previously included in Sec. 3809.3-2(f) of the rules that were remanded
in May 1998. Proposed paragraph (a) would specify 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. Proposed paragraph (b) would specify 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.
Section 3809.701 What Happens if I Make False Statements to BLM?
Proposed Sec. 3809.701 would inform the public of the existing
criminal sanctions for making false statements to BLM. Under 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
[[Page 6448]]
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 fined not more than $250,000 or the alternative fine provided
for in the applicable provisions of 18 U.S.C. 3571, or imprisoned not
more than 5 years, or both.
Section 3809.702 What Civil Penalties Apply to Violations of This
Subpart?
Proposed subpart 3809 would provide authority for BLM to issue
administrative civil penalties. Existing subpart 3809 does not provide
for the issuance of administrative penalties. BLM believes that the
issuance of administrative penalties for violations of subpart 3809
would be an important means of deterring violations and to encourage
abatement of violations that do occur. As stated earlier, section
302(b) of FLPMA provides 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 lands.'' This
provision confers upon the Secretary, acting through BLM, both the
authority and the responsibility to take necessary actions to protect
the public lands. Enforcement of subpart 3809 would be strengthened if
operators understood that administrative enforcement orders can be
backed up by administrative penalties. The possibility of such
penalties should prevent unnecessary or undue degradation of the public
lands by deterring the occurrence of violations of subpart 3809, and
should also prevent the further degradation of the public lands by
operators who fail to see the need for promptly acting to abate
violations. Providing the authority for such administrative action
would allow the agency to help itself in enforcing the law without
having to resort to the judicial system for the assessment of
penalties. Although industry representatives have understandably
objected to the administrative penalty provisions, BLM believes that
the authority and need exist for administrative penalties.
Proposed Sec. 3809.702(a)(1) would provide that following issuance
of a noncompliance or suspension order under section 3809.601, BLM may
assess a proposed civil penalty of up to $5,000 for each violation
against any persons who (i) violate any term or condition of a plan of
operations or fail to conform with operations described in a notice;
(ii) violate any provision of this subpart; or (iii) fail to comply
with an order issued under proposed Sec. 3809.601. To encourage timely
compliance, the proposal would specify that BLM may consider each day
of continuing violation a separate violation for purposes of penalty
assessments.
The amount of the administrative penalty would be discretionary. To
assure that the penalty amount assessed would be reasonable proposed
Sec. 3809.702(a)(3) would provide that in determining the amount of the
penalty, BLM must consider the person'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 the person was negligent; and
the person's demonstrated good faith in attempting to achieve rapid
compliance after notification of the violation. Also, to conform with
section 323(a) of the Small Business Regulatory Enforcement Fairness
Act of 1996, Pub. L. 104-121 (March 29, 1996), the proposal would
provide that if the person assessed the penalty is a small entity, BLM
will, under appropriate circumstances, consider reducing or waiving a
civil penalty and may consider ability to pay in determining a penalty
assessment.
The proposal would also establish procedures to assure fairness in
the penalty assessment process. Under proposed Sec. 3809.702(b), a
final administrative assessment of a civil penalty would occur only
after BLM has notified the person of the assessment and given the
person opportunity to request within 30 days a hearing by the
Department's Office of Hearings and Appeals (OHA). BLM would have the
ability to extend the time to request a hearing if it is conducting
settlement discussions. If a hearing occurs, OHA would issue any final
penalty assessment. Under proposed Sec. 3809.702(c), if BLM issues a
proposed civil penalty and the recipient fails to request a hearing,
the proposed assessment would become a final order of the Department,
and the penalty assessed becomes due upon expiration of the time
allowed to request a hearing.
Section 3809.703 Can BLM Settle a Proposed Civil Penalty?
Proposed Sec. 3809.703 would clarify BLM's authority to negotiate a
settlement of civil penalties, in which case BLM would prepare a
settlement agreement. Under the proposal, the BLM State Director or his
or her designee must sign the agreement.
Appeals
Section 3809.800 What Appeal Rights do I Have?
Proposed Sec. 3809.800 would specify the rights of any person
adversely affected by a decision made under subpart 3809. Existing
appeal rights are contained in Sec. 3809.4, and require operators to
appeal to the BLM State Director before an appeal may be taken to the
Interior Board of Land Appeals. Under the proposal, any person
adversely affected by a decision made under subpart 3809 may appeal the
decision to the Office of Hearings and Appeals under 43 CFR parts 4 and
1840. Review of a decision by the BLM State Director would be
discretionary and could take place if consistent with 43 CFR part 1840.
BLM expects in the near future to propose changes to the State Director
review process to address which decisions would be appealable to the
State Director.
Under proposed Sec. 3809.800(b), in order for the Department of the
Interior to consider the appeal of a decision, the person appealing
must file a notice of appeal in writing with the BLM office where the
decision was made within 30 days after the date the decision is
received. This provision would carry over the terms of existing
Sec. 3809.4(b).
Under proposed Sec. 3809.800(b), all decisions under this subpart
would go into effect immediately and remain in effect while appeals are
pending unless a stay is granted under 43 CFR section 4.21(b). This
provision also would carry over the terms of existing Sec. 3809.4(b).
Proposed Sec. 3809.800 (c) and (d) would continue the provisions of
existing Sec. 3809.4(c) concerning the contents of an appeal. Under the
proposal, 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. It would also require an appellant
to 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 part 4 of this
chapter (usually within 30 days after filing an appeal).
Existing paragraph (e) would not be proposed because it deals with
the specifics of State Director review. Such procedures would be
proposed separately as part of another regulatory proposal. Similarly,
existing Sec. 3809.4(g) is not necessary because although a correct
statement, it does not need to be stated in the rules. Agency actions
do not become final until appeals to OHA have been finally resolved.
[[Page 6449]]
IV. How Did BLM Meet Its Procedural Obligations?
Executive Order 12866, Regulatory Planning and Review
These proposed 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
proposed regulations are subject to review by the Office of Management
and Budget.
In accordance with E.O. 12866, BLM performed a benefit-cost
analysis for the proposed action. We used as a baseline the existing
regulation and current BLM administrative costs. The potential costs
associated with the regulation are increased operating costs for miners
and increased administrative costs for BLM. The potential benefits are
environmental improvements. Both benefits and costs are difficult to
quantify because many of the possible impacts associated with the
regulation will be site- or mining operation-specific. Costs were
analyzed in two ways: (1) a simple supply and demand approach; and (2)
a simple cost modeling approach. Both approaches were designed to
provide rough estimates of the potential costs and were not expected to
provide precise estimates of costs. The analysis does serve, however,
to establish a rough estimate of the range of potential costs. The site
specific nature of most of the potential economic benefits prevented
their quantification. However, the analysis developed sufficient
information to demonstrate that it was plausible to assume that the
benefits were at least equal to the costs. The annual costs of the
proposed regulation are estimated to range from $12.1 million to $89.4
million. BLM has placed the full assessment on file in the BLM
Administrative Record at the address specified in the ADDRESSES
section.
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 proposed regulations easier to understand, including
answers to questions such as the following: (1) Are the requirements in
the proposed regulations clearly stated? (2) Do the proposed
regulations contain technical language or jargon that interferes with
their clarity? (3) Does the format of the proposed regulations
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce their clarity? (4) Would the regulations be easier to
understand if they were divided into more (but shorter) sections? (A
``section'' appears in bold type and is preceded by the symbol
``Sec. '' and a numbered heading, for example Sec. 3809.430. (5) Is the
description of the proposed regulations in the SUPPLEMENTARY
INFORMATION section of this preamble helpful in understanding the
proposed regulations? How could this description be more helpful in
making the proposed 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
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 is in the process of preparing a draft
environmental impact statement (DEIS) which will be on file and
available to the public in the BLM Administrative Record at the address
specified in the ADDRESSES section. We will publish a notice in the
Federal Register when the DEIS becomes publicly available.
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. 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. Based on the 1992 Census of Mineral Industries (MIC 92-S-1,
U.S. Department of Commerce, Bureau of the Census, August 1996), we
believe that virtually all businesses currently engaged in mining on
public lands could be considered ``small'' under the SBA 500-employee
standard. Based on the 1992 Census of Mineral Industries and
information collected from BLM field staff, we estimate that the
proposed regulations will apply to 672 small entities (289 metal mining
plus 383 non-metallic mineral mining companies). This represents about
3 percent of the total number of companies involved in the mineral
industry in 1992 and about 15 percent of the companies involved in
metal and non-metallic minerals mining in 1992.
Cost models developed by BLM suggest that the cost impact of the
proposed rule would vary according to the type of mining operation. On
a present value basis, the estimated percent cost increases were 2.9%,
5.6%, and 7.8% respectively for the modeled placer, open pit, and strip
operations. These cost increases represent 1.7%, 0.13%, and 3.9% of the
present value of estimated gross annual revenues over the expected life
of placer, open pit, and strip operations respectively. We expect
nearly all exploration activities would face cost increases of less
than 5 percent.
The modeled exploration and placer mine probably best represent the
potential impact on small entities. We do not consider the potential
effect of this proposed rule on the modeled placer operation to be
significant, given that the compliance cost represents less than 2
percent of gross revenues. Nor do we consider exploration cost
increases below 5 percent significant. While the proposed rule affects
a significant number of entities, the impacts cannot be classified as
significant. Therefore, BLM has determined under the RFA that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. For additional information, see
the Regulatory Flexibility Act analysis on file in the BLM
Administrative Record at the address specified in the ADDRESSES
section.
Unfunded Mandates Reform Act
These proposed 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 proposed rule does not have significant takings implications.
The
[[Page 6450]]
proposed rule does not 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 12612, Federalism
The proposed 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 would provide States greater
opportunities to administer the mining regulatory program on public
lands. In accordance with Executive Order 12612, BLM has determined
that this proposed rule does not have sufficient Federalism
implications to warrant preparation of a Federalism Assessment.
Paperwork Reduction Act
Sections 3809.301 and 3809.401 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), BLM has submitted a copy of the proposed regulations
to the Office of Management and Budget (OMB) for review. BLM will not
require collection of this information until OMB has given its
approval.
This set of information collections, Management of Public Lands
under the U.S. Mining Laws, is comprised of information about proposed
operations on public lands, including information necessary to identify
and contact the operator; a description of the operation (whether
notice- or plan-level); the reclamation plan; the reclamation cost
estimate; and, in the case of plan-level operations, a plan for
monitoring the effect of the operation. Respondents are those
individuals and corporations who plan to conduct operations on public
lands. The information would have to be submitted each time an operator
proposed to conduct a new operation. We estimate the average burden for
these information collections is 16 hours per notice and 32 hours per
plan of operations. Since BLM processes about 350 notices each year, we
estimate the annual total burden for notices is 5,600 hours. We process
about 325 plans of operations each year for an estimated total yearly
burden of 10,400 hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
New Executive Office Building, Washington, DC 20503; Attention: Desk
Officer for the Department of the Interior.
BLM considers comments by the public on this proposed collection of
information in--
Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of BLM,
including whether the information will have practical use;
Evaluating the accuracy of BLM's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology; such as permitting
electronic submittal of responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to BLM on the proposed
regulations.
Authors
The principal authors of this proposed 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 in 43 CFR Part 3800
Administrative practice and procedure, Environmental protection,
Intergovernmental relations, Land Management Bureau, Mines, Public
lands-mineral resources, Reporting and recordkeeping requirements,
Surety bonds, Wilderness areas.
Dated: November 13, 1998.
Sylvia V. Baca,
Assistant Secretary, Land and Minerals Management.
Accordingly, BLM proposes to amend 43 CFR part 3800 as set forth
below:
PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS
1. 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 (Alternative 1) When does BLM require that I submit a
notice or a plan of operations?
3809.11 (``Forest Service'' Alternative) When does BLM require that
I submit a notice of intention to operate or a plan of operations?
(Forest Service Alternative)
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 Public availability of information.
3809.115 Information collection.
3809.116 As a mining claimant or operator, what are my
responsibilities under this subpart for my project area?
Federal/State Agreements
3809.201 What kinds of agreements may BLM and a State make under
this subpart?
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?
3809.312 When may I begin operations after filing a complete
notice?
3809.313 Under what circumstances may I not begin operations 15
business 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?
[[Page 6451]]
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 Does this subpart apply to my pending modification for a
new facility?
3809.435 Does this subpart apply to my pending modification for an
existing facility?
Financial Guarantee Requirements--General
3809.500 In general, what are BLM's financial guarantee
requirements?
3809.503 When must I provide a financial guarantee for my notice-
level operations?
3809.505 How do the financial guarantee requirements of this
subpart apply to my existing plan of operations?
3809.551 What are my choices for providing BLM with a financial
guarantee?
Individual Financial Guarantee
3809.552 What must my individual financial guarantee cover?
3809.553 May I post a financial guarantee for a part of my
operations?
3809.554 How do I estimate the cost to reclaim my operations?
3809.555 What forms of individual financial guarantee are
acceptable to BLM?
3809.556 What special requirements apply to financial guarantees
described in Sec. 3809.555(e)?
Blanket Financial Guarantee
3809.560 Under what circumstances may I provide a blanket financial
guarantee?
State-Approved Financial Guarantee
3809.570 Under what circumstances may I provide a State-approved
financial guarantee?
3809.571 What forms of State-approved financial guarantee are
acceptable to BLM?
3809.572 What happens if BLM rejects a financial instrument in my
State-approved financial guarantee?
3809.573 What happens if the State makes a demand against my
financial guarantee?
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 is patented?
Forfeiture of Financial Guarantee
3809.595 When will 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 notice?
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?
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 What appeal rights do I have?
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.
Subpart 3809--Surface Management
General Information
Sec. 3809.1 What are the purposes of this subpart?
The purposes of this subpart are to:
(a) Prevent unnecessary or undue degradation of public lands by
operations authorized by the mining laws. Anyone intending to develop
mineral resources on the public lands must prevent unnecessary or undue
degradation of the land and reclaim disturbed areas. This subpart
establishes procedures and standards to ensure that operators and
mining claimants meet this responsibility; and
(b) Provide for maximum possible coordination with appropriate
State agencies to avoid duplication and to ensure that operators
prevent unnecessary or undue degradation of public lands.
Sec. 3809.2 What is the scope of this subpart?
(a) This subpart applies to all operations authorized by the mining
laws on public lands, including Stock Raising Homestead lands, as
provided in Sec. 3809.11(i), where the mineral interest is reserved to
the United States.
(b) This subpart does not apply to lands in the National Park
System, National Forest System, and the National Wildlife Refuge
System; acquired lands; lands leased or patented under the Recreation
and Public Purposes Act; lands patented under the Small Tract Act; 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 applies to operations that involve 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.
[[Page 6452]]
Sec. 3809.3 What rules must I follow if State law conflicts with this
subpart?
If State laws or regulations conflict with this subpart regarding
operations on public lands, you must follow the requirements of this
subpart. However, there is no conflict if the State law or regulation
requires a higher standard of protection for public lands than this
subpart.
Sec. 3809.5 How does BLM define certain terms used in this subpart?
As used in this subpart, the term:
Casual use means activities ordinarily resulting in no or
negligible disturbance of the public lands or resources. For example--
(1) Casual use generally includes the collection of mineral
specimens using hand tools, hand panning, and non-motorized sluicing.
(2) Casual use does not include use of mechanized earth-moving
equipment, truck-mounted drilling equipment, portable suction dredges,
motorized vehicles in areas designated as closed to ``off-road
vehicles'' as defined in Sec. 8340.0-5 of this title, chemicals, or
explosives; ``occupancy'' as defined in Sec. 3715.0-5 of this title; or
hobby or recreational mining in areas where the cumulative effects of
the activities result in more than negligible disturbance.
Mininize means to reduce the adverse impact of an operation to the
lowest practical level. During review of operations, BLM may determine
that ``minimize'' means to avoid or eliminate particular impacts.
Mining claim means any unpatented mining claim, millsite, or tunnel
site located under the mining laws. The term also applies to those
mining claims and millsites located in the California Desert
Conservation Area that were patented after the enactment of the Federal
Land Policy and Management Act of October 21, 1976. Mining ``claimant''
is defined in Sec. 3833.0-5 of this title.
Mining laws means the Lode Law of July 26, 1866, as amended (14
Stat. 251); the Placer Law of July 9, 1870, as amended (16 Stat. 217);
and the Mining Law of May 10, 1872, as amended (17 Stat. 91); as well
as all laws supplementing and amending those laws, including the
Building Stone Act of August 4, 1892, as amended (27 Stat. 348); the
Saline Placer Act of January 31, 1901 (31 Stat. 745); the Surface
Resources Act of 1955 (30 U.S.C. 611-614); and the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1701 et seq.).
Mitigation, as defined in 40 CFR 1508.20, may include one or more
of the following:
(1) Avoiding the impact altogether by not taking a certain action
or parts of an action;
(2) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation;
(3) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment;
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action; and
(5) Compensating for the impact by replacing, or providing
substitute, resources or environments.
Most appropriate technology and practices (MATP) means equipment,
devices, or methods that have demonstrable feasibility, success, and
practicality in meeting the standards of this subpart. MATP includes
the use of equipment and procedures that are either proven or
reasonably expected to be effective in a particular region or location.
MATP does not necessarily require use of the most expensive technology
or practice. BLM determines whether the requirement to use MATP is met
on a case-by-case basis during its review of a notice or plan of
operations.
Operations means all functions, work, facilities, and activities on
public lands in connection with prospecting, 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.
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:
Sec. 3809.420, the terms and conditions of an approved plan of
operations, operations described in a complete notice, and other
Federal and State laws related to environmental protection and
protection of cultural resources;
[[Page 6453]]
(2) Are not ``reasonably incident'' to prospecting, mining, or
processing operations as defined in Sec. 3715.0-5 of this title; or
(3) Fail to attain a stated level of protection or reclamation
required by specific laws in areas such as the California Desert
Conservation Area, Wild and Scenic Rivers, BLM-administered portions of
the National Wilderness System, and BLM-administered National Monuments
and National Conservation Areas.
Sec. 3809.10 How does BLM classify operations?
BLM classifies operations as--
(a) Casual use, for which an operator generally need not notify
BLM;
(b) Notice-level operations, for which an operator must submit a
notice (except for certain suction-dredging operations covered by
Sec. 3809.11(h)); and
(c) Plan-level operations, for which an operator must submit a plan
of operations and obtain BLM's approval.
Sec. 3809.11 (Alternative 1) When does BLM require that I submit a
notice or a plan of operations?
To see when you must submit a notice or a plan of operations,
follow this table:
------------------------------------------------------------------------
If your operations . . . Then . . .
------------------------------------------------------------------------
(a) Consist of casual use, You do not need to notify BLM or
seek permission to conduct
operations. You must reclaim
casual-use disturbance. BLM may
monitor your operations to ensure
that unnecessary or undue
degradation does not occur.
(b) Consist of unreclaimed surface You must give BLM a complete notice
disturbance of 5 acres or less of of your planned activities 15
public lands, business days before you plan to
start operations. You have the
option to file a plan of
operations. You must not segment a
project area by filing a series of
notices solely to avoid filing a
plan of operations. See Secs.
3809.300 through 3809.336.
(c) Consist of unreclaimed surface You must submit a plan of
disturbance of more than 5 acres operations and obtain BLM's
of public lands, approval before beginning
operations. See Secs. 3809.400
through 3809.435.
(d) Cause any surface disturbance You must submit a plan of
greater than casual use in the operations and obtain BLM's
special status areas described in approval. See Secs. 3809.400
paragraph (j) of this section, through 3809.435.
(e) Involve any recreational mining The group's representative must
activities by a group, such as a contact BLM at least 15 business
mining club, days before initiating activities
to find out if BLM will require
the group to file a notice or a
plan of operations. This contact
is not required if the group
submits a notice or plan of
operations.
(f) Involve any leaching or You must submit a plan of
storage, addition, or use of operations and obtain BLM's
chemicals in milling, processing, approval. See Secs. 3809.400
beneficiation, or concentrating through 3809.435.
activities (This does not include
chemicals used solely for fuel or
as lubricants for equipment.),
(g) Require you to occupy or use a Whether you are operating under a
site for activities ``reasonably notice or a plan, you must also
incident'' to mining, as defined comply with part 3710, subpart
in Sec. 3715.0-5 of this title, 3715, of this title.
(h) Involve the use of a portable You need not submit a notice or
suction dredge with an intake plan of operations unless
diameter of 4 inches or less, the otherwise required by this
State requires an authorization section. For all other use of a
for its use, and BLM and the State suction dredge, you must submit to
have an agreement under Sec. BLM either a notice or a plan of
3809.201 addressing suction operations, whichever is
dredging, applicable under this section.
(i) Are located on lands patented You must submit a plan of
under the Stock Raising Homestead operations and obtain BLM's
Act and you do not have the approval. Where you have surface-
written consent of the surface owner consent, you do not need a
owner, notice or a plan of operations
under this subpart. See part 3810,
subpart 3814, of this title.
------------------------------------------------------------------------
(j) The special status areas where BLM requires a plan of
operations for all operations greater than casual use include:
(1) Lands in the California Desert Conservation Area (CDCA)
designated by the CDCA plan as ``controlled'' or ``limited'' use areas;
(2) Areas in the National Wild and Scenic Rivers System, and areas
designated for potential addition to the system;
(3) Designated Areas of Critical Environmental Concern;
(4) Areas designated as part of the National Wilderness
Preservation System and administered by BLM;
(5) Areas designated as ``closed'' to off-road vehicle use, as
defined in Sec. 8340.0-5 of this title;
(6) Any areas specifically identified in BLM land-use or activity
plans where BLM has determined that a plan of operations is required to
provide detailed review of project effects on unique, irreplaceable, or
outstanding historical, cultural, recreational, or natural resource
values, such as threatened or endangered species or their critical
habitat;
(7) National Monuments and National Conservation Areas administered
by BLM; and
(8) All areas segregated in anticipation of a mineral withdrawal
and all withdrawn areas, except for areas segregated or withdrawn under
the Alaska Native Claims Settlement Act, the Alaska National Interest
Lands Conservation Act, and the Alaska Statehood Act.
(k) If your operations do not qualify as casual use, you must
submit a notice or plan of operations, whichever is applicable.
Sec. 3809.11 (``Forest Service'' Alternative) When does BLM require
that I submit a notice of intention to operate or a plan of operations?
To see when you must submit a notice of intention to operate or a
plan of operations, follow this table:
------------------------------------------------------------------------
If . . . Then . . .
------------------------------------------------------------------------
(a) Your proposed operations-- You do not need to notify BLM or
seek permission to conduct your
operations. You must reclaim your
operations, and BLM may monitor
them to ensure that unnecessary or
undue degradation does not occur.
[[Page 6454]]
(1) Are limited to the use of
vehicles on existing public roads
or roads used and maintained for
BLM purposes;
(2) Involve individuals desiring to
search for and occasionally remove
small mineral samples or
specimens;
(3) Consist of prospecting and
sampling that will not cause
significant surface resource
disturbance and will not involve
removal of more than a reasonable
amount of mineral deposit for
analysis and study;
(4) Are limited to marking and
monumenting a mining claim;
(5) Involve subsurface operations
that will not cause significant
surface resource disturbance; or
(6) Do not involve the use of
mechanized earthmoving equipment,
such as a bulldozer or a backhoe,
and will not involve the cutting
of trees;
(b) You propose to conduct You must file with BLM a complete
operations that-- notice of intention to operate 15
business days before you plan to
start operations. See Secs.
3809.300 through 3809.336.
(1) Are not described in paragraph
(a) of this section; and
(2) Might cause disturbance of
surface resources,
(c) After reviewing your notice of You must submit a plan of
intention to operate, BLM operations and obtain BLM's
determines that your operations approval. See Secs. 3809.400
are likely to cause significant through 3809.435.
disturbance of surface resources,
------------------------------------------------------------------------
(d) You always have the option to submit a plan of operations in
lieu of the notice of intention to operate required under paragraph (b)
of this section.
Sec. 3809.100 What special provisions apply to operations on
segregated or withdrawn lands?
(a) Mineral examination report. After the date on which the lands
are withdrawn from appropriation under the mining laws, BLM will not
approve a plan of operations 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 operations
on segregated lands. If the report concludes that the mining claim is
invalid, BLM will not approve 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, BLM may--
(1) 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
(2) Approve a plan of operations for the operator to perform the
minimum necessary annual assessment work under Sec. 3851.1 of this
title.
(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 for operations in Alaska or acting on a plan of
operations. See Secs. 3809.311 and 3809.411, respectively.
(d) Final decision. If a final departmental decision declares a
mining claim to be null and void, the operator must cease all
operations, except required reclamation.
Sec. 3809.101 What special provisions apply to minerals that may be
common variety minerals, such as sand, gravel, and building stone?
(a) Mineral examination report. On mining claims located on or
after July 23, 1955, you must not initiate operations for minerals that
may be ``common variety'' minerals, as defined in Sec. 3711.1(b) of
this title, until BLM has prepared a mineral examination report, except
as provided in paragraph (b) of this section.
(b) Interim authorization. Until the mineral examination report
described in paragraph (a) of this section is prepared, BLM will allow
notice-level operations or approve a plan of operations for the
disputed mining claim for--
(1) Operations limited to taking samples to confirm or corroborate
mineral exposures that are physically disclosed and existing on the
mining claim;
(2) Performance of the minimum necessary annual assessment work
under Sec. 3851.1 of this title; or
(3) Operations to remove possible common variety minerals if you
establish an escrow account in a form acceptable to BLM. You must make
regular payments to the escrow account for the appraised value of
possible common variety minerals removed under a payment schedule
approved by BLM. The funds in the escrow account must not be disbursed
to the operator or to the U.S. Treasury until a final determination of
whether the mineral is a common variety and therefore salable under
part 3600 of this title.
(c) Determination of common variety. If the mineral examination
report under paragraph (a) of this section concludes that the minerals
are common variety minerals, you may either relinquish your mining
claim(s) or BLM will initiate contest proceedings. Upon relinquishment
or final departmental determination that the mining claim(s) is null
and void, you must promptly close and reclaim your operations unless
you are authorized to proceed under parts 3600 and 3610 of this title.
(d) Disposal. BLM may dispose of common variety minerals from an
unpatented mining claim with a written waiver from the mining claimant.
Sec. 3809.111 Public availability of information.
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.
[[Page 6455]]
Sec. 3809.115 Information collection.
(a) The Office of Management and Budget has approved the
collections of information contained in this subpart 3809 under 44
U.S.C. 3501 et seq. and assigned clearance number 1004-____. BLM will
use this information to regulate and monitor mining and exploration
operations on public lands. Response to requests for information is
mandatory in accordance with 43 U.S.C. 1701 et seq. The information
collection approval expires ______.
(b) BLM estimates that the public reporting burden for this
information averages 8 hours per response for notices and 80 hours per
response for plans of operations. This includes reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing the
burden, to the Information Collection Clearance Officer (783), Bureau
of Land Management, Washington, D.C. 20240, and the Office of
Management and Budget, Attention Desk Officer for the Interior
Department, Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503, referring to information
collection clearance number 1004-____.
Sec. 3809.116 As a mining claimant or operator, what are my
responsibilities under this subpart for my project area?
(a) Mining claimants and operators (if other than the mining
claimant) are jointly and severally liable for obligations under this
subpart that accrued while they held 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 reclaiming the project area. 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 or conditions 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 or conditions 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, and
(2) BLM accepts an adequate replacement financial guarantee.
Federal/State Agreements
Sec. 3809.201 What kinds of agreements may BLM and a State make under
this subpart?
To prevent unnecessary administrative delay and to avoid
duplication of administration and enforcement, BLM and a State may make
the following kinds of agreements:
(a) An agreement to provide for a joint Federal/State program; and
(b) An agreement under Sec. 3809.202 which provides that, in place
of BLM administration, BLM defers to State administration of some or
all of the requirements of this subpart subject to the limitations in
Sec. 3809.203.
Sec. 3809.202 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, such as the 5-acre
threshold for plans of operations, are the same as corresponding BLM
standards, except that State review and approval timeframes do not have
to be the same as the corresponding Federal timeframes.
(3) A State environmental protection standard that exceeds a
corresponding Federal standard is consistent with the requirements of
this subpart.
(c) State Director decision. The BLM State Director will notify the
State in writing of his/her decision regarding the State's request. The
State Director will address whether the State requirements are
consistent with the requirements of this subpart, and whether the State
has necessary legal authorities, resources, and funding to implement
any agreement. If BLM determines that the State's requirements are
consistent with the requirements of this subpart and the State has the
necessary legal authorities, resources, and funding, BLM must enter
into an agreement with the State so that the State will regulate some
or all of the operations on public lands, as described in the State
request.
(d) Appeal of State Director decision. The BLM State Director's
decision will be a final decision of BLM and may be appealed to the
Assistant Secretary for Land and Minerals Management, but not to the
Department of the Interior Office of Hearings and Appeals. See
Sec. 3809.800(c) for the items you should include in the appeal.
Sec. 3809.203 What are the limitations on BLM deferral to State
regulation of operations?
Any agreement between BLM and a State in which BLM defers to State
regulation of some or all operations on public lands is subject to the
following limitations:
(a) Plans of operations. BLM must concur with each State decision
approving a plan of operations to assure compliance with this subpart,
and BLM retains responsibility for compliance with the National
Environmental Policy Act (NEPA). The State and BLM may decide who will
be the lead agency in the plan review process, including preparation of
NEPA documents.
(b) Federal land-use planning and other Federal laws. BLM will
continue to be responsible for all land-use planning on public lands
and for implementing other Federal laws relating to the public lands
for which BLM is responsible.
(c) Federal enforcement. BLM may take any authorized action to
enforce the requirements of this subpart or any term, condition, or
limitation of a notice or an approved plan of operations. BLM may take
this action regardless of the nature of its agreement with a State, or
actions taken by a State.
(d) Financial guarantee. The amount of the financial guarantee must
be calculated based on the completion of both Federal and State
reclamation
[[Page 6456]]
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 and release 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 days in
advance.
Sec. 3809.204 Does this subpart cancel an existing agreement between
BLM and a State?
No. A Federal/State agreement or memorandum of understanding in
effect on (effective date of the final rule.) 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 (effective
date of the final rule.)
Operations Conducted Under Notices
Sec. 3809.300 Does this subpart apply to my existing notice-level
operations?
To see how this subpart applies to your operations conducted under
a notice and existing on (effective date of the final rule.), follow
this table:
------------------------------------------------------------------------
If you are conducting operations
under a notice filed before
(effective date of the final rule.) Then . . .
and . . .
------------------------------------------------------------------------
(a) You are the operator identified You may conduct operations under
in the notice on file with BLM on the terms of your existing notice
(effective date of the final for 2 years after (effective date
rule.), of the final rule.), or longer if
your notice is extended under Sec.
3809.333. See Sec. 3809.503 for
financial guarantee requirements
applicable to notices.
(b) You are a new operator, that You must conduct operations under
is, you were not the operator the provisions of this subpart,
identified in the notice on file including Sec. 3809.320 for 2
with BLM on (effective date of the years after (effective date of the
final rule.), final rule.), unless extended
under Sec. 3809.333.
(c) Your notice has expired, You may not conduct operations
under an expired notice. You must
reclaim your project area
immediately or promptly submit a
new notice under Sec. 3809.301.
------------------------------------------------------------------------
Sec. 3809.301 Where do I file my notice and what information must I
include in it?
(a) If you qualify under Sec. 3809.11, 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,
social security number or corporate 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 will
begin operations and the date by which you will complete reclamation;
(3) Reclamation plan. A description of how you will complete
reclamation to the standards described in Sec. 3809.420; and
(4) Reclamation cost estimate. An estimate of the cost to fully
reclaim your operations as required by Sec. 3809.552; and
(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 days of any change of
operator or corporate point of contact, or of the mailing address of
the operator or corporate point of contact.
Sec. 3809.311 What action does BLM take when it receives my notice?
(a) Upon receipt of your notice, BLM will review it within 15
business days to see if it is complete under Sec. 3809.301.
(b) If your notice is incomplete, BLM will inform you in writing of
the additional information you must submit. BLM may also take the
actions described in Sec. 3809.313.
(c) BLM will review your additional information within 15 business
days to ensure it is complete. BLM will repeat this process until your
notice is complete.
Sec. 3809.312 When may I begin operations after filing a complete
notice?
(a) If BLM does not take any of the actions described in
Sec. 3908.313, you may begin operations no sooner than 15 business 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 we complete our review sooner than 15 days after receiving
your complete notice, we may notify you that you may begin operations.
(c) You must provide a financial guarantee that meets the
requirements of this subpart before beginning operations.
(d) Your operations may be subject to BLM approval under part 3710,
subpart 3715, of this title relating to use or occupancy of unpatented
mining claims.
Sec. 3809.313 Under what circumstances may I not begin operations 15
business days after filing my notice?
To see when you may not begin operations 15 business days after
filing your notice, follow this table:
[[Page 6457]]
------------------------------------------------------------------------
If BLM reviews your notice and,
within 15 business days, . . . Then . . .
------------------------------------------------------------------------
(a) Notifies you that BLM needs You must not begin operations until
additional time, not to exceed 15 the additional review time period
business days, to complete its ends.
review,
(b) Notifies you that if you do not You must not begin operations until
modify your notice, your you modify your notice to ensure
operations will likely cause that your operations prevent
unnecessary or undue degradation, unnecessary or undue degradation.
(c) Requires you to consult with You must not begin operations until
BLM about the location of existing you consult with BLM and satisfy
or proposed access routes, BLM's concerns about access.
(d) Determines that an on-site You must not begin operations until
visit is necessary, BLM visits the site, and you
satisfy any concerns arising from
the visit.
(e) BLM determines you don't You must file a plan of operations
qualify under Sec. 3809.11 as a before beginning operations. See
notice-level operation, Secs. 3809.400 through 3809.420.
------------------------------------------------------------------------
Sec. 3809.320 Which performance standards apply to my notice-level
operations?
Your notice-level operations must meet all applicable performance
standards of Sec. 3809.420.
Sec. 3809.330 May I modify my notice?
(a) Yes, you may submit a notice modification at any time during
operations under a notice.
(b) BLM will review your notice modification the same way it
reviewed your initial notice under Secs. 3809.311 and 3809.313.
Sec. 3809.331 Under what conditions must I modify my notice?
(a) You must modify your notice--
(1) If BLM requires you to do so to prevent unnecessary or undue
degradation; or
(2) If you plan to make material changes to your operations.
Material changes include the addition of planned surface disturbance up
to the threshold described in Sec. 3809.11, undertaking new drilling or
trenching activities, or changing reclamation.
(b) You must submit your notice modification 15 business days
before 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, it
may also notify you to proceed before the 15-day period has elapsed to
prevent unnecessary or undue degradation.
Sec. 3809.332 How long does my notice remain in effect?
If you filed your notice on or after (effective date of the final
rule.), it remains in effect for 2 years, unless extended under
Sec. 3809.333, or unless you notify BLM beforehand that operations have
ceased and reclamation is complete. BLM will conduct an inspection to
verify whether you have met your obligations, will notify you promptly
in writing, and terminate your notice, if appropriate.
Sec. 3809.333 May I extend my notice, and, if so, how?
Yes. If you wish to conduct operations for 2 additional years after
the expiration date of your notice, you must notify BLM in writing on
or before the expiration date. You may extend your notice more than
once.
Sec. 3809.334 What if I temporarily stop conducting operations under a
notice?
(a) If you stop conducting operations for any period of time, you
must--
(1) Maintain public lands within the project area, including
structures, in a safe and clean condition;
(2) Take all steps necessary to prevent unnecessary or undue
degradation; and
(3) Maintain an adequate financial guarantee.
(b) If the period of non-operation is likely to cause unnecessary
or undue degradation, BLM will--
(1) Require you to take all steps necessary to prevent unnecessary
or undue degradation; and
(2) Require you, after an extended period of non-operation for
other than seasonal operations, to remove all structures, equipment,
and other facilities and reclaim the project area.
Sec. 3809.335 What happens when my notice expires?
(a) When your notice expires, you must--
(1) Cease operations, except reclamation; and
(2) Complete reclamation promptly according to your notice.
(b) Your reclamation obligations continue beyond the expiration or
any termination of your notice until you satisfy them.
Sec. 3809.336 What if I abandon my notice-level operations?
(a) BLM may consider your operations to be abandoned if, for
example, you leave inoperable or non-mining related equipment in the
project area, remove equipment and facilities from the project area
other than for purposes of completing reclamation according to your
reclamation plan, do not maintain the project area, discharge local
workers, or there is no sign of activity in the project area over time.
(b) If BLM determines that you abandoned your operations without
completing reclamation, BLM may initiate forfeiture under
Sec. 3809.595. If the amount of the financial guarantee is inadequate
to cover the cost of reclamation, BLM may complete the reclamation, and
the operator and all other responsible persons are liable for the cost
of reclamation.
Operations Conducted Under Plans of Operations
Sec. 3809.400 Does this subpart apply to my existing or pending plan
of operations?
To see how this subpart applies to your existing or pending plan of
operations, follow this table:
------------------------------------------------------------------------
If you submitted your plan of
operations to BLM before (effective Then . . .
date of final rule.), and . . .
------------------------------------------------------------------------
(a) BLM approved your plan of The performance standards of this
operations before that date, subpart (Sec. 3809.420) do not
apply to your existing plan of
operations. The performance
standards in effect at the time
BLM approved your plan of
operations continue to apply. All
other provisions of this subpart
apply to your plan of operations.
See Sec. 3809.505 for
applicability of financial
guarantee requirements.
[[Page 6458]]
(b) BLM made an environmental The plan content requirements (43
assessment or a draft CFR 3809.1-5) and performance
environmental impact statement standards (43 CFR 3809.1-3(d) and
available to the public before 3809.2-2) that were in effect
that date, immediately before (effective date
of final rule.) apply to your plan
of operations. All provisions of
this subpart, except Secs.
3809.401 and 3809.420, apply to
your plan of operations.
(c) BLM has not yet made an All provisions of this subpart
environmental assessment or a apply to your plan of operations.
draft environmental impact
statement available to the public,
------------------------------------------------------------------------
(d) If you want this subpart to apply to any existing plan of
operations, where not otherwise required, you may choose to have this
subpart apply.
Sec. 3809.401 Where do I file my plan of operations and what
information must I include with it?
(a) If you are required to file a plan of operations under
Sec. 3809.11, you must file it with the local BLM field office with
jurisdiction over the lands involved. BLM does not require that the
plan be on a particular form.
(b) Operators or mining claimants must demonstrate that the
proposed operations would not result in unnecessary or undue
degradation of public lands. Your plan of operations must describe
fully the proposed activity and contain the following information with
a level of detail appropriate to the type, size, and location of the
planned activity:
(1) Operator information. The name, mailing address, phone number,
social security number or corporate 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 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 detailed 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 designs, cross sections, and operating plans for
mining areas, processing facilities, and waste rock and tailing
disposal facilities;
(iii) Water management plans;
(iv) Rock characterization and handling plans;
(v) Quality assurance plans;
(vi) Spill contingency plans;
(vii) A general schedule of operations from start through closure;
and
(viii) Plans for all access roads, water supply pipelines, and
power or utility services;
(3) Reclamation plan. A plan for reclamation to meet the standards
in Sec. 3809.420, with a detailed 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;
(iv) Riparian mitigation;
(v) Wildlife habitat rehabilitation;
(vi) Topsoil handling;
(vii) Revegetation;
(viii) Isolation and control of acid, toxic or deleterious
materials;
(ix) Facilities removal; and
(x) Post-closure management;
(4) Monitoring plan. A plan for monitoring the effect of your
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.
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;
(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. BLM will also use this information 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, hydrology, soils, vegetation,
wildlife, air quality, cultural resources, and socioeconomic conditions
in and around the project area. This may also include requiring static
and kinetic testing to characterize the potential for your operations
to produce acid drainage or other leachate. BLM can advise you on the
exact type of information and level of detail needed to meet these
requirements; and
(2) Other information, if necessary to ensure that your operations
will comply with this subpart.
(d) Reclamation cost estimate. At a time specified by BLM, you must
submit an estimate of the cost to fully reclaim your operations as
required by Sec. 3809.552.
Sec. 3809.411 What action will BLM take when it receives my plan of
operations?
(a) BLM will review your plan of operations within 30 business days
and 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) Your plan does not contain a complete description of the
proposed operations under Sec. 3809.401(b). BLM will identify
deficiencies that you must address before BLM can continue processing
your plan of operations. If necessary, BLM may repeat this process
until your plan of operations is complete;
(3) BLM approves your plan subject to changes or conditions that
are necessary to meet the performance standards of Sec. 3809.420;
(4) 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 complete collection of adequate baseline data;
(ii) BLM completes the environmental review, required under the
National Environmental Policy Act;
(iii) BLM completes the consultation required under the National
Historic
[[Page 6459]]
Preservation Act or Endangered Species 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 amount of the
financial guarantee;
(vii) For public lands where BLM does not have responsibility for
managing the surface, BLM consults with the surface-managing agency;
and
(viii) In cases where the surface is owned by a non-Federal entity,
BLM consults with the surface owner; or
(5) BLM disapproves your plan of operations under paragraph (c) of
this section.
(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) BLM must disapprove, or withhold approval of, a plan of
operations if it--
(1) Does not meet the content requirements of Sec. 3809.401;
(2) Proposes operations that are in an area segregated or withdrawn
from the operation of the mining laws, unless the requirements of
Sec. 3809.100 are met; or
(3) Proposes operations that would result in unnecessary or undue
degradation of public lands.
(d) Before BLM approves your plan of operations, it will publish in
a local newspaper of general circulation or in a NEPA document and
accept comments for 30 days on the amount of financial guarantee
required and an explanation of the basis for the amount. Detailed
calculations will remain part of the record, subject to public
inspection.
Sec. 3809.412 When may I operate under a plan of operations?
You must not begin operations until BLM approves your plan of
operations and you provide the financial guarantee required under
Secs. 3809.411(d) and 3809.552.
Sec. 3809.415 How do I prevent unnecessary or undue degradation while
conducting operations on public lands?
You prevent unnecessary or undue degradation while conducting
operations on public lands by--
(a) Complying with Sec. 3809.420, as applicable; the terms and
conditions of your approved plan of operations; the operations
described in your notice; and other Federal and State laws related to
environmental protection and protection of cultural resources;
(b) Assuring that your operations are ``reasonably incident,'' as
defined in Sec. 3715.0-5 of this title; and
(c) Attaining the stated level of protection or reclamation
required by specific laws in areas such as the California Desert
Conservation Area, Wild and Scenic Rivers, BLM-administered portions of
the National Wilderness System, and BLM-administered National Monuments
and National Conservation Areas.
Sec. 3809.420 What performance standards apply to my notice or plan of
operations?
The following performance standards apply to your notice or plan of
operations:
(a) General performance standards. (1) Technology and practices.
You must use MATP to meet the standards of this subpart.
(2) Sequence of operations. You must avoid unnecessary impacts 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 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, and State 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, and State laws and requirements.
(B) You must handle earth materials and water in a manner that
minimizes the formation of acidic, toxic, or other deleterious
pollutants of surface water systems.
(C) You must manage excavations and other disturbances to prevent
or control the discharge of pollutants into surface waters.
(ii) Ground water. (A) Ground water affected by your operations
must comply with State standards and other applicable requirements.
(B) You must handle earth materials and water in a manner that
minimizes the formation of acidic, toxic, or other deleterious
infiltration to ground water systems and manage excavations and other
disturbances 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 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 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.
(iv) 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.
(4) Soil and growth material. (i) You must remove, segregate, and
preserve topsoil, or where more feasible other suitable growth
material, to minimize erosion and sustain revegetation when reclamation
begins.
(ii) To preserve soil viability and promote concurrent reclamation,
you
[[Page 6460]]
must directly transport topsoil from its original location to the point
of reclamation without intermediate stockpiling, where 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 prevent the introduction of
noxious weeds and to limit or reduce any existing infestations;
(iii) Use native species to the extent feasible;
(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 prevent erosion and
stabilize the project area, subject to BLM approval.
(6) Fish and wildlife. (i) You must minimize disturbances and
adverse impacts on fish, wildlife, and related environmental values.
(ii) You must take necessary measures to protect threatened or
endangered species and their 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 20 business
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
control or prevent erosion, siltation, and air pollution and minimize
impacts to resources.
(ii) You must minimize surface disturbance, using existing access
where feasible, while maintaining safe design, following natural
contour where feasible, and minimizing cut and fill.
(iii) When commercial hauling on an existing BLM road is involved,
BLM may require you to make appropriate arrangements for use,
maintenance, and safety.
(iv) You must remove and reclaim roads and structures according to
BLM land-use plans and activity plans, unless retention is approved by
BLM.
(2) Drill holes. (i) You must not allow drilling fluids and
cuttings to flow off the drill site.
(ii) You must plug all exploration drill holes to prevent mixing of
waters from aquifers, impacts to beneficial uses, downward water loss,
or upward water loss from artesian conditions.
(iii) You must conduct surface plugging to prevent direct inflow of
surface water into the drill hole and to eliminate the open hole as a
hazard.
(3) Acid-forming, toxic, or other deleterious materials. You must
incorporate identification, handling, and placement of potentially
acid-forming, toxic or other deleterious materials into your
operations, facility design, reclamation, and environmental monitoring
programs to minimize the formation and impacts of acidic, alkaline,
metal-bearing, or other deleterious leachate, including the following:
(i) You must handle, place, or treat potentially acid-forming,
toxic, or other deleterious materials in a manner that minimizes the
likelihood of acid formation and toxic and other deleterious leachate
generation (source control);
(ii) If you cannot prevent the formation of acid, toxic, or other
deleterious drainage, you must minimize uncontrolled migration of
leachate; and
(iii) You must capture and treat acid drainage, or other
undesirable effluent, to the applicable standard if source controls and
migration controls do not prove effective. You are responsible for any
costs associated with water treatment or facility maintenance after
project closure. Long-term, or post-mining, effluent capture and
treatment are not acceptable substitutes for source control, and you
may rely on them only after all reasonable source control methods have
been employed.
(4) Leaching operations and impoundments. (i) You must design,
construct, and operate all leach pads, tailings impoundments, ponds,
and solution-holding facilities according to standard engineering
practices to achieve and maintain stability and facilitate reclamation.
(ii) You must construct a low-permeability liner or containment
system that will minimize the release of leaching solutions to the
environment. You must monitor to detect potential releases of
contaminants from heaps, process ponds, tailings impoundments, and
other structures and remediate environmental impacts if leakage occurs.
(iii) You must design, construct, and operate cyanide or other
leaching facilities and impoundments to contain precipitation from the
local 100-year, 24-hour storm event in addition to the maximum process
solution inventory. You 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 include natural
degradation, rinsing, chemical treatment, or equally successful
alternative methods to detoxify
[[Page 6461]]
solutions and materials. 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 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 feasible. You may temporarily retain a
highwall or other 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) You must partially or fully backfill pits
unless you demonstrate to BLM's satisfaction it is not feasible for
economic, environmental, or safety reasons.
(ii) You must take mitigation measures if you do not completely
backfill a pit or other disturbance.
(iii) Water quality in pits and other water impoundments must
comply with applicable Federal, State, and Tribal 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 and
State 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) To the extent feasible, you must remove from the project area,
dispose of, or treat all non-mine garbage, refuse, or waste to minimize
their impact.
(9) Fire prevention and control. You must comply with all
applicable Federal and State fire laws and regulations, and take all
reasonable measures to prevent and suppress fires in the project area.
(10) Maintenance and public safety. During all operations and after
mining--
(i) You must maintain structures, equipment, and other facilities
in a safe and orderly manner;
(ii) You must mark by signs or fences, or otherwise identify
hazardous sites or conditions resulting from your operations to alert
the public in accord with applicable Federal and State laws and
regulations; and
(iii) You must restrict unaccompanied public access to portions of
your operations that present a hazard to the public, consistent with
Secs. 3809.600 and 3712.1 of this title.
(11) Protection of survey monuments. (i) To the extent feasible,
you must protect all survey monuments, witness corners, reference
monuments, bearing trees, and line trees against damage or destruction.
(ii) If you damage or destroy a monument, corner, or accessory, you
must immediately report the matter to BLM. BLM will tell you in writing
how to restore or re-establish a damaged or destroyed monument, corner,
or accessory.
Sec. 3809.423 How long does my plan of operations remain in effect?
Your plan of operations remains in effect as long as you are
conducting operations, unless BLM suspends or revokes your plan of
operations for failure to comply with this subpart.
Sec. 3809.424 What are my obligations if I stop conducting operations?
(a) To see what you must do if you stop conducting operations,
follow this table:
------------------------------------------------------------------------
If . . . Then . . .
------------------------------------------------------------------------
(1) You stop conducting operations You must--
for any period of time,
(i) Maintain the project area,
including structures, in a safe
and clean condition;
(ii) Take all necessary actions to
assure that unnecessary or undue
degradation does not occur,
including those specified at Sec.
3809.420(c)(4)(vii); and
(iii) Maintain an adequate
financial guarantee.
(2) The period of non-operation is BLM will require you to take all
likely to cause unnecessary or necessary actions to assure that
undue degradation, unnecessary or undue degradation
does not occur, including
requiring you, after an extended
period of non-operation for other
than seasonal operations, to
remove all structures, equipment,
and other facilities and reclaim
the project area.
(3) Your operations are inactive BLM will review your operations and
for 5 consecutive years, determine whether BLM should
terminate your plan of operations
and direct final reclamation and
closure.
(4) BLM determines that you BLM may initiate forfeiture under
abandoned your operations, Sec. 3809.595. If the amount of
the financial guarantee is
inadequate to cover the costs of
reclamation, BLM may complete the
reclamation, and the operator and
all other responsible persons are
liable for the costs of such
reclamation. See Sec. 3809.336(a)
for indicators of abandonment.
------------------------------------------------------------------------
(b) Your reclamation and closure obligations continue until
satisfied.
Modifications of Plans of Operations
Sec. 3809.430 May I modify my plan of operations?
Yes. You may request a modification of the plan at any time during
operations under an approved plan of operations.
Sec. 3809.431 When must I modify my plan of operations?
(a) You must modify your plan of operations to reflect proposed
operations not described in the approved plan; and
(b) You must modify your plan of operations when required by BLM to
prevent unnecessary or undue degradation.
[[Page 6462]]
Sec. 3809.432 What process will BLM follow in reviewing a modification
of my plan of operations?
(a) BLM will review and approve a modification of your plan of
operations in the same manner as it reviewed and approved your initial
plan under Secs. 3809.401 through 3809.420, except that BLM may not
obtain public comment on the financial guarantee amount if the
modification does not change the financial guarantee amount or only
changes it minimally; or
(b) BLM will accept the modification without formal approval if it
does not constitute a substantive change and does not require
additional analysis under the National Environmental Policy Act.
Sec. 3809.433 Does this subpart apply to a new modification of my plan
of operations?
To see how this subpart applies to a new modification of your plan
of operations, see the following table. A ``new'' modification is one
that you submit to BLM after this subpart becomes effective:
------------------------------------------------------------------------
If you have an approved plan of
operations on (effective date of Then . . .
the final rule.) and . . .
------------------------------------------------------------------------
(a) New facility. You subsequently The plan contents requirements
propose to modify your plan of (Sec. 3809.401) and performance
operations by constructing a new standards (Sec. 3809.420) of this
facility, such as waste rock subpart apply to the new facility.
repository, leach pad, Those facilities and areas not
impoundment, drill site, or road, included in the modification may
continue to operate under the
terms of your existing plan of
operations.
(b) Existing facility. You The plan contents requirements
subsequently propose to modify (Sec. 3809.401) and performance
your plan of operations by standards (Sec. 3809.420) of this
modifying an existing facility, subpart apply to the modified
such as expansion of a waste rock facility, unless you demonstrate
repository, leach pad, or to BLM's satisfaction it is not
impoundment; layback of a mine feasible to apply them for
pit; or widening of a road, 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
(effective date of final rule.)
apply to your modified facility.
Those facilities and areas not
included in the modification may
continue to operate under the
terms of your existing plan of
operations.
------------------------------------------------------------------------
Sec. 3809.434 Does this subpart apply to a pending modification for a
new facility?
To see how this subpart applies to a pending modification for a new
facility, see the following table. A ``pending'' modification is one
that you submitted to BLM before this subpart became effective, and BLM
has not yet approved it.
------------------------------------------------------------------------
If you have an approved plan of
operations on (effective date of
the final rule.) and before that
date, you submitted to BLM a
proposed modification to construct Then . . .
a new facility, such as waste rock
repository, leach pad, impoundment,
drill site, or road and . . .
------------------------------------------------------------------------
(a) BLM made an environmental The plan content requirements (43
assessment or a draft CFR 3809.1-5) and performance
environmental impact statement standards (43 CFR 3809.1-3(d) and
available to the public before 3809.2-2) that were in effect
that date, immediately before (effective date
of final rule.) 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) BLM has not yet made an All provisions of this subpart
environmental assessment or a apply to the modified facility.
draft environmental impact Those facilities and areas not
statement available to the public, included in the modification may
continue to operate under the
terms of your existing plan of
operations.
------------------------------------------------------------------------
Sec. 3809.435 Does this subpart apply to my pending modification for
an existing facility?
To see how this subpart applies to your pending modification for an
existing facility, follow this table:
------------------------------------------------------------------------
If you have an approved plan of
operations on (effective date of
the final rule.) and before that
date, you submitted to BLM a
proposed modification of an
existing facility, such as Then . . .
expansion of a waste rock
repository, leach pad, or
impoundment; layback of a mine pit;
or widening of a road, and . . .
------------------------------------------------------------------------
(a) BLM made an environmental The plan content requirements (43
assessment or a draft CFR 3809.1-5) and performance
environmental impact statement standards (43 CFR 3809.1-3(d) and
available to the public before 3809.2-2) that were in effect
that date, immediately before (effective date
of final rule.) 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.
[[Page 6463]]
(b) BLM has not yet made an The plan contents requirements
environmental assessment or a (Sec. 3809.401) and performance
draft environmental impact standards (Sec. 3809.420) of this
statement available to the public, subpart apply to the modified
facility, unless you demonstrate
to BLM's satisfaction it is not
feasible to apply them for
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
(effective date of final rule.)
apply to your plan of operations.
Those facilities and areas not
included in the modification may
continue to operate under the
terms of your existing plan of
operations.
------------------------------------------------------------------------
Financial Guarantee Requirements--General
Sec. 3809.500 In general, what are BLM's financial guarantee
requirements?
To see generally what BLM's financial guarantee requirements are,
follow this table:
------------------------------------------------------------------------
If . . . Then . . .
------------------------------------------------------------------------
(a) Your operations constitute You do not have to provide any
casual use, financial guarantee.
(b) You conduct operations under a You must provide BLM or the State a
notice or a plan of operations, financial guarantee that meets the
requirements of this subpart
before starting operations. For
more information, see Secs.
3809.551 through 3809.573.
------------------------------------------------------------------------
Sec. 3809.503 When must I provide a financial guarantee for my notice-
level operations?
To see how this subpart applies to your notice, follow this table:
------------------------------------------------------------------------
If . . . Then . . .
------------------------------------------------------------------------
(a) Your notice was on file with You do not need to provide a
BLM on (effective date of final financial guarantee unless you
rule.), modify the notice or extend the
notice under Sec. 3809.333.
(b) Your notice was on file with You must provide a financial
BLM before (effective date of guarantee before you can begin
final rule.) and you choose to operations under the modified
modify your notice as required by notice.
this subpart on or after that
date,
(c) You file a new notice on or You must provide a financial
after (effective date of final guarantee before you can begin
rule.) operations under the notice.
------------------------------------------------------------------------
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 (effective date of
final rule.), you must post a financial guarantee according to the
requirements of this subpart no later than (date 180 days after
effective date of final rule.) at the local BLM office with
jurisdiction over the lands involved.
Sec. 3809.551 What are my choices for providing BLM with a financial
guarantee?
You must provide BLM with a financial guarantee using any of the 3
options in the following table:
------------------------------------------------------------------------
If . . . Then . . .
------------------------------------------------------------------------
(a) You have only one notice or You may provide an individual
plan of operations, or wish to financial guarantee that covers
provide a financial guarantee for only the cost of reclaiming areas
a single notice or plan of disturbed under the single notice
operations or plan of operations. See Secs.
3809.552 through 3809.556 for more
information.
(b) You are currently operating You may provide a blanket financial
under more than one notice or plan guarantee covering statewide or
of operations nationwide operations. See Sec.
3809.560 for more information.
(c) You do not choose one of the You may provide evidence of an
options in paragraphs (a) and (b) existing financial guarantee under
of this section State law or regulations. See
Secs. 3809.570 through 3809.573
for more information.
------------------------------------------------------------------------
Individual Financial Guarantee
Sec. 3809.552 What must my individual financial guarantee cover?
(a) If you conduct operations under a notice or a plan of
operations and you provide an individual financial guarantee, it must
cover the estimated cost as if BLM were to contract with a third party
to reclaim your operations according to the reclamation plan, including
construction and maintenance costs for any treatment facilities
necessary to meet Federal and State environmental standards.
(b) BLM will periodically review the estimated cost of reclamation
and the adequacy of any funding mechanism established under paragraph
(c) of this section and require increased coverage, if necessary.
(c) When BLM identifies a need for it, you must establish a trust
fund or other funding mechanism available to BLM to ensure the
continuation of long-term treatment to achieve water quality standards
and for other long term, post-mining maintenance requirements. The
[[Page 6464]]
funding must be adequate to provide for construction, long-term
operation, maintenance, or replacement of any treatment facilities and
infrastructure, for as long as the treatment and facilities are needed
after mine closure. BLM may identify the need for a trust fund or other
funding mechanism during plan review or later.
Sec. 3809.553 May I post a financial guarantee for a part of my
operations?
(a) Yes, BLM may authorize you to provide a financial guarantee
covering a part of your operations if--
(1) Your operations do not go beyond what is specifically covered
by the partial financial guarantee; and
(2) The partial financial guarantee covers all reclamation costs
within the incremental area of operations.
(b) BLM will review the amount and terms of the financial guarantee
for each increment of your operations at least annually.
Sec. 3809.554 How do I estimate the cost to reclaim my operations?
(a) You must estimate the cost to reclaim your operations as if BLM
were hiring a third-party contractor to perform reclamation of your
operations after you have vacated the project area. Your estimate must
include BLM's cost to administer the reclamation contract. Contact BLM
to obtain this administrative cost information.
(b) Your estimate of the cost to reclaim your operations must be
acceptable to BLM.
Sec. 3809.555 What forms of individual financial guarantee are
acceptable to BLM?
You may use any of the following instruments for an individual
financial guarantee, provided that the BLM State Director has
determined that it is an acceptable financial instrument within the
State where the operations are proposed:
(a) Non-cancelable surety bonds, 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.
Sec. 3809.556 What special requirements apply to financial guarantees
described in Sec. 3809.555(e)?
(a) If you choose to use the instruments permitted under
Sec. 3809.555(e) in satisfaction of financial guarantee requirements,
you must provide BLM, before you begin operations and by the end of
each calendar year thereafter, a certified statement describing the
nature and 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 days after its annual review or at any
time upon the written request of BLM, provide additional instruments,
as defined in Sec. 3809.555(e), to the trust account so that the total
market value of all account instruments is not less than the required
dollar amount of the financial guarantee. You must send a certified
statement to BLM within 45 days thereafter describing your actions to
raise the market value of its account instruments to the required
dollar amount of the financial guarantee. You must include copies of
any statements or reports furnished by the brokerage firm to you
documenting such an increase.
(c) If your review under paragraph (b) of this section demonstrates
that the total market value of trust account instruments exceeds 110
percent of the required dollar amount of the financial guarantee, you
may ask BLM to authorize a written release of that portion of the
account that exceeds 110 percent of the required financial guarantee.
BLM will approve your request only if you are in compliance with the
terms and conditions of your notice or approved plan of operations.
Blanket Financial Guarantee
Sec. 3809.560 Under what circumstances may I provide a blanket
financial guarantee?
(a) If you have more than one notice-or plan-level operation
underway, you may provide a blanket financial guarantee covering
statewide or nationwide operations instead of individual financial
guarantees for each operation.
(b) BLM will accept a blanket financial guarantee if we determine
that its terms and conditions are sufficient to comply with the
regulations of this subpart.
State-Approved Financial Guarantee
Sec. 3809.570 Under what circumstances may I provide a State-approved
financial guarantee?
When you provide evidence of an existing financial guarantee under
State law or regulations that covers your operations, you are not
required to provide a separate financial guarantee under this subpart
if--
(a) The existing financial guarantee is redeemable by the
Secretary, acting by and through BLM;
(b) It is held or approved by a State agency for the same
operations covered by your notice(s) or plan(s) of operations; and
(c) It provides at least the same amount of financial guarantee as
required by this subpart.
Sec. 3809.571 What forms of State-approved financial guarantee are
acceptable to BLM?
You may provide a State-approved financial guarantee in any of the
following forms, subject to the conditions in Sec. 3809.570:
(a) The kinds of individual financial guarantees specified under
Sec. 3809.555;
(b) Participation in a State bond pool, if--
(1) The State agrees that, upon BLM's request, the State will use
part of the pool to meet reclamation obligations on public lands; and
(2) The BLM State Director determines that the State bond pool
provides the equivalent level of protection as that required by this
subpart; and
(c) A corporate guarantee if--
(1) The corporate guarantee is acceptable to the State;
(2) The corporate guarantee is redeemable by or guaranteed to the
Secretary; and
(3) The BLM State Director determines that the corporate guarantee
[[Page 6465]]
provides a level of protection equal to the estimated cost of
reclamation under Secs. 3809.552 and 3809.554, considering the
operator's net income, net working capital and intangible net worth,
and total liabilities and assets.
Sec. 3809.572 What happens if BLM rejects a financial instrument in my
State-approved financial guarantee?
If BLM rejects a submitted financial instrument in an existing
State-approved financial guarantee, BLM will notify you in writing,
with a complete explanation of the reasons for the rejection within 30
days of BLM's receipt of the evidence of State-approved financial
guarantee. You must provide BLM with a financial guarantee acceptable
under this subpart at least equal to the amount of the rejected
financial instrument.
Sec. 3809.573 What happens if the State makes a demand against my
financial guarantee?
When the State makes a demand against your financial guarantee,
thereby reducing the available balance, you must replace or augment the
financial guarantee if the available balance is insufficient to cover
the remaining reclamation cost.
Modification or Replacement of a Financial Guarantee
Sec. 3809.580 What happens if I modify my notice or approved plan of
operations?
In the event you modify a notice or an approved plan under
Sec. 3809.331 or Sec. 3809.431 respectively and your estimated
reclamation cost increases, your revised financial guarantee must
comply with Sec. 3809.552. You must adjust the amount of the financial
guarantee to cover the estimated additional cost of reclamation and
long-term treatment, as modified.
Sec. 3809.581 Will BLM accept a replacement financial instrument?
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 days of the offering.
Sec. 3809.582 How long must I maintain my financial guarantee?
You must maintain your financial guarantee until you or a new
operator replace it, with BLM's written concurrence, by another
adequate financial guarantee, or until BLM releases the requirement to
maintain your financial guarantee after you have completed reclamation
of your operation according to the requirements of Sec. 3809.320 (for
notices), including any measures identified as the result of
consultation with BLM under Sec. 3809.313, or Sec. 3809.420 (for plans
of operations).
Release of Financial Guarantee
Sec. 3809.590 When will BLM release or reduce the financial guarantee
for my notice or plan of operations?
(a) When you (the mining claimant or operator) have completed all
or any portion of the reclamation of your operations in accordance with
your notice or approved plan of operations, you may notify BLM that the
reclamation has occurred and request a reduction in the financial
guarantee or BLM approval of the adequacy of the reclamation, or both.
(b) BLM will then promptly inspect the reclaimed area. We encourage
you to accompany the BLM inspector.
(c) BLM will publish notice of final financial guarantee release in
a local newspaper of general circulation and accept comments for 30
days. Subsequently, BLM will notify you, in writing, whether you may
reduce the financial guarantee under Sec. 3809.591, or the reclamation
is acceptable, or both.
Sec. 3809.591 What are the limitations on the amount by which BLM may
reduce my financial guarantee?
(a) This section applies to your financial guarantee, but not to
any funding mechanism established under Sec. 3809.552(c) to pay for
long-term treatment of effluent or site maintenance. Calculation of
bond percentages in paragraphs (b) and (c) of this section does not
include any funds held in that kind of funding mechanism.
(b) BLM may release up to 60 percent of your financial guarantee
for a portion of your project area when BLM determines that you have
successfully completed backfilling; regrading; establishment of
drainage control; and stabilization and detoxification of leaching
solutions, heaps, tailings, and similar facilities on that portion of
the project area.
(c) BLM may release the remainder of your financial guarantee for
the same portion of the project area when BLM determines that you have
successfully completed reclamation, including revegetating the area
disturbed by operations, and when--
(1) Any effluent discharged from the area has met applicable
effluent limitations and water quality standards for one year without
needing additional treatment; or
(2) If you have established a funding mechanism under
Sec. 3809.552(c) to pay for long-term treatment, any effluent
discharged from the area meets applicable effluent limitations and
water quality standards for one year with or without treatment.
Sec. 3809.592 Does release of my financial guarantee relieve me of all
responsibility for my project area?
(a) Release of your financial guarantee under this subpart does not
release you (the mining claimant or operator) from responsibility for
reclamation of your operations should reclamation fail to meet the
standards of this subpart.
(b) Any release of your financial guarantee under this subpart does
not release or waive any claim BLM or other persons may have against
any person under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq., or under
any other applicable statutes or regulations.
Sec. 3809.593 What happens to my financial guarantee if I transfer my
operations?
You remain responsible for obligations or conditions created while
you conducted operations unless a transferee accepts responsibility
under Sec. 3809.16, and BLM accepts an adequate replacement financial
guarantee. Therefore, your financial guarantee remains in effect until
BLM determines that you are no longer responsible for all or part of
the operation. BLM can release your financial guarantee on an
incremental basis. The new operator must provide a financial guarantee
before BLM will allow the new operator to conduct operations.
Sec. 3809.594 What happens to my financial guarantee when my mining
claim is patented?
(a) When your mining claim 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 means of access outside the
boundaries of the mining claim, when you have completed reclamation to
the standards of this subpart.
(c) BLM will continue to regulate under this subpart existing
access for mining purposes across public lands to patented mining
claims, including the
[[Page 6466]]
requirement to have an adequate financial guarantee.
Forfeiture of Financial Guarantee
Sec. 3809.595 When will BLM initiate forfeiture of my financial
guarantee?
BLM will 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 the decision
approving your plan of operations; or
(c) You default on any of the conditions under which you obtained
the financial guarantee.
Sec. 3809.596 How does BLM initiate forfeiture of my financial
guarantee?
When BLM decides to require the forfeiture of all or part of your
financial guarantee, BLM will notify you (the operator or mining
claimant) by certified mail, return receipt requested; the surety on
the financial guarantee, if any; and the State agency holding the
financial guarantee, if any, informing you and them of the following:
(a) BLM's decision to require the forfeiture of all or part of the
financial guarantee;
(b) The reasons for the forfeiture;
(c) The amount that you will forfeit based on the estimated total
cost of achieving the reclamation plan requirements for the project
area or portion of the project area affected, including BLM's
administrative costs; and
(d) How you may avoid forfeiture, including--
(1) Providing a written agreement under which you or another person
will perform reclamation operations in accordance with a compliance
schedule which meets the conditions of your notice or the decision
approving your 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 phase or increment, if the surety can demonstrate an ability to
complete the reclamation in accordance with the reclamation measures
incorporated in your notice or approved plan of operations.
Sec. 3809.597 What if I do not comply with BLM's forfeiture notice?
If you fail to meet the requirements of BLM's forfeiture notice
provided under Sec. 3809.596, if you fail to appeal the forfeiture
notice under Sec. 3809.800, or if the decision appealed is affirmed,
BLM will--
(a) Immediately collect the forfeited amount as provided by
applicable laws for the collection of defaulted financial guarantees,
other debts, or State bond pools; and
(b) Use funds collected from financial guarantee forfeiture to
implement the reclamation plan, or portion thereof, on the area or
portion of the area to which financial guarantee coverage applies.
Sec. 3809.598 What if the amount forfeited will not cover the cost of
reclamation?
If the amount forfeited is insufficient to pay for the full cost of
reclamation, the operators and mining claimants are jointly and
severally liable for the remaining costs. BLM may complete or authorize
completion of reclamation of the area covered by the financial
guarantee and may recover from you all costs of reclamation in excess
of the amount forfeited.
Sec. 3809.599 What if the amount forfeited exceeds the cost of
reclamation?
If the amount of financial guarantee forfeited is more than the
amount necessary to complete reclamation, BLM will return the unused
funds within a reasonable amount of time to the party from whom they
were collected.
Inspection and Enforcement
Sec. 3809.600 With what frequency will BLM inspect my operations?
(a) At any time, BLM may inspect your operations, including all
structures, equipment, workings, and uses located on the public lands.
The inspection may include verification that your operations comply
with this subpart. See Sec. 3715.7 of this title for special provisions
governing inspection of the inside of structures used solely for
residential purposes.
(b) BLM may authorize a member(s) of the public to accompany a BLM
inspector. However, BLM will not authorize a member of the public to
accompany an inspector if the presence of the public would materially
interfere with the mining operations or with BLM's administration of
this subpart, or create safety problems. When BLM authorizes a member
of the public to accompany the inspector, the operator must provide
access to operations.
(c) At least 4 times each year, BLM will inspect your operations if
you use cyanide or other leachate or where there is significant
potential for acid drainage.
Sec. 3809.601 What types of enforcement action may BLM take if I do
not meet the requirements of this subpart?
BLM may issue various types of enforcement orders, including the
following:
(a) Noncompliance order. If your operations do not comply with any
provision of your notice, plan of operations, or requirement of this
subpart, BLM may issue you a noncompliance order; and
(b) Suspension orders. (1) BLM may order a suspension of all or any
part of your operations after--
(i) You fail to timely comply with a noncompliance order for a
significant violation issued under paragraph (a) of this section. A
significant violation is one that causes or may result in environmental
or other harm or danger or that substantially deviates from the
complete notice or approved plan of operations;
(ii) BLM notifies you of its intent to issue a suspension order;
and
(iii) BLM provides you an opportunity for an informal hearing
before the BLM State Director to object to a suspension.
(2) BLM may order an immediate, temporary suspension of all or any
part of your operations without issuing a noncompliance order,
notifying you in advance, or providing you an opportunity for an
informal hearing if--
(i) You do not comply with any provision of your notice, plan of
operations, or this subpart; and
(ii) An immediate, temporary suspension is necessary to protect
health, safety, or the environment from imminent danger or harm. BLM
may presume that an immediate suspension is necessary if you conduct
plan-level operations without an approved plan of operations or conduct
operations other than casual use without submitting a complete notice.
(3) BLM will terminate a suspension order under paragraph (b)(1) or
(b)(2) of this section no later than the date by which you correct 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 exceed 30 days, within which you must start corrective
action; and
(4) The time within which you must complete corrective action.
[[Page 6467]]
Sec. 3809.602 Can BLM revoke my plan of operations or nullify my
notice?
(a) BLM may revoke your plan of operations or nullify your notice
upon finding that--
(1) A violation exists of any provision of your notice, plan of
operation, or this subpart, and you have failed to correct the
violation within the time specified in the enforcement order issued
under Sec. 3809.601; or
(2) A pattern of violations exists at your operations.
(b) The finding is not effective until BLM notifies you of its
intent to revoke your plan or nullify your notice, and BLM provides you
an opportunity for an informal hearing before the BLM State Director.
(c) If BLM nullifies your notice or revokes your plan of
operations, you must not conduct operations on the public lands in the
project area, except for reclamation and other measures specified by
BLM.
Sec. 3809.603 How does BLM serve me with an enforcement action?
(a) BLM will serve a noncompliance order, a notification of intent
to issue a suspension order, a suspension order, or other enforcement
order on the person to whom it is directed or his or her designated
agent, either by--
(1) 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; or
(2) 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.
(b) BLM may serve a mining claimant in the same manner an operator
is served under paragraph (a)(2) 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 local BLM field office having jurisdiction over the
lands involved.
Sec. 3809.604 What happens if I do not comply with a BLM order?
(a) If you do not comply with a BLM order issued under
Secs. 3809.601 or 3809.602, the Department of the Interior may request
the United States Attorney to institute a civil action in United States
District Court for an injunction or order to enforce its order, prevent
you from conducting operations on the public lands in violation of this
subpart, and collect damages resulting from unlawful acts. This relief
may be in addition to the enforcement actions described in
Secs. 3809.601 and 3809.602 and the penalties described in
Secs. 3809.700 and 3809.702.
(b) If you fail to timely comply with a noncompliance order issued
under Sec. 3809.601(a), and remain in noncompliance, BLM may order you
to submit plans of operations under Sec. 3809.401 for current and
future notice-level operations.
Penalties
Sec. 3809.700 What criminal penalties apply to violations of this
subpart?
The criminal penalties established by statute for individuals and
organizations are as follows:
(a) Individuals. If you knowingly and willfully violate the
requirements of this subpart, you may be subject to arrest and trial
under section 303(a) of FLPMA (43 U.S.C. 1733(a)). If you are
convicted, you will be subject to a fine of not more than $100,000 or
the alternative fine provided for in the applicable provisions of 18
U.S.C. 3571, or imprisonment not to exceed 12 months, or both, for each
offense; and
(b) Organizations. If an organization or corporation knowingly or
willfully violates the requirements of this subpart, it is subject to
trial and, if convicted, will be subject to a fine of not more than
$200,000, or the alternative fine provided for in the applicable
provisions of 18 U.S.C. 3571.
Sec. 3809.701 What happens if I make false statements to BLM?
Under 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 fined not more than $250,000 or the alternative fine provided
for in the applicable provisions of 18 U.S.C. 3571, or imprisoned not
more than 5 years, or both.
Sec. 3809.702 What civil penalties apply to violations of this
subpart?
(a)(1) Following issuance of an order under Sec. 3809.601, BLM may
assess a proposed civil penalty of up to $5,000 for each violation
against you if you--
(i) Violate any term or condition of a plan of operations or fail
to conform with operations described in your notice;
(ii) Violate any provision of this subpart; or
(iii) Fail to comply with an order issued under Sec. 3809.601.
(2) BLM may consider each day of continuing violation a separate
violation for purposes of penalty assessments.
(3) In determining the amount of the penalty, BLM must consider
your history of previous violations at the particular mining operation;
the seriousness of the violation, including any irreparable harm to the
environment and any hazard to the health or safety of the public;
whether you were negligent; and your demonstrated 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 days a hearing by the Office of
Hearings and Appeals. BLM may extend the time to request a hearing
during settlement discussions. The Office of Hearings and Appeals will
issue a penalty assessment that is final.
(c) If BLM issues you a proposed civil penalty and you fail to
request a hearing as provided in paragraph (b) of this section, the
proposed assessment becomes a final order of the Department, and the
penalty assessed becomes due upon expiration of the time allowed to
request a hearing.
Sec. 3809.703 Can BLM settle a proposed civil penalty?
Yes. BLM may negotiate a settlement of civil penalties, in which
case BLM will prepare a settlement agreement. The BLM State Director or
his or her designee must sign the agreement.
[[Page 6468]]
Appeals
Sec. 3809.800 What appeal rights do I have?
(a) Any person adversely affected by a decision made under this
subpart may appeal the decision under parts 4 and 1840 of this title.
Review of a decision by the BLM State Director will take place if
consistent with part 1840 of this title.
(b) In order for the Department of the Interior 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 within 30 days after the
date you received the decision. All decisions under this subpart go
into effect immediately and remain in effect while appeals are pending
unless a stay is granted under Sec. 4.21(b) of this title.
(c) 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.
(d) 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 days after filing your appeal).
[FR Doc. 99-2710 Filed 2-8-99; 8:45 am]
BILLING CODE 4310-84-P