Tuesday, November 21, 2000

Part II

Department of the Interior Bureau of Land Management

43 CFR Part 2090, et al. Mining Claims Under the General Mining Laws; Surface Management; Final Rule

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DEPARTMENT OF THE INTERIOR degradation of the public lands. See 43 pay for a study by the National Research U.S.C. 1732(b). FLPMA also directs the Council (NRC) Board on Earth Sciences Bureau of Land Management Secretary of the Interior, with respect to and Resources. The study was to public lands, to promulgate rules and examine the environmental and 43 CFR Parts 2090, 2200, 2710, 2740, regulations to carry out the purposes of reclamation requirements relating to 3800 and 9260 FLPMA and of other laws applicable to mining of locatable minerals on Federal the public lands. See 43 U.S.C. 1740. lands and the adequacy of those [WO±300±1990±00] ‘‘Public lands’’ are defined in FLPMA requirements to prevent unnecessary or RIN 1004±AD22 (in pertinent part) as ‘‘any land and undue degradation of Federal lands in interest in land owned by the United each State in which such mining occurs. Mining Claims Under the General States * * * and administered by the The law directed NRC to complete the Mining Laws; Surface Management Secretary of the Interior through the study by July 31, 1999. Bureau of Land Management. * * *’’ In the 1999 Emergency Supplemental AGENCY: Bureau of Land Management, See 43 U.S.C. 1702. This final rule is Appropriations Act (Pub. L. 106–31, sec. Interior. also authorized by 30 U.S.C. 22, the 3002), Congress prohibited the ACTION: Final rule. portion of the mining laws that opens Department of the Interior from public lands to exploration and completing its work on the February 9, SUMMARY: The Bureau of Land purchase ‘‘under regulations prescribed 1999, proposed rule and issuing a final Management (BLM or ‘‘we’’) amends its by law.’’ 1 rule until we provide at least 120 days regulations governing mining operations Under this statutory authority, BLM for public comment on the proposed involving metallic and some other issued regulations in 1980 to protect rule after July 31, 1999. The NRC minerals on public lands. We are public lands from unnecessary or undue completed and published its report, amending the regulations to improve degradation and to ensure that areas entitled, Hardrock Mining on Federal their clarity and organization, address disturbed during the search for and Lands (hereafter the NRC Report), in late technical advances in mining, extraction of mineral resources are September 1999. Accordingly, we incorporate policies we developed after reclaimed. See 45 FR 78902–78915, reopened the comment period on the we issued the previous regulations November 26, 1980. We call these proposed rule and the draft EIS for 120 twenty years ago, and better protect regulations the ‘‘surface management’’ days. See 64 FR 57613, October 26, natural resources and our Nation’s regulations. They are located in subpart 1999. We also supplemented the natural heritage lands from the adverse 3809 of part 3800 of Title 43 of the Code proposed rule with some of the impacts of mining. We intend these of Federal Regulations. For this reason, recommendations from the NRC and regulations to prevent unnecessary or they are also called the ‘‘3809’’ asked for public comment on them. undue degradation of BLM- regulations. In the fiscal year 2000 appropriations administered lands by mining We amended the 1980 regulations in bill for the Department of the Interior operations authorized under the mining 1997 to strengthen the bonding (Pub. L. 106–113, sec. 357), Congress laws. requirements, but the 1997 amendments prohibited the Secretary from spending DATES: This rule is effective January 20, were overturned. Thus, the 1980 money to issue final 3809 rules, except 2001. regulations, unchanged for 20 years, that he may issue final rules ‘‘which are FOR FURTHER INFORMATION CONTACT: remain in place. Please refer to the not inconsistent with the Robert M. Anderson, 202/208–4201; or ‘‘Background’’ section of the proposed recommendations contained in the Michael Schwartz, 202/452–5198. rule for a detailed description of our [NRC Report] so long as these Individuals who use a efforts to develop revised regulations regulations are also not inconsistent telecommunications device for the deaf (64 FR 6423–6425, February 9, 1999). with existing statutory authorities.’’ (TDD) may contact us through the On February 9, 1999, we published in Congress also added this provision to Federal Information Relay Service at 1– the Federal Register a proposed rule to the Department’s fiscal year 2001 800/877–8339. amend the 3809 regulations. See 64 FR appropriations bill (Pub. L. 106–291, 6422–6468. The 120-day public SUPPLEMENTARY INFORMATION: section 156). comment period closed on May 10, I. What is the Background of this We received and considered a total of Rulemaking? 1999. We issued the notice of about 2,500 public comments during II. How did BLM Change the Proposed Rule availability for the draft environmental both 120-day comment periods. While in Response to Comments? impact statement (EIS) that analyzes the many comments merely expressed III. How did BLM Fulfill its Procedural potential impacts of the proposed support or opposition for the proposed Obligations? changes to the 3809 regulations on rule, some comments offered useful and February 17, 1999 (64 FR 7905). The constructive suggestions for changes to I. What Is the Background of This comment period on the draft EIS also Rulemaking? the proposed rule. Where possible and closed on May 10, 1999. advisable, we made changes to the Under the Constitution, Congress has In the 1998 Omnibus Consolidated proposed rule to incorporate the the authority and responsibility to and Emergency Supplemental suggestions contained in these manage public land. See U.S. Const. art. Appropriations Act (Pub. L. 105–277, comments. Part II of this preamble IV, § 3, cl. 2. Through statute, Congress sec. 120(a)), Congress directed BLM to describes the substantive changes to the has delegated this authority to proposed rule that we incorporated into executive-branch agencies, including 1 Although BLM is responsible for administration this final rule. the Bureau of Land Management (BLM). of the mining laws for lands within the National Forest System, the Secretary of Agriculture has Legal Basis for the Final Rule The Federal Land Policy and responsibility for promulgating rules and Management Act of 1976 (FLPMA), 43 regulations applicable to surface management of This final rule is supported by U.S.C. 1701 et seq., directs the Secretary lands within the National Forest System. For this FLPMA and the Mining Law of 1872, as reason, none of the regulatory changes we are amended (hereafter ‘‘mining laws’’). of the Interior, by regulation or adopting apply to the National Forests. See 36 CFR otherwise, to take any action necessary part 228 for regulations governing mining Section 302(b) of FLPMA, 43 U.S.C. to prevent unnecessary or undue operations on National Forests. 1732(b), directs the Secretary to manage

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Congress used the ‘‘not today carries out the FLPMA directive proposed rule (64 FR 6422) and the inconsistent with’’ language, which is that, ‘‘[i]n managing the public lands, comment responses in the final EIS much less restrictive than other possible the Secretary shall, by regulation or (Volume 2) also contribute to the basis formulations, such as the rules must be otherwise, take any action necessary to and purpose of this rule. ‘‘limited to’’ or ‘‘restricted to’’ or ‘‘must prevent unnecessary or undue not go beyond’’ the recommendations of Consistency With the NRC Report degradation of the public lands.’’ See 43 the NRC Report. Recommendations U.S.C. 1732(b). The ‘‘any action This interpretation of Congress’s necessary’’ language of this provision In the fiscal year 2000 appropriations purpose in the fiscal year 2000 Interior shows that Congress granted the bill for the Department of the Interior appropriation is supported by recent Secretary broad latitude in the (Pub. L. 106–113, sec. 357), Congress Congressional action to twice expressly preventive actions that he could take. prohibited the Secretary from spending reject language (once in bill text and Congress did not define the term money to issue final 3809 rules other once in a conference report) that would ‘‘unnecessary or undue degradation,’’ than those ‘‘which are not inconsistent have imposed a greater limitation on the but it is clear from the use of the with the recommendations contained in Secretary’s authority to amend subpart conjunction ‘‘or’’ that the Secretary has the [NRC Report] so long as these 3809 than the ‘‘not inconsistent with’’ the authority to prevent ‘‘degradation’’ regulations are also not inconsistent language of the fiscal year 2000 that is necessary to mining, but undue with existing statutory authorities.’’ appropriations rider (Pub. L. 106–113, or excessive. This includes the authority Comments we received during the section 357). By way of background, on to disapprove plans of operations that second comment period indicate that December 8, 1999, the Interior would cause undue or excessive harm to there are divergent views on the Department Solicitor issued an opinion the public lands. Readers should note consistency question. Some commenters interpreting section 357. The opinion that the Secretary has delegated to BLM appear to strongly believe that the ‘‘not concluded that the ‘‘not inconsistent many of his management inconsistent with’’ provision should be with’’ language of section 357 applied responsibilities under FLPMA and the interpreted as setting strict limits on only to the numbered, bold-faced mining laws. what we can include in this rulemaking. recommendations in the NRC Report. The final rule we are adopting today That is, we can promulgate only The Solicitor also concluded that final is consistent with the FLPMA directive, regulations that conform exactly to rules addressing subjects that lie outside as well as the general rulemaking specific NRC Report recommendations, the specific NRC Report recommen- authorities of FLPMA and the mining and no more. dations would not be affected by section laws (43 U.S.C. 1740 and 30 U.S.C. 22 We do not agree with these 357. respectively). Other portions of this comments. The NRC Report, Hardrock Subsequently, in the second session preamble contain discussions of legal Mining on Federal Lands (1999), was of the 106th Congress, legislative authorities for this rule in the context of prepared in response to a Congressional language was added to an agriculture specific sections of the regulations. directive in our fiscal year 1999 appropriations bill that would have As explained in more detail later in appropriations (Pub. L. 105–277, sec. limited the final rules to ‘‘only the this preamble, we are continuing the 3- 120(a)). Congress asked the NRC to regulatory gaps identified at pages 7 tiered classification of operations with assess the adequacy of the existing through 9 of the [NRC Report].’’ See the attendant increasing degree of BLM regulatory framework for hardrock section 3105 of S. 2536, as contained in involvement in review or approval. As mining on Federal lands. Congress did S. Rpt. 106–288. This language would mining operations increase in size and not ask the NRC to analyze our have imposed additional limits on the complexity, BLM’s up-front proposed rule, and the NRC Report did Secretary’s authority to amend subpart involvement should also increase. We not do so. As a result, while portions of 3809. The amendment was dropped and are continuing, with necessary the NRC Report overlap the proposed replaced in the conference on the refinements, the set of outcome-based rule, the study is not coterminous with current year Interior appropriations bill performance standards that operations the proposal, and a number of the issues by the more neutral ‘‘not inconsistent must comply with to prevent addressed in the proposed rule are not with’’ language of section 156 of Pub. L. unnecessary or undue degradation. We covered by the NRC Report 106–291. are adopting financial guarantee recommendations. Similarly, Conference Committee requirements for exploration and Congress was aware that the NRC report language to accompany section mining operations that go beyond Report and our proposed rule were not 156 was proposed that would have ‘‘casual use’’ to prevent unnecessary or coterminous when Congress was expressed the committee’s intent ‘‘for undue degradation caused by failure to considering the appropriations bill in [BLM] to adopt changes to its rules at 43 fulfill the reclamation obligation. We are the Fall of 1999. The proposed rule was CFR part 3809 only if those changes are adopting reasonable and graduated published in February 1999. Congress called for in the NRC report.’’ (Reported enforcement procedures and penalties, was also aware of the regulatory in Public Land News, vol. 25, no. 19, which incorporate due process, as a recommendations made in the NRC Sept. 29, 2000. Emphasis added.) See deterrent to practices that would result Report, which was published on also 146 Cong. Rec. S10239, statement in unnecessary or undue degradation. September 29, 1999. The appropriations of Sen. Durbin. This language was These and other provisions described bill did not pass Congress until dropped from the final conference later in this preamble are focused on November 19, 1999. (The President report. See H. Rpt. 106–914, p. 154. preventing unnecessary or undue signed the bill on November 29, 1999.) Although the Conference Report degradation while at the same time Thus, six weeks elapsed between the cautioned that re-enactment of the ‘‘not avoiding, to the extent possible and issuance of the NRC Report and inconsistent with’’ language in the fiscal foreseeable, unintended adverse impacts Congressional action on our year 2000 Interior appropriations was on the ability of mining claimants and appropriations bill. If Congress had not intended to constitute congressional operators to explore for and develop intended for this rulemaking to be ratification of the Solicitor’s December mineral resources. limited strictly to things recommended 8, 1999 opinion, the Conference Report

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70000 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations does not explain how it interprets language of section 357 of H.R. 3423 during the EIS scoping period and section 156 in any way different from (and its successor, section 156 of Pub. comments we received on the draft EIS. how the Solicitor interpreted the L. 106–291) imposes a separate The alternatives ranged from the identical language in section 357 of the requirement. BLM’s underlying required ‘‘no action’’ alternative, which previous year’s appropriations. statutory authority under FLPMA and would have retained the 1980 Our view of the plain meaning of the the mining laws remains intact. Indeed, regulations, to Alternative 4, the ‘‘not inconsistent with’’ language in both section 357 of fiscal year 2000 ‘‘maximum protection’’ alternative. A both the fiscal year 2000 and 2001 Interior appropriations and section 156 fifth alternative, Alternative 5, was appropriations acts remains as the of fiscal year 2001 Interior added to the final EIS in response to Solicitor described it in his December 8, appropriations recognize that BLM’s comments that BLM should only make 1999 opinion as follows: To the extent ‘‘existing statutory authorities’’ continue changes to the 3809 regulations that that an NRC Report recommendation to apply to these rules. These rules have were specifically recommended in the and the proposed rule overlap, then the been reviewed, and changed as NRC Report. The following is a brief final rule must be entirely consistent necessary, to address the requirements description of the alternatives and the with the recommendation. However, it of sections 357 and 156. Thus, the final rationale behind their formulation: is reasonable to interpret the ‘‘not rules are not inconsistent with the Alternative 1, No Action—This inconsistent with’’ language as not recommendations contained in the NRC alternative would not have changed the applying to parts of this final rule Report. regulations. Locatable mineral related to subjects lying outside the operations would continue to be recommendations of the NRC Report. In Record of Decision Under the National managed under the regulations that these cases, there can be no question of Environmental Policy Act BLM promulgated in 1980. This consistency with the NRC Report This preamble constitutes BLM’s alternative served as the baseline for the recommendations because those record of decision, as required under the EIS analysis. The No Action alternative recommendations are silent on an issue Council on Environmental Quality encompasses the view expressed by or not dispositive of an issue. regulations at 40 CFR 1505.2. The many in industry and State governments As discussed in more detail later in decision is based on the proposed action that changes in the regulations are not this preamble, all the provisions of this and alternatives presented in the Final needed, and that BLM should make final rule that overlap the Environmental Impact Statement, non-regulatory changes to improve the recommendations of the NRC Report are ‘‘Surface Management Regulations for way the program works prior to not inconsistent with the report. Other Locatable Mineral Operations.’’ proposing any regulatory changes. provisions of this final rule, for which After considering all relevant issues, Alternative 2, State Management— there is no corresponding NRC Report alternatives, potential impacts, and The State Management alternative recommendation, are consistent with management constraints, BLM selects would have required rescinding the the Secretary’s statutory authority to Alternative 3 of the Final EIS for 1980 regulations and returning to the prevent unnecessary or undue implementation. Alternative 3 changes prior surface management program degradation of the public lands and the existing 3809 regulations in several strategy, under which State or other other legal authorities supporting the general areas: (1) it changes the Federal regulations governed locatable final rule. BLM wishes to emphasize definition of unnecessary or undue mineral operations on public land. that we carefully reviewed the entire degradation to better protect significant Compliance with these other regulations NRC Report and gave appropriate resources from substantial irreparable would have been deemed adequate to weight to its entire contents. Even if the harm, (2) it requires mineral operators to prevent unnecessary or under ‘‘not inconsistent with’’ language were file a plan of operations for any mining degradation under Alternative 2. We construed to mean that these final rules activity beyond casual use regardless of developed this alternative in response to could not be inconsistent with the entire disturbance size, (3) it requires comments that BLM should evaluate NRC Report, BLM believes that this final operators to provide reclamation bonds ways to encourage mineral development rule would comply. for any disturbance greater than casual through less regulation, and that a BLM A commenter stated that even without use, (4) it specifies outcome-based regulatory role was not needed since the the limits placed on BLM by the ‘‘not performance standards for conducting respective State regulatory programs inconsistent with’’ language of section operations on public lands, (5) it were adequate to protect the 357 of H.R. 3423 (the FY 2000 Interior provides an improved program from environment. Consideration of Appropriations bill, which was enacted enforcement of the regulations in cases Alternative 2 also served as a by reference in the Consolidated of noncompliance, and (6) it provides benchmark for considering the Appropriations Act, Pub. L. 106–113), options for Federal-State coordination effectiveness of State programs absent a neither FLPMA nor any other authority in implementing the regulations. A BLM regulatory role. grants BLM the power to promulgate the comprehensive description of Alternative 3, Proposed Final regulations as proposed. The commenter Alternative 3 is presented in Chapter 2 Regulations—This alternative stated that in addition to a general lack of the Final EIS. The specific regulation considered the implementation of the of authority to promulgate the 3809 language to carry out Alternative 3 proposed regulations developed by the proposal, Congress’s specific and direct follows the preamble discussion. 3809 Task Force. Alternative 3 is the commands in section 357 further BLM’s proposed action and the agency’s restricting BLM’s authority to Alternatives Considered ‘‘preferred alternative.’’ The alternative promulgate regulations related to BLM considered a full range of was changed between the draft and final subpart 3809 independently program alternatives for development of EIS in order to incorporate conclusions demonstrate that the proposed the 3809 regulations. See Chapter 2 of and recommendations from the NRC regulation is not authorized by law. the final EIS for a description of how Report and in response to public BLM disagrees with the comment. As specific issues drove the formulation of comments. This alternative represents discussed earlier in this preamble, BLM the alternatives. BLM developed the five the preferred regulatory approach of has the authority to issue these final alternatives considered in the EIS in agency management and program regulations. The ‘‘not inconsistent with’’ response to issues raised by the public specialists after considering the results

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70001 of public scoping, comments on the for selection of the preferred alternative with the level of detail needed to ensure February and October 1999 proposed as compared to the other alternatives. A that all environmental components are rules, results of the NRC Report, and the detailed rationale for the selection of addressed, and at the same time effects of other alternatives discussed in each regulatory provision is discussed preserves flexibility to consider site- the EIS. in this preamble. specific conditions and allows for Alternative 4, Maximum Protection— innovation in environmental protection Definition of ‘‘Unnecessary or Undue The maximum protection alternative technology. The performance standards Degradation’’ was developed presuming that the 3809 developed under the selected alternative regulations could not change the basic The selected alternative satisfactorily often require compliance with, or mineral resource allocations made by addresses the overall program issue of achievement of, the applicable State the mining laws, and that the public improving BLM’s ability to prevent standard. This facilitates coordination lands are open to entry, location, and unnecessary or undue degradation, as with the States and reduces the development of valuable mineral required by FLPMA. The regulations potential for a single operation to be deposits unless segregated or change the definition of ‘‘unnecessary or subject to conflicting standards. The withdrawn. While a total prohibition on undue degradation’’ to clarify that final 3809 regulations also provide for mining activity would also achieve operators must not cause substantial monitoring programs to be adopted as maximum environmental protection, it irreparable harm to significant resources part of individual project approvals to would be beyond the scope of the that cannot be effectively mitigated. ensure compliance with the necessary action, which is to manage activity Clarifying that the definition mitigating measures. The final authorized by the mining laws in a way specifically addresses situations of regulations specify the content that prevents unnecessary or undue ‘‘undue’’ as well as ‘‘unnecessary’’ requirements of these monitoring degradation. A surface management degradation will more completely and programs. program under Alternative 4 would faithfully implement the statutory We did not select Alternatives 1 or 5 allow BLM to give the highest priority standard, by protecting significant because they would retain the to protecting resource values and resource values of the public lands performance standards in the 1980 impose design-based performance without presuming that impacts regulations, which are sometimes too criteria. We developed this alternative necessary to mining must be allowed to vague and subjective, causing them to in response to comments that stronger occur. be applied inconsistently. environmental requirements were In comparison, Alternatives 1 and 5 Under Alternative 2, operators would needed, that BLM should have total would not protect significant scientific, have to comply with the performance discretion to deny certain mining cultural, or environmental resource standards of the State in which their operations, and that designed-based values of the public lands from operations are located. While BLM has performance standards should be substantial irreparable harm because found the standards in many States developed as a nationwide minimum they would not change the definition of generally adequate in the areas they best management practice. ‘‘unnecessary or undue degradation.’’ cover, BLM believes that minimum Alternative 5, NRC Alternative 2 would remove the Federal standards are needed for Recommendations—Alternative 5, like definition as a regulatory criteria, and operations on public lands in order to Alternative 3, incorporates the BLM would not have a reasonable prevent unnecessary or undue recommendations made by the NRC assurance that unnecessary or undue degradation. Relying on individual State Report. However, Alternative 5 limits degradation would be prevented since standards which may vary widely, changes in the regulations to those BLM would have no role in the review which may not address all resources of specifically recommended by the NRC. of individual projects. concern to BLM, or which are subject to See the NRC Report, especially pages 7 Although under Alternative 2 change or varying application would to 9. We developed this alternative in operators would have to comply with not, in our judgment, allow BLM to response to public comments and a State regulations and other prevent unnecessary or undue then-pending budget rider that would environmental laws, certain resources, degradation. Therefore, Alternative 2 have restricted BLM to implementing such as wildlife not proposed or listed has not been selected for only some of the recommendations of as threatened or endangered, cultural implementation. the NRC Report. resources, and riparian areas would not The performance standards under necessarily be given appropriate Alternative 4 would be design-based Environmentally Preferred Alternative consideration in planning and and would not be flexible enough to Although not selected for conducting mineral operations. account for the variety of mining implementation, the environmentally Alternative 4 would tie the definition operations and environmental preferred alternative is Alternative 4, of ‘‘unnecessary or undue degradation’’ conditions on public lands. The the maximum protection alternative. to use of design-based standards and performance standards under While many of the environmental best available technology, which BLM Alternative 4 may be overly stringent for protection measures contained in does not believe are flexible enough for some operations or possibly not Alternative 4 were included in the final application to the wide variety of stringent enough in other cases. In regulations under Alternative 3, the mining operations and environmental addition, the NRC report recommended BLM decided not to select Alternative 4 conditions on public lands, resulting in against the adopting of prescriptive due to its adverse economic impact and over- or under-regulation of some design-based standards such as those in administrative cost compared to the operations. Alternative 4. environmental benefit. Performance Standards Notice/Plan of Operations Threshold Decision Rationale The selected alternative provides BLM’s main mechanism for BLM has included all practical means performance standards that enumerate preventing unnecessary or undue to avoid or minimize environmental specific outcomes or conditions, yet do degradation is review of notices and harm in the selected alternative. The not mandate specific designs. This type review and approval of plans of following is a summary of the rationale of performance standard provides BLM operations. The threshold for when to

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In addition, the the threshold should generally be set resources to process plans of operations existing regulations are silent on the between exploration and mining. In for exploration projects, which have a need to provide bonding for any special category lands, BLM decided to low environmental risk, would not be necessary water treatment or site set the threshold at any activity greater efficient and would result in maintenance. BLM believes it is than ‘‘casual use.’’ By using these unnecessary delay to the mineral necessary to specify this requirement to thresholds, the selected alternative will operator. In addition, this requirement eliminate any argument about requiring provide for the more detailed review would not be consistent with the NRC such resource protection measures. and environmental analysis process Report, which recommended that plans Alternative 2 would rely on State conducted for a plan of operations to be of operations be required for mining and financial guarantee programs. While targeted at the activity (mining) most milling operations (but not exploration BLM intends to work with the States likely to create significant activities), even if the area disturbed is under the selected alternative to avoid environmental impacts. Exploration less than 5 acres. double bonding, relying exclusively on generally has not created major While Alternative 5 has the same State bonding may not provide adequate environmental impacts, or does not notice/plan of operations threshold as protection of the public resources. Not involve issues difficult to mitigate. the selected alternative, it does not have all states require a financial guarantee Casual use generally results in no or the more specific plan of operations for all disturbance at 100 percent of the negligible disturbance of the public content or public notice and comment estimated reclamation cost. lands. The requirement to file a notice requirements. BLM believes these Alternative 4 requires financial for operations involving exploration requirements are necessary for the guarantees for reclamation of all activities, combined with the selected identification and prevention, or disturbance at 100 percent of the alternative’s financial guarantee mitigation, of environmental impacts estimated reclamation costs. Alternative requirements and performance associated with mining. 4 would also require bonding for undesirable events, accidents, failures, standards, will prevent unnecessary or Financial Guarantees undue degradation. or spills. BLM believes it would be The posting of a financial guarantee overly burdensome on the operator to BLM has also included other changes for performance of the required require a financial guarantee for the to the regulations applicable to plans of reclamation is a major component of the remediation of events with a low operations in the selected alternative. regulatory program under all the probability of occurrence and has We have developed a more alternatives considered. The selected therefore not selected the Alternative 4 comprehensive list of content alternative requires that all notice-and financial guarantee provisions. Such requirements to ensure that critical plan-level operators post a financial potential problems are best addressed items, such as plans for interim guarantee adequate to cover the cost as by a thorough review of the operating management and environmental if BLM were to contract with a third plans and the development of baseline studies, are not overlooked. We party to complete reclamation according contingency measures, which are part of have added a mandatory public notice to the reclamation plan, including the selected alternative. and comment requirement to the construction and maintenance costs for Alternative 5 would impose financial process of reviewing proposed plans of any treatment facilities necessary to guarantee requirements similar to the operations to ensure the public has an meet Federal and State environmental selected alternative. However, under opportunity to comment prior to standards. BLM decided to require Alternative 5, the procedural approval of plan activity that may financial guarantees for all notices and requirements for establishing the impact public resources. plans of operations because of the amount of a financial guarantee are We did not choose Alternative 1 inability or unwillingness of some more limited than those followed under because the 1980 regulations have not operators to meet their reclamation the selected alternative. For example, functioned well with the notice/plan of obligations. At present, the potential there is no public notification before operations threshold generally set at 5 taxpayer liability for reclamation of release of the financial guarantee, as acres of disturbance. Some small mining unbonded or underbonded disturbances there is in the selected alternative. BLM operations disturbing less than 5 acres conducted under the 3809 regulations is believes these procedures are of value in have created significant environmental in the millions of dollars. BLM has arriving at a final reclamation financial impacts or compliance problems. These decided that to protect and restore the guarantee amount and has therefore not problems could have been avoided or environment and to limit taxpayer selected the Alternative 5 financial reduced if the operator had submitted a liability, financial guarantees for guarantee requirements. plan of operations and had been subject reclamation should be required at 100 to environmental review under NEPA percent of the estimated cost for BLM to Enforcement and BLM approval. have the reclamation work performed. The selected alternative contains a Alternative 2 would not have This includes any costs that may be program for enforcement of the addressed this issue satisfactorily. necessary for long-term water treatment regulations through issuance of While generally all States have some or site care and maintenance. enforcement orders and use of civil and permit review process, most do not have The 1980 regulations (Alternative 1) criminal penalties where appropriate. It a comprehensive review process similar do not contain financial guarantee has been developed in response to the to NEPA. Others may have permits requirements adequate to achieve this cumbersome enforcement provisions of geared towards specific media like air or level of protection. Under the 1980 the existing regulations which often water, which may not address concerns regulations, notice-level operators are necessitate involvement of the U.S. such as cultural resources, or may not not required to provide a financial Attorney to pursue noncompliance

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70003 actions. BLM believes the selected administration of the program, and are regulatory gaps in State standards or alternative’s enforcement program will those in which BLM defers part or all of programs, development of a specific improve operator compliance while the program to the State (with BLM BLM requirement is warranted. reducing the administrative burden on retaining minimum involvement). BLM Federal/State coordination under the government. This approach is also selected this alternative to provide Alternative 5 would not differ greatly part of Alternative 5. flexibility for the BLM field offices to from the 1980 regulations. Alternative 5 Relying exclusively on the States’ develop their own Federal/State would provide procedures for referral of enforcement programs under program specific to their States’ enforcement actions to the State. Alternative 2 may have limited utility in operating and regulatory environment. However, it would not provide for achieving Federal land management or By also incorporating State performance retention of a minimal level of reclamation objectives. Conversely, standards into the BLM performance involvement by BLM in individual State enforcement in such delegated standards, as described above, this project approvals or financial programs as air quality or water quality alternative facilitates coordination guarantees. BLM believes this minimal may be more effective than BLM between BLM and the State regulatory level of participation is needed to meet enforcement action. The selected agencies when it comes to development its obligation to prevent unnecessary or alternative provides for cooperation and implementation of Federal/State undue degradation. For these reasons, with the State in order to quickly agreements. BLM has not selected Alternative 5. resolve noncompliance in these While the 1980 regulations Consistency With the NRC Report delegated programs areas. (Alternative 1) provide for Federal/State Alternative 4 contains a requirement agreements, they do not provide for Since release of the NRC Report, for mandatory enforcement. This means BLM to concur in the State’s approval ‘‘Hardrock Mining on Federal Lands,’’ when a violation is observed in the of each plan of operations or in the the last two Congressional field, the BLM inspector must issue a approval, release, or forfeiture of a appropriations acts have contained a noncompliance and must assess a financial guarantee. BLM believes that requirement that any final 3809 penalty. Resolution of the problem in retaining at least a concurrence role in regulations must be ‘‘not inconsistent the field with the operator must be these actions is the minimum required with’’ the recommendations in the NRC preceded by the notice of to prevent unnecessary or undue Report. The Department of the Interior noncompliance. The problem with this degradation of the public lands. Solicitor has interpreted the key phrase approach is that there may be Alternative 2 would leave review, ‘‘not inconsistent with’’ to mean that so extenuating circumstances that an approval, and enforcement for mineral long as the final rule does not contradict inspector should consider before taking operations to the respective State the specific recommendations of the an enforcement action, or it may be programs. Total reliance on State NRC Report, the rule can address possible to resolve the violation in the regulation may not be adequate to whatever subject areas BLM determines field without issuing a notice of protect all the public land resources are warranted to improve the noncompliance. We have not selected from unnecessary or undue degradation. regulations and meet the FLPMA this mandatory enforcement provision. BLM as a land manager has to meet a mandate to prevent unnecessary or BLM believes the regulatory approach to comprehensive requirement to protect undue degradation of the public lands. compliance in Alternative 4 may all the resources on public lands from This Congressional requirement places actually hinder the resolution of unnecessary or undue degradation. A some management constraints on the compliance problems by providing an State regulatory agency would not be selection of a final alternative for incentive for their concealment. able to provide the resource protection implementation. Of the five alternatives required for public lands without BLM in the Final EIS, only Alternatives 3 and Federal/State Coordination involvement in the review, approval 5 would clearly not be inconsistent with Most of the mineral activity under the and compliance processes. In addition, the recommendations in the NRC 3809 program occurs in the Western this would be a burden on the State for Report. states. These States have regulatory which BLM would not be able to The ‘‘No Action’’ Alternative would programs applicable to mineral provide compensation. For these retain the 1980 regulations, but would operations in the form of either specific reasons, we didn’t select Alternative 2. clearly be inconsistent with the regulations that apply to mining, overall BLM didn’t select Alternative 4 recommendations of the NRC Report. environmental protection regulations for because it would assert Federal control The NRC report identified specific gaps a specific resource such as water over operations without any effort to in the regulations and made six quality, or both. How the BLM surface coordinate with State activities. Such an recommendations for regulatory management program is coordinated approach could lead to conflicting, or at changes. See the NRC Report, pages 7– with the State programs is an issue that least confusing, standards for operators, 9. BLM could not now decide that the crosses all elements of the alternatives and duplication of effort. Independent existing regulations were adequate considered. After consultation with the BLM standards would be difficult to without being inconsistent with the States, consideration of BLM resource administer because of the intermingling NRC recommendations and violating the protection needs, and evaluation of the of private and public land that occurs at applicable Congressional mandate. various alternatives, BLM has selected many mining operations. Alternative 4 Selection of Alternative 2 would be the Federal/State coordination approach could result in situations where two inconsistent with most of the NRC in Alternative 3 for implementation. different performance requirements recommendations. Alternative 2 does Alternative 3 provides a combination apply within the same operating area not provide reclamation bonding for all of Federal/State agreements that can be depending upon the land status. Nor disturbance greater than casual use, used to coordinate efforts, reduce does Alternative 4 result in substantial does not provide for a plan of operations duplication, and improve resource environmental benefits. Where the for all mining activity, does not provide protection while not overly burdening States have developed performance for clear procedures for modifying plans the operator. The selected alternative standards for mineral operations, they of operations, and does not require provides for two types of Federal/State are generally considered adequate for interim management plans. The NRC agreements, those that provide for joint operations on public lands. Where there report clearly recommends regulatory

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70004 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations changes that are inconsistent with the The final rule continues, with some of operations may continue to be decreased BLM role inherent in modification, BLM’s three-tier regulated under the plan content and Alternative 2. classification scheme for mining performance standards of the previous Regulations developed under operations on Federal lands. For surface management regulations. The Alternative 4 would be more stringent activities that ordinarily result in no or list of performance standards applicable than those suggested by the NRC and negligible disturbance of the public to plans of operations is expanded to therefore inconsistent the NRC lands or resources (‘‘casual use’’), a explicitly include many items that were recommendations. The Alternative 4 person would not have to notify BLM or implicit in the previous performance requirement to file a plan of operations seek our approval. In certain situations, standards. The final rule applies to for all activity greater than casual use described later in this preamble, persons modifications of existing plans of would be inconsistent with the NRC conducting activities on the public operations that add a new facility. finding that exploration involving less lands must contact BLM in advance so Modifications to existing facilities than 5 acres of disturbance should be that we may determine that the would not necessarily come under the allowed under a notice. The use of proposed activities, both individually final rule if the operator demonstrates it design-based standards and mandatory and cumulatively with other activities, is not practical to do so. pit backfilling under Alternative 4 will not result in more than negligible would be inconsistent with the NRC disturbance. For exploration operations The final rule requires financial recommendation that BLM use disturbing less than 5 acres and some guarantees for all notices and plans of performance-based standards. It is also kinds of bulk sampling, the operator operations. Each existing plan of not in harmony with a discussion would have to notify BLM 15 calendar operations has 180 days from the (which was not incorporated in a days in advance of initiating operations. effective date of the final rule to post the specific recommendation) of the NRC For all mining operations and for required financial guarantee if any Report which suggested that pit exploration operations disturbing more existing financial guarantee doesn’t backfilling should be determined on a than 5 acres, the operator would have to satisfy this subpart. Acceptable forms of case-by-case basis. submit a plan of operations and receive financial guarantee include bonds, Neither Alternative 3 nor Alternative BLM’s approval. marketable securities, and certain kinds 5 would be inconsistent with the NRC The final rule continues BLM’s of insurance. Corporate guarantees will recommendations. Both alternatives authority to enter into agreements or no longer be accepted, although existing would incorporate the NRC memoranda of understanding with corporate guarantees are not affected by recommendations into the 3809 States for joint Federal/State programs. the final rule. At the time of final regulations. The main difference The final rule also provides for Federal/ financial guarantee release, BLM will between these two alternatives is that State agreements in which BLM would either post in the local BLM office or Alternative 5 limits the changes in the defer to State administration of some or publish a notice in a local newspaper regulations to the specific NRC all of the surface management and accept comments from the public recommendations, while Alternative 3 regulations. These agreements enable for 30 days. includes both the changes BLM and the States to coordinate recommended by NRC and additional activities to the maximum extent The final rule sets forth BLM’s goal of regulatory changes to address issues possible and avoid duplication of effort. inspecting certain operations, including identified by BLM. These additional Federal/State agreements currently in those using cyanide leaching changes reflect the Secretary’s judgment effect would be reviewed for technology, at least four times each year. as to what is required to prevent consistency with this final rule. Existing In the procedures for ensuring unnecessary or undue degradation of agreements could continue in effect compliance with the 3809 regulations, the public lands, and since they are not during the review period. If the review BLM can issue a variety of orders—from addressed in the NRC Report, are not results in a BLM finding of no requiring an operator to take specified inconsistent with it. Selection of inconsistency, existing agreements action within a specified time frame to Alternative 3 does not preclude BLM could continue. requiring an immediate suspension of from pursuing the NRC In the final rule provisions applicable operations. The final rule provides for recommendations for non-regulatory to notices, BLM continues its goal of administrative civil penalties of up to changes in the surface management reviewing notices in 15 calendar days. $5,000 for each violation. Affected program. The final rule explicitly provides that parties have the right to appeal a BLM Additional discussion of the BLM can require a prospective notice- decision under this subpart to the State consideration of EIS alternatives and of level operator to modify a notice. Director and to the Interior Board of how the NRC Report and Congressional Existing notices can continue under the Land Appeals. The final rule also allows budget rider affect the final rule adopted current operator for two years, or longer, BLM to schedule public visits to mines today can be found in other portions of if the notice is extended. BLM is not on public lands if a visit is requested by the preamble and in the responses to requiring financial guarantees for a member of the public. comments in the Final EIS. existing notices until they are extended or modified. When a notice expires, all II. How did BLM Change the Proposal Summary of Rule Adopted disturbed areas must be reclaimed. in Response to Comments? This part of the preamble describes in For plans of operations, which are general terms some of the major features required for all mining, even if the In this preamble, we respond to the of the final rule. A reader who is disturbed area is less than 5 acres, the significant comments we received from interested in a quick overview of the final rule expands the list of items that the public and other interested parties final rule may find this part useful. an operator must include in a plan. on the February 9, 1999, and October However, if you are looking for a However, BLM will require less 26, 1999, proposed rules (64 FR 6422 detailed description of the final rule, information about smaller and simpler and 64 FR 57613, respectively). you should look at the section-by- mining operations. We are adding a 30- Interested readers should also refer to section analysis which appears later in day public comment period on plans of the final EIS for additional responses to this preamble. operations. Existing and pending plans comments.

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General Comments we are adopting changes to the The preamble discussion of §§ 3809.1 Many commenters questioned the regulations governing review of notices and 3809.2 in the proposed rule need for changes to BLM’s surface to clarify the circumstances under consolidated several sections and management regulations. ‘‘If it ain’t which BLM will need longer than 15 covered a wide range of subjects on broke, don’t fix it,’’ was a common days to review a notice. Some of the which we received comments during refrain. Other commenters asserted that changes we are adopting today are the scoping process. First, the BLM had failed to justify the proposed designed to make information easier to discussion noted that the language of changes or to point out the exact find in the regulations, and once found, the proposed rule did not include problems the revisions are designed to easier to understand. For example, we previous language that expressed the solve. Other commenters argued that have broken up the regulations into Departmental policy to encourage sufficient regulations governing mining more and shorter sections. This development of Federal mineral activities on Federal lands are already in increases the amount of information that resources and reclamation of disturbed lands, a deletion made in the interest of place, either at the State or Federal is printed in the table of contents of brevity. level. The NRC Report indicated that the subpart 3809, making it easier to find specific information without having to The preamble to the proposed rule overall structure of Federal and State also briefly mentioned the November 7, laws and regulations is generally read through non-relevant sections. In summary, all the changes we are 1997 Solicitor’s Opinion [M–36988] effective (p. 5). Many commenters regarding the proper acreage ratio for perceived this general conclusion by the adopting today are necessary for one or more reasons and are aimed at mining claims and mill sites and its NRC to obviate any regulatory changes. implementation via the existing 3809 Some commenters felt that the proposed preventing unnecessary or undue degradation, either directly or regulations. This final rule does not regulatory changes were unnecessary contain provisions expressly addressing because they would duplicate the indirectly. Although BLM recognizes that many that opinion. It should be noted, provisions of existing State regulatory however, that approval of a plan of programs. Other commenters suggested States have programs in place to regulate the operations covered by this operations under this subpart BLM use other mechanisms, such as constitutes BLM approval to occupy policy changes or better implementation rule, BLM has a non-delegable responsibility to manage the public public lands in accordance with its of existing regulations, as the means to provisions whether or not associated address problems. On the other hand, lands in a way that prevents unnecessary or undue degradation. mining claims on millsites are many commenters argued for determined invalid. Such authority is strengthening the 3809 regulations to These rules are intended to establish a Federal floor for such regulation, but to provided by section 302(b) of FLPMA. provide adequate protection for See also the preamble discussion of communities and the environment and do so in a manner that will not unnecessarily intrude where other final § 3809.100, below. to ensure that the mining industry does The language in these sections and not burden taxpayers with the costs of regulatory schemes are working properly. the accompanying preamble discussion cleaning up environmental degradation prompted comments. We received of the public lands. Sections 3809.1 to 3809.116 General comments on removal of some of the Congress has expressly directed the Information objectives language, implying that the Secretary, in managing the public lands, Section 3809.1 What Are the Purposes exclusion of the language was not based to prevent unnecessary or undue on a search for brevity, but was in fact degradation of the public lands. This of This Subpart? and Section 3809.2 What Is the Scope of This Subpart? based on the desire to have BLM field final rule represents the Secretary’s personnel forget the Departmental judgment of the regulations required to The final rule at § 3809.1 describes policy when implementing the prevent unnecessary or undue the purposes of this subpart, which are regulations. We received comments degradation. to (1) prevent unnecessary or undue demanding reform or repeal of the Some of the regulations adopted today degradation of public lands by mining law as well as comments are designed to address real-world, on- operations authorized by the mining supporting the mining law and the-ground environmental problems laws and (2) provide for maximum demanding an end to BLM’s caused by exploration and mining possible coordination with appropriate administrative reform or repeal of the operations on the public lands. For State agencies to avoid duplication and law. There were comments both pro and example, provisions that increase or to ensure that operators prevent con regarding the continued utility of amplify the information that an operator unnecessary or undue degradation of mining law, mineral patenting and must include in a proposed plan of public lands. payment of royalties. Other commenters operations are intended to address The final rule states at § 3809.2 that expressed concern about the proposed unanticipated problems that occur after this subpart applies to all operations rule’s apparent extension of BLM’s BLM has approved a plan of operations, authorized by the mining laws on public surface management jurisdiction to such as dewatering of springs, acid lands where the mineral interest is unclaimed lands. We received seeps and drainages, failure or slumping reserved to the United States, including comments on royalties and taxes, of waste or tailings piles, and so on. Stock Raising Homestead lands as patenting costs, liability and the Some of the regulations adopted today provided in final § 3809.31(c). It also moratorium on processing patent address the recommendations for filling states that this subpart lists the lands to applications. Lastly we received regulatory gaps included in the NRC which the regulations do not apply and comments on recent policy changes and Report. For example, the final rule includes a reference to the patented the new regulations. requires financial guarantees for all mining claims in the California Desert notice- and plan-level operations. See Conservation Area that are subject to the Changes to the Proposal recommendation number 1 (p. 93). regulation. Additionally it describes the The language of this section is a slight Some of the regulations adopted today mineral commodities subject to the revision of the original language are designed to clarify and streamline regulation and those excluded from the contained in the 1980 regulations. We administrative processes. For example, operation of the mining laws by statute. have added a sentence to final

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§ 3809.2(a) to specify that when public planning. Conversely, promulgation of Executive branch. Further, BLM agrees lands are sold or exchanged under 43 subpart 3809 rules is not an appropriate that some of the past practices carried U.S.C. 682(b) (the Small Tracts Act 2), 43 basis for generally restoring all such out under the mining laws have had U.S.C. 869 (the Recreation and Public lands throughout the country to mineral undesirable environmental results. That Purposes Act), 43 U.S.C. 1713 (sales) or entry. BLM believes strongly that site- is the very reason that the regulations 43 U.S.C. 1716 (exchanges), minerals specific conditions need to be factored being published today were developed. reserved to the United States continue into the determination whether to BLM further notes that the flexibility to be segregated from the operation of restore areas currently removed from demonstrated by the mining laws and the mining laws unless a subsequent mineral entry under the mining laws. laws like FLPMA allows BLM to land-use planning decision expressly Such considerations are best addressed incorporate a greater degree of restores the land to mineral entry, and in land-use decisions that will be environmental protection within its BLM publishes a notice to inform the subject to public participation. Thus, own regulations, in addition to any public. We added this sentence to although these rules remove the imposed by other agencies under the clarify that this final rule does not regulatory bars in the former land environmental protection laws. restore land that has been removed from resource management rules which Some commenters praised the 1872 mineral entry under the mining laws prevented public lands with reserved Mining Law for more than 100 years’ because of disposal of the surface by minerals from being restored to mineral service as ‘‘effective,’’ ‘‘fair,’’ ‘‘resilient’’ sale or exchange (that is, non-Federal entry under the mining laws, they allow and perhaps more efficient them most surface over Federal minerals). As such restoration to occur on an area- other Federal programs. Several proposed, subpart 3809 could have had specific basis only after subsequent comments accused the BLM and the this effect because section 209(a) of land-use planning decisions occur, and Secretary of attempting to FLPMA, 43 U.S.C. 1719(a), and BLM’s BLM notifies the public. administratively effect a ‘‘back-door’’ land resource management regulations As a conforming change, we deleted reform or repeal of the mining laws, (43 CFR §§ 2091.2–2(b), 2091.3–2(c), the references to the Small Tracts Act stating that it is not BLM’s job to re- 2201.1–2(d), 2711.5–1, and 2741.7(d)) and the Recreation and Public Purposes write the laws and that job belongs to state that public lands with reserved Act from what was proposed as the Congress. Other commenters noted minerals are closed, segregated, or § 3809.2(b). the legal constraints on the mining laws, removed from the operation of the We have also added a sentence to including the environmental protection mining laws until the Secretary issues final § 3809.2(d) to clarify that the final laws, yet the law continued to regulations addressing such lands. If the regulations do not apply to private land effectively function. 3809 proposed rule has been put in final unless the lands were patented under BLM responds that it is not as proposed, it could have been the Stock Raising Homestead Act or are attempting to effect a ‘‘back-door’’ considered as the issuance of a post-FLPMA mineral patent in the reform of the mining laws. BLM agrees regulations referred to in the land California Desert Conservation Area. with the comment that the reform of the resource management rules, and thus The same sentence states that BLM may mining laws is the job of the Congress could have removed the regulatory collect information about private land and the Administration will continue barriers contained in those regulations. that is near to, or may be affected by, working with the Congress to get We have added a second sentence of operations authorized under this common sense reforms. BLM also agrees section 3809.2(a), however, to prevent subpart for purposes of analysis under with the commenter who noted the legal the issuance of these rules from the National Environmental Policy Act constraints that apply to operations automatically restoring all such lands to of 1969. conducted under the mining laws. In mineral entry under the mining laws, developing these regulations BLM has and maintaining the status quo pending Consistency With the NRC Report been careful to incorporate where future BLM action. The lands will Recommendations appropriate references to the continue to remain removed from Final §§ 3809.1 and 3809.2 are not environmental protection statutes that operation of the mining laws until inconsistent with the NRC Report apply to operations under the mining subsequent land-use planning decisions recommendations because those laws. expressly restore the land to mineral recommendations don’t address the One commenter objected strenuously entry, and BLM publishes a notice to issues of the purposes and scope of to the removal of language contained in inform the public. Because the addition subpart 3809. previous § 3809.0–2. BLM consolidated of this sentence in the final rule makes several sections of the regulations in the Comments and Responses the references to future regulations in interest of clarity and brevity. The BLM’s land resource management rules Commenters asserted that as the 1872 commenter asserts this is an attempt to superfluous, we have removed those Mining Law was written over 100 years divert attention away from the rights references in this rulemaking as ago it is ‘‘out of date,’’ ‘‘anachronistic,’’ granted to the miner under the mining technical conforming changes. ‘‘antiquated,’’ and a ‘‘subsidy.’’ Other laws during the application of the The reason for this change is as comments pointed out that the law was regulations. follows: Keeping lands with reserved written during a period favorable to BLM disagrees with the assertion that minerals removed from mineral entry resource development and that time had the change is intended to divert under the mining laws indefinitely changed, thus the law needed to change. attention away from the miner’s rights. pending the issuance of rules in the The general sentiments expressed by BLM personnel are aware that miners future (as was the status under the these commenters favored outright may have property rights in their former land resource management rules) repeal/reform of the mining law. claims, but generally speaking, their is not a reasoned approach to land-use Repeal or reform of the mining laws rights may be regulated to prevent is not within the jurisdiction of the unnecessary or undue degradation. 2 Although the Small Tracts Act was repealed by agency. While the Administration has Commenters objected to the proposed FLPMA, and therefore new conveyances are not and continues to support reform of the removal of previous § 3809.0–6, which being made, tracts previously conveyed under that Act contain minerals that were reserved to the mining laws, that process must be recognized the declaration of policy in United States. undertaken by the Congress and not the section 102 of FLPMA that the ‘‘public

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

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The purpose of how to manage the public lands. existing Federal/State relationships. the regulations is to prevent BLM also disagrees that FLPMA’s Commenters noted that this provision unnecessary or undue degradation, not multiple use mandate requires mining and the provisions regarding Federal to adjudicate or convey rights under the operations to apply the ‘‘best available and State agreements would effectively mining laws. technology.’’ Once it has been cause the States to change State One commenter stated that subpart determined that an area will be used for programs. 3809 does not properly incorporate mining operations, a certain level of Another commenter added that ‘‘This FLPMA’s requirement of suitability mining-related impacts is inevitable, provision coupled with the proposed analysis, which is the multiple-use and the land will not necessarily be provisions of the Federal/State mandate that governs BLM activities on available for all other uses. relationship (§§ 3809.201 to 3809.204) the public land and regulatory activities. and the proposed performance Section 3809.3 What Rules Must I The commenter stated that FLPMA standards (§ 3809.420) will have a Follow if State Law Conflicts With This requires the BLM to balance competing preemptive effect on State Laws. Subpart? resources to determine what is in the Preemption of State laws is not best interests of the American people. BLM has adopted § 3809.3 as contemplated by FLPMA and will cause To do this, BLM needs to determine the proposed. Final § 3809.3 clarifies a host of problems.’’ Commenters from benefits of a proposed activity and situations where State and Federal laws the State agencies requested that BLM balance that against the impacts on or regulations relating to the conduct of specifically indicate in the regulations other competing activities, including mining operations may conflict. The and the draft EIS where there is conflict water quality, recreation, wildlife final rule provides that if State laws or with specific state laws. Commenters habitat, and so forth. Also, FLPMA has regulations conflict with subpart 3809 also disagreed that the new provision is an eye toward preserving public land regarding operations on public lands, consistent with the decision in the resources for future generations. The the operator must follow the Granite Rock case. One commenter commenter asserted that this mandate requirements of subpart 3809. The rule indicated that any State provision ‘‘that alone suggests that the BLM should do also states that there is no conflict if the is so stringent that it effectively everything it can to protect public land State law or regulation requires a higher precludes mining or substantially values for future generations, such as standard of protection for public lands interferes with mining on the public requiring the most up-to-date than this subpart. The final rule lands is preempted, because it would technology to not minimize, but incorporates the Supreme Court’s ruling run afoul of the provisions of the prevent, undue degradation of the in the Granite Rock case (California Mining Law.’’ public land. Given the concessions that Coastal Commission et al. vs. Granite One commenter asked whether BLM BLM appears to be making to the mining Rock Co., 480 U.S. 572, 581 (1987)) and would enforce the newly enacted industry, according to the commenter, the 1980 final rule preamble position Montana constitutional amendment the agency should require the most up- regarding preemption into the banning cyanide leach processes from to-date, best available technology to regulations (45 FR 78908, Nov. 26, new mining operations, noting that it far control all threats to public land values. 1980). exceeds the BLM standards and the That approach is underlined by There were many general comments Alternative 4 in the draft EIS. FLPMA’s attention to preserving land on State conflicts and preemption. Most Commenters also asserted that the value for future generations. of the comments on this provision were proposed rules’ provisions regarding BLM does not accept the commenter’s concerned about the revisions from the preemption and Federal/State conflict suggestion. BLM uses the land-use previous rule and the negative impacts cannot be reconciled with the NRC planning process under section 202 of on Federal/State relationships. Most of Report recommendations and that the FLPMA to determine the long-term the commenters that expressed concern existing regulatory relationships work management of lands, balance over the proposed regulations urged that and need not be replaced by the BLM competing resource concerns, and BLM not change the previous regulations. One commenter noted that decide if any areas should be withdrawn regulations. Although there were no the requirements of this section ‘‘would (determined unsuitable) from operation specific comments that expressly and take over administration of the programs of the mining laws to protect other specifically supported the proposal, previously handled by the states.’’ resources. Once an area is identified for there were general comments that Final § 3809.3 provides that no withdrawal from the mining laws, a expressed concern that State laws are conflict exists if the State regulation withdrawal is processed under section not strict enough to protect public lands requires a higher level of environmental 204 of FLPMA. The 3809 regulations are and BLM should not abdicate its protection. BLM disagrees that this final applied where the area is open to stewardship responsibilities by rule will significantly affect Federal/ operation of the mining laws, or if deferring to State regulations. Many State relationships or diminish State closed, where there are valid existing commenters expressed concern that this roles as co-regulators. Under the final rights. The regulations are not intended section would create confusion, rule, States may apply their laws to to be a vehicle for suitability especially at sites with mixed public operations on public lands. It is determinations. BLM has added a and private lands. expected that conflicts will not be requirement in the final regulations to Other commenters expressed concern common occurrences. In most cases, the definition of unnecessary or undue that the effect of this section will be to satisfying the State requirements will degradation that protects certain diminish the States’ roles as co- also satisfy BLM’s requirements. significant resources from substantial regulators on Federal lands within their Satisfying the BLM requirements will irreparable harm that cannot be borders. Another commenter stated that also satisfy the State requirements. BLM mitigated if identified during review of ‘‘this one-sided approach to the intends to coordinate with the a specific proposal. However, this does preemption issue would abdicate appropriate State agencies to avoid not replace the need for comprehensive Congress’s direction to BLM to duplication of efforts. A conflict occurs land-use planning or mineral ‘‘encourage development of federal only when it is impossible to comply

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70009 with both Federal and State law at the has not entirely displaced State confusion. The BLM has made no same time. If a conflict were to occur, regulation. A further analysis of the attempt to define terms used in the the operator would have to follow the preemptive effect of these rules appears National Research Council Report requirements of subpart 3809 on public in the preamble to the February 9, 1999 unless specifically related to terms in lands. In this case, the State law or proposed rule at 64 FR 6427. the 3809 regulations and pertinent to regulation is preempted only to the Although most of subpart 3809 should this regulatory effort. extent that it specifically conflicts with not conflict with State laws or FLPMA authorizes the Secretary of Federal law. regulations, one possible specific case the Interior to ‘‘prevent unnecessary or BLM expects to avoid conflicts in part where the regulations may conflict with undue degradation of the public lands.’’ through cooperation with States using State requirements is final BLM believes that this broad authority the agreements under final §§ 3809.200 § 3809.415(d), which requires avoiding provides for performance standards and through 3809.204. In some situations, a substantial irreparable harm to related definitions. Many definitions State may choose to strengthen its significant scientific, cultural, and included in the final rule are derived regulations to be consistent or environmental resource values that directly from FLPMA, CEQ regulations, functionally equivalent to this subpart. cannot be mitigated. For instance, this or long-standing and publicly available BLM disagrees with the comments requirement could address an issue Bureau policy. As such, the BLM that the preemptive effect of the rule which is related to the Secretary’s trust believes the definitions to be consistent violates FLPMA. One purpose of responsibility for impacts to adjoining with Federal law and regulation, and subpart 3809 is to establish a minimum or nearby Native American lands. Some not inconsistent with the level of protection for public lands. This States may not have similar recommendations of the NRC Report. is within the BLM’s authority under requirements. Even such a conflict is There were numerous requests to FLPMA. States may continue to assert expected to be rare as historically most define terms such as ‘‘feasible,’’ jurisdiction over mining operations on resource conflicts have traditionally ‘‘significant,’’ ‘‘necessary,’’ and been mitigated on the public lands. the public lands. As final § 3809.3 ‘‘substantial.’’ BLM has chosen to rely There are also certain situations provides, it is only where a conflict with on established definitions of these where the State law or regulations may these rules exists that State law will be words in order to ensure greatest preempted. This is consistent with the provide a higher standard of protection than subpart 3809, such as the understanding of the terms rather than U.S. Constitution and Federal law. As to introduce a specific regulatory the United States Supreme Court stated: restriction on cyanide leaching-based operations approved by voters in definition. In addition, changes have ‘‘Absent consent or cession a State Montana. In this situation, the State law been made in the language of the undoubtedly retains jurisdiction over federal or regulation will operate on public performance standards and elsewhere in lands within its territory, but Congress the regulations to make these terms equally surely retains the power to enact lands. BLM believes that this is consistent with FLPMA, the mining more clearly understood in the legislation respecting those lands pursuant to regulatory context. the Property Clause [of the Constitution]. laws, and the decision in the Granite And when Congress so acts, the federal Rock case. ‘‘Casual Use’’ legislation necessarily overrides conflicting Final § 3809.3 is not inconsistent with state laws under the Supremacy Clause [of the recommendations of the NRC This final rule defines ‘‘casual use’’ as the Constitution].’’ We agree * * * that the Report, none of which expressly activities ordinarily resulting in no or Property Clause gives Congress plenary addresses preemption of State law. The negligible disturbance of the public power to legislate the use of the federal land report recognized that the overall lands or resources. In paragraph (1) of on which Granite Rock holds its unpatented regulatory structure ‘‘reflects the unique the final definition, we give examples of mining claim. The question in this case, things that we generally consider to fall however, is whether Congress has enacted and overlapping Federal and state responsibilities’’ (p. 90) and also within the definition of ‘‘casual use,’’ legislation respecting this federal land that and in paragraph (2), we give examples would preempt any requirement that Granite addressed the mechanism for protecting Rock obtain a California Coastal Commission valuable resources and sensitive areas of things that we don’t consider to be permit. To answer this question, we follow (p. 68). BLM believes that this ‘‘casual use.’’ Changes to the proposed the pre-emption analysis by which the Court represents an acknowledgment of the rule in response to comments include has been guided on numerous occasions: Department of the Interior’s adding a number of examples of what is ‘‘[S]tate law can be pre-empted in either of responsibilities in regard to FLPMA ‘‘casual use’’ and eliminating the terms two general ways. If Congress evidences an where the States may not have ‘‘hobby or recreational mining’’ and intent to occupy a given field, any state law analogous coverage. ‘‘portable suction dredges.’’ We also falling within that field is pre-empted. * * * made a clarifying change related to If Congress has not entirely displaced state Section 3809.5 How Does BLM Define when the use of motorized vehicles is regulation over the matter in question, state Certain Terms Used in This Subpart? law is still pre-empted to the extent it not ‘‘casual use.’’ These changes are actually conflicts with federal law, that is, In developing the final rule, BLM has discussed below. when it is impossible to comply with both streamlined and clarified language in A commenter felt that the BLM state and federal law, * * *, or where the final §§ 3809.5 (definitions) and should focus more on mining operations state law stands as an obstacle to the 3809.420 (performance standards) to of less than five acres in size instead of accomplishment of the full purposes and address concerns raised by commenters on numerous changes in the definition objectives of Congress.’’ about circular definitions and clarity of of ‘‘casual use.’’ One commenter California Coastal Commission v. regulatory language. Definitions of indicated that BLM needs to revise the Granite Rock Co., 480 U.S. 572, 580–581 several terms have been modified based definition of ‘‘casual use’’ to be (quoting other cases, and omitting on public comment. The concept of consistent with NRC Report citations). Final § 3809.3 and the other appropriate technology has been Recommendations 1, 2, and 3. A few rules cited by the commenter implement retained in final § 3809.420, but the commenters said that BLM should the principle enunciated by the term ‘‘most appropriate technology and assure that the definition of ‘‘casual Supreme Court for situations, such as practice’’ has been dropped from final use’’ is similar to the Forest Service FLPMA, involving areas where Congress §§ 3809.5 and 3809.420 to reduce definition.

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

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70011 the mining laws for recreational mining, spears, and other battery-operated ‘‘Exploration’’ and that it should not be regulated devices for sensing the presence of Although not explicitly requested by under subpart 3809. Others minerals, battery-operated and the public in comments, the BLM has recommended that the term motorized high bankers, hand, battery added a new term, ‘‘exploration,’’ to the ‘‘recreational mining,’’ if used at all, operated, and motorized drywashers, definitions. The final rule embraces the should be defined in BLM’s recreation and motorized gold concentrating concept that exploration activities will management regulations (43 CFR 3840). wheels.’’ be covered under a notice, unless they Several commenters indicated that One individual commented that the exceed five acres unreclaimed surface recreational prospecting is generally definition of ‘‘casual use’’ should be disturbance in a calendar year, and any allowed in most States, and should not modified to state ‘‘Nonprofit mining activities will be covered by a be constrained on BLM-administered organizations or societies, hobbyists, plan of operations. The definition of lands. and recreational miners are classified as Many commenters indicated that ‘‘exploration’’ was included to help casual use as long as they do not use differentiate when an operator should recreational or weekend miners will not motorized tools.’’ Many commenters be able to prospect and extract minerals file a notice and when an operator expressed concern that the new should file a plan of operations and is if they are required to operate under the definition of casual use could eliminate notice rather than the casual use necessary to implement the NRC Report rock hounding. Others made general recommendations. provisions. Several suggested that they statements that the definition is too would not be able to afford the cost of restrictive. Numerous members of the Military Lands filing a notice and obtaining a bond. public felt there should be a provision A few commenters said that BLM Another view, expressed by one for collection of mineral specimens with commenter, identified a concern that needs to define the term, ‘‘military hand tools, hand panning and lands,’’ and clarify to what extent small miners might lack the expertise to motorized sluices. Others commented properly use chemicals or afford a bond. subpart 3809 applies to minerals on that the definition of casual use should military lands that are also under the The public provided a range of include sampling of rocks and soils. perspectives relative to the impacts of jurisdiction of BLM. The BLM concurs with the ‘‘hobby or recreational mining.’’ Many Public Law 106–65 extended the recommendations made by the public to commenters expressed concern about withdrawals for Fort Greely, Alaska; the recreational mining being included in include various types of sampling, and Yukon Range of Fort Wainwright, the category of casual use because it various types of prospecting activities Alaska; Nellis Air Force range, Nevada; allowed for uncontrolled use of public and equipment in the definition of Naval Air Station Fallon Range, Nevada; lands with associated impacts. casual use to clarify its intent that these McGregor Range of Fort Bliss, New Another commenter stated that if types of activities are acceptable under Mexico; and Barry M. Goldwater Range, there are inappropriate impacts to the the definition of casual use as long as Arizona. The mining language in the land by weekend recreational miners, they create no or negligible surface prior Public Law 99–606 withdrawal for stiffer fines are a more appropriate disturbance. The definition has been these ranges was carried forward into response than a broad-scale restriction modified to address this concern. The Public Law 106–65. of land use. One commenter prefers BLM did not however, elect to include Public Law 99–606 provided for land- designations or constraints to be high bankers and other similar use planning on these military ranges. included in the regulations rather than equipment in this definition in order to The BLM has completed land-use plans in the land-use plans. Another felt that address concerns about the surface on all lands addressed by Public Law BLM should identify areas in land-use disturbing impacts of this type of 99–606 except for Bravo-20 Range at the plans where hobby or recreational equipment. Naval Air Station at Fallon, Nevada. No mining could occur. Some commenters A proposed paragraph (2) of the lands were found suitable to open to felt that all recreation and hobby mining ‘‘casual use’’ definition would have entry under the mining or mineral should be casual use. indicated that use of motorized vehicles leasing laws, except at McGregor Range, The BLM recognizes that some in areas designated as closed to ‘‘off- in New Mexico. Public Law 106–66 weekend prospectors and recreational road vehicles’’ (ORV), as defined in 43 calls for the update of these land-use miners may now be required to obtain CFR 8340.0–5 is not ‘‘casual use.’’ plans. No implementing regulations for a notice rather than operate under the Under BLM’s existing ORV regulations, these public laws have been casual use provision. However, it is ORV use may be completely prohibited promulgated to date. The BLM’s intent that all operations which (a ‘‘closed area’’) or restricted at certain responsibilities of the BLM would be cause more than negligible surface times, in certain areas, or to certain outlined at such time as these disturbance should be conducted under vehicular use (a ‘‘limited area’’). We are regulations are developed. concerned that the language of the a notice or a plan to ensure appropriate ‘‘Minimize’’ review of environmental concerns and proposal may be interpreted to mean development of appropriate mitigation. that only motorized vehicle use in According to one commenter, the Numerous members of the public ‘‘closed areas’’ exceeds the ‘‘casual use’’ proposed definitions of ‘‘minimize’’ is stated that the term, ‘‘recreational threshold. In reality, we intended the fundamentally at odds with the NRC mining,’’ should be more clearly defined language to also mean that motorized- Report because NRC assumes mining or deleted. Some commenters felt that vehicle use that conflicts with the use will change the landscape. Other the lack of definition of recreational restrictions in a ‘‘limited area’’ exceeds commenters thought this definition mining will lead to inconsistent the ‘‘casual use’’ threshold. Therefore, should be deleted because it is interpretation of what it includes. we have made a clarifying change to the confusing and is defined differently Many commenters recommended final rule to indicate that use of than the commonly understood meaning changing the definition to include some motorized vehicles in areas when of the word ‘‘minimize.’’ Several version of the following: ‘‘The term designated as closed (either commenters stated that ‘‘minimize’’ is casual use should include the following permanently or temporarily) is not not synonymous with ‘‘eliminate’’ or activities: use of metal detectors, gold ‘‘casual use.’’ ‘‘avoid.’’ The precise meaning of some

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70012 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations terms within the definition—‘‘most’’ mitigation. In the commenter’s opinion, voluntarily choose to mitigate the and ‘‘practical level’’—were unclear to BLM has no authority to require impacts to the riparian area off site. some commenters. Several commenters compensatory mitigation. Several ‘‘Most Appropriate Technology and raised the concern that the second commenters raised the question of when Practices’’ (MATP) sentence in the proposed regulations compensation is appropriate and has significantly reduced the BLM’s whether BLM has the statutory authority The final rule does not contain a flexibility from the current 3809 rules. to require it. Some commenters definition of MATP. A commenter BLM is in agreement with the NRC indicated that the definition of stated that the only statement in the that mining changes the landscape. ‘‘mitigation,’’ which comes from the proposed definition of MATP or in the However, it is the view of the BLM that Council on Environmental Quality explanation of the proposed rule the NRC Report recommendations do definition, should be eliminated regarding cost is that ‘‘MATP would not not preclude appropriate attempts to because in that context it was used for necessarily require the use of the most reduce or avoid impacts to public land analytical purposes rather than expensive technology or practice.’’ The and resources. BLM has modified the regulatory purposes, as in this case. commenter asserted that this statement second sentence of the proposed Some commenters felt that the revised not only fails to address how BLM definition of ‘‘minimize’’ to reduce definition, included in the draft rule, would consider cost, but suggests that confusion and increase flexibility of the gives the BLM too much latitude BLM could require the use of the most authorized officer in evaluating without a standard for comparison. expensive technology or practice for a mine regardless of whether the mine proposed mining operations. Rather Section 302(b) and 303(a) of FLPMA, meets performance standards by using a than stating that ‘‘minimize’’ ‘‘means’’ 43 U.S.C. 1732(b) and 1733(a), and the less expensive technology. The to avoid or eliminate, the final rule mining laws, 30 U.S.C. 22, provide BLM commenter asserted that if BLM claims clarifies that in certain instances ‘‘it is the authority for requiring mitigation. authority to require use of a particular practical’’ to avoid or eliminate Mitigation measures fall squarely within technology under such circumstances, particular impacts. In this context, the actions the Secretary can direct to the proposed rules would clearly violate ‘‘practical’’ is not based on what a prevent undue or unnecessary FLPMA, the general mining laws, and particular company can afford, but degradation of the public lands. An the Mineral Development Act. The rather on technologies and practices impact that can be mitigated, but is not, commenter stated that requiring the use reasonably considered to be cost- is unnecessary. Section 303(a) of effective. of a costly technology that may make FLPMA directs the Secretary to issue mining impossible or uneconomical in By changing the final rule in this regulations with respect to the manner, BLM will still define the term order to achieve minimal or no ‘‘management, use, and protection of the environmental benefits would ignore ‘‘minimize’’ as it is used in a number of public lands * * *’’ In addition 30 the performance standards in final FLPMA’s limit on BLM’s authority only U.S.C. 22, allows the location of mining to prevent ‘‘unnecessary’’ and ‘‘undue’’ § 3809.420 as reducing the adverse claims subject to regulation. Taken impact of an operation to the lowest degradation of public lands, would together, these statutes clearly authorize impair the rights of locators and claims practical level. During BLM’s review of the regulation of environmental impacts proposed operations, either notice or located under the general mining laws of mining through measures such as in violation of 43 U.S.C. 1732(b), and plan-level, BLM might determine that mitigation. The final rule does not avoiding or eliminating specific impacts would contravene Congress’ policy and require compensatory mitigation. intent for BLM to manage public lands can be achieved practically. BLM would However, many companies are currently determine the lowest practical level of in a manner that recognizes the Nation’s voluntarily completing compensatory need for domestic sources of minerals a particular impact on a case-by-case mitigation, and it is clearly an available basis. and to implement the Mining and form of mitigation. Minerals Policy Act of 1970, as set forth ‘‘Mining Claim’’ BLM believes it is appropriate to in 43 U.S.C. 1701(a)(12). The The final definition is unchanged retain the Council on Environmental commenter also stated that the proposed from the proposal. A commenter Quality’s government-wide definition of rules provide no explanation of how suggested that the definition of ‘‘mining ‘‘mitigation’’ as it appears in 40 CFR BLM will reconcile its proposed claimant’’ should be included in this 1508.20. An operator who must authority to impose technology-based subpart, rather than including just a ‘‘mitigate’’ damage to wetlands or requirements with its legal authority cross reference to existing 43 CFR riparian areas under final and obligations under FLPMA. 3833.0–5. The definition should include § 3809.420(b)(3), or who must take BLM disagrees that a statement any citizen or entity in the United appropriate mitigation measures for a included to assure operators they would States. The definition should be similar pit or other disturbance, would have to not have to use the most expensive to the current definition. take mitigation measures, which technology could be interpreted to mean BLM has referenced the definition in includes the measures listed in the they would be required to use the most 43 CFR 3833.0–5 to promote definition. BLM will approach expensive technology or practice consistency in definition of terms across mitigation on a mandatory basis where regardless of whether the mine meets Title 43 of the Code of Federal it can be performed on site, and on a performance standards. The term Regulations. The definition provides for voluntary basis, where mitigation ‘‘MATP’’ has been deleted from the final citizens of the United States to hold (including compensation) can be regulations because BLM concluded it mining claims. performed off site. For example, if, was confusing and circular, and did not because of the location of the ore body, add to the protection provided by the ‘‘Mitigation’’ a riparian area must be disturbed, performance standards. In its place, we The final definition is unchanged mitigation can be required on the public added a requirement to the performance from the proposal. A commenter lands within the area of mining standards that requires operators to use asserted that the term should be deleted operations. If a suitable site for riparian equipment, devices and practices that from the regulation unless BLM can mitigation can’t be found on site, the will meet the performance standards. show specific statutory authority for operator, with BLM’s concurrence, may The purpose of this requirement is not

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The definition adopted today an area of operations subject to these Some commenters stated that the NRC covers all activities under the mining regulations is carried over from the Report indicated that existing State and laws which occur on public lands as original November 26, 1980 rulemaking. Federal laws are okay with respect to casual use or under a notice or a plan That rulemaking, at 45 FR 78903, technology. Others indicated that there or operations, including the hobby addressed similar comments received was no specific statutory authority for activities mentioned by the commenter. on that rulemaking’s definition of requiring most appropriate technology Several commenters opposed ‘‘mining operations’’ and noted, ‘‘One and practices. Still others felt the BLM applying subpart 3809 to unclaimed does not need a mining claim to should abandon the concept of MATP in land, asserting that the proposal prospect for or even mine on favor of best available technology (BAT). improperly treats such lands as having unappropriated Federal lands.’’ BLM is There was considerable agreement from valid claims and would codify the simply carrying forward the older numerous commenters that the industry position. The commenters definition with only minor definition proposed in the draft stated that a decision to allow mining modifications. Nothing about the law or regulations was unclear, confused, on such lands is discretionary and not the regulations has changed, and the difficult to enforce, ambiguous, and based on property rights and that BLM right to use unappropriated Federal circular. Even commenters who liked should make decisions regarding mining lands to engage in reasonably incident the concept of MATP over BAT were operations on unclaimed lands based on uses remains unaffected. critical of the BLM’s definition. A few FLPMA’s multiple-use mandate rather commenters raised a concern about than treating operations on such lands ‘‘Operator’’ whether this definition would be in as equivalent to operations on lands conflict with State law or technical where operators have property rights Several commenters stated that it was standards. under the mining laws. Thus, the beyond BLM’s authority to include in BLM agrees with concerns raised commenters concluded that 43 CFR the definition of ‘‘operator’’ all persons about the term ‘‘most appropriate subpart 2920 should apply, not subpart who own a mining claim or otherwise technology and practices.’’ The term has 3809. Subpart 2920 does not authorize have an interest in a claim. A been deleted from the definitions in the the exclusive and permanent use of commenter felt the definition of final rule. Final § 3809.420(a)(1) public lands. Commenters stated that ‘‘operator,’’ when combined with the incorporates the requirement to use increased costs associated with subpart new provisions for joint and several equipment, devices, and practices that 2920 might result in lower grade ores liability are contrary to NRC Report will meet the performance standards of not being mined. Commenters inquired Recommendation 7, which concerns subpart 3809. whether BLM’s interim directive would promoting clean up of abandoned mine ‘‘Operations’’ be extended when it expired in sites adjacent to new mine areas without September 1999? causing mine operators to incur Several members of the public stated BLM has carefully considered the additional environmental liabilities. that the definition of ‘‘operations’’ needs relationship between FLPMA and rights According to one commenter, the to clarify that FLPMA only gives the under the mining laws. In these proposed definition of ‘‘operator’’ is BLM authority to regulate activities on regulations, BLM has decided that it similar to the approach taken under the Federal public lands. Another will approve plans of operations on Surface Mining Control and commenter indicated that the definition unclaimed land open under the mining Reclamation Act (30 U.S.C. 1201 et needs to include any facility that is used laws if the requirements of subpart 3809 seq.), but there is no authority for this for the beneficiation of ore. One are satisfied, and the other approach in FLPMA. commenter expressed a concern that considerations that attach to a Federal including ‘‘reclamation’’ in the decision, such as Executive Order 13007 We evaluated the proposed definition definition of ‘‘operations’’ might cause on Indian Sacred Sites, are also met. in the context of public comments but confusion. Another commenter asserted This continues the scheme that existed did not change it. The definition of that the definition of ‘‘operations’’ under the previous rules and recognizes ‘‘operator’’ adopted today incorporates a should be defined to include geologic- that in certain situations acreage ‘‘material participation’’ test for based or hobby activities such as rock authorized under the mining laws may determining whether a parent entity or hounding, hobby mining, fossil be insufficient to conduct large-scale an affiliate is an ‘‘operator’’ under this collecting, caving, and other similar operations. subpart. As discussed in the preamble to activities. Other commenters noted the the proposed rule (64 FR 6428), this test In the final rule, BLM did not modify inclusion of unclaimed land within the is in accord with reasoning contained in the definition except to add a reference reach of regulation. They perceived this the Supreme Court decision in the Best to exploration. The definition is as a proposed expansion of the ambit of Foods case. See U.S. v. Best Foods et al., intended to be broad in scope to address the mining laws and were opposed to 118 S. Ct. 1876. The authority for the ‘‘cradle to grave’’ activities authorized any such expansion. definition derives from FLPMA, and under the mining laws on the public BLM disagrees with the commenters’ BLM bases the definition on lands. Therefore, reclamation is interpretation of the mining laws. Lands participation, not affiliation. BLM included in the definition of operations. are open to the right to prospecting and disagrees that the definition of The definition clearly states that it if successful, location of mining claims. ‘‘operator’’ is inconsistent with NRC applies to activities on public lands. The sequence of activity set out in the Report Recommendation 7 because The BLM may request information about text of the law itself (exploration, then subpart 3809 applies to active activities on adjacent or near by private discovery, followed by claim location) operations, not to cleaning up lands because a proposed operation may presupposes that activities will be previously abandoned mines.

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‘‘Project Area’’ ‘‘Public Lands’’ A commenter stated that when BLM restated the definition of ‘‘public lands’’ The final definition is unchanged Many commenters indicated that the draft rule definition of ‘‘public lands’’ in FLPMA, the BLM failed to include from the proposal. Numerous the first paragraph of 43 U.S.C. 1702: commenters stated that there is no legal caused considerable confusion and consternation about BLM’s intent with ‘‘Without altering in any way the basis for the definition as proposed in meaning of the following terms as used the draft rule. According to many regard to private land and State land. Several commenters raised concerns in any other statute, whether or not such commenters, the proposed definition statute is referred to in, or amended by suggests that BLM is attempting to about the applicability of the regulations to the Stock Raising Homestead Act this Act, as used in this Act * * *’’ manage private land and State land. We don’t believe that repeating the lands where the surface is private and Others said that this term needs to be lead-in statement is necessary. It simply the mineral estate is Federal. unambiguously defined to show how it says that if the same terms are used in Others questioned BLM’s authority to will apply to all mineral ownerships. other legislation, that these definitions regulate activities on Stock Raising Commenters felt this to be especially do not alter their meaning in those other Homestead Act lands without the important because they believe statutes. Since the 3809 regulations are consent of the land owner. Others promulgated under FLPMA, it is the enforcement provisions say the mineral indicated that the 1993 amendments to FLPMA definition of public lands that owner is financially liable for the the Stock Raising Homestead Act were applies. actions taken by the operator. Several not cited as an authority in the proposed commenters said the definition should regulations and that the proposed means ‘‘Reclamation’’ apply only to Federal public land. of handling Stock Raising Homestead The final definition of the term Clarification is needed, according to Act lands are not consistent with the more than twenty commenters, on how ‘‘reclamation’’ is unchanged from the 1993 amendments. proposal. Public comments on the BLM intends to deal with adjacent The definition of public lands private lands. definition addressed a variety of included in the final rule replaces the concerns. Several commenters felt that Several commenters who had definition of Federal lands in the the definition of ‘‘reclamation’’ needed concerns about the intent of BLM with existing 3809 regulations. This to retain the concept of ‘‘reasonable regard to private land within a project definition is taken from FLPMA and reclamation’’ from the existing area tied their concerns to the used throughout this subpart for the regulations. Another commenter relationship of joint and several liability sake of consistency. Therefore the indicated the definition was too onerous to the project area and the definition of definition was not modified from the because the terms used were ‘‘operator.’’ proposed to the final rule. ‘‘Public problematic—terms like ‘‘applicable At least one State has raised a concern land,’’ as defined in FLPMA and in this performance standards’’ and ‘‘achieve about the relationship of a project area regulation, means land or interest in conditions required by BLM.’’ Several as defined by the BLM, for regulatory land owned by the United States and commenters sought clarification about purposes, and an area defined by a state administered through the Secretary of the requirement for regrading and for similar purposes, but defined the Interior by the BLM. Public land reshaping to conform to surrounding differently. Others raised concerns that does not mean State land or private landscape. They felt this requirement to mines should not be able to expand land. See final § 3809.2(d) which be open-ended. The requirement to mine waste dumps by using addresses the scope of these regulations. provide for post-mining monitoring, surrounding public land. Under provisions of the Stock Raising maintenance or treatment raised the Homestead Act of 1916 (43 U.S.C. 299), question in a few commenters’ minds In the final rule, BLM has clarified its coal and other minerals were reserved to about whether this implied that intentions relative to the definition of the United States. Individuals were backfilling would be required. Other ‘‘project area’’ in final § 3809.2(d). It is allowed to enter on these private lands commenters did not think an operation BLM’s intent to regulate operations on to locate and develop these mineral should be authorized or allowed if post- public lands managed by the Secretary deposits so long as they did not injure, closure treatment was required. One of the Interior through the BLM. damage or destroy the permanent commenter recommended removal of However, BLM may collect and evaluate improvements of the entry man, and are the words ‘‘placement of a growth information from private lands for the required to compensate the entry man or medium’’ because this is a ‘‘how’’ purpose of analysis under the National patentee for all damage to crops caused standard, not a performance standard. Environmental Policy Act. by the prospecting or development Another member of the public The ‘‘project area’’ concept is used to activities. The inclusion of these Stock expressed the concern that facilitate defining an area of operations Raising Homestead Act lands under the ‘‘reclamation’’ should be defined as for the purpose of analysis and decision- revised 3809 rule does not change the something that is ongoing, not just at the making. This will not preclude an statutory requirements established in end of the project. The definition should individual State from using its own 1916 or in the subsequent 1993 state that the performance standards for means of defining a project area. amendments which clarified reclamation will be deemed as met Differences between BLM and a State requirements for minerals operations on when requirements in the plan of can be worked out through cooperative these lands. It is the intent of the final operations or notice have been met. agreement or other means. Since the rule and BLM’s ongoing rulemaking on Another comment was that the location and management of mine waste Stock Raising Homestead Act lands (43 reclamation definition references 43 is part of the plan of operations and CFR 3814) to provide specific CFR 3814 relative to reclamation associated environmental analysis, these requirements for mineral exploration requirements under the Stock Raising should be considered during the and development of the Federal mineral Homestead Act (SHRA), but these processing of the plan of operations or estate to ensure consistency and equity regulations have not been promulgated. the notice and should be within the for both those conducting prospecting BLM has carefully considered the established project area for a given and development operations on Federal concerns expressed by the public about mine. minerals. the proposed definition, but did not

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70015 change it in the final rule. Reclamation and to take appropriate mitigation ‘‘Unnecessary or Undue Degradation’’ means measures required by BLM in measures, if an operation causes loss of The first three paragraphs of the final this subpart to meet applicable riparian areas or diminishment of their definition of ‘‘unnecessary or undue performance standards and achieve proper functioning condition. This degradation’’ are substantially the same conditions at the conclusion of surface- definition is currently part of the BLM as the February 9, 1999 proposal. BLM disturbing operations. These phrases are Manual (BLM Manual, Dec. 10, 1993). added a fourth paragraph, discussed needed to make it clear that every Commenters felt the definition of below, in response to comments and to performance standard doesn’t apply to ‘‘riparian area’’ should be deleted unless a concern expressed in an NRC Report every operation and that each operation BLM can show specific statutory recommendation. More than seventy will be required to meet site-specific authority for riparian management on commenters from diverse publics felt conditions, some of which will be all lands. The NRC recommended that the proposed definition to be unclear, specified in the closure plan. BLM issue guidance but leave the vague, ambiguous, circular, inflexible, Concurrent reclamation is required in regulation (of wetlands) to the and/or duplicative of existing State and final § 3809.420(a)(5). Reclamation is Environmental Protection Agency (EPA) Federal laws. A similar number of deemed satisfactory on a plan or a or the Corps of Engineers. Further, commenters felt the current definition is notice when it meets the standards commenters stated that BLM does not working well and recommended established in the accepted notice or the have authority over non-jurisdictional retention of the current language and approved plan of operations. wetlands or non-wetlands habitat. The the current ‘‘prudent operator’’ concept. The final rule does not retain the requirement to avoid, minimize, or presumption of backfilling included in Concern was expressed by some provide compensatory mitigation was commenters about new terms that were the draft rule. There is no intent or felt to have major effect on Alaska requirement in the final rule that introduced in the definition that were placer miners. Some commenters also not defined. Many commenters felt that regrading or reshaping means requested that ‘‘proper functioning backfilling. Post-closure monitoring, the proposed definition was moving the condition’’ be defined. BLM from an unnecessary or undue maintenance and treatment will be BLM’s definition of riparian area has addressed at least twice in the life cycle degradation standard provided for in been in use since 1987. BLM’s statutory section 302(b) of FLPMA to a of a mining operation. To the extent authority for protection of riparian areas possible at the time a notice or a plan ‘‘California Desert’’ standard of no is derived from FLPMA. Section 302(b) degradation taken from section 601(f) of of operations is filed, needs for post- and 303(a) of FLPMA, 43 U.S.C. 1732 (b) closure activities should be identified FLPMA. and 1733 (a), and the mining laws, 30 and included in the initial plan or Some commenters noted significant U.S.C. 22, provide BLM the authority for notice. In addition, at the time of mine additional costs the new definition requiring protection of riparian areas. closure, the requirements for subsequent would impose on industry. Others Protection of riparian areas falls management and maintenance of the expressed belief that whether or not a squarely within the actions the site will be evaluated. The more mining company could afford Secretary can direct to prevent information provided by operators at the appropriate environmental protection unnecessary or undue degradation of beginning of the process, the less ‘‘open- measures should not be the determining the public lands. An impact that can be ended’’ the process will be. The factor as to whether those measures are mitigated, but is not, is unnecessary. definition also provides a generic list of required. the components of reclamation. As Section 303(a) directs the Secretary to Several commenters felt that there explained above, the reference to the issue regulations with respect to the should be a specific list of actions or Stock Raising Homestead Act is part of ‘‘management use, and protection of the situations that would constitute another rulemaking that BLM is public lands * * *’’ In addition, 30 unnecessary or undue degradation. One currently working on. The separate U.S.C. 22 allows the location of mining commenter said that BLM should take reference to the SHRA is necessary claims subject to regulation. Taken the dictionary definition of ‘‘undue’’ because that Act has its own definition together, these statutes clearly authorize (inappropriate or unwarranted) and of the term ‘‘reclamation.’’ the regulation of environmental impacts apply that definition to these of mining through measures such as regulations. Many commenters were ‘‘Riparian Area’’ protection of riparian areas. frustrated by the lack of clear language The definition of ‘‘riparian area’’ The final rule is not attempting to giving BLM the authority to deny a plan adopted today identifies riparian areas usurp jurisdiction of either the Corps of of operations or reject a notice. One as a form of wetland transition between Engineers or the EPA relative to commenter stated that any operation permanently saturated wetlands and wetlands. The intent of this subpart is resulting in permanent post-closure upland areas that exhibit vegetation or to provide appropriate environmental water treatment should be deemed characteristics reflective of permanent protection for one of the critical unnecessary or undue degradation. A surface or subsurface water influence. resources on public lands—riparian few commenters supported the The definition gives examples of areas. The policy for protection of inclusion of Best Available Technology riparian areas and excludes ephemeral riparian areas has been in place in BLM and Practice into the concept of undue streams or washes that do not exhibit internal guidance for more than 13 or unnecessary degradation. Many the presence of vegetation depending years. We believe that including this commenters felt the draft regulations upon free water in the soil. Final guidance as part of the rulemaking fell far short of steps that should be § 3809.420 requires an operator to avoid makes the policy more accessible to the taken to prevent undue or unnecessary locating operations in riparian areas, public. degradation of the public lands. Some where possible; minimize unavoidable The final rule does not require commenters felt that the draft impacts; and mitigate damage to compensatory mitigation. However, regulations don’t provide for riparian areas. It also requires an many companies are currently accountability of BLM line managers. operator to return riparian areas to voluntarily completing compensatory Concern was expressed by some proper functioning condition, or at least mitigation, and it is clearly an available commenters that the definition of the condition that pre-dated operations, form of mitigation. ‘‘unnecessary or undue degradation’’

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70016 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations needs to reference the impacts of mining resource concerns. The ‘‘prudent miner’’ As described in the following operations on other resources on and off standard commenters advocate does not discussion, we have also made it clear of the mining property. appear in FLPMA, is unnecessarily in the regulation that BLM can deny a Several commenters preferred that subjective, and need not be retained in proposed mining operation under BLM retain the ‘‘prudent operator’’ the BLM rules. Also, contrary to the certain conditions in order to provide concept, currently incorporated into the commenters’ assertions, BLM derives protection of significant resources. We undue or unnecessary degradation authority for subpart 3809 from the believe the definition included in the standard. Several commenters felt the mining laws and sections of FLPMA final rule is more comprehensive, provision of the prudent operator other than the one sentence referred to straightforward, and easily measured concept for comparison of similar by the commenters. than the prudent operator rule. operations to determine what is A commenter asked why after stating Commenters stated that the BLM’s reasonable and prudent was beneficial that ‘‘Despite the urging of certain proposed unnecessary or undue and valuable. According to other commenters, BLM is not proposing degradation definition, by continuing to commenters, use of the prudent operator additional regulations to implement the reject implementation of the ‘‘undue standard allows the required flexibility ‘‘undue impairment’’ standard of degradation’’ standard of FLPMA, may for the BLM to make reasoned decisions section 601(f) of FLPMA’’ (64 FR 6427), tie the agency’s hands when occasions based on experience and sound BLM then included such regulations in arise when a common-sense application judgement. A few commenters stated the proposal. of the statutory ‘‘undue degradation’’ that narrowing defining unnecessary Contrary to the commenter’s standard would enable the BLM to degradation in terms of ‘‘failure to do’’ assertion, BLM has not added avoid the immense damage to many reduces needed flexibility in real-world regulations specifically to implement valuable resources of the land which a regulatory situations. Some commenters the ‘‘undue impairment’’ standard of gigantic, unreclaimed open pit mine felt the current prudent operator section 601(f) of FLPMA, related would cause in a particular location. standard gives the BLM too much exclusively to the California Desert BLM agrees with this comment and latitude and makes it difficult to hold Conservation Area (CDCA). What was has modified the final rule accordingly. the authorized officer accountable. done in the proposed and final rule is In the final regulations the definition of Other commenters have combined the continue the previous rule’s cross- ‘‘unnecessary or undue degradation’’ concept of the prudent operator, used in reference to the section 601(f) standard has been modified with the addition of the current 3809 regulations, and the in the definition of ‘‘unnecessary or paragraph (4) to address when ‘‘prudent man’’ concept established by undue degradation.’’ BLM will continue degradation is ‘‘undue.’’ The case law developed subsequent to to apply the standard on a case-by-case requirement is that operations not result passage of the 1872 Mining Law. basis, as is currently being done. The in substantial irreparable harm to Comments generally supported the agency continues to believe that such an significant resource values that cannot retention of both concepts. approach will provide the necessary be effectively mitigated. This provision Commenters asserted that FLPMA level of protection for the enumerated must be applied on a site specific basis grants BLM only limited license to resources in the CDCA. and would not necessarily preclude regulate mining on public lands. The BLM has changed the final definition development of a large open pit mine. commenters stated that Congress of the term ‘‘unnecessary or undue With this clarifying change, these realized that mining on public lands, degradation’’ in response to numerous final rules will allow BLM to disapprove which it sanctions expressly in the 1872 comments, and in response to a a proposed plan of operations to protect Mining Law, necessarily causes some discussion in the NRC Report that called significant scientific, cultural, or impacts, and thus did not completely for clarification of BLM’s policy. The environmental resource values on the prohibit all such impacts or empower revised definition of ‘‘unnecessary or public lands from substantial BLM to do so in its stead. Rather, it undue degradation’’ in the final rule irreparable harm that cannot be charged BLM with preventing eliminates the current reference to the mitigated and which would not ‘‘unnecessary or undue degradation’’ of prudent operator standard because the otherwise be prevented by other laws. public lands, which the commenters BLM believes it to be too subjective and The rule accomplishes this by adding a characterize as a decidedly limited vague. Instead the definition defines paragraph (4) to the proposed definition mandate. The commenters stated that ‘‘unnecessary or undue degradation’’ in of ‘‘unnecessary or undue degradation’’ FLPMA does not grant BLM the terms of failure to comply with the to include conditions, practices or authority to prevent all degradation of performance standards of final activities that (a) occur on mining public lands, but only to prevent § 3809.420, the terms and conditions of claims or millsites located after October degradation beyond that which a an approved plan of operations, the 21, 1976 (or on unclaimed lands) and (b) prudent miner causing necessary or operations described in a complete result in substantial irreparable harm to appropriate degradation would cause. notice, and other Federal and State laws significant scientific, cultural, or The commenters concluded that many related to environmental protection and environmental resource values of the of the provisions in the proposal protection of cultural resources. public lands, which cannot be overstep this critical limitation. ‘‘Unnecessary or undue degradation’’ effectively mitigated. An accompanying BLM disagrees with the comments. would also mean activities that are not change is being made in final BLM has not attempted to prevent all ‘‘reasonably incident to prospecting, § 3809.411(c)(3), which will require degradation as the commenters contend. mining, or processing operations as BLM, should it decide to disapprove a Such an effort would not be practical in defined in existing 43 CFR 3715.0–5.’’ plan of operations based on paragraph any reasonable regulatory scheme. Based on public comments about the (4) of the definition of ‘‘unnecessary or However, since ‘‘unnecessary or undue need for BLM to have explicit regulatory undue degradation’’ to include written degradation’’ was not defined in authority to deny a proposed mining findings supported by a record that FLPMA, the agency has the discretion to operation because of the potential for clearly demonstrates each element of define it through a regulatory program irreparable harm to other resources, we paragraph (4). that considers mining technology, have introduced an additional threshold The revised regulation contains reclamation science, and site specific for undue and unnecessary degradation. important limits to assure that BLM will

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These are the same values should use the ‘‘undue’’ degradation The definition of ‘‘unnecessary or Congress intended to protect under portion of Section 302(b) of FLPMA as undue degradation’’ in the previous FLPMA, as described in section the basis for BLM’s authority. regulations focused generally on those 102(a)(8). See 43 U.S.C. 1701(a)(8). BLM agrees with the NRC that the impacts which are necessary to mining, Thus, the subparagraph will not apply extent of BLM’s authority to protect and allowed such impacts to occur unless BLM determines that these valuable environmental resources which (except for the incorporation of other public land resource values are are not adequately protected by other legal standards in the definition). The significant at a particular location. specific laws needs to be clarified in the previous regulations sought to prevent Second, BLM must also determine that definition of ‘‘unnecessary or undue disturbance ‘‘greater than what would mining will cause substantial degradation.’’ In addition to following normally result’’ from a prudent irreparable harm to the resources. A the NRC Report’s suggestion to add operation. The Interior Board of Land small amount of irreparable harm to a protection for valuable ‘‘environmental’’ Appeals (IBLA) has read the regulations portion of the resource will not trigger resources, the final rule will also this way. See Bruce W. Crawford, 86 the protection. The harm must be include protection for ‘‘scientific’’ and IBLA 350, 397 (1985) (the previous substantial. Third, the harm may not be ‘‘cultural’’ resource values on the public regulatory definition ‘‘clearly presumes susceptible of being effectively lands. Scientific and cultural resources the validity of the activity but asserts mitigated. If the harm can be mitigated, are plainly within the ambit of the that [unnecessary or undue degradation] the paragraph will not apply. Fourth, unnecessary or undue degradation results in greater impacts than would be BLM must document, in written standard. FLPMA itself recognizes necessary if it were prudently findings based on the record, that all of protection of cultural and scientific accomplished’’); see also United States the elements of the definition have resources as an important component of v. Peterson, 125 IBLA 72 (1993); clearly been met. These findings, and public land management. See, e.g. 43 Kendall’s Concerned Area Residents, BLM’s conclusion, will be reviewable U.S.C. 1702(a) and (c). BLM has 129 IBLA 130, 140 (1994). While BLM upon appeal. In addition, subparagraph concluded that the clarification should could have adopted (and indeed might (4) will apply only to operations on appropriately appear in regulatory text, have been obliged to adopt) more mining claims or millsites located after in addition to guidance manuals as the stringent rules in order to ensure the enactment of the undue degradation NRC suggests, to better inform the prevention of ‘‘undue degradation,’’ it standard in FLPMA (or on unclaimed regulated industry and the public. previously chose to circumscribe only FLPMA section 302(b) requires that lands, if any, on which an operator harm outside the range of degradation the Secretary, by regulation or proposes to conduct operations). caused by the customary and proficient otherwise, take whatever action is operator utilizing reasonable mitigation This revision was generated in part by necessary to prevent ‘‘unnecessary or measures. a concern expressed in the NRC Report undue’’ degradation of the public lands. As commenters pointed out, however, (p. 7). The NRC panel examined the The conjunction ‘‘or’’ between the focus on impacts that are necessary adequacy of existing laws to protect ‘‘unnecessary’’ and ‘‘undue’’ speaks of a to mining does not adequately address lands from mining impacts, and Secretarial authority to address separate the ‘‘undue’’ degradation Congress was observed that the variety of existing types of degradation—that which is concerned about in FLPMA section environmental protection laws ‘‘unnecessary’’ and that which is 302(b), and does not account for governing mining operations ‘‘undue.’’ That the statutory conjunction irreparable impacts on significant may not adequately protect all the valuable is ‘‘or’’ instead of ‘‘and’’ strongly environmental and related resources of environmental resources that might exist at a suggests Congress was empowering the the public lands that cannot be particular location proposed for mining Secretary to prohibit activities or effectively mitigated. development. Examples of resources that practices that the Secretary finds are Thus, the BLM has concluded that may not be adequately protected include unduly degrading, even though degradation of, in the words of the NRC springs, seeps, riparian habitat, ephemeral ‘‘necessary’’ to mining. Commentators Report, those ‘‘resources [that] need to streams, and certain types of wildlife. In such agree that the ‘‘undue degradation’’ be protected from all impacts,’’ is cases, the BLM must rely on its general standard gives BLM the authority to appropriately considered ‘‘undue’’ authority under FLPMA and the 3809 impose restrictive standards in degradation. Clarifying that the regulations to prevent ‘‘unnecessary or undue particularly sensitive areas, ‘‘even if definition specifically addresses degradation.’’ Because the regulatory such standards were not achievable situations of ‘‘undue’’ as well as definition of ‘‘unnecessary or undue’’ at through the use of existing technology.’’ ‘‘unnecessary’’ degradation will more 3809.0–5(k) does not explicitly provide Graf, Application of Takings Law to the completely and faithfully implement the authority to protect such valuable resources, Regulation of Unpatented Mining statutory standard, by protecting some of the BLM staff appear to be uncertain Claims, 24 Ecology L.Q. 57, 108 (1997); significant resource values of the public whether they can require such protection in see also Mansfield, On the Cusp of plans of operation and permits. Some lands without presuming that impacts resources need to be protected from all Property Rights: Lessons from Public necessary to mining must be allowed to impacts, while other resources may Land Law, 18 Ecology L.Q. 43, 83 occur. withstand other impacts with associated (1991). Further support for that BLM recognizes that the ‘‘unnecessary mitigation. BLM should clarify for its staff the interpretation is found in the fact that, or undue degradation’’ standard does extent of its present authority to protect in the 105th Congress, a mining not by itself give BLM authority to resources not protected by specific laws, such industry-supported bill introduced in prohibit mining altogether on all public as the Endangered Species Act. the Senate would have, among other lands, because Congress clearly

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We received the Nation’s need for domestic sources degradation portion of the definition of several comments asking us to revise the of minerals * * * including ‘‘unnecessary or undue degradation’’ table in proposed § 3809.11 to avoid implementation of the Mining and adopted today. duplicating or summarizing the Minerals Policy Act of 1970 * * * as it definitions in 3809.5 and to eliminate 3 pertains to the public lands ); 43 U.S.C. Section 3809.10—How Does BLM ambiguity. Commenters also stated they 1702(c) (the multiple uses for which the Classify Operations? found the table was difficult to follow. public lands should be managed include The table in proposed § 3809.11 has ‘‘minerals’’). Therefore, ‘‘undue Final § 3809.10 classifies operations in three categories: casual use, notice- been eliminated from the final rule. The degradation’’ under section 302(b) must information formerly contained in that level, and plan-level. For casual use, an encompass something greater than a table has been reorganized and edited, modicum of harmful impact from a use operator need not notify BLM before and, now appears under final of public lands that Congress intended initiating operations. For notice-level, §§ 3809.11, 3809.21 and 3809.31. to allow. See Sierra Club v. Clark, 774 an operation must submit a notice to As indicated under final § 3809.11(a), F.2d 1406, 1410 (9th Cir. 1985). The BLM before beginning operations, a plan of operations will be required for question is not whether a proposed except for certain suction-dredging all operations greater than casual use, operation causes any degradation or operations covered by final § 3809.31(b). including mining and milling, except as harmful impacts, but rather, how much For plan-level, an operator must submit described under final §§ 3809.21 and and of what character in this specific a plan of operations and obtain BLM’s 3809.31 location. The definition adopted today approval before beginning operations. will allow BLM to address these Consistency With NRC Report concerns. The word ‘‘generally’’ was deleted in Recommendation 2 A number of commenters mentioned final § 3809.10(a) to reflect the fact that NRC Report Recommendation 2 a recent legal opinion by the Interior casual use on public lands does not provides: ‘‘Plans of operation should be Department Solicitor that addressed the require notification to BLM. We deleted required for mining and milling standards for approving plans of the language in proposed § 3809.11(a) operations, other than those classified as operation in the California Desert from the final rule and moved the casual use or exploration activities, even Conservation Area (CDCA). Regulation requirement to perform reclamation for if the area disturbed is less than 5 of Hardrock Mining (December 27, casual use disturbance to final acres.’’ NRC Report p. 95. The intent of 1999). That opinion focused on the § 3809.10(a) for clarity. See final Recommendation 2 is to require BLM ‘‘undue impairment’’ standard set forth § 3809.31(a) and (b) for certain specific plan approval for all mining and milling in 43 U.S.C. 1781(f), which applies only situations requiring persons proposing activities, while allowing exploration to in the CDCA. Under FLPMA section certain activities to notify BLM in occur under notices and allowing casual 601(f), BLM can prevent activities that advance. use to occur without notices or plans. cause undue impairment to the scenic, Two commenters pointed out that BLM has adopted the system the NRC scientific, and environmental values or Report recommends. Mining and proposed § 3809.11(a) required casual cause pollution of streams and waters of processing require BLM plan approval; use disturbance to be ‘‘reclaimed,’’ and the CDCA, separate and apart from casual use can proceed without a notice wanted to know which reclamation BLM’s authority to prevent unnecessary or plan; generally exploration activities or undue degradation. The IBLA has standards apply. We changed the disturbing less than five acres may agreed that BLM’s obligation to protect requirement in final § 3809.10(a) to proceed under a notice, with certain the three enumerated CDCA values from include the word ‘‘reclamation,’’ which exceptions. The exceptions include ‘‘undue impairment’’ supplements the is defined under § 3809.5, rather than those contained in the previous 3809 unnecessary or undue degradation continue to use the phrase ‘‘you must rules, plus a few others. Previous standard for CDCA lands. See Eric L. reclaim’’ that appeared under proposed exceptions included: Price, James C. Thomas, 116 IBLA 210, § 3809.11(a). The applicable standards (1) Lands in the California Desert 218–219 (1990). Thus, BLM decisions depend on the nature of the disturbance Conservation Area (CDCA) designated with respect to development proposals and may be found in final § 3809.420. by the CDCA plan as ‘‘controlled’’ or in the CDCA are governed by both the Wording was added to final § 3809.10(a) ‘‘limited’’ use areas; ‘‘undue impairment’’ standard of to clarify that if operations do not (2) Areas in the National Wild and subsection 601(f) and the ‘‘unnecessary qualify as casual use, a notice or plan of Scenic Rivers System, and areas or undue degradation’’ standard of operations is required, whichever is designated for potential addition to the section 302(b), as implemented by the applicable. A commenter was concerned system; subpart 3809 regulations. (3) Designated Areas of Critical Although BLM’s mandate to protect about a portion of proposed § 3809.11(a) that would have alerted the public to Environmental Concern; the ‘‘scenic, scientific, and (4) Areas designated as part of the BLM’s intent to monitor casual use environmental values’’ of lands within National Wilderness Preservation the CDCA from undue impairment is activities. The commenter indicated that System and administered by BLM; distinct from and stronger than the with no notification requirements, it is (5) Areas designated as ‘‘closed’’ to prudent operator standard applied by not clear how BLM would monitor off-road vehicle use, as defined in casual use operations. While BLM § 8340.0–5 of this title; 3 The Mining and Mineral Policy Act, 84 Stat. intends to monitor casual use operations (6) Lands in the King Range 1876, 30 U.S.C. 23a, expresses United States policy in the course of our normal duties, we as encouraging the development of domestic Conservation Area. minerals in an efficient, wise, and environmentally agree with the comment and did not The final rule would add the sound way. include it in the final rule. following new exceptions:

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(1) National Monuments and any notice rather than a plan A mining association commented that other National Conservation Areas (Recommendation 3), is ‘‘to allow mining or milling operations, which administered by BLM; exploration activities to be conducted will cause a significant impact, even if (2) Any lands or waters known to quickly when minimal degradation is related to 5 acres or less, shouldn’t be contain Federally proposed or listed likely to occur.’’ NRC Report, p. 98 required to submit a plan of operations threatened or endangered species or (emphasis added). Adding areas to the for approval. BLM would be their proposed or designated critical category that require plans is just inconsistent with the NRC Report habitat; and modifying BLM’s judgment as to when recommendation if it were to adopt the (3) Bulk sampling over 1,000 tons. minimal degradation is likely to occur. alternative suggested in this comment. A proposed exception not adopted Thus, inclusion of the previous In light of this and the decision to adopt would have been for activities in all exceptions where exploration requires the NRC Report recommendation, the areas segregated in anticipation of a plans of operations, and the new suggested change has not been made. mineral withdrawal and all withdrawn exception for additional sensitive areas, A commenter felt that the NRC did areas. including National Monuments, not evaluate the adverse impact that Commenters asserted that NRC Report National Conservation Areas, and areas NRC Report Recommendation 2 would Recommendation 2 does not provide for containing Federally listed or proposed have on the vast majority of miners who exceptions, and to be consistent with threatened or endangered species or have complied with existing that recommendation, the final rule their proposed or designated critical must provide that all exploration regulations. Another commenter did not habitat, are not inconsistent with the activities on less than 5 acres be allowed support the recommendation because it NRC Report Recommendation 2. to proceed under notices. would automatically exclude some BLM disagrees with the comment. In particular, the addition of BLM- operations under a notice that would BLM believes that NRC intended that administered National Conservation not have a significant impact on the exceptions for sensitive areas continue. Areas and National Monuments are environment. Several commenters felt The NRC was aware of the previous logical extensions of the sensitive-area that BLM should adopt the NRC Report exceptions for sensitive areas,4 and it exceptions to the previous rules. The recommendation that exploration be did not question BLM’s authority or addition of National Conservation Areas allowed under notices, while mining wisdom in carving out certain areas to administered by BLM is a logical requires plan of operations, but should require plans even for exploration (more extension of the exception for the King leave further details to agency guidance. than casual use). It did not state the Range Conservation Area, which was They felt that the criteria for previous exceptions should be the only conservation area BLM distinguishing between ‘‘exploration’’ eliminated, and did not address whether administered when the previous rules and ‘‘mining,’’ may vary from state to BLM should include further exceptions were adopted. Similarly, in 1981, BLM state. One commenter suggested that to account for additional sensitive areas did not administer any National BLM not require all mining operations and resources. Monuments, but now we do, and their to be conducted under plans of The NRC Report did state ‘‘mine inclusion is also appropriate. operations, retaining the notice level for development, extraction, and mineral The bulk sampling exception in the placer and lode mines that do not use processing require considerable final rule also is not inconsistent with toxic chemicals or create acid-rock engineering design and construction the NRC Report Recommendation 2 drainage. One mining industry activities, whereas, apart from the because of the statement in the NRC commenter felt it unnecessary to require design of roads to minimize erosion and Report discussion of Recommendation 2 plans of operations for mining in light impact on sensitive areas, exploration that ‘‘a plan of operations should of the proposed financial assurance requires little, if any, engineering and generally be required for activities requirements for notices. Another construction (emphasis added).’’ NRC involving bulk sampling.’’ NRC Report, commenter proposed that any activity Report, p. 95. The reference to ‘‘impacts p. 96. requiring construction equipment or on sensitive areas,’’ when discussing The proposed exception that would engineering design should need a plan exploration, without a statement that have required plan approval in advance of operations in light of the NRC Report. BLM should drop previous exceptions of exploration activities in segregated Mechanized drilling equipment, off- for such areas, supports the inference and withdrawn areas, without some highway vehicles and bulldozers should that the NRC endorsed exceptions for kind of indication that such areas are also require a plan of operations. These sensitive areas. sensitive, has not been adopted so as not comments were not accepted because Moreover, the NRC Report states that to be inconsistent with NRC Report they are inconsistent with NRC Report its objective, in urging the Forest Recommendation 2. Recommendation 2 and because Service to allow exploration on less Many commenters felt that, to be requiring BLM approval for all mining than five acres under something like a consistent with the NRC Report, any will help assure the prevention of mining disturbance greater than casual unnecessary or undue degradation. 4 The Sidebar 1–3 on p. 20 of the NRC Report use should require a plan of operations. Several commenters asserted that the describes the various categories of mining activities As discussed above, these comments lowering of the threshold for notices or on BLM lands, including casual use, notice level were adopted in the final rule. operations, and plans of operation. Although the plans of operations seems to be in description of notice level operations does not Many other commenters wrote that conflict with the 1970 Mining and mention special areas, the description of plans of the current casual use/notice/plan Mineral Policy Act and the 1980 operations specifically states that a plan of threshold is adequate and should be National Materials and Minerals Policy operations is required when an operator disturbs more than 5 acres a year ‘‘or when an operator plans retained. They believe the threshold Research and Development Acts. BLM to work in an area of critical environmental concern protects the environment and reduces disagrees with the comment. We believe or a wildneress area.’’ Thus, although it did not costs of exploration for operators. These we have balanced the mandate of enumerate each exception, the NRC expressly comments were not adopted. Retaining FLPMA to prevent unnecessary or recognized the BLM although it did not enumerate each exception, the NRC expressly recognized the the above-described threshold would be undue degradation of the public lands BLM system of requiring plan approval for inconsistent with NRC Report with the above-mentioned mineral operation in sensitive areas. Recommendation 2. policy acts that promote

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

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

VerDate 112000 18:27 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm11 PsN: 21NOR2 70022 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations proposed operation would cause Forest lands. One commenter felt that creating uncertainty as to which ‘‘significant disturbance of surface adoption of the Forest Service operations it would apply, and as resources.’’ BLM believes that to alternative would be less confusing in having significant potential for effectively prevent unnecessary or those mineralized areas that occur on disagreement between the operator and undue degradation of the public lands, both BLM lands and National Forests. BLM over whether a planned operation the agency should review and approve One commenter compared the Forest would create significant disturbance. all proposed mining operations, Service alternative favorably to Some commenters felt that the including conducting reviews under the proposed § 3809.11 (Alternative 1) due significant disturbance standard goes National Environmental Policy Act. In to a perception that the Forest Service beyond FLPMA’s statutory directive to addition, a significant disturbance alternative would provide greater prevent unnecessary or undue standard is subjective and open to protection to non-special status areas, degradation. Several commenters who varying degrees of interpretation. That that is, those areas not listed in identified themselves as exploration is, what constitutes significant proposed § 3809.11(j). One commenter geologists believed that adoption of the disturbance in the opinion of one BLM indicated we did not provide a Forest Service alternative would result field office may not in the opinion of meaningful basis for reasoned comment in elimination of the use of notices for another. This subjectivity might unfairly on this issue. Finally, a commenter small exploration operations. If so, the result in an operation under the perceived an advantage in the Forest commenters felt that their business jurisdiction of one BLM field office Service alternative because it places the would be adversely affected. Another needing only to file a notice while a burden of deciding whether a notice or commenter felt that elimination of similar operation under the jurisdiction plan is needed on the government as notices for placer mining in Alaska of another office having to obtain opposed to the operator. would create a hardship for small approval for a plan of operations. In As discussed above, BLM believes miners who would not be able to meet contrast, the notice/plan threshold BLM that Congress has precluded the agency the requirements for filing a proposed is adopting, which is based on the type from adopting the Forest Service plan of operations. Other commenters of operation, that is, exploration versus alternative. Nevertheless, while opposed the Forest Service alternative mining, allows far less room for adopting the Forest Service alternative because they felt it would consume interpretation and variance, and would provide a consistent approach on more of BLM’s already thinly spread presumably fewer inequitable outcomes. paper, as discussed above, there is no resources potentially causing A principal reason for not adopting assurance of consistency in application. administrative delays and increase costs the Forest Service alternative is to BLM lands and National Forest lands due to NEPA compliance requirements. conform to the mandate of Congress. As are managed under different authorities- described earlier in this preamble, FLPMA for BLM and the National Forest Section 3809.21 When Do I Have To Congress has directed BLM to issue final Management Act (16 U.S.C. 1600) for Submit a Notice? 3809 rules that are not inconsistent with the National Forests. Thus, the level of Final § 3809.21 is a new section, the recommendations of the NRC protection afforded BLM lands may not which incorporates changes from Report. The Forest Service alternative be the same as that afforded National proposed § 3809.11(b). Final significantly differs from the NRC Forest lands. The final rule allows for an § 3809.21(a) requires that an operator Report recommendation that BLM appropriate degree of variance in submit a complete notice at least 15 require a plan of operations for all protection based on the specific calendar days before commencing mining and for all exploration resources in any given location. BLM exploration disturbing the surface of 5 operations disturbing more than five agrees with the comment that having the acres or less of public lands on which acres. The NRC Report bases the notice/ same regulations as the Forest Service reclamation has not been completed. plan threshold on the type of operation, could, in certain circumstances, reduce The 5-acre threshold for notices has while the Forest Service alternative confusion, but believe that this benefit been retained for exploration operations bases the threshold on a subjective may be offset by the potential harm in most instances. See final § 3809.21(a) judgment of the level of anticipated inherent in uneven application of the and the preamble discussion under disturbance. Under the Forest Service significant disturbance standard. While § 3809.11(a) for information on how we alternative, a mining operation that, in BLM agrees that the Forest Service are implementing NRC Report the judgment of the BLM field manager, alternative, depending on how Recommendation 2. We received many would not cause ‘‘significant ‘‘significant disturbance’’ is interpreted, comments indicating that small disturbance of surface resources’’ could might provide a greater level of operators count on the 5-acre exclusion proceed under a notice. Since this result protection to non-special areas than for rapid yet responsible evaluation of a could not occur under the NRC- Alternative 1, the final rule BLM is large number of projects to make its recommended threshold, the Forest adopting is more protective than either discovery. They point out that such Service alternative is not consistent alternative. Finally, the regulatory operators may not have the finances for with the NRC Report recommendation. approach BLM is adopting in this final lengthy permit procedures and time We believe Congress has limited our rule eliminates much of the uncertainty delays, as does a major mining discretion here. about whether an operation should company. Without the 5 acre threshold, Comments on the Forest Service submit a notice or obtain approval of a they feel that future exploration would alternative ran about four to one against proposed plan of operations. Under the be done almost exclusively by the its adoption. Some commenters who final rule, all mining operations and all largest of the mining companies. supported the Forest Service alternative exploration operations disturbing more Two comments were received asking did so because they believed it would than five acres must obtain approval of us to define ‘‘unreclaimed’’ as used in provide a consistent approach to a proposed plan of operations. proposed § 3809.11(b) and proposed Federal agency administration of the Comments opposing the Forest § 3809.11(c). Other commenters mining laws. Other commenters Service alternative included those indicated that BLM should not regard asserted that the surface resources on which considered the significant the notice threshold as ‘‘unreclaimed the BLM public lands deserve the same disturbance standard to be too vague, surface disturbance of 5 acres or less.’’ level of protection as do the National too open to varying interpretations, as The term ‘‘unreclaimed surface

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70023 disturbance of 5 acres or less’’ has been Section 3809.31 Are There Any the various issues raised by the changed in § 3809.21(a) in order to Special Situations That Affect What commenters in response to proposed clarify the requirement. By specifying Submittals I Must Make Before I § 3809.11(e), BLM has decided that our ‘‘public lands on which reclamation has Conduct Operations? regulatory framework will ultimately be not been completed,’’ we intend to Final § 3809.31 is derived from more effective in preventing incorporate the definition of the term proposed § 3809.11 (Alternative 1). unnecessary or undue degradation if we ‘‘reclamation’’ in final § 3809.5. This Final § 3809.31(a) is based on proposed focus not on the purpose of the means reclamation must meet § 3809.11(e), which would have activities occurring on public lands, the applicable performance standards required the representative of any types of groups involved, and the outlined in final § 3809.420, and such group, such as a mining club, that is definitions of ‘‘casual use’’ and ‘‘recreational mining,’’ but rather on the reclamation must be accepted by BLM involved in any recreational mining impacts associated with the activities before release of an applicable financial activities to contact BLM at least 15 carried out under the mining laws on guarantee. Once reclamation has been days before initiating any activities. The completed to these standards, BLM public lands. purpose of the contact would have been To that end, we are adopting a believes such lands may be treated as if to allow BLM to determine whether to never disturbed when considered in regulation that avoids trying to discern require the group to file a notice or a the motivations of people who go upon determining acreage for submittal of a plan of operations. notice. the public lands (that is, commercial The language in proposed § 3809.11(e) motive versus recreational motive), One commenter asked us to clarify has been deleted from the final rule. We treats all individuals and groups in a under proposed § 3809.11(b) how an received many comments from rock similar manner (imposes no special operator is responsible to reclaim collectors and clubs indicating the requirements solely on mining clubs), previous disturbance by another proposed rule was vague regarding and allows weekend miners and others operator. As with proposed § 3809.11(b) when a notice or plan of operations who cause no or negligible disturbance and (c), and the final rule, the operator would be required for recreational to continue their customary activities, is liable for prior reclamation mining activities by a group. Other while at the same time giving BLM a obligations in a project area if commenters strongly felt that way to regulate the cumulative effects of conditions described under final recreational- and mineral collecting ‘‘casual use’’ activities. BLM field § 3809.116 are met. If an operator groups should not be singled out and managers know which areas under their believes that BLM should not hold it have to submit a notice or a plan of jurisdiction are popular with the general responsible for past reclamation operations. They indicated that it is an public for small-scale panning, washing, obligations, he/she should contact BLM unreasonable requirement and, in some prospecting, rock collecting, and other before causing additional surface cases, mineral-collecting groups could mining-related activities. In some cases, disturbance to determine if BLM is not afford the financial guarantees, such as when dozens or hundreds of taking any action against previous which they felt are unnecessary for ‘‘rock hounds’’ gather for a weekend operators or mining claimants at the those who use hand tools. outing, activities that if carried out disturbed site. Final § 3809.31(a) differs from the individually would be ‘‘casual use’’ can proposal in response to comments. cause a much greater level of Many commenters urged BLM to Under the final rule, the BLM State revise proposed § 3809.11(b) to retain disturbance. The final rule gives the Director may establish specific areas BLM manager a way to sensibly regulate the existing requirement for BLM to act where the cumulative effects of casual activities based on existing or within 15 calendar days. They pointed use by individuals or groups have anticipated impacts to the public lands. out that extending the review period to resulted in, or are reasonably expected Final § 3809.31(b) incorporates 15 business days would delay to result in, more than negligible changes to the language appearing exploration activities. They felt that disturbance. In these areas, any under proposed § 3809.11(h) addressing operators need flexibility and speed for individual or group intending to the use of suction dredges. The notice-level exploration projects, and conduct activities under the mining reference in proposed § 3809.11(h) to an that timing of exploration activities is laws must contact BLM 15 calendar ‘‘intake diameter of 4 inches or less’’ often critical. They wanted us to days before beginning activities. BLM was deleted from the rule. We retained streamline the processing of notices as would use the 15-day period to language that relies on State regulation. much as possible and avoid delays. determine whether the individual or When the State requires an They felt streamlining the process group must submit a notice or plan of authorization for the use of suction would be consistent with the NRC operations. BLM will notify the public dredges and the BLM and the State have Report. Other commenters asked us to of the boundaries of these specific areas an agreement under final § 3809.200 clarify what is meant by ‘‘business through Federal Register notices and addressing suction dredging, we will days’’ since government business days postings in local BLM offices. not require a notice or plan of do not coincide with industry business As discussed earlier in the preamble operations unless otherwise required by days. Two commenters felt the 15- discussion of the definition of ‘‘casual this section. In addition, clarifying business-day review period in proposed use,’’ BLM received many comments on language and cross-references were rule given the BLM to review notices is whether, and if so, how to regulate added under final § 3809.31(b)(1) and too short to ensure adequate recreational mining activities; whether (2). See also the preamble discussion of investigation by the agency. Thirty days recreational mining should be § 3809.201(b). was suggested. We changed the final considered casual use; how to handle Due to public comment and the rule to use calendar days rather than casual use activities that cumulatively recommendations in the NRC Report, business days. We did this in light of cause adverse impacts; and what the proposed rule was modified to the NRC Report recommendations, in activities are encompassed by the term remove the four inch or less diameter order to minimize impacts on ‘‘recreational mining activities.’’ After intake on suction dredges and to allow exploration activities and small carefully considering the public some small portable suction dredges to operators, and public comments. comments and the interrelationships of qualify on a case-by-case basis as

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‘‘casual use.’’ This is consistent with the threshold was determined by BLM. One commenter stated that such discussion in the NRC Report. With the Many commenters felt that BLM should activities are properly managed under removal of the reference to the four inch adopt State requirements, including state or local authority. Another diameter, final § 3809.31(b)(1) reads, ‘‘If intake size, and not be more stringent commenter felt that if the proposed rule your operations involve the use of a than the State. One commenter believed is finalized, the proposed alternative suction dredge, the State requires an the proposed rule required a notice or that would ‘‘allow an operator to use authorization for its use, and BLM and plan of operations for any dredging any suction dredge if it was regulated by the State have an agreement under activity, regardless of how insignificant. the State and the State and BLM have § 3809.200 addressing suction dredging, Another commenter suggested replacing an agreement to that effect’’ should be then you need not submit to BLM a the 4″ nozzle threshold with language adopted as the least burdensome notice or plan of operations, unless that identifies surface-disturbing alternative. otherwise provided in the agreement activities as the threshold for notice The NRC Report stated that ‘‘BLM and between BLM and the State.’’ It will take level use. Two commenters believed the Forest Service are appropriately some time for BLM and individual that high value fish and wildlife habitats regulating these small suction dredging States to create new agreements that could be adversely impacted with a 4″ operations under current regulations as address suction dredging. In the period suction dredge intake. One commenter casual use or as causing no significant between the effective date of this final recommended that standards be impact, respectively.’’ Although the rule and a Federal/State agreement required for suction dredging IBLA has ruled on this issue on a addressing suction dredging, those concerning cumulative impacts and number of occasions (See Pierre J. Ott, persons wishing to conduct operations stream status. A commenter stated that 125 IBLA 250, and Lloyd L. Jones, 125 involving suction dredging must contact BLM should consider a broader range of IBLA 94.), BLM concludes it is justified BLM first, as provided in final values that could be impacted when in allowing some small portable suction § 3809.31(b)(2), outlined below. assessing whether to regulate portable dredges to qualify as casual use, BLM has considered technical suction dredges under 4 inches in depending on the level of impacts.5 information, such as studies about its diameter. The commenter felt that Given the discussion in the NRC Report impact on water quality in evaluating suction dredge operators should, at a that endorses the way BLM currently impacts of suction dredging. Suction minimum, be required to obtain an regulates suction dredging, we believe dredge operations may affect benthic individual National Pollution Discharge that the NRC did not intend in its (bottom dwelling) invertebrates; fish; Elimination System (NPDES) permit. Recommendation 2 to require plans of fish eggs and fry; other aquatic plant Another commenter wanted to avoid the operations for suction dredging and animal species; channel contradiction that small suction dredges operations. morphology, which includes the bed, are not considered casual use yet do not The final rule will allow most bank, channel and flow of rivers; water follow requirements for notices or plans suction-dredging operations to be quality and quantity; and riparian of operations. The commenter felt that regulated by State regulatory agencies so habitat adjacent to streams and rivers. BLM should define small dredges as long as they have a permitting program Because of the potential for impacts to recreational or casual use and not that is the subject of an agreement with these resources, final § 3809.31(b)(2) require bonding or notices unless the BLM under final § 3809.200. In the requires the public, before using a operators have a record of causing absence of State agreements, BLM will suction dredge, to contact BLM to problems or non-compliance. evaluate the expected impacts from determine whether the proposed user A mining association commented that suction dredges on a case-by-case basis. must submit to BLM a notice pursuant it didn’t believe the NRC wanted small- If such impacts will be negligible, the to final § 3809.21 or a plan of operations scale dredging operations, those that use proposed suction dredging operations pursuant to final §§ 3809.400 through a nozzle size of 8 inches or less, to be would qualify as casual use. We find 3809.434, or whether their activities are categorized as a mining operation. In that final § 3809.31(b) is not considered ‘‘casual use.’’. addition, the commenter felt that very inconsistent with Recommendation 2 of Final § 3809.31(b) reflects small industrial mineral mines or placer the NRC Report. commenters’ concerns over the size of operations (other than the small dredges A commenter stated that since suction intake diameter as well as requests to discussed above) that use only simple dredging takes place in rivers and use State standards. It will be sorting methods should not streams, and not on the land, it should advantageous to State agencies, BLM automatically be required to submit a be under State authority and regulation, and suction dredge operators for an plan of operations. Such not BLM regulation. A few other agreement addressing suction dredges to determinations, they believe, should be commenters also raised the question of be reached between the State and BLM made on a case-by-case basis. BLM’s jurisdiction over mining where the State already regulates In the final rule, BLM has provided activities in navigable rivers and suction dredging. This will avoid case-by-case flexibility for small duplication of permit requirements and portable suction dredges to qualify as 5 The final rule is not intended to overrule either streamline permit processing while casual use, and has removed the size the Ott or Jones IBLA case, which were based upon protecting the environment. reference that was in the proposal. BLM the facts therein at issue, particularly the Jones case which analyzes the level of potential impacts from We received many comments has not adopted the commenter’s the operation. See Jones at 125 IBLA 96–97. It does regarding the 4-inch intake diameter for suggestion that small industrial depart from the position taken in the Ott and Jones suction dredges that appeared in minerals mines or placer operations IBLA cases insofar as the final rule allows certain proposed § 3809.11(h). Many should not have to submit plans of small suction dredges to constitute casual use even commenters felt that suction dredges operations. As discussed earlier in this though suction dredging operations involve the use ″ of mechanized earth-moving operations. Under the with an intake diameter of 4 or less (in preamble, all mining operations will final rule, the test for whether a small suction some comment letters, 5-to-8 inches or have to submit plans of operations. dredge operation can be classified as casual use less) should be considered casual use Several commenters concluded that focuses on the level of impacts, that is, whether the activity will result in greater than negligible and not require a notice or a plan of the language now in final § 3809.31(b) disturbance instead of focusing only on whether operations. Other commenters stated would conflict with the NRC Report mechanized earth-moving equipment is used, as that it was not clear how the 4″ intake discussion under Recommendation 2. these cases do.

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70025 streams. We generally agree that it is situation is to ensure that the impacts of withdrawn from the mining laws only to appropriate for States to regulate the proposed operation on all the extent that a person has valid activities within navigable waters on potentially affected resources are fully existing rights to proceed, regardless of BLM land. Even in such cases, BLM considered, particularly where whether a person intends to proceed believes it has the authority to protect Federally listed or proposed threatened under a plan or a notice. Thus, the final the public lands above high-water mark or endangered species or their rule allows BLM to protect genuine from such operations. Moreover, BLM designated critical habitat are present. valid existing rights (by requiring a generally retains authority to regulate In reviewing a plan of operations, BLM determination that such rights exist) activities on non-navigable waters on intends to accommodate any agreement while at the same time protecting areas public lands. BLM intends to regulate between the operator and the surface that have been withdrawn or are being activities in streams on the public lands owner as long as the agreement does not proposed to be withdrawn from based on the use of the public lands to cause unnecessary or undue degradation operation of the mining laws. Limited enter the streams and because, for the of public lands resources and is not activities are allowed before completion most part, such streams have not been likely to jeopardize proposed or listed of a mineral exam, including taking determined to constitute ‘‘navigable threatened or endangered species or samples to confirm or corroborate waters.’’ In most cases, there has been their designated critical habitat. mineral exposures that are physically no determination of whether waters on Section 3809.100 What Special disclosed and existing on the mining public lands are navigable or non- Provisions Apply to Operations on claim before the segregation or navigable. We believe we have provided Segregated or Withdrawn Lands? withdrawal date, whichever is earlier; for appropriate State regulation of and performing any minimum necessary suction-dredging activities in final This section governs the annual assessment work under 43 CFR § 3809.31(b). circumstances under which operations 3851.1. BLM concurs with comments that may be conducted on segregated or Final § 3809.100(c) allows BLM to recreational mining and hobby mining withdrawn lands. The subject of suspend the time limit for responding to operations on segregated or withdrawn are not classifications provided for in a notice or acting on a plan of lands is not addressed by the NRC the mining laws. Accordingly, the term operations when we are preparing a Report recommendations, and this ‘‘hobby or recreational mining’’ is mineral examination report under final section is therefore not inconsistent removed from the definition of casual paragraph (a) of this section. The use. It is BLM’s intent that the casual with those recommendations. Final § 3809.100(a) requires a mineral proposed rule would have allowed BLM use definition will continue to include to suspend the time limit for responding exploration and prospecting that cause examination report before BLM will approve a plan of operations or allow to a notice only for operations in Alaska. no or negligible disturbance. The final We deleted this provision because we rule may require a notice be filed with notice-level operations to proceed on an area withdrawn from the operation of decided not to adopt proposed the BLM if exploration or prospecting § 3809.11(j)(8) for lack of consistency would cause more than negligible the mining laws. It also allows BLM the with the NRC Report. See the discussion disturbance. BLM intends for the States discretion to require a mineral under § 3809.11 earlier in this preamble. to assume jurisdiction over suction examination report before approving a Final § 3809.100(d) requires an dredging through State-specific plan of operations or allowing notice- operator to cease all operations, except agreements with BLM. Such agreements level operations to proceed in an area providing for State regulation in lieu of that has been segregated under section required reclamation, if a final BLM involvement should reduce the 204 of FLPMA (43 U.S.C. 1714) for departmental decision declares a mining number of jurisdictional questions. consideration of a withdrawal. Final claim to be null and void. We received Final § 3809.31(d) incorporates the § 3809.100(b) allows BLM to approve a a number of comments on this section, language from proposed § 3809.11(i) plan of operations before a mineral and we discuss them below. regarding operations on lands patented examination report for a claim has been One commenter stated that when under the Stock Raising Homestead Act. prepared in certain limited BLM conducts an examination in a We received no comments on the circumstances, including taking samples withdrawn or segregated area to assess proposal and are adopting it without or performing assessment work. It also valid existing rights (VER), BLM does substantive change in this final rule. allows a person to conduct exploration not impose time periods on itself in We added final § 3809.31(e) to under a notice only if it is limited to making recommendations on the account for situations involving public taking samples to confirm or corroborate validity of the claims. BLM will make a lands where the surface has been mineral exposures that are physically diligent effort to schedule VER conveyed by the United States with disclosed and existing on the mining examinations as soon as possible. The minerals both reserved to the United claim before the segregation or examination process will be greatly States and open under the mining laws. withdrawal date, whichever is earlier. expedited if mining claimants promptly The final rule provides that where a These two paragraphs differ from the make their pre-withdrawal or pre- proposed operation would be located on proposed rule, which only addressed segregation discovery data available for lands conveyed by the United States plans of operations in withdrawn or the BLM examiner. which contain minerals reserved to the segregated areas. The final rule allows One commenter recommended that if United States, the operator must submit operators to conduct exploration in BLM cannot complete a VER a plan of operations under final segregated or withdrawn areas under determination in a withdrawn or § 3809.11 and obtain BLM’s approval or notices, which would not have been segregated area within 30 business days, a notice under final § 3809.21. This allowed under proposed § 3809.11(j)(8). the plan of operations should be provision clarifies how this subpart See earlier discussion of final § 3809.11. automatically approved. BLM disagrees applies in circumstances involving Final § 3809.100(a) and (b) have been with the comment. VER determinations minerals reserved to the United States modified from the proposal to include may, as discussed further below, be where the surface is not Federally notices, as well as plans of operations. complex. The test for discovery of a owned. The reason for requiring a plan The final rule recognizes that operations valuable mineral deposit, for example, of operations for all mining in this are allowable in areas segregated or is very fact-based. BLM will act as

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

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

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70028 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations escrow would be returned to the mining the areas in which the mining claimants jointly and severally responsible for claimant together with any accrued hold mining claims or mill sites or the obligations arising from all operations interest. operators have operational on areas where they either hold claims In one commenter’s opinion, the right responsibilities. The italicized text is or conduct activities. It should be noted to ‘‘occupy’’ public land in the pursuit new and clarifies BLM’s intent that mining claimant obligations and development of mineral deposits regarding limitations on responsibilities. include off-claim reclamation or repair exists separate and apart from the claim To illustrate further, the final rule stemming from activities on the claims. location and patenting provisions of the includes the following three examples: Similarly, operator responsibility mining laws. Therefore, BLM may not Example 1. Mining claimant A holds extends to off-site reclamation or repairs promulgate a regulation that limits mining claims totaling 100 acres. Mining resulting from activities or conditions in operations under the 3809 regulations to claimant B holds adjoining mining claims the areas where the operator is valid claims. BLM agrees. The 3809 totaling 100 acres and mill sites totaling 25 conducting activities. regulations cover operations whether or acres. Operator C conducts mining operations Final § 3809.116(a)(2) provides that in not valid claims exist. If an operator on a project area that includes both claimant the event obligations are not met, BLM files a plan of operations on lands A’s mining claims and claimant B’s mining may take any action authorized under withdrawn or segregated, but not claims and millsites. Mining claimant A and subpart 3809 against either the mining operator C are each 100 percent responsible encumbered with a mining claim, BLM claimants or the operators, or both. will reject that plan of operations. for obligations arising from activities on mining claimant A’s mining claims. Mining Final § 3809.116(b) specifies that Mining claims cannot be located and claimant B has no responsibility for such relinquishment, forfeiture or operations conducted on lands obligations. Mining claimant B and operator abandonment does not relieve a mining withdrawn or segregated from operation C are each 100 percent responsible for claimant’s or operator’s responsibility of the mining laws, except for valid obligations arising from activities on mining under subpart 3809 for obligations that existing rights. claimant B’s mining claims and millsites. accrued or conditions that were created Mining claimant A has no responsibility for while the mining claimant or operator Section 3809.116 As a Mining such obligations. Claimant or Operator, What Are My was responsible for operations Responsibilities Under This Subpart for The first example illustrates that each conducted on that mining claim or in My Project Area? mining claimant is 100 percent the project area. In other words, an responsible for obligations resulting entity cannot just walk away from Final § 3809.116 is adopted with a from activities occurring on his or her unsatisfied obligations under subpart number of changes from the proposal to mining claims, but has no 3809. Final § 3809.116(c) provides that clarify BLM’s intent, and to respond to responsibilities for activities on transfer of a mining claim or operation comments. A number of commenters someone else’s mining claims. The does not relieve a mining claimant’s or asserted that the proposed rule operator is 100 percent responsible for operator’s responsibility under this exceeded BLM’s authority, and that all operations in the areas where it subpart for obligations that accrued or liability should be proportional. In the conducts operations. conditions that were created while the final rule BLM has more carefully mining claimant or operator was delineated who is responsible for Example 2. Mining claimant L holds responsible for operations conducted on obligations created by operations, and mining claims totaling 100 acres on which operators M and N conduct activities. that mining claim or in the project area has included examples in an effort to Operator M conducts operations on 50 acres. until BLM receives documentation that reduce ambiguity. This is not an area Operator N conducts operations on the other a transferee accepts responsibility for addressed by the NRC Report 50 acres. Operators M and N are independent the previously accrued obligations, and recommendations, and thus, is not of each other and their operations do not BLM accepts a replacement financial inconsistent with those overlap. Mining claimant L and operator M guarantee that is adequate to cover both recommendations. are each 100 percent responsible for The final rule separates proposed obligations arising from activities on the 50 previously accrued and new obligations. § 3809.116(a) into two subparagraphs. acres on which operator M conducts In other words, a mining claimant or Final § 3809.116(a)(1) specifies that activities. Mining claimant L and operator N operator can transfer responsibility to an mining claimants and operators (if other are each 100 percent responsible for transferee or assignee upon acceptance obligations arising from activities on the 50 than the mining claimant) are jointly by the transferee or assignee and the acres on which operator N conducts posting of an adequate financial and severally liable for obligations activities. Operator M has no responsibility under subpart 3809 that accrue while guarantee. for the obligations arising from operator N’s Editorial changes were made from the they hold their interests. This would, for activities. proposal in paragraphs (b) and (c). instance, include claimants who lease The second example illustrates that their claims to operators while keeping These include adding the words ‘‘that an operator is jointly and severally accrued’’ after the word ‘‘obligations’’ in an overriding royalty or other purely responsible with the mining claimant monetary interest. Maintaining joint and both paragraphs, and making clear that for obligations arising from areas in the transferee must agree to accepting several liability better protects the which it conducts operations, and not public lands in cases where one of previously accrued obligations before for obligations arising from areas in the transferor is no longer responsible. multiple involved entities refuses to or which it has no involvement. cannot satisfy its obligations, for These changes are consistent with the Example 3. Mining claimant X holds intended meaning in the proposal. example, as a result of bankruptcy. mining claims totaling 100 acres on which The final rule is more specific than operators Y and Z conduct activities. Final § 3809.116(a)(1) is consistent the proposal and states that joint and Operators Y and Z each engage in activities with and a restatement of BLM’s several liability, in the context of on the entire 100 acres. Mining claimant X, previous position which has been in the subpart 3809, means that the mining operator Y, and operator Z are each 100 BLM Manual since 1985. See BLM claimants and operators are responsible percent responsible for obligations arising Manual Chapter 3809—Surface together and individually for from all operations on the entire 100 acres. Management, Release 3–118, July 26, obligations, such as reclamation, The third example illustrates that the 1985. It is supported by both FLPMA resulting from activities or conditions in mining claimant and all operators are and the mining laws. Mining claimants

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

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Sections 3809.200 to 3809.204 § 3809.200(a) will continue to allow Section 3809.201 What Should These Federal/State Agreements most of the joint agreements and Agreements Address? Final §§ 3809.200 to 3809.204 address memoranda of understanding that BLM BLM included final § 3809.201 in this Federal/State agreements, including the and the States have been utilizing rule in response to comments requesting kinds of agreements that BLM and the primarily to avoid duplication. BLM to clarify what Federal/State State may make (§ 3809.200); the Under the second type of agreement, agreements should include. Final content of the agreements (§ 3809.201); provided for at final § 3809.200(b), BLM § 3809.201(a) recommends that Federal/ the conditions necessary for BLM to may, in lieu of BLM administration, State agreements provide for maximum defer part or all of this subpart to a State defer to the States part or all of the possible coordination to avoid (sections 3809.202 and 3809.203); how regulation of mining operations under duplication and to ensure that operators existing agreements relate to this State laws, regulations, policy and prevent unnecessary or undue subpart; and which regulations apply practices. Under this kind of agreement, degradation of public lands. It also during the review of existing agreements BLM retains certain responsibilities that recommends that agreements consider, (§ 3809.204). are inherent in Federal public land at a minimum, common approaches to FLPMA section 303(d), 43 U.S.C. management under FLPMA, and may the review of plans of operations, 1733(d), provides that the Secretary of not be delegated. These include including effective cooperation the Interior is authorized to cooperate concurrence on the approval of each regarding NEPA; performance with State regulatory officials in plan of operations and responsibility for standards; interim management of connection with the administration and other Federal laws, such as the National temporary closure; financial guarantees, regulation of the use and occupancy of Environmental Policy Act and the inspections; and enforcement actions, the public lands. These regulations Endangered Species Act. The effect is to including referrals to enforcement provide for agreements or memoranda of allow State management of the programs authorities. understanding to implement this with the minimum oversight necessary In part, these additions address the statutory provision and meet the to carry out Federal law. NRC Report recommendations. NRC intended purposes of FLPMA. Report Recommendation 6 urges clear Cooperation with the States and the Under the final rule, a State could procedures for referring activities to avoidance of duplication are important enter into one or both types of other Federal and State agencies for purposes of these regulations, and are agreements. For example, a State could enforcement. NRC Report necessary for BLM to carry out its request that BLM defer to State Recommendation 10 urges effective responsibilities, especially for administration of a part of the program, cooperation by agencies involved in the operations which are on both private such as bonding, while the other parts NEPA process. These recommendations and public lands. Such cooperation is of the program would be cooperatively may be satisfied through Federal/State good management and common sense. administered by BLM and the State. agreements. Final § 3890.200 allows a State and BLM Final § 3809.201(a) also contains a Section 3809.200 What Kinds of to tailor a State program to the general requirement for regular review Agreements May BLM and a State Make particular strengths of that State. The or audit of Federal/State agreements. Under This Subpart? minimum national requirements Commenters suggested that such audits BLM has renumbered proposed established by subpart 3809 give be included. A regular review, § 3809.201 as final § 3809.200. We made assurance to operators and the public established cooperatively by BLM and a no changes to the text. We made this that a basic consistency and fairness State and included in the agreement, change in section numbers in response will exist under either kind of State/ would assist in ensuring that such to a comment that some sections of the Federal agreement. agreements will be kept up-to-date. The proposed regulations lacked ‘‘logical Final § 3809.200(b) references section section provides BLM and the State the organization.’’ 3809.202 and 3809.203, which contain flexibility to develop such provisions Final § 3809.200 specifies that to the conditions and limitations for those tailored to each agreement’s situation. prevent unnecessary administrative situations where a State may request to Final § 3809.201(b) addresses delay and to avoid duplication of agreements that allow States to regulate have part or all of a program in this administration and enforcement, BLM suction dredging in lieu of BLM, as subpart deferred to State administration. and a State may make two kinds of provided in final § 3809.31(b). It agreements: One that provides for a joint Some commenters asked that section responds to a concern expressed by a Federal/State program; and another that 3809.200(b) not be adopted. BLM did commenter that allowing States, instead provides that, in place of BLM not accept those comments. BLM of BLM, to regulate suction dredging, administration, BLM may defer to State believes that deferral to State regulatory eliminates the Federal action that would administration of some or all of the programs can be an effective way to otherwise trigger the requirements of requirements of subpart 3809, subject to minimize duplication and promote section 7 of the Endangered Species Act the limitations in § 3809.203. cooperation among regulators, so long as (ESA). The concern was that without a Under the first type of agreement, FLPMA’s purpose of avoiding Federal action, sufficient assurances provided for at § 3809.200(a), BLM and unnecessary or undue degradation is will not exist to protect Federally listed States may coordinate actions to avoid also achieved. Deferral may sometimes or proposed threatened or endangered duplication, but each agency retains its not be appropriate, but BLM believes it species or their proposed or designated own authorities and regulations. The is an option that should be available critical habitat. previous regulations at § 3809.3–1 when circumstances warrant. We Accordingly, to assure that such authorized this type of agreement, and believe the final rule contains sufficient protection does exist, final § 3809.201(b) BLM has been implementing these checks and balances on the deferral provides that if an agreement between agreements for many years. BLM process, including public comment, to BLM and a State is intended to satisfy believes that cooperation fostered by avoid deferral to State whose regulatory the requirements of § 3809.31(b) this type of agreement greatly aids in the programs are not consistent with the regarding suction dredge activities (so management of the public lands. Final 3809 subpart. that the State may regulate suction

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With regard to time Federally proposed or listed threatened comment and an opportunity to seek frames in subpart 3809, BLM made the or endangered species or their proposed review of the State Director’s decision. ‘‘days’’ requirement consistent or designated critical habitat may be Because of the decision’s policy throughout the regulations to mean affected by the proposed activities and implications, a State Director’s decision calendar days. any necessary mitigating measures. may be appealed to the Assistant Commenters suggested that BLM Under final § 3809.201(b), BLM does not Secretary for Land and Minerals consider adding to subpart 3809 have to approve each suction dredge Management, and not the Department’s provisions for conditional State program application. Rather, BLM must conduct Office of Hearings and Appeals because approval. These provisions would be any necessary consultation or of the sensitive policy implications of analogous to those that apply to conferencing with the appropriate the decision. conditional approval of State programs agency (either the U.S. Fish and There were many comments on under the Surface Mining Control and Wildlife Service (FWS) or the National specific requirements of the conditions Reclamation Act (30 U.S.C. 1201 et Marine Fisheries Service (NMFS)) and and limitations regarding deferral. seq.). See 30 CFR 732.13(j). BLM agrees provide the necessary information to the Commenters suggested clarifying many that this comment has merit. The rules State. To the extent that a State receives of the specific definitions, conditions do not preclude conditional approval as multiple suction dredge applications for and limitations in proposed §§ 3809.202 a possible decision under section a particular river or stream, BLM may and 3809.203. Several questioned the 3809.202. As BLM reviews of State work with the State (and the FWS or meaning and clarity of the terms programs occur, BLM will determine NMFS) to develop programmatic ‘‘functionally equivalent’’ and whether agreements containing measures that would cover all or some ‘‘consistency’’ in the proposal. One conditional deferrals are warranted. operations in that body of water. We commenter questioned if any State BLM has edited final also added a sentence to the end of could comply with the term § 3809.202(b)(2)(ii) to remove paragraph (b) to make it clear that ‘‘functionally equivalent.’’ unnecessary text without changing the operations may not begin until BLM has BLM reviewed the comments on the meaning or intent of the proposed completed any necessary consultation need for making specific changes, such regulations. or conferencing under the ESA. as providing further guidance on Commenters urged BLM to conserve consistency and defining ‘‘functionally its resources by deferring to the States Section 3809.202 Under What equivalent.’’ The rules already explain all or portions of the proposed Conditions Will BLM Defer to State how consistency will be determined. regulations. One commenter stated that Regulation of Operations? BLM will determine functional the proposal has the potential to provide BLM is adopting final § 3809.202 equivalency on a provision-by-provision for less costly, more effective permitting substantially as proposed. It establishes basis, as compared to the corresponding and enforcement. Commenters urged the procedures that BLM will use to BLM provision. BLM to delegate the entire program to review and approve a request to defer to Commenters stated that this provision the State without retaining ultimate State regulations of operations. The would require substantial changes to approval authority. A commenter stated procedures of final § 3809.202 assure existing State programs. BLM disagrees that BLM can best minimize or avoid that agreements that authorize the with the comment. First, nothing in this duplication with deferrals and deferral of the regulation of mining rule requires a State to do anything. The agreements with State programs. operations to the States will result in the sufficiency of the State program comes Another commenter asserted that the prevention of unnecessary or undue under review only if a State requests proposed regulations should adopt a degradation of the public lands. BLM to defer administration of portions presumption that State requirements are To have part or all of the program of its mining program, States programs adequate. deferred, a State must show that its may remain in place. When BLM BLM disagrees with the comment that provisions are consistent with the receives a deferral request, BLM will it defer to the States and not finalize subpart 3809 requirements. The final determine whether State provisions are portions of subpart 3809. The BLM has rules explain how BLM will determine functionally equivalent to the a nondelegable responsibility under consistency with subpart 3809 corresponding BLM rule. BLM’s FLPMA to assure that the public lands requirements. BLM will compare State analysis of State laws and regulations are managed properly and that standards with subpart 3809 on a and its review of the comments indicate unnecessary or undue degradation not provision-by-provision basis. The final that many States have statutory, occur. BLM would not satisfy its rules provide that non-numerical regulatory, and policy requirements that responsibilities by a general deferral to standards need to be functionally are functionally equivalent to parts or State regulation without determining equivalent to BLM counterparts; much of the subpart 3809 regulations. the adequacy on a State-specific basis, numerical State standards need to be the Although some State provisions may and without retaining the specific same as any numerical BLM standard; require upgrading, BLM does not regulatory responsibilities set forth in and BLM will construe State anticipate wholesale deficiencies. section 3809.203. BLM agrees that environmental protection standards that One commenter stated that time Federal/State agreements and MOUs can exceed the corresponding Federal frames for State review should be no minimize duplication. BLM disagrees, standard to be consistent with the longer than those required for BLM. however, that it has a basis for a general Federal standard. Another asked if ‘‘days’’ meant business presumption that State regulations are This section does not provide for a days or calendar days. BLM declines to adequate. The basis for the State delegation of the Secretary’s authority adopt the commenter’s suggestion with regulations may or may not be similar

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BLM does agree any provision of resources to carry out undue degradation will be prevented. that the Secretary has no authority to the programs. One commenter noted These are Federal lands and it is a adopt this approach. FLPMA section that there is no Federal money available mandate of Federal law that the 303(d), 43 U.S.C. 1733(d), allows States to the States to implement the program. Secretary of the Interior must prevent to ‘‘assist in the administration and One commenter suggested that the such unnecessary or undue degradation. regulation of use and occupancy of the provision in proposed § 3809.201 be Although concurrence is required for public lands.’’ This rule is not a revised to indicate how BLM will each plan of operations, the final rule delegation of Federal authority. It is a reimburse a State for assuming BLM allows the State and BLM some recognition by BLM that in certain cases work under an agreement. flexibility in determining, as part of an the Federal regulatory role may be BLM disagrees that the rules impose agreement, how to provide this exercised more efficiently while still unfunded mandates. There is no legal concurrence while still eliminating as satisfying FLPMA’s mandate to prevent requirement in this final rule or much duplication as possible. unnecessary or undue degradation of anywhere else that the States assume Several commenters addressed the the public lands. some of BLM’s responsibilities under issue of the National Environmental Commenters stated BLM did not have subpart 3809. Although Section 303(d) Policy Act and its relationship to final the expertise to make decisions as to of FLPMA authorizes the Secretary to §§ 3809.200 through 3809.204. One how much to defer to States. BLM reimburse States for expenditures commenter noted that a State should disagrees with the comment. Its incurred in assisting in the have a State NEPA-like program in place professionals will be able to make the administration and regulation of use before BLM considers deferring part of judgments necessary to decide whether and occupancy of the public lands, no a program. One comment proposed deferrals are allowable. This will be an reimbursements may occur without revising § 3809.203 to provide that open process, with the opportunity for Congressional appropriation. Congress States prepare the NEPA compliance. all segments of the public to submit has appropriated no funds for this One commenter stated BLM should comments and information and appeal purpose. ensure that any State-written findings State Director decisions on such Section 3809.203 What Are the are included in the NEPA document. matters. The Federal EPA strongly recommended One commenter suggested that Limitations on BLM Deferral to State Regulation of Operations? that where a State takes the lead on the deferral to the States would result in surface management program, the BLM being ‘‘subservient to the political BLM is also adopting final § 3809.203 Federal/State agreement require that a maneuvering of State government as proposed. It sets forth the limitations State be a cooperating agency on the officials that might not have the best on any agreement deferring to State NEPA document. EPA did support BLM interests of the land in question. This regulation of some or all operations on deferral of programs to States with laws should not happen.’’ Several public lands. The limitations are an similar to the Federal NEPA. In commenters stated that the provisions important way to assure that operators addition, NRC Report Recommendation for deferral should be deleted. BLM comply with subpart 3809 and that 10 addresses Federal/State cooperation disagrees with the comments. The unnecessary or undue degradation of in the NEPA process. Recommendation comments appear to reflect a complete the public lands does not occur. 10 states that ‘‘all agencies with distrust of the State regulatory processes Final § 3809.203(a) requires BLM to jurisdiction over mining operations that BLM does not share. In any event, concur with each State decision should be required to cooperate BLM will need to concur on each approving a plan of operations. The effectively in the scoping, preparation, approved plan of operations. existence of a Federal action on the and review of environmental impact Commenters noted that the States approval of each plan of operations assessments for new mines. Tribes and have no trust obligation to Native triggers the applicability of NEPA non-governmental organizations should Americans and that deferral of authority (which is particularly important in be encouraged to participate and should to the States would be a dereliction of those States that don’t have an participate from the earliest stages.’’ BLM’s trust obligation. BLM disagrees equivalent environmental impact BLM believes its final rule properly with the comment. BLM concurrence is assessment process) and those other allocates the NEPA responsibility. required on each approval of a plan of Federal responsibilities that attach to Under it, BLM retains responsibility for operations. Such concurrence will allow Federal actions, such as the National NEPA compliance in any deferral and for the consideration of trust Historic Preservation Act and the the State and BLM may decide who will responsibilities to Native Americans in Executive Order protecting sacred sites. be the lead in any plan review process. appropriate circumstances. Although BLM understands that some Complying with NEPA remains a One commenter asserted that the commenters question the need for BLM Federal responsibility although the proposed provision is a ‘‘passing the to retain the concurrence role, BLM Council on Environmental Quality may buck’’ strategy that increases the States’ views this as important to carrying out allow BLM and a State to coordinate the exposure to risk and protects the BLM its mandate to protect the public lands NEPA process. See 40 CFR 1501.5 and from accusations of mismanagement from unnecessary or undue degradation. 1506.2. After review of the comments, and violation of the public’s trust. BLM The concurrence responsibility will also BLM did not change the requirements in disagrees with the comment. BLM and apply to plan modifications which are final § 3809.203. BLM agrees that any the States will each maintain a level of subject to the same procedures as plans. State findings need to be considered in responsibility for decisions under its Some commenters stated that BLM the NEPA process. After review of the jurisdiction. BLM understands it should consider programmatic NRC Report recommendation, BLM

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70033 revised final § 3809.201 to recommend forfeiture was added because of our MOAS if the review and any necessary that Federal and State agreements experience with recent forfeitures where revisions have not occurred. should address NEPA to provide for there were bankruptcies, to ensure that In general, the new regulations will effective cooperation in scoping, BLM and the State maintain close apply during the review period, except preparation, and review. coordination where such situations as specified in final § 3809.204(c). Final Final § 3809.203(b) clarifies that BLM occur on the public lands. BLM believes § 3809.204(c) was added to clarify how will remain responsible for all land-use the decision whether to declare a bond subpart 3809 applies during the review planning and for implementing other forfeiture on Federal land is a period in specific (and rare) situations Federal laws relating to the public lands responsibility it should not delegate where an existing agreement allows a for which BLM is responsible. under FLPMA. State to administer portions of the Commenters stated that land-use Final §§ 3809.203(e) and (f) relate to program in a manner inconsistent with planning on public lands could not be BLM oversight of Federal/State the new regulations. In most States, restricted by a State. Commenters also agreements and termination of such existing agreements provide for close stated that BLM should not relinquish agreements. They are unchanged from coordination and avoidance of its obligations to balance the uses of the the proposal. duplication with BLM, without any public lands and to determine if mining deferral by BLM. In those few situations Section 3809.204 Does This Subpart is an appropriate use of the land. BLM where a State currently administers part Cancel an Existing Agreement Between has not changed the final rule in of the previous rules, such as in BLM and a State? response to these comments. The final Montana for bonding and in Colorado rule involves no relinquishment by BLM Final § 3809.204 describes the effect for notices, those specific parts of the of its land-use planning responsibilities. of the revised subpart 3809 on existing program will be administered under the Final § 3809.203(c) makes it clear that Federal/State agreements. It clarifies applicable section of the previous rules BLM may enforce the requirements of that promulgation of subpart 3809 does until the review is completed or the subpart 3809 or any term, condition, or not cancel Federal/State agreements or agreement is terminated. State limitation of a notice or an approved memoranda of understanding (MOAS) administration refers to those situations plan of operations, regardless of the in effect on the effective date of these where BLM has deferred its authority to nature of its agreement with a State, or rules. (An existing agreement may, actions taken by a State. The retention the State and allows the State to be however, be terminated at any time of such authority is made express to responsible for administering a specific eliminate any question about whether under its own terms—this rule does not part of the program, such as bonding on BLM maintains enforcement jurisdiction preclude such action.) As was proposed, Federal lands. where needed. BLM believes that by BLM and States will review existing Final § 3809.204(c) does not allow working cooperatively with States, agreements and MOAS to determine those portions which are currently however, enforcement protocols can be whether revisions will be required to administered by a State to continue past established under which many comply with subpart 3809. The period the deadlines in final § 3809.204(a) and problems can be resolved through State for the review and any necessary (b); those specific parts must comply or other Federal agency action, without revisions will be one year from the with subpart 3809 or be terminated. If the need for BLM enforcement. effective date of these rules. BLM and a a State wishes to continue to have BLM A commenter stated that because State could use the review time to defer to State administration of portions State decisions also require BLM determine if the basic relationships in of the program, the State must follow approval and that BLM may initiate that State should remain or should be the procedures of final § 3809.202. independent enforcement, this changed. One commenter stated that there provision allowing deferrals to States In the proposed rule preamble, BLM should be public review of existing was largely meaningless. BLM disagrees requested comments on whether one Federal/State agreements; another with the comment. BLM concurrence on year would be sufficient time to review commenter suggested that public review each plan and BLM enforcement and revise existing agreements and should be by State invitation only. authority does not make State deferrals MOAS. BLM received comments These final rules do not provide for meaningless. States may take the lead advocating several different options; public review of existing agreements. If on the information gathering and this issue was also discussed with State BLM and a State enter into a process to analysis associated with each plan of representatives at a meeting BLM held provide for BLM to defer to State operations and, as long as the State has with the States. Several comments administration of a portion of the a sound basis for determining that the indicated that one year was too short a regulations, then the procedures of requirements of this subpart have been period to review existing agreements section 3809.202 will be followed, met, BLM is not required to duplicate and revise them if necessary. including the opportunity for public State efforts before concurring. BLM expects that most existing participation. agreements will be successfully Similarly, States may take the lead Consistency With the NRC Report reviewed within the one-year time enforcement role for violations on Recommendations public land and a State’s effort may be frame. BLM agrees, however, that in sufficient to achieve compliance with some instances a one-year review period The regulations related to Federal/ this subpart without BLM having to may be too short. The final rule adds State agreements are not inconsistent exercise its enforcement authority. § 3809.204(b) to provide that the BLM with the NRC Report recommendations. Final § 3809.203(d) sets forth limits State Director may extend the review The NRC Report provided related to financial guarantees. BLM period one year at a time for a second recommendations on actions needed to revised the proposal to include a or third year if each extension is coordinate Federal and State requirement for BLM to concur with specifically requested by the State requirements and programs. The Report forfeiture of a financial guarantee. The Governor or his or her delegate. At the noted that memoranda of understanding proposed regulations addressed BLM end of the review period (and any are the links between the Federal and concurrence only for approval and extensions of that period), BLM will State agencies, but did not make any release. BLM concurrence for bond terminate existing agreements and specific recommendations regarding the

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70034 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations content or requirements of such abdicate its stewardship responsibilities standards, will foster Federal/State agreements. by deferring programs to the States. On cooperation, and will allow The NRC Committee on Hardrock the other hand, many commenters continuation of existing Federal/State Mining on Federal Lands, which asserted that State laws are effective in agreements and MOUs. prepared the report, noted that strong protecting the environment; Federal and Whether or not the NRC Report met Federal and State coordination is State coordination is excellent and there Congressional requirements is up to needed and such coordination can be is no need to change existing Congress to determine. We note, used to supplement and complement agreements. Several commenters however, that the Congress has directed the respective agency programs. Close asserted that the proposed regulations these final rules not be inconsistent Federal and State cooperation remains a would create new conflicts with Federal with the NRC Report recommendations. major purpose of these final regulations. and State relationships. State agencies BLM has reviewed the NRC Report, has The regulations more clearly identify and the Western Governor’s Association included it in the administrative record, the roles and authorities of the BLM questioned the need for new BLM and has considered its contents with respect to State agencies. Final regulations and changes to the existing carefully in preparing this final rule. §§ 3809.202 and 3809.203 provide the Federal/State agreements. BLM received numerous comments framework for a State to assume General comments on the NRC related to adequacy of State programs administration of part or all of the BLM Report, ‘‘Hardrock Mining on Federal and to duplication of effort between program on public lands, consistent Lands’’ also ranged widely. Commenters State programs and these regulations. with FLPMA. Close Federal and State stated that the Report concluded that Many comments addressed Federal and cooperation remains a major purpose of the existing Federal/State relationships State programs and other parts of the these regulations. The regulations also work and need not be replaced by new regulations such as performance provide the opportunity to tailor BLM regulations. One commenter standards together. agreements or memoranda of stated, ‘‘The NRC Report also confirms Many commenters asserted that understanding to address various that BLM should not tinker with the particular State programs were effective statewide conditions, and allow the existing and successful Federal/State in protecting the environment and these BLM and the State to determine what partnerships that govern hardrock programs prevented duplication of will work best regarding site conditions mining on the public lands.’’ Other efforts. One commenter noted, ‘‘all of in that State. commenters noted that many states the western states have detailed Although no one recommendation of already have requirements in place to regulatory programs, covering the NRC Report addressed the contents address many of the regulatory gaps environmental impacts and reclamation of Federal/State agreements, the identified by the NRC Report. On the requirements. The Western states are on regulations do address the concerns other hand, commenters stated that the record in the context of the 3809 rule- identified in the NRC Report related to study is ‘‘unreasonable’’ and contrary to making process that the existing Federal/State coordination. BLM added Congressional direction. regulatory system is working well.’’ a provision in section 3809.201(a) for BLM has considered these comments Most of the Western States’ regulatory BLM and the State to address effective and, on balance, decided to continue the agencies and the Western Governor’s NEPA coordination in any Federal and basis approach of the proposed rules. Association provided extensive State agreement, in support of NRC BLM is not abdicating its comments on these themes. There were Report Recommendation 10. Also, responsibilities under FLPMA. If a State several comments from State legislative maintaining a Federal concurrence on wishes BLM to defer administration of and county commissioners and each plan of operation is consistent with certain portions of subpart 3809, the committees; one comment from the NRC Report Recommendation 9 because rules are designed to allow States to use Nevada Legislature’s committee on it will assure that NEPA will be used to State counterpart provisions which are public lands supported the position of evaluate each permitting decision. In functionally equivalent to the subpart the Western Governor’s Association that addition, under the added language of 3809 rules. Where no deferral exists, the ‘‘the current 3809 regulations are section 3809.201(a), BLM expects that general nature of the Federal working well on the ground.’’ In regard Federal/State agreements will address performance standards, including the to the coordination between the State enforcement referrals, as suggested by absence of numeric standards in the programs and BLM, most comments NRC Report Recommendation 6. Federal rules, will make it possible for noted that relationships were good. One both the Federal and State provisions to commenter in reference to BLM and the General Comments Related to Federal apply without major difficulty and for State mining regulatory agency said, and State Coordination Federal and State partnerships to ‘‘Both agencies worked well together, BLM received many comments on continue successfully. developing a plan to protect and Federal and State coordination and BLM believes that its rules should mitigate against environmental agreements. Many of the same contain comprehensive performance degradation by employing existing state comments that were directed to Federal standards, as suggested in NRC Report and federal regulations.’’ Another and State coordination and agreements Recommendation 9, and that the commenter noted that the proposed were also applied to other sections of existence of particular provisions in regulations would increase the overlap the regulations, such as performance State laws and regulations does not of jurisdiction and level of duplication. standards and bonding. substitute for needed Federal regulatory Several commenters recommended General comments ranged widely, provisions. Although the final rules maximizing the States’ roles. Many from recommending deleting these contain a comprehensive set of commenters questioned the need for sections on Federal/State agreements to performance standards to serve as a changing the regulations and one leaving the previous sections in place. baseline for environmental protection, commenter added ‘‘where if it’s not Several commenters asserted that State they are intended to be outcome based broke, don’t fix it.’’ laws are not strict enough to protect and general so that they will mesh There were also commenters who public lands; that BLM should maintain easily with existing State standards asserted that State surface mining laws a baseline national program that applies which address the same topics. This are not strict enough to protect public to all States and that BLM should not will reduce the likelihood of conflicting lands and that strong Federal standards

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70035 are needed. A commenter noted that, a manner that satisfies the Federal and the District of Columbia. The draft ‘‘the bulk of Western states have responsibilities set forth in FLPMA. EIS also addressed the affected negligible environmental standards.’’ Several commenters noted that the environments and programs of the One comment from the California previous regulations provided that the States. Alternative 2 of the draft EIS legislative Senate Committee on BLM shall conduct a review of State analyzed deferral of exploration and Environmental Quality urged laws and regulations related to mining on public lands to the States. strengthening the existing 3809 unnecessary or undue degradation of BLM believes that it has adequate regulations, rather than allow State lands disturbed by exploration or information regarding state laws and governments to regulate mining mining. The preamble to the previous programs and that it has conducted an activities on Federal lands. Several regulations indicated that this review extensive coordination and outreach commenters pointed out deficiencies or would occur in three years. Several effort regarding the rulemaking. shortcomings in certain State programs commenters asserted that until the BLM completes this review and analyzes the Sections 3908.300 to 3809.336 which were included in the proposed Operations Conducted Under Notices regulations. One commenter noted that State programs in the EIS and parts of States do not address Native American the regulations the ‘‘ability to rationally This portion of the final rule issues. Another commenter noted that revise the 3809 regulations is (§§ 3809.300 through 3809.336) governs their State mining regulatory law was fundamentally and fatally flawed.’’ operations conducted under notices. It very weak and every year the legislative Several commenters also asserted that is based primarily on previous § 3809.1– attempts to reduce its funding. One BLM did not provide for cooperation 3. We use two tables: One covers commenter noted that several States do with State regulatory programs and did applicability of this subpart to existing not have provisions for bonding of small not consult with the States. notice-level operations (See final exploration or mining operations of less BLM acknowledges that a § 3809.300.). This is a transition section than five acres. One commenter noted comprehensive, systematic review of all to address notices in existence when that certain States refrain from State laws did not take place prior to the this final rule becomes effective. The vigorously enforcing their own start of the events leading to this other table governs when an operator regulations. rulemaking process. BLM has, however, may begin operations after submitting a coordinated extensively with State notice (See final § 3809.313.). For the The NRC Report identified specific agencies and organizations, such as the sake of simplicity, we have not used a national regulatory ‘‘gaps,’’ such as Western Governor’s Association, and separate set of performance standards financial assurance for mining activities has since reviewed each of the State applicable only to notices. Instead, final less than five acres and long-term post- programs for the States involved. § 3809.320 simply references the plan- closure management of mine sites on BLM disagrees with the comment that level performance standards of final Federal lands. Not all States have such it was obligated to conduct a § 3809.420, where applicable. In many requirements and a consistent national comprehensive, systematic review of all cases, some of the performance baseline of requirements for public State laws before it could undertake this standards will not be applicable to lands is needed by BLM, which rulemaking. BLM has a lengthy and notice-level operations. See the manages hardrock mining on public comprehensive administrative record discussion of the performance standards lands from Alaska to Arizona. that fully demonstrates a sufficient basis of final § 3809.420 later in this This final rule is intended to and purpose for the revisions. For preamble. Notices have two-year modernize the 3809 regulations and example, in 1989, a BLM Mining Law expiration dates, unless extended. This correct their shortcomings, such as lack Administration Program task force will significantly reduce the number of of bonding of all operations on the addressed significant issues in the outstanding notices where operations public lands. The need for the Mining Law Program, including have either never occurred or where regulations has been established in adequacy of standards, the 5-acre reclamation has been completed to many studies, reports, public meetings, threshold and the State relationships BLM’s satisfaction, but the notice has and discussions since the rules were regarding bonding. In 1991, BLM not been formally closed by BLM. first adopted in 1980. One of the main published an advance notice of goals of this effort is to ensure that proposed rulemaking for possible Section 3809.300 Does This Subpart FLPMA’s purpose of preventing amendments to the 3809 regulations. Apply to My Existing Notice-Level unnecessary or undue degradation is Public discussions regarding the Operations? achieved, while minimizing duplication regulations and need for changes were Final § 3809.300 is in the form of a and promoting cooperation among held in several States. This initiative table that clarifies how this final rule regulatory agencies. BLM believes this was put on hold by BLM because applies to existing notice-level final rule meets these objectives. These Congress was considering reform of the operations. We use tables here and regulations provide a national baseline mining laws. Then on January 6, 1997, elsewhere in this subpart to reduce or floor of regulatory requirements, Secretary Babbitt directed BLM to complexity and to make it easier for the which in cooperation with the State restart this rulemaking and directed reader to understand the requirements programs should provide a sound and that, among other things, of subpart 3809. This section allows consistent foundation to assure the ‘‘[c]oordination with State regulatory operators identified in an existing notice public that exploration and mining on programs should be carefully already on file with BLM on the the public lands are being properly addressed.’’ During the rulemaking effective date of this final rule to managed to prevent unnecessary or process, BLM held 19 public scoping continue operations for two years. After undue degradation as required by meetings in 12 cities. BLM also met 2 years, the notice can be extended Federal law. Additionally, these with State agencies and the Western under final § 3809.333. New operators regulations also address the specific Governor’s Association many times, as will have to conduct operations under regulatory gaps identified by the NRC well as with various State, county and subpart 3809. If a notice has expired, the Report. Although many States have local committees and commissions. operator will have to immediately excellent mining regulatory programs, Public hearings on the proposed reclaim the project area or promptly BLM must manage the public lands in regulations were held in thirteen States submit a new notice or plan of

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70036 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations operations under this subpart. Final Other commenters wanted BLM to commenter suggested adding language § 3809.300(a) adds a statement that BLM delete both the two-year limitation in to proposed § 3809.311 which would may require a modification of an proposed § 3809.300(a) and all of allow any person with an adversely existing notice under § 3809.331(a)(1). proposed § 3809.300(b). In addition, affected interest to file written Final § 3809.300(c) contains new some commenters felt the two-year term objections to a notice within 30 days of language about situations where an for notices was too short and wanted to advertising planned operations. We did operator modifies an existing notice have a five-year term for notices. These not adopt these comments since we after the effective date of the final rule. commenters asserted that a two-year believe they would not be consistent Final § 3809.300(c)(1) specifies that if an term would require too frequent re- with NRC Report Recommendation 3 operator modifies an existing notice application for approval of notices and dealing with expeditious handling of after the effective date of the final rule, would be inconsistent with the NRC exploration activities. and the modified operations remain Report recommendations. We should A few commenters said they should within the outline of the original point out that BLM reviews, but doesn’t not have to provide a reclamation cost acreage described in the notice, then ‘‘approve,’’ notices. We disagree with estimate under proposed operations may continue for 2 years the commenters’ suggested deletions § 3809.301(b)(4), since BLM would after the effective date of the rule, or and assertion. The two-year term for review and modify a reclamation plan longer if the operator extends the notice notices in this final rule will bring in most cases. We do not agree with under § 3809.333. The rule also explains notice-level operations that extend these comments and we have included that BLM may require an operator to beyond the acreage covered by the the requirement in this final rule. The modify the notice under original notice under the performance burden should be on the operator, who § 3809.331(a)(1). The operator under a standards of this final rule (§ 3809.320) is the proponent of the activities modified notice must also comply with within a reasonable time frame. The requiring reclamation, to provide his or the financial guarantee requirements of NRC Report recommendation does not her best estimate of reclamation costs. § 3809.503. address the transition for existing Section 3809.311 What Action Does Final § 3809.300(c)(2) requires that notices. Under this final rule, it is being BLM Take When It Receives My Notice? operations on any additional acreage applied to all new mining and described in a modification to an exploration. Final § 3809.311 outlines actions BLM existing notice be subject to the Section 3809.301 Where Do I File My takes when it receives a notice. Based provisions of subpart 3809, including Notice and What Information Must I on numerous comments discussed in § 3809.11 and § 3809.21, and provides Include in It? this preamble under final § 3809.21, we that BLM may require approval of a plan Final § 3809.301 lists notice-filing and changed final § 3809.311(a) from 15 of operations before the additional content requirements. Two commenters ‘‘business’’ days as proposed to surface disturbance may begin. For suggested we use a tax identification ‘‘calendar’’ days from the time that we example, a plan of operations may be number instead of a Social Security receive a notice to review it. Final required if the additional acreage to be number in the operator information § 3809.311(c) was changed to use 15 disturbed results in cumulative surface required under proposed calendar days as well. If BLM disturbance of greater than 5 acres § 3809.301(b)(1). We agree and have determines that a submitted notice is under an exploration project. made that change in the final rule, as incomplete, we will inform the operator Final § 3809.300(d) replaces proposed well as under final § 3809.401(b)(1). One of what additional information would § 3809.300(c). The language has been commenter pointed out that notice- be needed to comply with final modified to clarify that an operator with content requirements should not § 3809.301. The 15-calendar-day review an expired notice must either submit a include the dates that operations will period commences upon BLM’s receipt new notice under § 3809.301, submit a begin and when reclamation will be of each submittal (or re-submittal) of a plan of operations under § 3809.401, completed, since these are never exactly notice. Where feasible, BLM will try to whichever is applicable, or immediately known. We agree and have changed perform its review of the revised notice commence reclamation of the project final § 3809.301(b)(2)(iv) accordingly by in a shorter time frame. We received area. asking for the expected dates that final § 3809.311(c) to clarify that BLM’s One commenter suggested we clarify operations will commence and review of any additional information in § 3809.300(a) that all notices will reclamation will be completed. We have submitted by a prospective notice-level expire after 2 years, and then the final also specified ‘‘calendar’’ days under operator will continue until either the rules will apply. We have modified final final § 3809.301(d) for clarity. notice is complete or we determine that § 3809.300(a) to clarify that the intent of A few commenters said they are not an operator may not proceed due to the the section is to have all existing notices opposed to requiring bonding, a inability to prevent unnecessary or expire two years from the effective date reclamation plan and reclamation cost undue degradation. of this final rule. The operator under an estimate for notice-level operations as Several commenters wanted BLM to existing notice may extend the notice required in final § 3809.301(b)(3) and review notices for completeness in time beyond two years, and this final rule (b)(4). They believed that these frames ranging from 5 calendar days to may not necessarily apply to an existing safeguards are more than sufficient to 20 business days. We have not accepted notice that is extended. That is, under prevent unnecessary or undue this comment since we believe the 15- final §§ 3809.300(c), 3809.331(a), and degradation to public lands. day calendar review period should 3809.333, an operator may extend an Several commenters suggested adding include completeness review. If BLM existing notice in two-year increments a requirement [to proposed staff determines that a notice is subject to the terms of the existing §§ 3809.301(b), 3809.312, and 3809.313] incomplete in less time, we will notify notice and the previous regulations if for an operator to advertise planned the operator as soon as possible. the operator doesn’t make ‘‘material operations in a local newspaper, not Another commenter asked us to clarify changes’’ to the operation. The term commencing operations until 30 days the standards BLM will use to see if a ‘‘material changes’’ is defined in final after publication. This would allow the notice is complete under 3809.311(a). § 3809.331(a)(2). public to file written objections. A The standards for completeness are

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70037 listed in final § 3809.301, as stated in commencing operations. In practice, an Section 3809.330 May I Modify My the final rule. operator must have a financial guarantee Notice? One State Game and Fish department in place at least 15 days before, or soon Final § 3809.330 clarifies that an commented that they would like to after, filing a notice in order to operator may modify an existing notice review proposals, regardless of acreage, commence operations 15 days after to reflect proposed changes in where there is concern about fish and filing a notice. operations. BLM is adopting this section wildlife resources, or limited, high- as proposed. BLM will review the value wildlife habitats such as riparian One commenter believed that notice- modification under the same time zones and wetland habitats. During the level operations should not be required frames proposed in § 3809.311 and notice-review process, BLM will make to furnish a financial guarantee, as § 3809.313. This provision addresses every effort to coordinate with State required under proposed § 3809.312(c), regulators. Federal/State agreements if no cyanide or leaching is proposed. confusion over whether a notice may be described under final § 3809.200 could This comment has not been modified. The previous regulations were be used to create a mechanism for such incorporated into the final rule. We silent on this topic. coordination. believe it would be inconsistent with Two commenters stated that proposed NRC Report Recommendation 1, and § 3809.330 does not define how an Section 3809.312 When May I Begin that financial guarantees are needed to incomplete notice modification impacts Operations After Filing a Complete assure the reclamation of any greater- the existing notice. Final § 3809.330(b) Notice? than-negligible surface disturbance. specifies that modified notices will be Consistent with the changes in the handled under the procedures of final review period in other sections as Section 3809.313 Under What § 3809.311, which addresses incomplete compared to the proposed rule, and Circumstances May I Not Begin notices. based on public comment, final Operations 15 Calendar Days After Filing My Notice? Section 3809.331 Under What § 3809.312 specifies that an operator Conditions Must I Modify My Notice? will be able to commence operations 15 Final § 3809.313 outlines, in table calendar days after BLM receives a As proposed, final § 3809.331 requires format, cases in which BLM may extend complete notice from that operator and an operator to modify a notice if BLM the time to process a notice. Consistent after the operator provides a financial requires such modification to prevent guarantee that meets the requirements of with the changes in the review period unnecessary or undue degradation, or if subpart 3809. The operator may in other sections as compared to the the operator plans to make ‘‘material commence sooner if BLM informs the proposed rule, final § 3809.313 specifies changes’’ in the operations. Where an operator that it has completed its review 15 calendar days rather than business operator plans to make material and the financial guarantee days. We have added a statement to changes, the operator would have to requirements are met. This section also final § 3809.313(d) that BLM will notify submit the modification 15 calendar alerts the operator that operations may the operator if the agency will not days before making the changes. While be subject to approval under 43 CFR conduct an on-site visit within 15 BLM is reviewing the modification, the part 3710, subpart 3715, which governs calendar days of determining that a visit operator could halt operations or occupancy of public lands. is necessary, including the reasons for continue operating under the existing Several commenters indicated that the delay. (unmodified) notice. However, BLM BLM should be required to inform the Several commenters believed that could require an operator to proceed operator when a notice is complete and BLM would be able to extend the 15- with modified operations before the 15- operations can commence. Other business-day review period for a notice day period has elapsed to prevent commenters said that the final rule indefinitely under proposed § 3809.313 unnecessary or undue degradation. should require that BLM notify an due to the ambiguous proposed The proposal would have defined ‘‘material changes’’ as ‘‘the addition of operator that it has completed its notice language of that section. We have review. These comments have not been planned surface disturbance up to the limited the amount of time BLM can incorporated in the final rule. The threshold described in § 3809.11, extend its review under final notice system is designed to allow an undertaking new drilling or trenching § 3809.313(a) to an additional 15 operator to commence operations unless activities, or changing reclamation.’’ In calendar days. We believe this BLM notifies the operator of BLM’s response to a comment that this limitation, combined with use of concerns regarding compliance with language was not clear, we changed the calendar days instead of business days this rule. A commenter suggested that language in the final rule. Under final new § 3809.312(e) be added that would as in the proposed rule, will serve to § 3809.331(a)(2), ‘‘material changes’’ are notify operators that they may be subject expedite BLM’s review. BLM ‘‘changes that disturb areas not to additional requirements imposed by acknowledges that the review period described in the existing notice; change State regulation, and that operators must could be extended beyond 30 days your reclamation plan; or result in be in compliance with such under final § 3809.313(b), (c), and (d) impacts of a different kind, degree, or requirements before commencing until BLM concerns are satisfied. extent than those described in the operations. The comment was not Section 3809.320 Which Performance existing notice.’’ adopted. This requirement is already Standards Apply to My Notice-Level We received two comments stating covered under the definition of Operations? that it was unclear how proposed ‘‘unnecessary or undue degradation’’ in § 3809.331(a)(1) would apply to private final § 3809.5. See also final § 3809.3. In Final § 3809.320 requires that notice- lands. Although BLM doesn’t directly addition, State law applies by its own level operations meet all applicable regulate activities on private lands, BLM terms. One commenter felt that the 15- performance standards listed in is under a duty in FLPMA to manage the business-day time frame proposed for proposed § 3809.420. BLM is adopting public lands to protect them from notice review would not be realistic this section as proposed. See the unnecessary or undue degradation, and since an operator would be required to discussion of performance standards in some cases this may require taking provide a financial guarantee before later in this preamble under § 3809.420. steps to protect the public lands from

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70038 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations impacts caused by activities on private clear records since reclamation may not operator must take all steps necessary to lands. be completed for a considerable time in prevent unnecessary or undue Two commenters indicated that it was the future at a project area. This degradation as well as maintain an unclear how much time BLM would provision remains in the final rule as it adequate financial guarantee. BLM is give an operator to comply with will help BLM clear its records of adopting this section as proposed. BLM § 3809.331(a)(1) if BLM requires notices for which no activity has ever will require in writing that the operator modification of a notice. The length of occurred on the ground. Reclamation take such steps if the agency determines time that BLM requires to modify a obligations will continue for the that unnecessary or undue degradation notice will depend on site-specific operator until reclamation is completed would be likely to occur. conditions. The time requirements and as required, regardless of the disposition A State regulator commented and the reasons for the modifications will be of the notice. agreed with the need for interim site spelled out in an appealable decision stabilization during temporary letter sent to the operator from the BLM. Section 3809.333 May I Extend My Notice, and, if So, How? cessations of operations under proposed A commenter indicated we should § 3809.334. Several commenters were revise proposed § 3809.331(a)(1) to Final § 3809.333 contains a provision concerned that BLM provide written require documentation of unnecessary to allow notices to be extended beyond documentation of any finding under or undue degradation that BLM had the 2-year effective period specified in proposed § 3809.334(b) that temporary found. Normal case processing in BLM final § 3809.332. This provision would cessation of operations will likely cause includes documentation in case files of accommodate notice-level operations unnecessary or undue degradation. our findings. This ensures a good that cannot be completed within 2 BLM’s findings, on a case-by-case basis, written record upon which the local years. We received one comment asking will be spelled out in an appealable BLM manager can base decisions and that we clarify that notices would be decision letter sent to the operator from findings. The comment has not been extended only if there is an acceptable the BLM. incorporated into the final rule. financial guarantee as provided under One commenter asserted that § 3809.503. We have incorporated a Section 3809.332 How Long Does My proposed § 3809.334 would reference to § 3809.503 in this Notice Remain in Effect? inadequately address unnecessary or subsection of the final rule. Final § 3809.332 provides for an We received several comments undue degradation caused by improper effective period of 2 years for a notice, regarding whether the 2-year time storage and containment of hazardous unless extended under § 3809.333 or period is adequate for extension of materials and remediation of unless the operator were to complete notices. The comments ranged from contaminated soils. BLM disagrees with reclamation beforehand to the agreeing that the 2-year time frame is the comment. The performance satisfaction of BLM, in which case BLM adequate, to comments that it is too standards applicable under § 3809.320 would notify an operator that the notice short. Others stated that notice renewals as well as the continued requirement to is terminated. An operator’s obligation should not be required if operations do prevent unnecessary or undue to meet all applicable performance not change. We believe the 2-year degradation adequately address these standards, including reclamation, would period for notice extensions will be concerns. not terminate until the operator has in adequate since notices may be extended Several commenters asked that the fact satisfied the obligation. The word more than once with minimal additional final rule define ‘‘period of time’’ as ‘‘complete’’ was added before ‘‘notice’’ paperwork. used in proposed § 3809.334(a) and in final § 3809.332 to ensure that only One commenter wished us to indicate ‘‘extended period of non-operation’’ as complete notices are ‘‘grandfathered’’ that the only reason a notice extension used in proposed § 3809.334(b)(2). We under subpart 3809. might not ensue is in the instance of did not incorporate these comments into Several commenters indicated that noncompliance, and in that case, the the final rule. Regardless of the ‘‘period two years is a reasonable period for a operator would be notified by BLM. of time’’ that passes, at all times, an notice to be effective, however, the BLM declines to adopt the suggestion. operator must meet the requirements of responsibility for an operator to reclaim Although BLM will notify operators in final § 3809.334(a). BLM will take operations should be independent of the noncompliance of the reasons for the actions necessary to ensure the validity of the affected mining claim(s). noncompliance and steps needed to prevention of unnecessary or undue We agree that reclamation correct it, the existence of the degradation. The term of an ‘‘extended responsibilities remain until noncompliance will not automatically period of non-operation’’ will be reclamation is completed, regardless of preclude extension of the notice. determined by BLM on a case-by-case the validity of mining claims within the One commenter suggested that basis, after considering the sensitivity of project area. No change has been made language be added to § 3809.330(a) and the resource values in the project area. in the final rule to reflect these to § 3809.333 that would require public Section 3809.335 What Happens When comments. notification for notice modifications and My Notice Expires? We received several comments extensions respectively. We have not asserting that notices should expire in 4 incorporated this comment in the final Final § 3809.335 describes what must to 5 years. BLM believes such changes rule. We believe adding such public occur when a notice expires and is not are unwarranted. An operator may file notification requirements would be extended. BLM is adopting this section an extension under final § 3809.333 to inconsistent with NRC Report as proposed. The operator must cease keep records current. Additional Recommendation 3 concerning the operations, except reclamation, and extensions are allowed. See preamble expeditious handling of notices. promptly complete reclamation as discussion under § 3809.333 below. described in the notice. The operator’s Several commenters stated that BLM Section 3809.334 What if I responsibility to complete reclamation has not demonstrated that an inability to Temporarily Stop Conducting continues beyond notice expiration, clear expired notice records has resulted Operations Under a Notice? until such responsibilities are satisfied. in unnecessary or undue degradation Final § 3809.334 clarifies that during This provision helps address the and that it would be inappropriate to periods of temporary cessation, the problem of abandoned operations by

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70039 clearly establishing the operator’s within the project area, including operations submitted prior to the responsibilities. structures, in a safe and clean condition. effective date of the final regulations One commenter suggested that a third Other commenters suggested that we would be able to use the plan content option be added to proposed revise proposed § 3809.336(a) to require requirements and performance § 3809.335(a) which would allow an BLM to provide an appealable standards in the previous regulations. operator to provide written notice to determination that the project area has All other provisions of the final BLM of the intent to extend the notice been abandoned. Any written decision regulations, such as the posting of per § 3809.333. The commenter that BLM sends to an operator may be financial assurances and penalties for reasoned that if an operator misses the appealed as specified under final noncompliance would still apply. BLM extension deadline, but intends to § 3809.800. believes this is appropriate as it protects the investment operators have made in operate, he/she should not be forced to Sections 3809.400 through 3809.424 preparing their plans of operations and reclaim. Operators who face this Operations Conducted Under Plans of supporting NEPA documents, yet situation would not be in compliance Operations with § 3809.333, which requires they provides BLM with the financial notify BLM in writing on or before the Section 3809.400 Does This Subpart assurance that reclamation will be expiration date of their desire to Apply to My Existing or Pending Plan of completed and that enforcement actions conduct operations for 2 additional Operations? can be taken to remedy any future years. We wrote § 3809.333 in this way Proposed § 3809.400 described how noncompliance, should it occur. The in order to avoid long periods of time the new regulations would apply to revised text in § 3809.400 of the final after a notice expires for reclamation to existing and pending plans of regulations has been rewritten to reflect be completed, and to prevent operations. If an operator had an these changes in three paragraphs. The unnecessary or undue degradation from existing approved plan of operation proposed table in this section has been occurring. If a notice expires, before the effective date of the deleted. Parallel changes have also been § 3809.335(a) ensures that reclamation is regulations, then the operations would made in final § 3809.434 regarding promptly completed. If an operator not be subject to the new performance pending modifications to plans of inadvertently misses a notice-extension standards. If the plan of operations was operations for new or existing mine deadline, he/she must immediately pending (not yet approved) then BLM facilities. submit a new notice and provide proposed a distinction on how the new This section of the regulations dealing adequate financial guarantee as required regulations would be applied based with existing and pending plans of under § 3809.301, then follow upon how much NEPA documentation operations is not inconsistent with the § 3809.312. Quick submittal of a new had been completed. If an NRC Report recommendations. The NRC notice will ensure the prevention of environmental assessment (EA) or EIS Report recommendations did not unnecessary or undue degradation and had been released, the plan content and specifically address how existing continuity of operations. A complete, performance standards did not apply. If operations should transition into any new notice must be submitted before an EA or draft EIS had not yet been change in the regulations, but they did BLM initiates forfeiture of the operator’s released, then all portions of the final recommend that all operations on existing financial guarantee. regulations would have applied to the public lands provided adequate financial assurance and were subject to Section 3809.336 What if I Abandon plan of operations. BLM enforcement authority. This My Notice-Level Operations? BLM received considerable comments expressing concern that release of the section of the regulations meets those Final § 3809.336(a) describes what EA or draft EIS was not an appropriate NRC Report objectives. characteristics BLM uses to determine if threshold. The concern was that by the Section 3809.401 Where Do I File My it considers an operation to be time of document release the operator Plan of Operations and What abandoned. Final § 3809.336(b) specifies had invested considerable time and Information Must I Include With It? that BLM may, upon a determination resources in the development of a plan that operations have been abandoned, of operations. There was also concern Final § 3809.401 describes where a initiate forfeiture of an operator’s that plans of operations just days away plan of operations has to be filed and financial guarantee. BLM is adopting from release of the NEPA documents to what information it must contain. Final this section as proposed. BLM may the public would be caught with having § 3809.401(a) states that the plan of complete reclamation if the financial to go back and redesign plans to meet operations must be filed in the local guarantee is found to be inadequate, the new performance standard and BLM office with jurisdiction over the with the operator and all other supply additional information to meet land involved. This is an intentional responsible persons liable for the cost of the content requirements. Furthermore, change from the previous regulations reclamation. the operator had no control over when which required the plan of operations to Several commenters pointed out that BLM would release the NEPA document be filed in the BLM District Office with since exploration is typically and should not be punished for actions jurisdiction over the lands involved. intermittent, notice-level operations beyond its control. It was suggested that BLM has reorganized, and in some areas may appear to be ‘‘abandoned’’ at some instead BLM chose a simpler cutoff for there are no longer three tiers of time during the two-year notice term. existing and pending plans of administration with a District Office. We have included criteria in final operations. It was suggested that if the The intent of the regulations is to now § 3809.336 that is designed to inform the plan of operations had been submitted make sure the plan of operations is filed public of indicators of abandonment. to BLM before the effective date of the in the local BLM field office responsible BLM will strive to contact operators in regulations, it would fall under the for day-to-day management of the lands cases where it is not clear whether existing 3809 regulations for plan involved. operations have been abandoned. Our content and performance standards. No detailed comments were received major concerns are that unnecessary or BLM was persuaded by these on this paragraph of the regulations. undue degradation be prevented and comments and has changed final Part of the following paragraph that operators maintain public lands § 3809.400 to provide that any plan of (proposed § 3809.401(b)) has been

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70040 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations moved into final paragraph (a) for would also have required the operator, to the extent it is applicable to the purposes of clarity as explained below. if a corporation, to designate a corporate operation. For example, a plan of Final § 3809.401(a) is not inconsistent point of contact, and to notify BLM operations for exploration drilling with the recommendations of the NRC within 30 days of any change in would not be required to provide Report. The NRC Report did not address operator. BLM has adopted the information on mine pit reclamation where a plan of operations should be proposed language with the changes since it would not involve the filed. The NRC Report did recommend described below. excavation of a pit. that a more timely permitting process be Comments received on this paragraph Many commenters were concerned developed. By not requiring the plan of questioned the legality and purpose in that the information required was too operations to be on a particular form, requiring the operator to supply a Social detailed and was not needed by BLM to BLM saves operators time and resources Security number. The purpose of the meet its mission of preventing by allowing them to provide copies of requirement is for the BLM to be able to unnecessary or undue degradation—that information they may already have definitively identify the operator operators would waste time and assembled to meet other agencies’ filing responsible for the operation and resources redesigning plans after the requirements. reclamation of the site. The final approval decision had been made. Other provision has been changed to require a commenters were concerned that BLM Section 3809.401(b) taxpayer identification number, as was requiring the operator to provide a This section of the regulations lists all suggested by some commenters. A final plan of operations before the the content requirements for a complete notice or plan of operations would not review process had even begun, and plan of operations. The section is be considered complete without suggested that BLM should let the NEPA broken into five major paragraphs information sufficient to identify the process decide what information was covering: operator information, responsible operator. needed in the plan of operations. description of operations, reclamation This requirement is not inconsistent Several commenters stated that BLM plan, monitoring plan, and the interim with the NRC Report recommendations. should be able to require any management plan. While NRC did not specifically address information needed to evaluate the plan A plan of operations is not considered operator identification, it did of operations. One commenter was complete until the information required recommend that operators be held concerned that BLM’s use of under final § 3809.401(b) has been accountable for meeting the ‘‘preliminary designs’’ indicated BLM provided in enough detail for BLM to requirements of the regulations through would approve plans that were not determine that the plan of operations improved enforcement provisions. The final. would prevent unnecessary or undue requirement that operators responsible BLM has carefully considered these degradation. The language on the for compliance be identifiable is not comments. BLM believes that the demonstration in proposed paragraph inconsistent with this recommendation. content requirements for plans of (b) has been moved to final paragraph operations essentially put into Description of Operations and regulation the process that is currently (a) because it is not a content Reclamation requirement but rather defines the end being implemented by most BLM field result of the plan review process. Final § 3809.401(b)(2) and (3) require offices. By describing these in the There were many general comments the operator in a plan of operations to regulations themselves, BLM intends to on this section that said the content describe its proposed operating plans improve consistency among field offices requirements were too detailed or were and associated reclamation plans. These and provide operators more precise too open ended, and did not specify sections of the regulations specify much information on what is expected in a why BLM needed this level of detail. In of the information that many operators plan of operations. The purpose of the response, BLM has revised the are providing today under the existing information requirements is to obtain a regulations to specify that the level of regulations. Items required include, plan of operations that describes what detail must be sufficient for BLM to where applicable; a description of the the operator proposes to do in enough determine that the plan of operations equipment, devices or practices that detail for BLM to evaluate impacts and would prevent unnecessary or undue will be used; maps showing the location determine if it will prevent unnecessary degradation. BLM has also deleted the of mine facilities and activities; or undue degradation. The required word ‘‘fully’’ from the proposed preliminary or conceptual designs and level of detail will vary greatly by both paragraph and instead will have the operating plans for processing facilities type of activity proposed and level of detail be driven by the needs of and waste containment facilities; water environmental resources in the project the individual review process. management plans, rock area. On large EIS-level projects scoping This approach is not inconsistent characterization and handling plans; may actually start before a plan of with the NRC Report or its quality assurance plans; spill operations is submitted, through recommendations which emphasized contingency plans; a general schedule of discussion with BLM staff on the the variety of mining operations and operations from start through closure; anticipated issues and level of details environmental settings and contained a plans for access roads and support expected. A certain level of detail is general caution against one-size-fits-all services; drill-hole plugging plans; needed to begin public scoping. In the requirements. regrading and reshaping plans; mine initial plan submission it is up to the reclamation plans including information operator to determine what level of Operator Information on the practicality of mine pit detail to include in the plan. BLM will The proposed regulations would have backfilling; riparian and wildlife then advise the operator if more detail required the operator to supply basic mitigation; topsoil handling and is required, concurrent with conducting identification information including, revegetation plans; plans for the the scoping under NEPA. By conducting name, address, phone number, Social isolation and control of toxic, acid- the NEPA issue identification process Security Number or corporate forming or other deleterious materials; (scoping) concurrent with the plan identification number, and the serial plans for removal of support facilities; completeness review, both BLM and the number of unpatented mining claims and plans for post-closure management. operator can identify the appropriate involved. The proposed regulations Again, this information is only required level of detail for the plan of operations

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This information will sampling parameters and frequency, preliminary or conceptual designs for allow BLM to consider pit backfilling on analytical methods, reporting mine facilities that must eventually be an individual basis, without being procedures, and procedures to respond highly engineered prior to construction. subject to a presumption that backfilling to adverse monitoring results. During plan review, BLM typically should occur. Many commenters were concerned requests information about such Final § 3809.401(b)(3)(viii) has been that monitoring plans could not be facilities in order to ascertain location, edited to clarify that acid materials, as developed until after the plan of size, general construction, operation, referred to in the proposed regulations, operations was approved and facility environmental safeguards, and means acid-forming materials. Several locations and outfalls were known. reclamation. The level of detailed commenters also questioned what was Other commenters felt that monitoring required is highly variable and site meant by ‘‘deleterious materials.’’ plans would duplicate or conflict with specific, but must be enough that the ‘‘Deleterious material’’ is material with similar State or other Federal agency can evaluate whether the facility the potential to cause deleterious effects monitoring requirements. is not going to result in unnecessary or if not handled properly. This could In response, BLM anticipates that undue degradation of the public lands. include material which generates certain portions of the plan of An approved plan of operations allows contaminated leachate, is toxic to operations may change as a result of the for the mine facility to be constructed vegetation, and/or poses a threat to NEPA review process, including within the parameters outlined in such human health or wildlife. The term is monitoring programs. However, BLM preliminary designs. Since the operator broader and more inclusive than requires information on all aspects of does not know what BLM’s decision material with the potential to produce the plan of operations, including will be regarding plan approval, or acid drainage. monitoring programs, to determine conditions of approval, it may wait until Final § 3809.401(b)(3)(ix) has been whether they will prevent unnecessary the approval decision is issued before edited to clarify that stabilization in or undue degradation. This means basic committing the often significant amount place, rather than removal, may be information is required up front on what of resources necessary to prepare final appropriate for some facilities at resources will be monitored where and detailed construction engineering reclamation. This is consistent with the how, and what corrective measures drawings and specifications. For definition of ‘‘reclamation’’ at final would be triggered by what monitoring example, an operator may propose a § 3809.5. results. The purpose of the NEPA tailings impoundment of a certain size The plan of operations content process is to identify shortcomings in and location, but the environmental requirements related to the operating such plans and develop corrective analysis may evaluate several and reclamation phases of an operation measures (mitigation) in those plans. alternative locations or disposal are not inconsistent with NRC Report BLM does not agree that development of methods. In this case, it may not be recommendations. NRC Report monitoring programs should be deferred advisable for the operator to prepare Recommendation 9 encourages BLM to until after the plan of operations has final designs for an impoundment that continue to base permitting decisions on been through NEPA analysis. A may never be constructed. Once the the site-specific evaluation process monitoring program, tied to corrective preferred alternative is selected, the provided by NEPA. The process set out action triggers, can serve to mitigate plan of operations approval decision in the final rule does just that. Also, the many environmental impact concerns could then require the operator to NRC Report recommendation for a more and should be developed submit final approved engineering timely permitting process would be simultaneously with the plan of designs (and later ‘‘as-built’’ reports) in facilitated by providing prospective operations. BLM acknowledges that order to verify that the plan of operators with a comprehensive list of many existing State or Federal operations, as approved, would be requirements that may be applicable to monitoring programs, where present, followed. Final § 3809.411(d)(2) had their operations. While many of these would satisfy most monitoring needs. been added to clarify this process. requirements are not new, they have not The final regulation text has been BLM has revised the final regulations been clearly articulated under the revised to make it clear that monitoring to eliminate the word ‘‘detailed’’ from existing regulations. The final plans should incorporate existing State the proposed descriptions of operations regulations would help operators put or other Federal monitoring and reclamation in order to let the together a plan of operations that would requirements to avoid duplication. issues of a specific plan of operations allow BLM to initiate a substantive Other commenters were concerned determine the appropriate level of evaluation earlier than is presently that by requiring monitoring the BLM detail. This does not mean the operator occurring. was attempting to regulate resources may not eventually be required to such as water quality and air quality provide detailed information, just that it Monitoring Plan that have not been delegated to BLM. may not be immediately necessary to Final § 3809.401(b)(4) requires States or other Federal agencies regulate have such a level of detail in the initial operators to provide monitoring plans as water quality and air quality by plan of operations submitted for BLM part of the plan of operations. establishing discharge limits and review. Likewise, the term ‘‘conceptual’’ Monitoring plans must meet the monitoring them to determine has been added to final following objectives: demonstrate compliance with set numeric levels. § 3809.401(b)(2)(ii) to clarify that compliance with the approved plan of BLM is not attempting to duplicate detailed final engineering designs are operations and other Federal or State these regulatory programs under this not required at the initial step in the environmental laws and regulations, subpart, but BLM is required to regulate review process. Under final provide early detection of potential mining activity under FLPMA to § 3809.401(b)(3)(iii), an information problems, and supply information that prevent unnecessary or undue

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In order to evaluate management plan, including provisions would represent a significant burden, the impact of mining operations, and for notifying BLM of unplanned or but BLM believes it is appropriate for the effectiveness of mitigation in extended temporary closures. the operator to be responsible for preventing unnecessary or undue Some commenters did not see the providing this information to have their degradation, it is important to have the need for an interim management plan in proposed plan of operations be information that monitoring provides. each plan of operations because it favorably acted upon. Requiring monitoring plans under this would be a significant burden on the Many commenters were concerned subpart does not give BLM any operator, and it was only speculative with one aspect of this provision, that additional authority beyond what it that an operation may be suspended. It the information provided could include already has under FLPMA to prevent was also commented that an interim that applicable to private as well as unnecessary or undue degradation, but management plan prepared as part of public lands. Some commented that the rather allows BLM to ensure operations the plan of operations probably requirement suggests BLM intends to are following the approved plan and to wouldn’t be adequate to address the regulate non-public lands. Others were identify the need for any modifications environmental concerns at some future concerned BLM was using NEPA should problems develop. temporary closure. authority to regulate mining when it Finally, independent of the provisions BLM believes that interim should be used as an analysis and of this subpart, BLM must ensure that management plans do not pose a disclosure process. its actions (both direct activities and significant burden to operators if Final § 3809.2(d), discussed earlier in activities it authorizes) comply with all prepared as part of the plan of this preamble, has been added to make applicable Federal, State, tribal and operations. An operator, in planning to clear that BLM is not intending to mine, should also be able to plan under local air quality laws, statutes, exercise regulatory authority over what conditions they might temporarily regulations, standards, and private lands. However, NEPA requires not mine, and how they would manage implementation plans. See the pertinent that any environmental analysis the site to prevent unnecessary or undue portions of FLPMA, 43 U.S.C. conducted under that statute describe degradation during the temporary 1712(c)(8), 1732(c), and 1765(a)(iii), and the environmental effects on all lands, closure. If conditions change at the Clean Air Act, 42 U.S.C. 7418(a) and regardless of ownership, that would temporary closure, the interim 7506(c). Therefore, BLM may conduct, result from the BLM approval action for or require authorized users to conduct, management plan can be modified to the public lands portion of a project. appropriate air quality monitoring to address the new conditions or BLM agrees that NEPA is a procedural demonstrate such compliance. circumstances. The monitoring requirements in the BLM considered requiring interim statute that does not set substantive final regulations are not inconsistent management plans to be submitted only requirements operators must achieve. with the NRC Report recommendations. upon temporary closure, but concluded However, the NEPA regulations do NRC did not make any that preparing and processing an require BLM to describe impacts to all recommendations to limit monitoring, interim management plan as a resources, including those over which and in fact acknowledged that modification under § 3809.431 would BLM may not have regulatory authority, continued monitoring after mine closure impose a greater burden than if it was or for which BLM shares regulatory would be necessary and may need to done as part of the initial plan of authority with other agencies and to include monitoring of surface and operations. In addition, deferring address mitigating measures for those groundwater. preparation of interim management impacts. plans until a temporary closure was Several commenters were concerned Interim Management Plans imminent would not provide the up about the substantial additional burden New § 3809.401(b)(5) has been added front planning needed to consider the that the information requirements to the final regulations. We added this issues associated with temporary or would pose for many mine operators, section in response to NRC Report seasonal closures. Final § 3809.424(a) but then stated that the information was Recommendation 5, which says that has also been revised to require being collected anyway to meet State or BLM should require interim operators to follow the interim other Federal requirements and was management plans for periods of management plan if they stop duplicative. BLM agrees with the temporary closure. This provision of the conducting operations and to modify comments that much of the information final regulations is not inconsistent with the interim management plan if it does is already being collected by the other NRC Report recommendations. not cover the circumstances of the operator; therefore we don’t agree that it This paragraph requires operators to temporary closure. constitutes a substantial additional provide plans for the interim burden for the operators of large mines. management of the project area during Section 3809.401(c) Another commenter suggested that periods of temporary closure. The new Final § 3809.401(c) says that BLM the quality and quantity of baseline text requires that interim management may require the operator to provide studies should be determined in the plans include, where applicable: operational or baseline environmental NEPA scoping process, and that as measures to stabilize excavations and information needed by BLM to conduct written, this requirement to supply workings; measures to isolate or control the environmental analysis as required information is an open-ended invitation toxic or deleterious materials; by NEPA. This is a separate requirement for uneven or arbitrary and capricious provisions for the storage or removal of from the information needed under final action by BLM to request data that it equipment, supplies and structures; § 3809.401(b) to have a complete plan of thinks would be ‘‘nice to have,’’ and measures to maintain the project area in operations. Presently, many operators that BLM should not pass on the cost of a safe and clean condition; plans for are already providing information ‘‘basic inventory’’ or ‘‘nice to have’’ data monitoring site conditions during needed to support the NEPA analysis, to an owner/operator unless the owner/ periods of non-operation; and a and this regulation would formalize that operator is given financial credit equal schedule of anticipated periods of arrangement. For other operators, to the cost of the data collection.

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BLM does not believe that final which may be far from complete when situations where the regulation states § 3809.401(c) provides an open-ended the operator submits the estimate. that BLM ‘‘must disapprove’’ a plan of request for ‘‘nice to have data.’’ The A reclamation cost estimate can operations, which, when coupled with provision specifically links baseline represent a significant amount of time the completeness requirements, they data needs to the NEPA process. and engineering resources. BLM argued would create endless appeals. Scoping, as part of the NEPA process, believes operators should prepare the Comments were made regarding the would be used to identify issues cost estimate when the plan of difficulty of bonding for perpetual water associated with the operator’s proposal operations review process is nearly treatment and that plans involving and to determine the baseline data finished, not at the time the operator perpetual water treatment should be needs. This would serve to keep the submits the initial proposed plan of denied. Other commenters questioned data requirements tied to the issues operations. This way changes to the what was meant by a complete plan of identified for the individual plan of reclamation plan resulting from the operations and by adequate baseline operations under consideration. That is NEPA analysis can be incorporated into information. Specific comments follow: also the reason BLM has not required set the cost estimate, saving the operator A comment specifically asked on minimum amounts or durations of data resources. proposed § 3809.411(a), what BLM collection as suggested by some This section of the regulations is not meant by the term ‘‘complete.’’ In commenters. inconsistent with NRC Report response, a ‘‘complete’’ plan of Requiring baseline operational and recommendations. The first operations is one that contains a resource information under final § 3809 recommendation in the NRC Report was complete description of the plan, using 401(c) is not inconsistent with NRC to require financial assurance for all the applicable information content Report recommendations. To the disturbance greater than casual use. The listed in § 3809.401(b), in enough detail contrary, we believe it may facilitate the NRC went on to suggest the that BLM can conduct a NEPA analysis implementation of NRC Report establishment of standard bond amounts on the plan and make a determination Recommendation 9 regarding use of the for certain types of activities in certain as to whether it would cause NEPA evaluation process, NRC Report terrain. The BLM agrees with the use of unnecessary or undue degradation. Recommendation 10 regarding early standard bond amounts for certain One comment expressed serious interagency NEPA coordination, NRC activities, but does not believe they concerns regarding delays in agency Report Recommendation 14 regarding should be included in the regulations. actions. The commenter stated that long-term post-closure site management, As long as the regulations require that BLM’s proposal would essentially and NRC Report Recommendation 16 bond amounts be adequate to cover all eliminate the limited time deadlines regarding a more timely permitting the reclamation costs, standardized which now exist in the current 3809 process. Early communication with the bond calculation approaches that meet rules. After 18 years of experience, the operator on information collection this objective can be developed in local commenter asserted, BLM should need needs will result in a more efficient policy and guidance documents where less time to review plans, not more permitting process. regional cost structures can be taken because, this commenter felt, delay in into account. Reclamation cost estimates the permitting process is one of the most Section 3809.401(d) can rely on BLM guidance documents, significant impediments to continued Final § 3809.401(d) says that at a time but may need to be modified to account domestic mining investment and recent specified by BLM, the operator must for site-specific circumstances. experiences with BLM approvals for submit an estimate of the cost to fully plans of operations have shown Section 3809.411 What Action Will reclaim the operations as required by increasingly longer periods of time to BLM Take When It Receives My Plan of § 3809.552. This section was made obtain approval of the plans. The Operations? separate from the completeness commenter suggested that meaningful requirements for a plan of operations Final § 3809.411 contains the review regulatory time frames for plan review because it does not make sense for the process BLM will follow when it should be specified, such as 90 days operator to provide this information receives a plan of operations. In general, where only an environmental until the final reclamation plan is the process involves reviewing the plan assessment is required, and 18 months known with some certainty. for completeness; conducting the where an environmental impact BLM received several comments on necessary environmental analysis, statement is prepared. this section that stated BLM should be interagency consultation and public In response, BLM notes that even required to set a specific time limit on review; making a determination on under the existing regulations it may not how long BLM will have to review the whether the plan would prevent be possible to complete review of a non- reclamation cost estimate and a time unnecessary or undue degradation; EIS-level plan of operations within the line for the operator so he knows when identifying any changes in the plan that suggested 90 days. Many of the time the cost estimate is due. must be made to prevent unnecessary or frames BLM must follow, and the delays In response, we have added language undue degradation; and issuing a sometimes encountered, are related to to final § 3809.401(d) to the effect that decision to either approve, approve as coordination with other agencies or BLM will review the cost estimate and modified or not approve the plan of with completing mandatory notify the operator either of any operations. consultation processes which cannot be deficiencies or additional information Comments on this section expressed placed under preset time restrictions. needed or that we have determined the concern with the time it would take to While BLM has gained much experience final amount on which the financial process a plan of operations. in processing plans that has facilitated assurance is based. We did not set a Commenters also expressed concern plan processing, to a considerable extent specific time limit on how long we have over the purpose and utility of a public the efficiencies created by this to review the information because of the review process specific to the financial experience has been offset by the fact variability of the plan approval process. guarantee amount, although some that more technically complex issues, For example, some of the reclamation commenters endorsed the public review such as acid drainage, often require costs are based on mitigation measures process for reclamation bonding. Other careful and comprehensive review, and developed through the NEPA process, comments were concerned with the by the additional coordination efforts

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70044 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations needed to interact with other agencies. intend that its determination that a development over the segregation or BLM believes that under these proposed plan of operations is complete withdrawal. circumstances the best way to expedite is appealable to the Interior Board of EPA commented that the proposed the process is for the final regulations to Land Appeals. Only final decisions on regulations should be changed to fully identify the information requirements whether plans are adequate to prevent integrate the input from EPA and State for the operator, require BLM to provide unnecessary or undue degradation are environmental agencies prior to plan of the operator with a list of any appealable. operations approval. EPA stated that deficiencies within 30 days, provide for Another comment was that proposed under current procedures, after a final interagency agreements with the States § 3809.411 seemed to require EIS is issued, the mining company to reduce overlap, and to consult with compliance with all of the information submits its draft operating plan to BLM operators early in the mine planning requirements of proposed § 3809.401 for approval. There is no formal process on the required information and before the plan is ‘‘complete,’’ and requirement that BLM secure level of detail that would be needed to before the BLM can initiate the certification from State environmental meet the requirements of the substantive review process, including agencies or the EPA that all applicable regulations. NEPA review. The commenter environmental permits have been Several commenters were concerned questioned whether this was BLM’s secured prior to plan approval. Such a with proposed § 3809.411(c) which intent, for it requires the operator to process would assure that the mining requires that ‘‘BLM must disapprove, or submit documentation in a needless companies have met with and secured withhold approval of, a plan of level of detail and requires BLM’s the entire range of permits needed to operations if it (1) does not meet the employees to review plans and comply with environmental regulations. content requirements of 3809.401.’’ information that can be no more than The EPA comment does not They commented that there is no hypothetical. accurately reflect the current process. A proposed plan of operations is conceivable legal or policy reason why BLM wants operators to understand submitted prior to preparation of the BLM would want its regulations to that it is their responsibility to provide EIS. It is this proposed plan that require that it ‘‘must disapprove’’ a a sufficient level of detail up-front to constitutes the proposed action of the plan. That language can only constrain BLM on their proposed plan of NEPA document. As a result of NEPA the agency’s discretion, and on appeal, operations so that the potential for review, the plan may be modified by IBLA’s. One commenter stated that this unnecessary or undue degradation can conditions of approval needed to proposed language, combined with the be evaluated. The review process is detailed plan content requirements, prevent unnecessary or undue ongoing and begins when the operator creates fertile ground for appeals by degradation. We hope and expect that initially submits a plan of operations. opponents to mining projects. On interagency agreements developed with However, lack of information on what appeal, BLM may be required to defend the States under § 3809.201 would the operator is proposing will only not only the substance of its decision, address coordination of State delay the review and approval process. but its decision on the completeness of environmental permits with the plan of BLM has added a mechanism in final every aspect of the plan of operations, operations approval. Final § 3809.411(d)(2) which allows for the including the level of detail of the § 3809.411(a)(3) has an added incorporation of additional levels of project description and design, and the requirement that BLM consult with the implementation detail that may result long list of plans required by proposed States to ensure operations are § 3809.401. from review of the plan by BLM or by consistent with State water quality BLM has reworded the particular other agencies. standards. Final § 3809.411(d)(2) has sentence of concern under final A comment was made on proposed been added to provide for the § 3809.411 to remove the ‘‘must § 3809.411(c)(2) which may require incorporation of other agency permits disapprove’’ phrase, although it remains BLM to disapprove operations that are into the final plan of operations. clear that BLM may still disapprove a in an area segregated or withdrawn from Commenters raised the issue that the plan of operations because it is the operation of the mining laws. The BLM’s approval of a plan of operations incomplete. It should also be noted that commenter felt that segregation is not is a ‘‘federal licence or permit’’ and a decision by BLM that a plan of enough to trigger disapproval of a plan requires a Clean Water Act section 401 operations is ‘‘complete’’ does not mean of operations, that lands should be certification (or waiver of certification) BLM has determined it is adequate to accessible under the mining laws until from the State to be valid as long as a prevent unnecessary or undue the formal FLPMA withdrawal process discharge is anticipated by the plan of degradation. A ‘‘complete’’ plan is only has been followed. And that to do operations. one where the operator has merely anything different would violate BLM agrees with the comment, but described their proposal in enough FLPMA’s congressional mandate. does not need to amend subpart 3809 to detail that BLM is able to analyze the BLM disagrees with this comment. comply with section 401 of the Clean plan to determine whether it would FLPMA is clear that areas segregated Water Act. BLM will not approve a plan prevent unnecessary or undue from operation of the mining laws, in of operations under subpart 3809 until degradation. It is only after the complete anticipation of a withdrawal, are legally any necessary certification has been plan has been analyzed, and any not available for locatable mineral entry. obtained by the operator or waived additional mitigation developed that The only mining activity that can be under section 401 of the Clean Water might be needed to prevent unnecessary allowed in these areas are those Act. A section 401 certification is or undue degradation, that BLM may associated with mineral discoveries required for any plan of operations issue an approval decision on the made on valid mining claims prior to where discharges into navigable waters adequacy of the plan to prevent the segregation order and which are anticipated. BLM does not consider unnecessary or undue degradation. therefore have prior existing rights. The this a new requirement because 43 CFR Upon appeal, the decision under review final regulations at § 3809.411(d)(3)(ii) 3715 already makes uses and would be whether the plan of operations reference § 3809.100 which provides for occupancies under the mining laws ‘‘as approved’’ will prevent unnecessary a determination that the operator holds subject to all necessary advance or undue degradation. BLM does not prior existing rights to mineral authorizations under the Clean Water

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

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70046 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations that describes the seasonal nature of the have to file a modification under final In response, BLM acknowledges the activity and the overall duration of the § 3809.431(a) and undergo a review and difficulty in calculating an adequate plan would be sufficient. For example, approval process similar to the initial financial guarantee for long-term, a plan could state that mining would plan of operations approval, including continual, or perpetual water treatment. occur from May 1st through September any necessary NEPA compliance. A sufficient margin of safety for the 1st every year for the next 5 years. Final One commenter repeatedly public and the environment must be § 3809.401(b)(5) has been added to the commented on various aspects of the built into the cost assumptions, even regulations to assist operators with proposed regulations that BLM needs to though that may increase the financial development of interim management assure that the final regulations are guarantee amount and add to the plans for plans of operations that consistently used in the same way by operator’s cost. That is a problem involve seasonal activity. both BLM and the Forest Service. inherent in proposing an operation in an EPA commented that it was The Forest Service has responsibility area that requires perpetual water concerned with the perpetuation of for surface management impacts of treatment to prevent unnecessary or current procedures that do not promote mining activities on National Forest undue degradation. It would then be up cross-referencing between the final EIS Lands. BLM has developed the final to the operator to decide whether to and the operations plan. Past experience regulations it believes best meet BLM proceed with the project in view of the has shown that mining companies often management needs and are not significant financial guarantee that change key design and operating inconsistent with the recommendations would have to be provided. In BLM’s features in the operations plan that were in the NRC Report. view, the alternative of not not noted (or were given little analysis) One commenter was specifically acknowledging that long-term water in the final EIS. Not linking the EIS concerned with the problems and treatment is a possibility, and bonding process with the operations plan inherent risks in estimating a bond for accordingly, presents even greater process allows the introduction of perpetual water treatment. The public risks given the low reliability of features that were not adequately commenter stated that if the bond is present predictive modeling techniques. evaluated or publicly disclosed and insufficient to meet the costs of Additional comments on long-term which could potentially increase operating and maintaining the treatment water treatment urged that the best environmentally risks at the site. EPA facility, it will almost certainly be the policy is to deny any application for a believes that the proposed regulations public that is obligated to meet the mine that includes a requirement for should include a process to ensure that deficit, or to bear the cost of degraded long-term water treatment. The major mine design features noted in the water quality if treatment is commenters asserted that the long-term operations plan are fully evaluated in discontinued or degraded. There is also risk to the public, who is the ultimate the final EIS. If there are significant a potential burden on the mine operator guarantor for any long-term cleanup, is changes in the mine plan after the final in that if the amount bonded is too great, and that by doing so, BLM EIS is complete, a supplemental NEPA overestimated, the profitability of the would be best able to ‘‘assure long-term document should be prepared. Also, mine can be negatively affected. When post-closure management of mines sites EPA suggests that the recommendations bonds are established, an agency makes on federal lands’’ as stated by NRC noted in the final EIS regarding assumptions not only about the long- Report Recommendation 14. This mitigation measures be cross checked in term replacement and operating costs of commenter also asserted that it is the operations plan to assure that a treatment plant, but also about the possible to design most mines to mitigation approaches committed to by average inflation over the period of time preclude conditions that will require BLM in the EIS process are included in covered by the bond and the average long-term water treatment by using the operations plan. return-on-investment the bond amount operating and reclamation procedures to BLM believes the final regulations will generate over its lifetime. minimize the contamination of water. address the problems perceived by EPA. According to the commenter, as anyone Commenters also asserted that if it is not First, under the existing regulations, who follows the financial markets possible to design preventative operators are required to follow their knows too well, there is a considerable measures into the mine, then the mine approved plans of operations. If an amount of instability and risk in both of should not be permitted to open. operator doesn’t follow the approved these assumptions Typically, changing BLM did consider an alternative that plan of operations, it is a compliance either the inflation rate or the rate for would not approve plans of operations problem, not a NEPA problem, and is return-on-investment by a single that involved long-term or perpetual best addressed through improved percentage point will cause a huge water treatment. BLM decided that it is enforcement. The proposed regulations change on the required bond amount. difficult at best to accurately assess the specifically provide that failure to With a bond for perpetual treatment, post-closure treatment needs of a mine follow the approved plan of operations ultimately the public bears the risk of up front, which could be decades before constitutes unnecessary or undue these assumptions. In addition, actual closure would take place. BLM degradation. Final § 3809.601(b) predicting what costs might be, what was concerned that adopting such a provides that BLM may order a other problems might arise, and whether restriction might, paradoxically, result suspension of operations for failure to the vehicle chosen to provide financial in less analysis and disclosure by the comply with any provision of the plan assurance all involved a considerable proposed operator of information of operations. Mitigating measures amount of uncertainty. Second, there is relevant to potential water quality needed to prevent unnecessary or undue a risk that the financial vehicle used for impacts, and lead operators to be over degradation, developed during the the bond may not be available or viable optimistic about, and place greater NEPA process, are required as when it is required for treatment. reliance than may be warranted by the conditions of approval. The final Financial institutions, and even facts on, source control measures. BLM regulations at § 3809.411(d)(2) provide a government institutions, have a finite agrees that mine design and operation mechanism to require the operator to life. If these institutions change should focus on pollution prevention incorporate these mitigating measures significantly, or fail, the potential for measures, and the regulations are into the plan of operations. If operators damage from water pollution is still written to stress this preference. want to change their operations they there. Similarly, the use of some treatment

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

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70048 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations regulations. This provision provides for agencies is that it requires the plan of information description in final BLM to complete consultation with the operations to be updated upon § 3809.401(b) establish a process where State when needed to make sure that the completion of the review to incorporate the operator is advised early as to the plan of operations approved by BLM all relevant agencies’ requirements in a needed contents in the plan of will be consistent with State water single comprehensive document. operations, and the information quality standards. This allows for The other substantial change is in required to support the NEPA analysis. measures need to meet applicable water final § 3809.411(d)(3)(iii) where it This should facilitate plan review. The quality standards to be incorporated provides for BLM to disapprove a plan process will also provide for public into the plan of operations, limiting the of operations that would result in comment on all plans of operations, and need for later modification to the plan unnecessary or undue degradation. We for consultation with the other State and of operations. have added language to describe how Federal regulatory agencies, surface BLM has replaced proposed BLM would document disapproval of a managing agencies, and Tribes. This § 3809.411(d) with final § 3809.411(c). plan of operations that would cause early involvement by other parties, This paragraph replaces the requirement unnecessary or undue degradation should they chose to participate, would for public review on the amount of the under paragraph (4) of the final reduce the potential for last minute financial assurance with a 30-day definition of ‘‘unnecessary or undue surprises or delays in the approval minimum public review period on the degradation’’ in § 3809.5. The added process. plan of operations. BLM believes text states that, ‘‘If BLM disapproves The NRC Report also recommended soliciting comments on the merits of the your plan of operations based on that BLM develop procedures that will operating and reclamation plans are paragraph (4) of the definition of enable the agency to identify during the more useful than obtaining comments ‘unnecessary or undue degradation’ in plan of operations review process, the strictly on the reclamation cost § 3809.5, BLM must include written kinds of post-mining requirements that calculations themselves. BLM intends findings supported by a record clearly are likely to arise, and to incorporate that the comment period can be demonstrating each element of these into the approved plan of conducted as the public comment paragraph (4) including that approval of operations. BLM has accomplished this period on the NEPA document, either the plan of operations would create in the final regulations by requiring: (1) the EA or draft EIS, prepared for a irreparable harm; how the irreparable In § 3809.401(b)(3) that plans of specific plan of operations. Reclamation harm is substantial in extent or operations address post-closure cost estimates, to the extent they are duration; that the resources management; (2) in § 3809.411(d)(2) the available, would be included in the substantially irreparably harmed incorporation of other agency plans and NEPA documents, but would not be the constitute significant scientific, cultural, permit requirements (including closure focus of public review and would not be or environmental resources; and how requirements), into the approved plan of reviewed using a separate comment mitigation would not be effective in operations; (3) in § 3809.420(a)(3) that period. All reclamation cost calculations reducing the level of harm below the operations comply with applicable land would still be available for public substantial or irreparable threshold.’’ use plans; and (4) in § 3809.431(c) that inspection. All comments received Paragraph (4) of the definition of plan modifications be submitted prior to would be handled under the NEPA ‘‘unnecessary or undue degradation’’ mine closure to address unanticipated process. states, in part, ‘‘* * * conditions, events, conditions or information. Final § 3809.411(d) has been added to activities, or practices that * * * result clarify the decisions BLM may make in substantial irreparable harm to Section 3809.412 When May I Operate with regard to a plan of operations. BLM significant scientific, cultural, or Under a Plan of Operations? may approve the plan as submitted, environmental resource values of the Final § 3809.412 describes when an approve it subject to modification to public lands that cannot be effectively operator may conduct operations under prevent unnecessary or undue mitigated.’’ Any decision to deny the a plan of operations. It lists two criteria: degradation, or not approve it for the plan of operations must be supported by (1) BLM must have approved the plan reasons listed in final § 3809.411(d)(3). documentation showing how all four of operations; and (2) the operator must Aside from the organizational changes criteria have been met. It is BLM’s intent have provided the required financial for purposes of clarity, two changes in that a plan of operations would be guarantee. this paragraph are substantial. The denied on this basis only in exceptional BLM has edited this section for clarity second sentence in final circumstances. to remove the reference to the financial § 3809.411(d)(2) has been added which The final regulations in section guarantee required under proposed states: BLM may require an operator to 3809.411 are not inconsistent with the § 3809.411(d) since that section merely incorporate into the plan of operations NRC conclusions and recommendations. requires an estimate of the guarantee other agency permits, final approved We discussed earlier in this preamble amount. The reference has been engineering designs and plans, or other how the paragraph (4) provision replaced with one to final § 3809.551, conditions of approval from the review responds to the NRC Report which provides options for the financial of the plan of operations filed under recommendation that BLM clarify its guarantee instrument and associated § 3809.401(b). This additional sentence authority to protect valuable resources requirements. is to acknowledge that plans may be that may not be protected by other laws. BLM received several comments on approved subject to the satisfactory See the preamble to the definition of proposed § 3809.412 suggesting that completion of final design work, ‘‘unnecessary or undue degradation.’’ BLM should notify the operator when obtaining other necessary permits, or The NRC Report recommended that the operator may begin operations. completion of specific mitigation plans BLM plan for, and implement, a more When BLM issues a decision to the or studies. The benefit of this provision timely permitting process, while still operator under final § 3809.411(d), for the operator is that it lets the protecting the environment; and that notifying them of the approval of their operator preserve engineering and BLM involve all agencies, Tribes, and plan of operations, BLM would also technical resources until the operating non-governmental organizations in the state in that decision when operations parameters have been set by the plan earliest stages of the NEPA process. The may begin. This notification would list approval. The benefit to BLM and other requirements of final § 3809.411 and any deficiencies that must be satisfied

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70049 prior to initiating operations. The ‘‘reasonably incident’’ to ‘‘logically protected by other laws, and the NRC purpose of final § 3809.412 is to advise incident’’. recommended that BLM ‘‘communicate the operator that under no The requirement to prevent the agency’s authority to protect circumstances may operations begin unnecessary or undue degradation valuable resources that may not be until the plan of operations has been applies to all levels of locatable mineral protected by other laws.’’ See the NRC approved and the financial guarantee activity on public lands, casual use Report at pp. 120–22; see also at p. 69. provided. This section of the regulations activities, notice-level activities and to The NRC recommended that this be explicitly precludes operators from plans of operations. All activities done through ‘‘guidance materials’’ and conducting operations under a plan of conducted under casual use, notices or ‘‘staff training,’’ but we have decided it operations without BLM approval and plans must be reasonably incident to is more fair to the public and the an adequate reclamation bond. This is prospecting, mining, or processing regulated industry, and overall more not inconsistent with NRC Report operations. Activities that are not effective, to communicate this through Recommendation 1 that financial reasonably incident to these operations these regulations. The explicit listing of assurance should be required for the must be authorized under agency requirements that must be taken to reclamation of all disturbances greater authorities other than the 3809 prevent unnecessary or undue than casual use. regulations. The term ‘‘reasonably degradation in the final regulations will incident’’ comes from Public Law 167, address the NRC concern with the Section 3809.415 How Do I Prevent codified at 30 U.S.C. 612, and from the previous definition. Unnecessary or Undue Degradation regulations at 43 CFR 3715. BLM needs While Conducting Operations on Public to retain this term to maintain Section 3809.420 What Performance Lands? consistency with the applicable legal Standards Apply to My Notice or Plan of Operations? Final § 3809.415 lists the items standards. operators must do to prevent One comment expressed concern that Final § 3809.420 explains which unnecessary or undue degradation on proposed § 3809.415(c) did not include performance standards apply to a notice public lands while conducting the White Mountains National or plan of operations. The previous operations. It parallels the elements in Recreation Area. The commenter regulations at § 3809.2–2 provided the definition of ‘‘unnecessary or undue asserted that this is an example of the general performance standards in areas degradation’’ at final § 3809.5. flawed character of the proposed such as performing reclamation and regulations and illustrated a lack of complying with all applicable State and BLM received several comments on consideration given to the special Federal environmental requirements. this section. One comment was that environmental conditions that apply in Due to confusion in implementing this tying prevention of unnecessary or Alaska, the State with the largest portion of the previous regulations in undue degradation in proposed amount of public and other Federal the field, BLM determined that § 3809.415(a) to complying with the lands. additional performance standards terms and conditions of your approved BLM provided the list in proposed (which are incorporating some policies plan of operations would open the door § 3809.415(c) to present examples of that BLM had already put into effect for BLM to prescribe any terms and areas where certain levels of protection without amending the earlier conditions without being limited to the are required by specific law or statute regulations) and a clearer explanation of objective of preventing unnecessary or above the requirements in the 3809 the standards, would assist both undue degradation. Another was that regulations. It was not intended to be an operators and BLM in defining and the rules should be crafted so that exhaustive list of all areas where such preventing unnecessary or undue compliance with an approved plan of requirements exist. The local BLM Field degradation. operations is sufficient to demonstrate Offices are responsible for identifying BLM considered developing compliance with any performance such areas under their management performance standards that would standards. when they administer the 3809 specify the design and operating In response, as final § 3809.411(d) regulations. Operators are responsible requirements for exploration, mining states, any terms or conditions BLM for knowing if they are operating or and reclamation components. These places on a plan of operations approval proposing to operate in such areas. requirements would serve as minimum would be those needed to meet the The final regulations add national standards that would specify performance standards in § 3809.420. § 3809.415(d) which says, ‘‘You prevent how all operations had to be designed, Compliance with the performance unnecessary or undue degradation constructed, and operated. We decided standards is part of preventing while conducting operations on public this approach is impractical and unnecessary or undue degradation. lands by * * * (d) Avoiding substantial inflexible given the range of However, while BLM intends that irreparable harm to significant environmental conditions on the public compliance with an approved plan of scientific, cultural, or environmental lands and the wide variety of operations would be adequate to meet resource values of the public lands that exploration and mining activities and the performance standards, this may not cannot be effectively mitigated.’’ This for inconsistency with the NRC Report. always be the case. Conditions or addition was made to parallel the The approach selected for final circumstances that were not anticipated change made in the definition of § 3809.420 is to focus on the outcome of during initial plan approval may ‘‘unnecessary or undue degradation’’ accomplishments that the operator must eventually occur, requiring that with the addition of paragraph (4) in the achieve. These ‘‘outcome-based’’ operations be modified in order to meet final regulations at § 3809.5. performance standards put minimal the performance standards and prevent Final § 3809.415 is not inconsistent emphasis on how the operator conducts unnecessary or undue degradation. with the NRC Report recommendations. the activity, so long as the desired One comment asked BLM to (1) The report noted that the current outcome is met. This approach allows clarify what level of incremental activity regulatory definition of ‘‘unnecessary or the operator maximum flexibility, they want to judge for unnecessary or undue degradation’’ does not explicitly encourages innovation, and fosters the undue degradation under proposed provide authority to protect valuable or development of low-cost solutions. In § 3809.415(b) and (2) change sensitive resources that are not implementing final § 3809.420 BLM will

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70050 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations review each notice or proposed plan of from occurring. ‘‘Minimize’’ means to Consequently, because the United States operations to determine if it is reduce the impact to the lowest does not own the navigable waters lying reasonably likely to meet each outcome- practical level. During its review of within the States, BLM lacks the based performance standard, but BLM plans of operations, BLM may statutory authority to promulgate won’t require any specific design to be determine that it is practical to avoid or regulations under FLPMA managing the used. The approach we have selected is eliminate particular impacts altogether. quality of such waters. The commenter consistent with a recommendation in BLM added the phrase ‘‘where stated that BLM’s previous regulations the NRC Report that BLM continue to economically and technically feasible’’ correctly deferred water quality use comprehensive performance-based or the phrase ‘‘where technically regulation to applicable environmental standards rather than using rigid, feasible’’ to make it clear to BLM and protection statutes and regulations. technical prescriptive standards. operators when economic and/or With regard to water quantity, the The NRC Report also suggested that technical feasibility would be commenter stated that BLM has long some changes to the previous rules are considered in achieving certain recognized that it must defer to and warranted. The NRC emphasized that performance standards. See, for comply with state water right laws with BLM as a land manager on the public’s example, final §§ 3809.420(b)(3)(ii) and respect to matters of water use and behalf stands in a different relationship 3809.420(b)(4)(ii). allocation. to the land and its resources from other To acknowledge the fact that some BLM disagrees in part with the landowners and from regulators who States delegate certain environmental comment. The final rules do not focus on specific environmental media. requirements to local governments, we establish water quality standards. BLM The Federal land managers have a added language to say that where does have the authority, however, to mandate to ensure long-term delegated by the States, operators must regulate operations conducted on public productivity of the land, protection of comply with local governments laws land to prevent unnecessary or undue an array of uses and potential future and requirements. We dropped the degradation, and may appropriately give uses, and management of the Federal concept of Most Appropriate consideration given to the effects an estate for diverse objectives. This Technology and Practices from operation may have on water quality relationship means that the term proposed §§ 3809.5 and 3809.420. and quantity. FLPMA, at section ‘‘regulator does not fully describe BLM Instead, in final § 3809.420(a)(1), we 102(a)(8), states in part that, ‘‘the public and Forest Service responsibilities when clarified that operators must utilize lands be managed in a manner that will dealing with mining activities on equipment, devices and practices that protect the quality of * * * water Federal lands. It also means that these will meet the performance standards. resource * * * values * * *’’ 43 U.S.C. agencies are not merely landholders. We also added language ‘‘to minimize 1701(a)(8). In general, BLM relies on They are both landholders and impacts and facilitate reclamation’’ to operator compliance with State or regulators, with set statutory final § 3809.420(a)(2) to clarify the Federal water quality standards to meet management standards. Further they purpose of this requirement. this objective. BLM can also require must serve a constituency almost always In our continued effort to clarify that operators to incorporate protective described in national terms—‘‘the BLM is not usurping the States authority measures for water resources into their nation’s need,’’ ‘‘all Americans,’’ ‘‘future to regulate water resources, BLM operating and reclamation plans. generations.’’ NRC Report at p. 40. The dropped the requirement from proposed BLM agrees that the 3809 regulations NRC Report also noted that, in general, § 3809.420(b)(2)(i)(B) Surface water to do not apply to operations on State the presence of multiple regulatory handle earth materials and water in a land, such as on certain beds of waters programs helps to assure that large-scale manner that minimizes the formation of that were navigable at statehood. But the mining on Federal lands is subject to acidic, toxic, or other deleterious legal rules for determining ownership of substantial scrutiny. pollutants of surface water systems’’ and the beds of waterbodies are complex, The performance standards are removed the same language from and in many situations throughout the divided into three groups: General proposed § 3809.420(b)(2)(ii)(B) public lands, it has never been Performance Standards, Environmental Groundwater. In addition, at both determined who owns the beds of Performance Standards and Operational proposed § 3809.420(b)(2)(C), now final particular waterbodies. For one thing, Performance Standards. This was done § 3809.420(b)(2)(B), and whether particular watercourses were in to distinguish the broad performance § 3809.420(b)(2)(ii)(B) Groundwater, we fact navigable at statehood has never standards—such as concurrent eliminated the words ‘‘Manage been adjudicated. Furthermore, the U.S. reclamation and conformance to the excavations and other disturbances’’ not only generally owns the beds of applicable land use plan—from the and inserted the words ‘‘conduct waterbodies that were not navigable at environmental performance standards operations’’ in their place to clarify that statehood, but also owns the beds of that are specific to certain media such all aspects of operations have to comply waterbodies that were navigable at as air and water; as well as from the with these requirements. statehood, if the U.S. had reserved the operational performance standards A commenter asserted that BLM’s lands for Federal purposes prior to which describe what operational regulatory authority under FLPMA does statehood. See, for example, United components a project must achieve. not extend to water quality or water States v. Alaska (521 U.S. 1, 117 S. Ct. Proposed § 3809.420 was modified in quantity issues. The commenter 1888 (1997)). Finally, even where States response to comments; primarily to reasoned as follows: FLPMA grants BLM do own the beds of navigable waters on provide added flexibility to operators. the authority to prevent ‘‘unnecessary or public lands, operators usually must use Requirements to ‘‘prevent’’ the undue degradation of the public lands.’’ public land above and adjacent to the introduction of noxious weeds, and Public lands under FLPMA must be high water mark as part of their ‘‘prevent’’ erosion, siltation and air owned by the United States and operations. Such use is subject to the pollution were replaced with administered by BLM. The United 3809 regulation and requires plan requirements to ‘‘minimize’’ these States does not hold title to navigable approval, which may be withheld things. This was done in response to waters, and thus, navigable waters unless the plan of operations includes public comments that pointed out an generally are not included within the measures necessary to protect the public operator cannot always prevent impacts definition of public lands. lands from any activities conducted by

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70051 the operator. As to matters of water use which required operators to use native level of protection provided for listed and allocation, this final rule respects species for revegetation when they are species and their designated critical established systems of State law that available and to the extent technically habitat, except that formal consultations allocate water rights. feasible. We added the ‘‘when are not required. BLM Manual Chapter A commenter stated that by focusing available’’ language in recognition of the 6840.06(B), Rel. 6–116, Sept. 16, 1988. on ‘‘degradation * * * of the public fact that at the present time, sources for Also, to maintain consistency with final lands,’’ Congress consciously tasked seeds of native species cannot keep up § 3809.420(b)(6)(iii) and to clarify that BLM with managing the surface impacts with demand. When we use the term any actions to prevent impacts to of mining and that Congress did not ‘‘native species’’ in this final rule, we threatened or endangered species are authorize BLM to regulate or limit the mean to give the term the same required, BLM added the word ‘‘any’’ so effects of mining on ground water, definition of ‘‘native species’’ found in the final reads, ‘‘You must take any surface water, or other environmental Executive Order 13112, entitled necessary measures to protect Federally media. The commenter asserted that ‘‘Invasive Species,’’ dated February 3, proposed or listed threatened or Congress did not ignore the need for 1999. Under the Executive Order and endangered species, both plants and environmental protections on the public this final rule, ‘‘native species’’ means, animals, and their proposed or lands, but it empowered BLM to with respect to a particular ecosystem, designated critical habitat as required by incorporate State and other Federal a species that, other than as a result of the Endangered Species Act.’’ environmental laws into its regulatory an introduction, historically occurred or BLM lengthened the time requirement program, which the commenter asserted currently occurs in that ecosystem. of 20 business days in proposed is what BLM has done in the 20 years There are occasions when non-native § 3809.420(b)(7)(ii) to 30 calendar days that the 3809 regulations have been on plant material may need to be used in in final § 3809.420(b)(7)(ii) to give time the books. The commenter concluded revegetation of an area, but we also required to ‘‘evaluate the discovery and that in the proposed rule BLM is seeking added language to the final rule to take action to protect, remove, or to tread heavily in environmental areas specify that in a situation where an preserve the resource.’’ Congress said were off limits. operator uses non-native species, the At final § 3809.420(c)(3)(ii) and (iii), BLM disagrees with the comment that non-native species should not be which is the performance standard for unnecessary or undue degradation does invasive, nor inhibit re-establishment of acid-forming, toxic, or other deleterious not consider the effects of mining on native species. For example, operators materials, BLM added migration control ground water, surface water, or other often use a seed mixture of non-native so final § 3809.420(c)(3)(ii) now reads, environmental media. FLPMA section annual and native plant material for ‘‘If you cannot prevent the formation of 102(a)(8) states in part that, ‘‘the public revegetation because the non-native acid, toxic, or other deleterious lands be managed in a manner that will seed will germinate quickly to hold the drainage, you must minimize protect the quality of * * * ecological, soil in place and keep invasive species uncontrolled migration of leachate * * * environmental, air, * * * [and] from encroaching into the disturbed (migration control).’’ Final water resource * * * values * * *’’ The site. (Native species usually take longer § 3809.420(c)(3)(iii) reads, ‘‘You must FLPMA mandate to prevent unnecessary to germinate and become established.) capture and treat acid drainage, or other or undue degradation includes This would be allowable under the final undesirable effluent, to the applicable degradation of water resources or of any rule if the non-native species would standard if source controls and other resource located upon the public gradually give way as the native species migration controls do not prove lands. BLM has the authority to regulate become established on the site. Another effective. You are responsible for any operations conducted on public land example is when a seed bank of native costs associated with water treatment or with consideration given to the effects species exists in the soil of a site being facility maintenance after project an operation may have on any of these revegetated. Under the final rule, an closure. Long-term, or post-mining resources. In part, BLM relies on operator could plant short-lived, non- effluent capture and treatment are not operator compliance with State or native species to hold the soil in place acceptable substitutes for source and Federal media-specific standards and until the native species reestablish migration control, and you may rely on programs to meet this objective. themselves from the on-site seed bank. them only after all reasonable source However, BLM can also require In the final rule, we changed the and migration control measures have operators to incorporate protective heading of the proposed fish and been employed.’’ measures for environmental media into wildlife performance standard, At final § 3809.420(c)(7), concerning their operating and reclamation plans. § 3809.420(b)(6) to read, ‘‘Fish, wildlife, pit reclamation, BLM removed the Federal law requires BLM to ensure that and plants’’ to clarify that it also covers presumption for pit backfilling, in its actions (both direct activities and plants. In final § 3809.420(b)(6)(ii), we response to public comments and the authorized activities) comply with all clarified that the reference to discussion in the NRC Report. Final applicable local, State, tribal and ‘‘threatened or endangered species and § 3809.420(c)(7)(i) now reads, ‘‘Based on Federal air and water quality laws, their habitat’’ in the proposed rule the site-specific review required in regulations, standards and means Federally proposed or listed § 3809.401and the environmental implementation plans. See FLPMA threatened or endangered species or analysis of the plan of operations, BLM sections 202(c)(8), 302(c), and their proposed or designated critical may determine the amount of pit 505(a)(iii), Clean Air Act sections 118(a) habitat. The ESA requires BLM to enter backfilling required, taking into and 176(c) and Clean Water Act section into formal consultation with the FWS consideration economic, environmental, 313(a). Therefore, BLM may require or the NMFS on all actions that may and safety concerns.’’ Final operators to conduct operations to avoid affect a listed species or its habitat. BLM § 3809.420(c)(7)(ii) was modified from or limit impacts to air and water must request a formal conference with the proposed rule for clarity to read, resources or require them to conduct FWS or NMFS on all actions that may ‘‘You must apply mitigation measures to appropriate air and water quality affect a proposed species. Thus, it is minimize the impacts created by any monitoring to demonstrate compliance. BLM’s longstanding policy to manage pits or disturbances that are not The final rules contain a revegetation species proposed for listing and completely backfilled.’’ These changes performance standard, § 3809.420(b)(5), proposed critical habitat with the same regarding pit backfilling are consistent

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70052 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations with current BLM management A commenter disagreed with a large-scale mining on Federal lands is practices. statement in the draft EIS that the BLM subject to substantial scrutiny.’’ See p. A commenter asserted that BLM does lacks ‘‘clear, consistent standards for 54. not have the authority to impose environmental protection’’ (p. 12, Draft Commenters expressed concern over regulations that will eliminate EIS). The commenter stated that there mitigation. BLM has adopted a three- environmental impacts if those are over 20 State and Federal tiered approach to mitigation. First, we regulations also limit the opportunity to environmental regulations that control encourage avoiding the impact develop mining claims on public lands. mining industry impacts on the altogether by not taking the action or The commenter stated that this issue environment, and that Congress certain parts of an action. Secondly, we was addressed in the final EIS for the delegated authority for implementation encourage the operator to minimize the previous 3809 regulations, where the of environmental regulation to specific impact by (a) limiting the degree or Department of the Interior explained Federal and state agencies in order to magnitude of the action and its why it was not adopting an alternative avoid overlapping authority and implementation; (b) rectifying or that would have imposed stricter redundancy. The commenter asserted eliminating the impact by repairing, environmental standards. The that Congress limited the authority of rehabilitating, or restoring the affected commenter asserted that, while BLM the BLM to regulate locatable mineral environment; and (c) reducing or has the authority to take ‘‘any action exploration and development in eliminating the impact over time by necessary to prevent unnecessary or accordance with FLPMA and has not taking appropriate steps during the life undue degradation of the public lands,’’ significantly modified this authority of the action. Thirdly, an operator may, the word ‘‘necessary’’ places a limit on since 1976. Thus, BLM must ensure that if the impacts are unavoidable, BLM’s authority. The commenter stated its regulatory actions are consistent with compensate for the impact by replacing that the proposed rule would expand the intent of Congress as reflected in the or providing substitute resources or the BLM’s regulatory role beyond that existing environmental statutes. environments. Mitigation would only authorized by FLPMA, and would BLM disagrees that its rules exceed its occur on a limited case-by-case basis if fundamentally change BLM from a land statutory authority under FLPMA and this strategy is followed. management agency with jurisdiction the mining laws. Although other Federal Some commenters questioned BLM’s shared with the States into an EPA-like and State agencies regulate various authority to require mitigation of agency, setting Federal environmental aspects of mining under other statutes, unavoidable impacts. We believe, standards that in turn drive standards BLM has its own responsibilities under however, that sections 302(b) and 303(a) on Federal, State and private lands. The FLPMA and the mining laws to protect of FLPMA, 43 U.S.C. 1732(b) and commenter asserted that this is far the resources and values of the public 1733(a), and the mining laws, 30 U.S.C. beyond what Congress had in mind lands from unnecessary or undue 22, provide the BLM with the authority when it directed the BLM in FLPMA to degradation. The statement from the to require mitigation. Mitigation prevent unnecessary or undue draft EIS reflects the difficulty BLM measures fall squarely within the degradation. often encounters in determining what actions the Secretary can direct to BLM disagrees with the comment. constitutes unnecessary or undue prevent unnecessary or undue The mining laws do not establish an degradation. The NRC Report noted this degradation of the public lands. An unfettered right to develop mining difficulty in its Recommendation 15. impact that can be mitigated, but is not, claims free from environmental See NRC Report, pp. 120–22; see also id. is clearly unnecessary. Section 303(a) of constraints. The Mining Law of 1872 pp. 68–71. FLPMA directs the Secretary to issue itself refers to ‘‘regulations prescribed Numerous commenters were regulations with respect to the by law,’’ 30 U.S.C. 22, and FLPMA concerned that BLM’s requiring ‘‘management, use and protection of the mandates regulation to prevent compliance with State or Federal public lands * * *’’ In addition, 30 ‘‘unnecessary or undue degradation.’’ environmental requirements duplicates U.S.C. 22, allows the location of mining That is, section 302(b) of FLPMA existing State and Federal programs and claims subject to ‘‘regulations expressly amended the mining laws by permitting requirements, especially prescribed by law.’’ Taken together making rights under the mining laws regarding water quality. BLM made these statutes clearly authorize the subject to the Secretary’s responsibility, modifications to the proposed rule to regulation of environmental impacts of by regulation or otherwise, to take any clarify that BLM is not duplicating State mining through measures such as action necessary to prevent unnecessary or Federal requirements but instead is mitigation. BLM may mandate or undue degradation of the public making it clear to operators, the public particular steps to mitigate where lands. Because FLPMA did not define and BLM field managers that operators mitigation can be performed onsite. For ‘‘unnecessary or undue degradation,’’ must comply with State and or Federal example, if due to the location of the ore the Secretary may do so in these rules. environmental requirements. BLM as body a riparian area must be impacted, BLM believes that the regulation the land manager of public land is mitigation can be required on the public changes are necessary to prevent ultimately responsible for ensuring that land within the area of mining unnecessary or undue degradation. BLM operations on land under its jurisdiction operations. If a suitable site for riparian has identified numerous regulatory are in compliance with various Federal, mitigation cannot be found on site, the issues that need to be addressed. The State, tribal or, where delegated by the operator may voluntarily choose, with NRC Report has also identified issues State, local government environmental BLM’s concurrence, to mitigate the and recommended regulatory changes. requirements. If operators are cited for impact to the riparian area off site. The commenter is also wrong in violations of these environmental Some commenters were concerned asserting that proper land management requirements by appropriate authorities, that BLM did not have the authority to, does not include setting appropriate BLM will notify operators they are in or should not require, operators to environmental standards for activities non-compliance with their plan of follow a ‘‘reasonable and customary that occur on the public lands, operations and act accordingly. The mineral, exploration, development, particularly in light of the Congressional NRC Report observed that, ‘‘In general, mining and reclamation sequence.’’ In policy set forth in section 102(a)(8) of the existence of multiple regulatory BLM’s experience, there have been FLPMA. programs helps to assure that at least instances in the past where operators

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70053 have created unnecessary impacts by Some commenters supported BLM lands. Operations under this subpart not following a reasonable and requiring the use of Best Available would have to comply with the customary mineral development Technology and Practices (BATP) and performance standards of final sequence. Therefore we believe opposed the use of Most Appropriate § 3809.420. These performance regulating sequencing may be necessary Technology and Practices. Since BATP standards will ensure that the rangeland to prevent unnecessary or undue doesn’t lead to innovation and health standards can be met. To the degradation. BLM will review development of new technology, BLM extent that the standards for rangeland sequencing on a large scale and will not chose not to require the use of BATP, or public land health are incorporated regulate the sequencing of small preferring instead to use outcome-based in BLM’s land use plans, they will be portions of an operation. performance standards, as discussed reflected in the plans of operations that Numerous commenters wanted BLM earlier in this preamble. The definition BLM approves under this subpart. to establish explicit provisions for of MATP also served to confuse and not Section 3809.423 How Long Does My groundwater protection as well as add any value to the regulations and Plan of Operations Remain in Effect? general and operational performance was therefore dropped from the final standards. BLM considered establishing rule. BLM has sought, in the Final § 3809.423, which was not numeric standards for groundwater development of performance standards, changed from what was proposed, states affected by operations. Currently, there to focus on the outcome or that the plan of operations is in effect as are no Federal groundwater standards, accomplishment the operator must long as operations are being conducted, and several States where mining achieve. unless BLM suspends or revokes the activities subject to these regulations Some commenters thought that the plan of operations for failure to comply occur do not have their own requirement to ‘‘minimize changes in with this subpart. groundwater standards. BLM decided water quality in preference to water BLM received several comments on not to propose numeric standards supply replacement’’ was an improper this section of the proposed regulations. because of the difficulty of designing infringement upon State water laws. We One comment suggested that BLM nationwide numeric standards relevant believe, however, that sections 302(b) should establish a term or duration after to the range of conditions. BLM believes and 303(a) of FLPMA, 42 U.S.C. 1732(b) which a plan of operations would have the States are better equipped to and 1733(a), and the mining laws, 30 to be renewed. A term of 5 years was develop groundwater standards U.S.C. 22, authorize, if not mandate, suggested for active plans of operations applicable within their borders. Instead, that BLM require mining operators to and a term of 1 year for inactive the regulations adopt a pollution minimize water pollution (source operations. minimization requirement, in control) in preference to water BLM considered issuing plan of preference to treatment or remediation, treatment, and it is appropriate for BLM operations approvals with limited and rely upon applicable State to make these decisions in reviewing periods of effectiveness or terms, but standards for groundwater where they and deciding whether to approve could not decide upon a standard term are present. mining plans. This review falls squarely or duration due to the variability in Some commenters were concerned within the actions the Secretary can mining operation sizes and types. BLM that BLM’s requirement to return direct to prevent unnecessary or undue believes it is more appropriate to have disturbed wetlands and riparian areas to degradation of the public lands. While the operator propose an overall proper functioning condition, where allocation and permitting of water use is schedule for operations. During the plan economically and technically feasible, primarily the responsibility of the review and approval process, BLM would infringe upon the U.S. Army States, the ‘‘prevention of unnecessary would then approve the operations Corps of Engineers (COE) and EPA’s or undue degradation’’ mandate makes schedule for the individual mining plan responsibility to manage wetlands it BLM’s responsibility to address under review. Changes or extensions in under their jurisdiction (so-called impacts to water resources on the lands the schedule could be provided through ‘‘jurisdictional wetlands’’) under § 404 under its jurisdiction, in deciding plan modifications under § 3809.431(a), of the Clean Water Act. BLM is not whether to approve plans of operations if needed. proposing to duplicate the regulation of under these regulations. Other comments were concerned with jurisdictional wetlands. Not all There were comments that BLM the revocation clause in this section of wetlands meet the definition of should not require operators at closure the regulations. One commenter jurisdictional wetlands. BLM has to detoxify leaching solutions and suggested removing the revocation responsibility for wetland and riparian heaps. Final § 3809.420(c)(4) lists provision from the regulations. Another areas found on public lands under its acceptable practices for detoxification of asked how long BLM would give the jurisdiction that do not fall under the leaching solutions and heaps and adds operator before revoking the operating COE jurisdiction, and the final rules that other methods that achieve the plan. require that impacts to them either be desired success are acceptable. Final § 3809.423 provides that the avoided or mitigated. However, all materials and discharges plan of operations approval is good for Commenters were concerned that must meet applicable standards. Partial the life of the project as described in the waste dumps should not be located on detoxification is not acceptable if upon plan. In the event the operator fails to millsites (non-mining claims). Final completion, all materials and discharges comply with an enforcement order, § 3809.420 does not address whether don’t meet applicable standards. however, the plan approval can be waste dumps can be located on Some commenters expressed concern revoked under § 3809.602. BLM believes particular mining claims. The issue that the performance standards would this is appropriate where the operator is raised, in part, relates to whether not require compliance with BLM’s failing to take corrective actions locating waste dumps on mining claims standards and guidelines for grazing specified in an enforcement order. Final rather than millsites affects the validity administration (43 CFR part 4100, § 3809.602(a)(1) provides that a plan of those mining claims under the Subpart 4180). The rangeland health may be revoked after the time frames mining laws. This is an issue the standards are expressions of physical provided in the enforcement order have Department is currently examining, but and biological conditions or degree of been exceeded, and it provides the is not implicated in this rulemaking. function required of healthy sustainable operator with due process to appeal

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70054 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations such a determination. The enforcement necessary actions during the period of made that the rule should not just direct order’s time frame will vary from case non-operation to assure that BLM to review to see if termination is to case depending upon the specific unnecessary or undue degradation does warranted, but should instead require cause of the violation and the urgency not occur. This includes requiring the BLM to initiate termination. with which it must be abated to prevent removal of structures, equipment and In response to comments, BLM has unnecessary or undue degradation. other facilities, and reclamation of the incorporated the NRC Report Final § 3809.423 is not inconsistent project area. After 5 consecutive years of recommendation regarding interim with the recommendations of the NRC inactivity BLM will review the management plans into final Report. The NRC Report did discuss the operation to determine whether the §§ 3809.401 and 3809.424. Because of issue, as follows: operation is abandoned and whether the recognized value an approved plan The Committee did not determine if plans BLM should direct final reclamation of operations may have, and the of operations should be reviewed or and closure. If BLM determines the potential for changing market reopened at predetermined intervals. The operation has been abandoned, it may conditions, the rule allows up to 5 years evolutionary nature of mining at individual initiate bond forfeiture and conduct the to pass before BLM conducts a review sites—particularly at mines using newer reclamation. If the bond is not adequate to see if the plan should be terminated. technologies and dealing with disseminated to pay for the reclamation, BLM may The final regulations do not require the mineral deposits—requires changes in the complete the reclamation and hold the plan to be terminated after five years, limitations on plan modifications in the operator liable for the reclamation costs. only that a review be conducted to original BLM and Forest Service regulations. Comments received on proposed Updating of financial assurance instruments determine if it should be terminated. If § 3809.424 included suggestions for there is adequate bonding in place, no should also take place as conditions change incorporating the NRC Report that might affect the levels of bonding or unnecessary or undue degradation other forms of financial assurance. Practices recommendation on temporary and occurring, and persuasive reasons exist now vary among the states and federal abandoned operations; concern that to maintain an inactive status, there may agencies. BLM would terminate plans, thus be no reason for BLM to terminate the causing a decrease in the value for the plan and direct final closure. However, Report, p. 101. The issues of plan operator; suggestions for putting limits modification and changes in levels of a plan of operations cannot be allowed on how long an operation can wait for to remain inactive and unreclaimed financial assurance are discussed improvement in commodity prices; and further below. indefinitely. BLM believes that 5 years objections that operators would be held is a reasonable amount of time to allow Section 3809.424 What Are My responsible for reclamation costs that most operators to maintain standby Obligations if I Stop Conducting exceed the amount of the financial conditions. After 5 years of inactivity, it Operations? assurance should BLM terminate a plan will be increasingly difficult to remove and implement reclamation. Specific equipment, maintain suitable access for Final § 3809.424 addresses the comments and responses to proposed reclamation purposes, control weed obligations of operators should they § 3809.424 follow. stop conducting operations. This section Numerous commenters were infestations, preserve topsoil stockpiles, of the regulations provides in table concerned that proposed and ensure public safety. At some point, format a list of conditions operators § 3809.424(a)(3) and (4) be revised to BLM should direct reclamation and must follow during periods of non- incorporate NRC Report closure. operation. It also describes what BLM recommendations and describe the One commenter proposed an will do if non-operation is likely to conditions that will cause BLM to alternative approach for interim cause unnecessary or undue unilaterally terminate a plan of management plans, as follows: (1) BLM degradation; or if BLM determines the operations. They noted that an approved should require an operator to notify operation has been abandoned. plan of operations has financial value to BLM and the State of intent to The final regulations at § 3809.424 the owner/operator and can be temporarily cease operation. (2) An carry out Recommendation 5 of the NRC transferred to another owner or operator interim management plan should be Report, which was that BLM require as part of a total mining package. The adopted within 90 days of a decision by interim management plans, define commenters asserted that BLM should the mining company to cease operations conditions of temporary closure, and not have the ability to unilaterally due to market conditions or other define conditions under which terminate a financially valuable part of factors. (This approach is taken in some temporary closure becomes permanent a mining operation. The proposed 5- state programs, such as section 273(h) of and all reclamation and closure year threshold for terminating an California’s Surface Mining and requirements must be completed. approved plan of operations failed to Reclamation Act.) (3) BLM should Final § 3809.424 requires that if an properly consider the economic annually review the operation to operator stops conducting operations for consequences of unilateral cancellation determine whether the site is viable to any period of time, the operator must when the suspended mining operation restart, and assess the intent of the follow the approved interim is not causing unnecessary or undue operator to continue operations. (4) If, management plan for its plan of degradation and BLM has certified that after two consecutive years, the operator operations, take all necessary action to the financial guarantees are adequate. has not indicated an intent to restart prevent unnecessary or undue Other commenters suggested amounts of mining, the BLM should require the degradation, and maintain an adequate time, ranging from 3 years to 10 years, operator to begin reclamation. (5) If the financial guarantee. If the interim that operations should be allowed to ‘‘temporary’’ closure extends to 5 years, management plan does not address the remain inactive before terminating the the operator must demonstrate that the particular circumstances of the plan of operations. One comment site will be re-opened. Otherwise, the temporary closure, the operator must suggested that the temporary closure be operator must begin reclamation. submit a modification of the interim considered permanent only when the Another comment suggested that the management plan to BLM within 30 operator advises BLM it is permanent. operator should be required to obtain days. The regulations also provide that Others suggested that five years is just approval of an interim management BLM will require the operator to take all the right length of time. A comment was plan that describes what measures will

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70055 be taken to comply with proposed length of these ‘‘down times’’ caused by a difficult, if not impossible, time § 3809.424(a)(1)(i-iii). low commodity prices cannot be securing reclamation bonds. BLM prefers to require that the determined in advance. Nonetheless, BLM disagrees with the comment. operator propose an interim EPA asserted, there needs to be some The operator’s liability is not limited to management plan for periods of non- criteria, within the plan of operations, to the amount of the reclamation bond or operation as part of the initial plan of determine when extractable resources other financial instrument. The operator operations. This approach should have been exhausted, and when is responsible for preventing reduce the workload on both the reclamation should commence. EPA unnecessary or undue degradation. This operator and BLM, plus provide for up- recommended that criteria be included includes complying with applicable front planning on how to manage that define mining activity end-points environmental standards such as water periods of non-operation. If the period that are consistent with the financial quality and air quality standards, and to of non-operation is not adequately objectives of the applicant, and at the reclaim the site to the performance covered by the interim management same time identify a time line for the standards in § 3809.420. The financial plan, BLM would require the operator to initiation of reclamation activities. instrument is an enforcement tool to submit a modification within 30 days, BLM believes that the final back up the operator’s obligations, if it while at the same time assure that regulations generally address EPA’s is unable or unwilling to meet these unnecessary or undue degradation does concerns. Final § 3809.401 requires regulatory requirements. It does not not occur. We believe final operators to provide a general schedule represent the limits of the operator’s § 3809.424(a)(3) would accomplish the of activities from start through closure responsibility, but merely provides the objective of this commenter. If the and an interim management plan for BLM some level of assurance that the operator could not demonstrate the site periods of non-operation. The general work will be performed. If a reclamation would reasonably be expected to performance standard in § 3809.420 bond is not adequate to perform the reopen, BLM may consider it abandoned requires the operator to perform reclamation work, the operator is liable and order reclamation. concurrent reclamation on areas that for the unfunded portion needed to Several comments wanted proposed will not be disturbed further under the meet the minimum regulatory § 3809.424(a)(3) revised to plan of operations. Final § 3809.424 requirements. unambiguously explain the difference puts limits on the amount of time an BLM also disagrees with the between inactive and abandoned mining operation can remain temporarily closed commenter’s characterization of its operations and to be consistent with the without undergoing review to determine obligations as being contractual in NRC Report recommendations. One if it is abandoned. This combination of nature. The operator’s obligation to commenter wanted assurance that BLM requirements means individual plans of reclaim and prevent unnecessary or and FS are using and applying the operations will have to set out an undue degradation is based on Federal definitions for inactive and abandoned extraction and reclamation schedule for statute and regulations. The test for operations in a uniform manner. agency review and approval that compliance is not whether the operator Under the final regulations at describes when mine facilities would be uses ‘‘reasonable and customary § 3809.424(a), an operation is open and when they would be practices,’’ but whether the operator considered inactive if it is not operating reclaimed, and that reclamation would achieves success in meeting the (mining, exploring or reclaiming), but is have to occur at the earliest practical performance standards. Site-specific following its interim management plan. time. In addition, temporarily inactive success criteria and post-closure An operation may be considered operations would receive greater monitoring requirements should be abandoned for a variety of reasons, scrutiny with defined time limits for established as a result of the individual including failure to follow or amend the periods of inactivity. BLM believes plan of operations review process. Once interim management plan, or after 5 these combined requirements will a closure plan has been successfully consecutive years of inactivity. Other promote timely reclamation within a implemented, no additional work or reasons for considering an operation defined period after operations cease, monitoring may be necessary by the abandoned may include inability to yet be flexible enough to take into operator. However, operator remains locate the operator, or if the operator is account ordinary fluctuations in world responsible for future problems that deceased. This is consistent with NRC commodity markets. might develop on that site deriving from Report recommendations regarding Several commenters requested that the operator’s activities. inactive and abandoned operations. proposed § 3809.424(b) be revised to One commenter recommended that BLM is unable to assure the Forest make it clear that the obligations of the BLM should not be mandated to forfeit Service would adopt similar regulations owner/operator are only those contained the bond within 30 days of the for defining inactive or abandoned in the approved plan of operations and determination that the operation was operations. associated financial instruments, such abandoned. The commenter EPA expressed concerns about the as bonds. Some commenters recommended instead a statement potential for interminable delays that characterized the plan of operations and indicating that the BLM may initiate may occur between mine closure and associated requirements as in the nature forfeiture under this section. In this reclamation. The time when mining is of a ‘‘contract’’ between the BLM and way, the BLM would have an terminated and the interval between the operator, and asserted that an opportunity to take enforcement action cessation of mining and restoration operator may use ‘‘reasonable and prior to forfeiture. needs to be carefully addressed in the customary methods’’ to comply with the BLM agrees with the comment and plan of operations. It is sometimes contract. They would have the final § 3809.424(a)(4) provides that BLM difficult to determine when an operator regulations deny BLM unilateral may initiate forfeiture under § 3809.595. is finished mining the site. Most mining authority to change that ‘‘contract’’ and Final § 3809.595 has been revised to activities are sensitive to world make the operator liable beyond this. substitute ‘‘may’’ for ‘‘will’’ on fluctuations of commodity prices, and They assert that operators should not be conditions which would cause BLM to may have to be discontinued when required to monitor a site in perpetuity, initiate forfeiture. prices are not high enough to make the and that, without well-defined closure One comment was made that operation profitable. The occurrence or or success criteria, operators will have ‘‘inactive’’ status under the mining laws

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70056 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations may constitute ‘‘abandonment’’ under operations application would become BLM believes the NRC was correct CERCLA (Superfund) where a release or out of date in the future. and that it is appropriate to have interim threat of a release exists because of BLM believes that interim management plans prepared for both inadequate controls for public safety, management plans do not pose a planned and unplanned temporary health and the environment. significant burden on operators if closures as part of the overall plan of These rules do not reflect any prepared as part of the plan of operations. BLM has defined 5 years as judgment that ‘‘inactivity’’ here equates operations. The operator, in planning to the maximum time period an operation with ‘‘abandonment’’ under CERCLA. mine, should also be able to plan under can maintain temporary closure without CERCLA liability is determined by that what conditions they might temporarily a review to evaluate whether final statute. We believe, however, that a not mine, and how they would manage closure should be directed. This gives release or threat of release under the site to prevent unnecessary or undue operators a reasonable amount of time to CERCLA from a mining operation degradation during the temporary await changes in financial conditions subject to these rules could also closure. If conditions change at yet provides flexibility in that closure is constitute unnecessary or undue temporary closure, the interim not necessarily mandated after the 5- degradation. The interim management management plan could be easily year period. plan required under final modified to address the new conditions Other commenters were concerned § 3809.401(b)(5) must address or circumstances. More importantly, by that BLM be consistent with NRC Report management of toxic or deleterious giving consideration to possible interim Recommendation 5. They pointed out materials during periods of temporary management needs during the project that following the recommendation closure. This includes measures needed planning phase, the operator is better would add clarity and provide useful to prevent a release or the threat of a prepared to address temporary closure guidelines. In addition, that BLM release. Operations which have a should it become necessary. Finally, should allow for extended periods of release, or threaten release, may be there is some efficiency in using a single temporary closure. considered abandoned by BLM and NEPA document and a single review In the final regulations, BLM has subject to immediate forfeiture of that process to process the entire plan of added the requirement under portion of the financial guarantee operations, instead of treating the § 3809.401(b) that plans of operations needed to stabilize the area or to prevent interim management plan as a plan include interim management plans as or correct the release conditions. modification later, with its own review recommended by the NRC Report; and periods and NEPA documentation One comment was not opposed to to final § 3809.424 that operators follow requirements. procedures regarding abandonment, their approved interim management One comment objected to what it plans during periods of non-operation. temporary cessation of operations, or a called the ‘‘implied’’ requirement of an specified time frame for expiration of a interim management plan to remove BLM believes these requirements are notice, as the NRC Report recommends, equipment and/or facilities. The consistent with NRC Report but urged that BLM work with States to comment asserted that this issue should Recommendation 5 and provide useful determine how best to plan and define be considered in the BLM plan of guidelines for temporary, seasonal, and those circumstances when temporary operations decision for final abandonment determinations. Operators closure becomes permanent. States reclamation, and at least BLM should may propose to extend periods of already have extensive experience in describe factors under which it might temporary closure by submitting a this area. No new Federal program is consider equipment or facility removal modification to their interim necessary and would only duplicate during temporary suspension of management plans while maintaining these existing State programs and operations. an adequate financial assurance during authorities. BLM does not know in advance all the closure period. BLM agrees that temporary closure is situations where removal of equipment Changes made to final § 3809.424 one of the items that must be might be required. However, under the have been made under the ‘‘Then’’ coordinated with the respective States. interim management plans that would column of § 3809.424(a)(1). Several This has been specified in final be submitted as part of the plan of sentences have been inserted in the final § 3809.201 as one of the items that operations, it is the operator who will regulations to the effect that if an should be covered under Federal/State propose the provisions for storage or operator stops conducting operations for agreements. However, BLM believes removal of equipment, supplies, and any period of time, the operator must that, as recommended by the NRC structures during periods of temporary follow the approved interim Report, it must have its own procedures closures. BLM will review the proposed management plan submitted under in place to address ongoing problems interim management plan and decide if § 3809.401(b)(5), and must submit a with inactive and abandoned the plan would prevent unnecessary or modification under § 3809.431(a) to the operations. undue degradation. Obviously, the need interim management plan within 30 One commenter objected to the to remove equipment at the end of mine days if it does not cover the requirement for preparation of interim life is greater than it would be for circumstances of the temporary closure. management plans, asserting that it was relatively short periods of non- Other changes made to final a significant burden on operators and operation. § 3809.424(a)(1) are the deletion of the not needed where unnecessary or undue Some commenters did not agree that phrase, ‘‘maintain the project area, degradation has not occurred or is not BLM needed to require interim including structures, in a safe and clean expected. For example, the commenter management plans or to specifically condition;’’ and deletion of the phrase, stated, it is inappropriate to require an define the conditions under which ‘‘* * * including those specified at interim management plan in all plans of temporary closure becomes permanent, 3809.420.(c)(4)(vii).’’ These phrases operations because of speculation that triggering the requirement for final have been added to § 3809.401(b)(5) as the mining operation may be suspended reclamation, although they did part of the content requirements for all in the future. Further, the commenter acknowledge that the NRC Report interim management plans. With the suggested any interim management plan recommended (Recommendation 5) that addition to final § 3809.424(a)(1) that prepared as part of the plan of BLM define such conditions. interim management plans must be

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70057 followed, these phrases became plan of operations; (2) when required by unnecessary or undue degradation with redundant and have been deleted. BLM to prevent unnecessary or undue the modification requirements to Final § 3809.424 is not inconsistent degradation; and (3) before final closure retroactively apply the new performance with the conclusions or to address impacts from unanticipated standards to existing operations. Some recommendations of the NRC Report. events or conditions or newly commenters recommended periodic NRC Report Recommendation 5 stated discovered circumstances or reviews for all plans of operations while that BLM should adopt consistent information. The final regulations then others were against periodic reviews. regulations that (a) define conditions provide examples of what might Some operators were concerned with under which mines will be considered constitute unanticipated events or the amount of operational change that to be temporarily closed; (b) require that conditions or newly discovered would warrant a modification requiring interim management plans be submitted circumstances or information that BLM review and approval. for such periods; and (c) define the would warrant a plan modification In response, BLM believes we must conditions under which temporary before final reclamation and closure. have the authority to require a plan closure becomes permanent and all These include: the development of acid modification in a timely manner to reclamation and closure requirements or toxic drainage, the loss of surface prevent unnecessary or undue must be completed. springs or water supplies, the need for degradation. In this regard, the NRC The final regulations implement the long-term water treatment and site Report had some relevant observations: NRC Report recommendation. Interim maintenance, providing for the repair of Where * * * modifications are needed to management plans that define the potential reclamation failures, assuring prevent unnecessary undue degradation, anticipated conditions of temporary the adequacy of containment structures such review should be expeditious and tied closure are required to be approved as and the integrity of closed waste units, to the NEPA document approving the initial part of all plans of operations. The provisions for post-closure management, plan of operations. In addition, revised interim management plans must be and eliminating hazards to public agency procedures should contain safeguards implemented during periods of non- safety. to assure that modifications are imposed only A new paragraph has been added after serious consideration and following a operation, and modifications must be procedure that protects the interests of the submitted within 30 days if under final § 3809.431(c) to address NRC Report Recommendation 14 that mining company in continuing to conduct circumstances of the closure change operations, consistent with the avoidance of from that anticipated in the interim BLM plan for and assure the long-term unnecessary or undue degradation. post-closure management of mine sites. management plan. Final § 3809.424 NRC Report, p. 101. BLM would not use provides that after 5 consecutive years BLM believes that the best way to do this, aside from comprehensive the modification requirement to place of inactivity, BLM will review the existing operations under the new operations and may determine that the planning in the initial plan of operations, is to provide a mechanism performance standards. Final § 3809.400 closure is permanent and direct final makes it clear that an existing operation reclamation and closure be completed. where plans of operations may be modified before closure to address can continue to implement the existing BLM may also determine at any time plan of operations under the that the operation has been abandoned, specific closure needs due to unanticipated events or conditions, or performance standards in the existing and direct final reclamation, if the regulations. Furthermore, the final interim management plan is not being newly discovered circumstances or information. regulations do not require reviews of implemented and the indicators of Experience has shown that, especially plans of operations at predetermined abandonment in final § 3809.336(a) with large mining projects spanning ten intervals, or modifications of already exist. or more years, it is often useful to approved plans of operations for non- Sections 3809.430 Through 3809.434 reevaluate reclamation plans prior to substantive changes in circumstances. Modifications of Plans of Operations final closure. This allows for the Two commenters asked if proposed incorporation into the reclamation plan § 3809.431(b) was ‘‘retroactive’’ onto Section 3809.430 May I Modify My of environmental information gained private lands. As discussed earlier in Plan of Operations? throughout the mine life, consideration this preamble, the 3809 regulations Final § 3809.430 says that the operator of ‘‘as built’’ mine conditions, and the apply only to operations located on may request a modification of the plan ability to apply the most recent lands managed by the BLM. Final of operations at any time when developments in reclamation or § 3809.2(d) has been added to the operating under an approved plan of remediation technology. This does not regulations to make this more clear. operations. No substantive comments mean that all plans of operations would One comment objected to statements were received on this section of the require modification prior to in the proposed rule preamble that the proposed rule, and no changes have reclamation and closure. The proposed rule would eliminate the been made to the final regulations. requirement to modify the plan of procedures relating to required Providing for operator-requested operations would have to be triggered modifications because the ‘‘procedures modifications is not addressed by any by a significant change that makes are unnecessarily detailed and recommendation of the NRC Report, and reclamation and closure plans approved cumbersome’’ and the ‘‘proposal would therefore this section is not inconsistent as part of the initial plan of operations allow BLM field staff flexibility to with any recommendation of the NRC no longer adequate or appropriate. streamline the modification review Report. BLM received comments expressing process.’’ The commenter asserted that concern about when BLM would require the provisions in the existing Section 3809.431 When Must I Modify an operator to modify a plan of regulations provide justifiable and My Plan of Operations? operations. Some commenters were substantive protections to operators that Final § 3809.431 describes the three concerned that a modification not be have expended enormous sums circumstances under which operators directed just because BLM suddenly designing and constructing facilities in must modify their plans of operations: changed its mind regarding acceptable accordance with BLM-approved plans, (1) Before making any changes to the impacts. Others were concerned that and that BLM shouldn’t be allowed to operations described in the approved BLM could use the new definition of wipe the slate clean merely because it

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70058 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations changes its mind in a situation where all contain a detailed description on why standards and definition of unnecessary impacts were foreseen from the start. BLM had determined that the or undue degradation. The commenter asserted that the modification is necessary. Procedural One commenter suggested that the existing provisions have worked well protections for the operator are regulations clarify when changing over time to allow BLM to protect the preserved in final § 3809.800. An conditions warrant a change or public lands from unforeseen events operator may challenge an order of the modification in operations. For without disturbing the legitimate BLM field manager by appealing it to example, a single mine in a basin expectations operators gain through the BLM State Director and eventually doesn’t have the same impact as several; approval of their plans and their to the Interior Board of Land Appeals. therefore changes should be required resulting investment of significant sums This approach is consistent with throughout the basin rather than to put in mining operations. discussions in the NRC Report on all of the mitigation requirements on the BLM has developed the modification revising the criteria for requiring plan last mine permitted. procedures in the final regulations in modifications, and on preserving due Final § 3809.431(c) has been added to response to NRC Report process for operators. provide some examples of when a Recommendation 4 that BLM revise its One comment said that proposed change in conditions or circumstances modification requirements to provide § 3809.431 would create a separate and would require a plan modification. The more effective criteria for modifications inconsistent standard for modifications allocation of mitigation measures among to plans of operations. The NRC Report to plans of operations by allowing BLM different mine operators contributing to concluded that the current procedures to require a modification to ‘‘minimize cumulative impacts may be factually are not straightforward enough to allow environmental impacts, or to enhance complex and may also raise legal issues. BLM to require a modification even resource protection.’’ The commenter BLM believes such situations must be where needed to prevent unnecessary or asserted that BLM should only be able dealt with on a case-by-case basis. undue degradation, and should not to require a modification to prevent Several comments noted that most depend upon ‘‘looking backward’’ at unnecessary or undue degradation. operations at some time make changes what should have happened in the Final § 3809.431 doesn’t use the terms in their plans of operations, such as to initial plan of operations approval. See suggested in the comment, but requires expand the scale of operations, or to the NRC Report, pp. 99–101. The new modifications to prevent unnecessary or extend mine life, or to convert from modification procedures are designed to undue degradation and to account for open pit to underground operations. be consistent with the discussion in the unanticipated events or conditions, or Eventually, according to these NRC Report. newly discovered circumstances or comments, most existing mining One comment specifically requested information. that BLM require a closure plan that Several commenters were concerned operations will likely be impacted by includes all actions to both reclaim and that existing operations would be these new regulations. remediate any outstanding affected by the rule changes. In their BLM agrees that most existing environmental issues. BLM has added view, proposed § 3809.431(b) would operations are likely to undergo a final § 3809.431(c) to the final essentially create a ‘‘Catch-22’’ situation modification in the future. We have regulations to require a modification by providing that a plan of operations written final § 3809.433 specifically to prior to final mine closure if needed to must be modified if BLM concludes it address how the final regulations would address unanticipated events or does not prevent unnecessary or undue apply to new modifications of existing conditions, or newly discovered degradation, because the rule will also plans of operations and to provide a circumstances or information that must modify the definition of ‘‘unnecessary transition approach that BLM believes be taken into account by final or undue degradation’’ and the related would not significantly affect existing reclamation activities. This would performance standards. This gives BLM operations. include requiring, as part of the the authority to require modification at Some commenters recommended no modified final reclamation plan, plans any time to require compliance with the periodic reviews. Commenters also for remediation of any outstanding new performance standards. The asserted that, as a practical matter, environmental problems that were not commenter asked that the rule be mining plans of operations are amended adequately covered in the approved clarified with respect to BLM’s ability to relatively frequently to reflect changing plan of operations. impose the new performance standards economic and geologic conditions, that Several commenters were concerned on existing operations through a mandatory periodic review creates that the agency’s authority to direct an modification order. undue burden on the entire industry operator to modify its approved plan be In response, BLM has revised final and on the BLM, and that changing subject to some constraint. They § 3809.400(a) to make it clear that environmental conditions or standards asserted that operators are entitled to operations existing on the effective date can be considered in evaluation of plan due process, including some written of this final rule are exempt from the amendments submitted by the operator. specification on how and why the new performance standards. A Others felt that if BLM imposes this agency has determined that operations it modification required under periodic review of plans, reviews previously approved as not constituting 3809.431(b) for operations covered by a should be no more frequent than every unnecessary or undue degradation of plan of operations approved or pending five years. One commenter believed that BLM-managed land has suddenly as of the effective date of the final the regulations should require BLM to become unnecessary or undue regulations would be tied to the conduct an annual review on all plans degradation. They urge that the rule previous definition of ‘‘unnecessary or of operations. According to this require the agency to state in writing, in undue degradation’’ and the previous commenter, an annual review would be any such directive to modify a plan, performance standards. Existing a good time for BLM to review the bond how and why the modification is being operations would remain subject to amount and specifically address the directed. modification orders under final adequacy of the approved plan of Any order issued under final § 3809.431, but the modification operations in the light of actual on-the- § 3809.431(b) requiring an operator to requirements themselves would be ground performance. BLM could also submit a plan modification would based on the previous performance determine at this time if a modification

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

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70060 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations that described in the approved plan of procedures for modifications involving for a plan modification. BLM will operations are all examples of material changes in the plan of operations that require all of the information listed in changes that would require a plan of exceed the scope of the initial review § 3809.401 that is applicable to support operations modification prior to and approval. For example, the review and approval of the plan implementing. modifications to add new mine modification. The amount of Final § 3809.431(c) requires a plan facilities, extend mine life, or change information depends on the type and modification prior to final closure to the operating and reclamation plans are magnitude of the proposed address unanticipated events or reviewed and approved following the modification. Minor changes could be conditions or newly discovered same procedural steps as used for the sufficiently addressed on a single page information. Final § 3809.431 has also initial plans. In appropriate cases, BLM while major modifications may require been revised and reformatted to present may supplement or tier off of the much more information. the possible circumstances that would previously prepared NEPA documents One commenter was concerned with require plan modification in a (EA or EIS), as allowed under the CEQ the situation where modifications are sequential fashion. regulations, in order to expedite the being processed when a plan of Final § 3809.431 is consistent with the modification review process. operations is under appeal. The recommendations of the NRC Report. Final § 3809.432(b) describes how commenter recommended that BLM add NRC Report Recommendation 14 is that BLM will process minor modifications a provision that we would deny any BLM plan for and assure the long-term that do not constitute a substantive substantial amendments until appeals post-closure management of mine sites. change in the plan of operations and do are settled. BLM notes that under The final regulations provide not only not require additional environmental current procedures, when a BLM for up-front post-closure management analysis under NEPA. The final decision is under appeal before IBLA, plans under § 3809.401(b), but also regulations provide that BLM will BLM does not take any additional action provide a mechanism under accept such modifications after review on matters covered by the pending § 3809.431(c) where plans of operations for consistency with the approved plan appeal, unless agreed to by the IBLA. can be modified prior to closure to of operations and consistency with During the pendency of the appeal, the address specific closure and post- NEPA analysis previously done on the IBLA has jurisdiction over the matter closure needs due to unanticipated operation. Examples of such covered by the appeal. For example, if events or conditions or newly modifications include a change in a modification approval for a mine discovered circumstances or mining rate, adjustment of monitoring expansion is under appeal before IBLA, information. plans, substitution of revegetation BLM won’t approve a second Recommendation 4 of the NRC Report species, implementation of engineering was for BLM to revise its modification modification while the appeal on the practices, minor realignment of roads or first one is pending. requirements to provide more effective disturbance areas within the approved Several commenters want BLM to criteria for modifications to plans of project footprint, or administrative define ‘‘minimally’’ as used in proposed operations. The NRC stated that the changes such as a change in operator or current procedures are not mining claim information. § 3809.432(a) regarding not soliciting straightforward enough to require a Several commenters suggested that public comments if the financial modification even when ‘‘the results of under proposed § 3809.432(b), BLM guarantee amount would only be monitoring or other data * * * should provide an operator with an changed ‘‘minimally.’’ It was suggested demonstrate the occurrence or likely approval or disapproval to a requested that since the word ‘‘minimally’’ is open occurrence of unnecessary or undue plan modification. The degree of to differing interpretations, it would be degradation if the plan is not modified.’’ administrative review would vary helpful if BLM would pick a certain (p. 101) BLM has developed the depending on the magnitude of the percentage change in the guarantee procedures for when it can require a requested plan modification, but the amount (20% or 80% were suggested) modification in final § 3809.431 and operator should be informed that a before triggering public comment. Or removed the complex State Director requested plan modification has been that BLM should use the NEPA evaluation process which was of either approved or disapproved. compliance process to determine concern to the NRC. The final Otherwise, the operator may be whether the proposed modification is regulations now provide that BLM may unknowingly in violation of approved ‘‘minimal.’’ If a supplement to the EIS require a modification to a plan of permits. is required, it would not be ‘‘minimal;’’ operations when needed to prevent BLM agrees that the operator needs to whereas if only an EA/FONSI is unnecessary or undue degradation. The be advised as to the outcome of our required it would be ‘‘minimal.’’ final regulations also preserve review of a modification request. Under As discussed earlier in response to procedural protection for operators by final § 3809.432(b), BLM will notify the comments on proposed § 3809.411(d), allowing for appeals of a BLM-required operator of the acceptability of proposed BLM has removed the requirement for modification decision. changes in the plan of operations as public review on the amount of the minor modifications. BLM does not financial guarantee. BLM has also Section 3809.432 What Process Will intend to issue approvals or denials of deleted reference to public review from BLM Follow in Reviewing a Modification minor changes, but to merely screen the last half of § 3809.432(a) which of My Plan of Operations? them for conformance with the existing included the term ‘‘minimally.’’ Final § 3809.432(a) describes the approved plan requirements and Therefore, comments on defining this review and approval process that BLM consistency with previous NEPA term are no longer relevant. Plan will use for modifications to plans of documentation, and advise the operator modifications processed under final operations. BLM will review and if they are acceptable without § 3809.432(a) would still have public approve a modification in the same undergoing the formal review and comment periods on the modification. manner as it reviewed and approved the approval process in final § 3809.432(a). Comments on the financial guarantee initial plan of operations. This is not a One commenter wanted to know how could still be provided during the 30- change from the previous regulations at much of the information listed in day comment period on the plan § 3809.1–7(b). BLM follows these proposed § 3809.401 would be required modification, but the comment period is

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

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BLM recognizes that day-to-day which, may be a substantive change, yet modified facility (not just the modified operations often include minor changes. are still consistent with the approved portion of it) must generally be However, anytime the operator makes a plan such that additional NEPA analysis retrofitted to comply with the new change in operations that goes outside is not warranted. performance standards unless this is not what was provided for in the approved The final regulations are not ‘‘feasible.’’ For instance, if more plan of operations, it is substantive and inconsistent with the recommendations environmentally protective processes the operator must contact BLM. For a in the NRC Report. Final § 3809.432(a) become available in the future, an substantive modification, BLM would maintains a public review and approval operator might be hesitant to follow the time frames for review found process, consistent with NRC Report incorporate them into an existing in final § 3809.411. If the substantive Recommendation 10, for modifications facility, for fear of having to retrofit the change requires additional analysis that are clearly outside the scope of the entire facility in all respects. Or, the under NEPA, then we will process it in approved plan of operations. Consistent commenter asserted, if an operator the same manner as the initial plan of with the NRC Report discussions wants to expand operations, rather than operations. If the change is a minor following Recommendation 4, final modify (and thereby retrofit) an existing modification consistent with the § 3809.432(b) recognizes that facility, it may decide instead to build approved plan of operations, it can be operational changes are often necessary, an entirely new facility—thereby handled expeditiously as a compliance and an expeditious process is needed resulting in more environmental matter between the operator and BLM. where minor modifications can be impacts than a modified, but not One commenter felt that the NRC reviewed under the existing NEPA retrofitted, facility. Report was inaccurate in its depiction of documents used to approve the original As part of the modification review how small miners were allowed to make plan of operations. process to determine whether modifications. In the commenter’s Section 3809.433 Does This Subpart unnecessary or undue degradation opinion, BLM does not permit small Apply to a New Modification of My Plan would occur, BLM would consider the miners to make minor modifications to of Operations? environmental trade-offs should the approved plans of operations without Final § 3809.433 addresses the operator propose building a new facility requiring extensive re-processing. The versus expanding and retrofitting an commenter asserted that the NRC has situation where an operator may propose to modify an existing plan of existing facility. The provision in reported something other than what § 3809.433(b), allowing for a actually does occur for all small miners, operations after the effective date of the final regulations. The regulations demonstration that applying the final has failed to comply with the law regulations the entire facility is not mandating the study, is unreasonable, consider two types of modifications that might occur. One is a modification to practical, should mitigate the impact on and should not be followed. most operators while identifying the In response, the final regulations add a new and distinct mine facility, environmentally preferred approach for apply to all plans of operations, such as a new waste rock repository, mine expansion. including both small and large mines. leach pad, drill site, or road. The second The final regulations provide flexibility is a modification that changes an A couple of comments were for plan modifications to be judged on existing mine facility, such as by concerned with how final § 3809.433(b) an individual basis as to the need for enlarging a leach pad, waste rock would apply if the mine pit layback is additional environmental review. repository, or mine pit. on patented ground and how much road Whether or not the NRC Report has Where the operator adds a new mine widening is allowed. There was a accurately portrayed the process for facility, the final regulations require the question on the amount of deviation small miners, Congress has required that new facility to follow the plan content allowed on a day-to-day basis to grade BLM rules not be inconsistent with the requirements of final § 3809.401 and roads, and when it would be considered NRC Report recommendations. meet the performance standards of final road widening. Changes made to final § 3809.432 § 3809.420. The other portions of the The 3809 regulations do not apply include deleting the last clause from operation can continue under the terms where private lands overlie private proposed § 3809.432(a) with respect to a and conditions of the existing plan of minerals, even if those lands are within specific public comment period on the operations. the project area. Therefore, a amount of the financial guarantee. The Where the operator changes an modification approved by BLM would paragraph now reads, ‘‘BLM will review existing mine facility, the final not be required for a pit layback totally and approve a modification to your plan regulations require compliance with the on private lands. However, it should be of operations in the same manner as it plan content requirements of final noted that if the layback on private reviewed and approved your initial plan § 809.401 and the performance lands causes some change in activity on under §§ 3809.401 through 3809.420.’’ standards of final § 3809.420, except BLM-managed lands, such as increased BLM has also edited final that if the operator can demonstrate to waste rock disposal or expanded leach § 3809.432(b) to clarify that it applies to BLM’s satisfaction that it is not practical pad areas, then a plan modification minor modifications that are consistent to apply the new requirements for would be needed for those activities. with the approved plan of operations, economic, environmental, safety or Regarding roads and grading, provisions and do not require additional NEPA technical reasons, then the modified for day-to-day maintenance needs analysis. The final paragraph now reads: facility may operate under the plan should be written into the plan of ‘‘BLM will accept a minor modification content requirements and performance operations, and the overall specified without formal approval if it is standards of the previous regulations. road width should take such activities consistent with the approved plan of This is because BLM recognizes it may into account. If the plan of operations operations and does not constitute a not be practical or desirable to retrofit calls for a road with a certain maximum substantive change that requires an existing mine facility with new width, and the operator wants to grade additional analysis under the National requirements. it to exceed that width, then we would Environmental Policy Act.’’ This change One commenter stated that if an consider it widening of the road and is needed to allow for the expeditious existing facility is modified after the would require an approved consideration of minor modifications effective date of the final rule, the entire modification.

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

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If § 3809.433(b) applies the new 101) Under final § 3809.433, operators an operator’s modification was filed performance standards only to that proposing a modification do not have to before the effective date of the new portion of the new facility being retrofit existing mine facilities. In regulations it remains under the modified, and does not mean the entire addition, operators may be given an previous plan content and performance facility would be subject to new exemption from the content and standard requirements. requirements. performance standards of the new Other comments were concerned that Another comment on proposed regulations by showing it is not proposed § 3809.434 would create too § 3809.433 concerned how to apply the practical to apply them to the much confusion by setting up a performance standards of the new modification of an existing mine situation where one set of regulations regulations to the expansion of an facility. This approach is not governs a part of an operation and existing facility, in areas of mixed inconsistent with the discussions another set governs another part. The ownership. The commenter cited an contained in the NRC Report regarding commenters felt that it is even more example where an open pit mine on plan modifications. inappropriate to apply new standards to private land would require a small area existing facilities than it is to apply of BLM land for expansion of the mine Section 3809.434 How Does This them to a wholly new plan of operations pit slope. The commenter was Subpart Apply to Pending Modifications submitted prior to adoption of new concerned that under final for New or Existing Facilities? standards. This is because the operator § 3809.420(c)(7), BLM would be able to We have combined proposed relies on the terms and conditions of the require backfilling of the part of the pit §§ 3809.434 and 3809.435 into final initial approval in deciding whether to that expanded onto BLM land, which § 3809.434. This section describes how expand operations. A new facility at an would effectively require backfilling the the regulations will apply to existing mine is proposed because it fits, entire pit, even on the private land part modifications of plans of operations for economically, logistically, and of the mine, and even though a new or existing mine facilities that are operationally into an existing operation. minuscule area of BLM land may be pending before BLM when the final It can only be designed and located in involved. The commenter cited this regulations go into effect. We have ways dependent on the design and example as a reason for exempting all rewritten both proposed sections, operation of the existing mine. The modifications of existing operations deleted the tables, and simplified the commenters were concerned that new from application of the final regulations. concepts. facilities would be prohibited by The backfilling situation described The final regulations provide that standards that would not have allowed above, with a large amount of private modifications pending on the effective the initial facilities to be located where land, is a good example of where BLM date of the final regulations will be they are, or to be operated as they are, would allow an exclusion from the new subject to the new regulations, except and felt that the same standards that regulations as specified in final for the plan of operations content governed approval of the initial facility § 3809.433(b) based upon practicality, or requirements (final § 3809.401) and location and mode of operations must a determination made under final performance standard requirements govern the new facility. § 3809.420(c)(7) that backfilling was not (final §§ 3809.415 and 3809.420). The BLM understands the concern that necessary. Other mine design and existing plan of operations content modifications may not be able to occur operation aspects, such as leach pad requirements and performance if held to a higher standard than the containment design, would be reviewed standards that were in effect when the initial plan of operations. However, in a similar fashion and a determination modification was submitted would BLM believes the performance made regarding the practicality of continue to apply to the modification. standards in final § 3809.420 will applying the new regulations to the Several commenters said that BLM generally be compatible with existing modification. was making these subsections too operations when applied on a site- Changes made in the final regulations complicated, burdensome, and specific basis. Modifications under the to § 3809.433 occur in paragraph (b) of cumbersome. The commenters existing regulations happen frequently, the table. BLM has deleted the last suggested that if the new facility or yet evolving changes in reclamation sentence in the ‘‘Then’’ column to avoid modification can be done under an EA/ technology and regulatory approaches confusion regarding continued FONSI then the standards in effect at get incorporated successfully, even operations. We have edited the text to the time of plan approval should apply. when it may be years between the initial specify that the paragraph applies to the If the modification or new facility facility approval and the modification. It modified portion of facility. We have requires amendment to the EIS prepared won’t be that different with a change in replaced the term ‘‘feasible’’ with for the original decision by BLM, then regulations. As long as the approved ‘‘practical,’’ added the word the Supplemental EIS should determine plan of operations clearly identifies how ‘‘economic,’’ and provided a citation to the extent, if any, new regulations the overall facility is to be constructed, the 3809 regulations that were in effect apply. operated, and reclaimed, there should prior to these final regulations. BLM did consider using a NEPA not be any more confusion over Final § 3809.433 is not inconsistent criteria such as EA/Supplemental EIS expected performance than occurs today with the NRC Report. While NRC did for when to apply the new regulations with modifications processed under the not specifically address how to to a pending modification, but did not existing regulations. Nor does BLM transition existing operations into any adopt it because of potential problems expect facilities be prohibited from new regulations, it did discuss the need with consistency and fairness. Instead, expansion due to the changes in for regulations to have ‘‘safeguards to BLM has simplified these sections. We performance standards in final assure that modifications are imposed have combined proposed § 3809.435 § 3809.420.

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One comment suggested that we use final regulations. The reason for this the financial guarantee in an completion of the public scoping change is that BLM was persuaded by immediately redeemable funding process, instead of the publication date comments concerning the amount of mechanism that would enable BLM to for the NEPA document, as the cutoff for effort that goes into preparing a plan of quickly obtain use of the funds for site applying this final rule to pending operations and associated NEPA stabilization during forfeiture modifications. BLM does not agree with documents which might have to be proceedings. the comment, but we have revised final partially redone or supplemented, and Second, we will no longer accept § 3809.434 to provide that a project by the fact that the operator has very corporate guarantees for plans approved modification submitted prior to the little control over when the NEPA after the effective date of this regulation. effective date of the final regulations document is actually published. BLM BLM will continue to allow corporate may continue under the existing 3809 believes that using the effective date of guarantees which are in effect on the regulations. Using the cutoff date for the the final regulations to determine effective date of the regulation. scoping process, as suggested by the ‘‘grandfathered’’ plans of operations, or However, if a plan modification results comment, would have generated the modifications, would be simpler to in an increase in the estimated costs of same confusion as the proposal. administer and more fair to the reclamation we will require a financial Changes have been made in the final operators. However, BLM does expect guarantee in a form other than a regulations to proposed §§ 3809.434 and that in order for pending plans or corporate guarantee for the area covered 3809.435. All of proposed § 3809.435 modifications to be grandfathered, they by the modification. has been deleted. Final § 3809.434 has will have to be substantially complete in A third change will provide BLM been rewritten to address pending addressing the content requirements of discretion in determining whether to modifications for an existing mine the existing regulations before the seek forfeiture of a financial guarantee. facility that were covered in proposed effective date of the new regulations. Also, BLM will not require a 30-day § 3809.435, as well as pending Final § 3809.434 is not inconsistent period for public comment prior to modifications for new mine facilities. with the NRC Report. While NRC did releasing financial guarantees associated The title of final § 3809.434 has been not specifically address how to with notice-level activities but will have changed to: How does this subpart transition pending modifications into a 30-day comment period for plans of apply to pending modifications for new any new regulations, they did express operation. The comment period will be or existing facilities? The table has been concern for the protection of an posted in the BLM field office having deleted and the text presented in four operator’s investment and that the jurisdiction, published in a local paragraphs. regulations in general contain newspaper, or both. Final § 3809.434(a) says that this procedural protections. Under final General Comments on Financial section applies to modifications § 3809.434 operators with a pending Guarantees pending before BLM on the effective modification do not have to redo date of the final rule to construct a new designs or reopen NEPA analysis that BLM received numerous comments facility, such as a waste rock repository, was underway. This approach is not addressing the proposed rules related to leach pad, drill site, or access road; or inconsistent with the discussions financial guarantees. Commenters to modify an existing mine facility such contained in the NRC Report regarding generally supported the concept that as expansion of a waste rock repository plan modifications BLM require financial guarantees for all or leach pad. operations beyond casual use. However Final § 3809.434(b) states that all Sections 3809.500 Through 3809.551 commenters diverged widely on specific provisions of this subpart, except plan Financial Guarantee Requirements— contents of the rule. General content and performance standards General Comments Supporting the Today’s rule establishes mandatory (§§ 3809.401 and 3809.420, respectively) Proposal apply to any modification of a plan of provisions for financial guarantees for operations that was pending on the all activities greater than casual use, Numerous commenters supported the effective date of final rule. It also cross expands the types of financial notion that adequate bonding is references § 3809.505 on the guarantees available, and establishes the necessary to protect the public from applicability of financial guarantee circumstances and procedures under bearing the financial burdens of cleanup requirements. which BLM will pursue forfeiture of a should an operator declare bankruptcy Final § 3809.434(c) provides a guarantee. It also requires that financial and abandon a mine site. In particular, reference to the plan content guarantees be redeemable by the this included industry support for requirements (§ 3809.1–5) and the Secretary while allowing BLM to accept bonding of notice-level operations. BLM performance standards (§§ 3809.1–3(d) financial guarantees posted with the received comments in favor of the wide and 3809.2–2) that were in effect State in which operations take place if range of financial instruments we immediately before the final rule which the level of protection is compatible proposed to accept and the continued apply to a pending modification of a with this subpart. The rule authorizes use of State bond pools. Industry plan of operations. the establishment of a trust fund in expressed satisfaction that BLM Final § 3809.434(d) provides that those circumstances where long-term, proposed to continue to allow corporate operators could choose to have the new post-mining operations and water guarantees. The environmental rules apply to their pending treatment will be necessary. community generally supported the modification of a plan of operations, This final rule is different from the provisions proposing a trust fund to where not otherwise required. proposed rule in several significant cover the cost of post-mining operations The cutoff date for applicability of the ways. First, we are not adopting part of and water treatment, although some final regulations to pending the proposal contained in the commenters suggested this did not go modifications has been changed from supplemental rule published on October far enough. Non-industry commenters when the NEPA document has been 26, 1999. See 64 FR 57613, proposed supported the provisions allowing a published, to whether the proposed § 3809.552(d). That proposal would time period for public participation both modification has been submitted to have required an operator, when BLM before plan approval [proposed BLM prior to the effective date of the identifies a need for it, to put portion of § 3809.411(d)] and prior to final

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70066 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations financial guarantee release [proposed The NRC goes on to describe how it expressed the feeling that financial § 3809.590(c)]. One commenter asked believes BLM could implement a guarantees should protect the public that BLM amend the rule to clarify how bonding program and suggests BLM from having to bear the financial we will implement it for a variety of should establish standard financial burdens of cleanup should an operator conditions covered in the individual guarantee amounts for ‘‘typical declare bankruptcy and abandon a sections of the rule. activities’’ which it describes as limited mine. activities of under 5 acres. This would Comments opposing this section General Comments Opposing the preclude the need to calculate a generally complained that requiring all Proposal financial guarantee for each activity. notice-level operators to post a financial Some small miners expressed The NRC suggests that if BLM were to guarantee will create hardships that opposition to bonding for notice-level do this, the amount of bonding must be small operators might not be able to activities because, they felt, this would adequate. Language in both the overcome and therefore would be establish a hardship. There were proposed and final rule is broad enough unable to continue in the business. numerous comments opposing BLM’s to allow BLM field managers to Several Alaska miners thought that the proposal to accept corporate guarantees establish and accept standard financial rules would be especially difficult for and State financial guarantees. guarantee amounts. However, regardless them and would make it difficult to use Regarding the former, commenters saw of the standard, and consistent with the the Alaska bond pool. One commenter this as a risk because if commodity NRC Report, if the ‘‘standard’’ would suggested that BLM be flexible so as to prices decline, corporate assets would result in the filing of an insufficient not overly burden small businesses. also drop. Some commenters expressed guarantee, the BLM field manager must Hardships were described both as that accepting State financial guarantees require the posting of a greater financial, i.e., the cost of the financial is risky because of the possibility that a guarantee, even if this requires a guarantee and procedural, i.e., small State could call a financial guarantee, calculation. Likewise, there may be miners find it difficult to obtain a bond leaving the Federal government holding instances when the ‘‘standard’’ amount (the most common form of financial a financial guarantee which would not exceeds the likely cost of reclamation. guarantee). One commenter suggested cover the full cost of reclamation. There In those cases, BLM would permit the that BLM has not demonstrated that the was also opposition to the public operator to demonstrate this and the requirement will provide additional participation proposal on the part of field manager could accept a guarantee environmental protection given that so few notice-level operations actually industry which sees this as creating an in an amount less than the ‘‘standard.’’ The NRC Report (p. 95) also result in unnecessary or undue unnecessary delay. They see the NEPA encourages the use of bond pools. degradation. process as already affording the public Today’s action permits operators to use Commenters suggested that an opportunity to comment on financial bond pools provided the pool is exploration activities not be subject to guarantee amounts. Industry strongly adequate to protect the public in case of environmental review or bonding if the opposed the provisions calling for a default. operations don’t use chemicals. Under trust fund and the posting of a financial Except for the items discussed above, these circumstances, some saw bonding guarantee to cover unforeseen the NRC Report provides no guidance as unnecessary given the low level of contingencies. With respect to the trust on how to operate a bonding program. environmental degradation. Others fund, commenters felt that once a But it is difficult to imagine a rule believe that requiring a financial financial guarantee is released that is a which addresses financial guarantees in guarantee would adversely impact the recognition that reclamation is such a limited manner that BLM and the recreational mining community. In a complete. With respect to contingency public would not know the conditions similar vein, commenters suggested that bonding, many commenters expressed of surety release, forfeiture, or how the it would cost BLM more to administer the belief that it is not workable to States and BLM will work together. a financial guarantee program for notice- provide such an instrument. Therefore today’s action includes level operations than it would cost to Consistency With the National provisions necessary to implement the simply reclaim the few operations Resource Council Report recommendations of the Report. where an individual or company has left their obligations. Several commenters Recommendation 1 of the NRC Report Section 3809.500 In General, What Are expressed the belief that notice-level stated; ‘‘Financial assurance should be BLM’s Financial Guarantee bonding is appropriate, but asked that it required for reclamation of disturbances Requirements? be done as a separate rulemaking. They to the environment caused by all mining This section requires operators to believe this would ensure consistency activities beyond those classified as provide financial guarantees for all with State laws. One commenter asks casual use, even if the area disturbed is activities other than casual use. It how BLM will protect the miner from less than 5 acres.’’ The report justifies mirrors exactly Recommendation 1 of trespassers who cause degradation that the recommendation by pointing out it the NRC Report. The only difference results in the legal miner forfeiting a observed unreclaimed exploration and from the proposed rule is language we financial guarantee. mining sites that operated under a added to state explicitly that if a notice Commenters expressed a concern and notice. The NRC expressed the belief is on file with BLM as of the effective requested clarification concerning the that disturbances beyond casual use are date of the regulation, the operator possibility that a mine could be double significant and that financial guarantees doesn’t need to post a financial bonded for some parts of an operation would protect the taxpayer by allowing guarantee. However, if an operator because of the requirements for agencies to reclaim lands but not at modifies or extends a notice, the calculating reclamation costs. taxpayer expense. The NRC also thought operator will have to post a financial One State suggested that BLM that a financial guarantee could provide guarantee. (See final § 3809.503) distinguish between mining and an incentive ‘‘for operators to reclaim We received numerous comments in exploration and not require a financial land in a timely manner.’’ The proposed support of requiring financial guarantee for certain exploration rule and the final rule carry out this guarantees for notice-level activities. projects of less than 5 acres. recommendation. The majority of the commenters Recreational miners and hobbyists

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One commenter suggested that to promptly reclaim once the activities impact to operating capital at a we add words to clarify that the State have ended. In fact, the NRC was quite minimum while promoting performance might have requirements for a financial specific that operators undertaking of reclamation. guarantee beyond what BLM requires. exploration activities should post a Today’s action does not intend to The intent of this section is to state financial guarantee. With respect to limit the use of State bond pools, that financial guarantees are posted for recreational miners and hobbyists, they including the Alaska bond pool, current notice-level operations. must follow the requirements of provided the BLM State Director is However, if the operations are § 3809.11 to determine if their activities satisfied that the bond pool will actually continuing under a notice which has go beyond casual use. If so, we must provide the funds BLM might need to been transferred, the joint and several require a financial guarantee because of carry out reclamation in the event liability provisions of final § 3809.116 the potential cumulative impacts and operators fail to carry out their would apply. If an operator begins a the need to assure reclamation activities obligations. new operation on lands disturbed by an are carried out. With respect to the The rule attempts to eliminate earlier operation, and if the new possibility of double bonding, BLM hardships by requiring bonding for the operation is not a continuation of the wrote these rules in such a manner that actual cost of reclamation rather than earlier operation, the new operator is through State-BLM cooperation, double requiring a minimum financial responsible for the earlier disturbances bonding should normally not occur. The guarantee as we did in the remanded only to the extent the new operator only time double bonding might occur 1997 rule. In response to those who redisturbs the area. If an operator is when BLM and State interests believe this would cause hardship, BLM modifies a notice, BLM will consider diverge, and the parties can’t agree on contacted the Small Business the notice as a new notice, and we will bonding requirements. Administration (SBA) to see how its regulate the modified notice under the If BLM were not to adopt this Surety Bond Guarantee Program might rules we are issuing today. Therefore, as requirement, we would be inconsistent be applied to small mining businesses. stated above, we added language to this with a specific NRC Report The SBA concluded that it is unable to section to clarify that the operator will recommendation. While we can be accommodate our request at this time. have to post a financial guarantee for the sympathetic toward those who may face Section 3809.503 When Must I Provide entire notice. a hardship in securing a financial We do not think it is necessary to a Financial Guarantee for My Notice guarantee, this potential hardship address State requirements for a Level Operations? cannot override the Secretary’s financial guarantee. Operators know responsibility under FLPMA section This section of the final rule requires that in addition to the requirements of 302(b) to ‘‘prevent unnecessary or an operator to provide a financial this subpart, they must comply with all undue degradation.’’ The NRC said guarantee before beginning operations, local, State, and Federal requirements. posting a financial guarantee may if the operator files a notice on or after We have made clear that the plan of provide an incentive to reclaim land the effective date of the rule. Operators operations must comply with State, and also protects the taxpayer from must provide a financial guarantee for local, Tribal, and other Federal having to pay for the failure of an operations that existed before today’s requirements. Where those requirements operator to do so. We agree. This is why rule becomes effective only if they include the posting of a financial we include the requirement in today’s modify their operation or extend it guarantee beyond the BLM action. beyond two years. requirements, the operator is A commenter stated that at the time Today’s action differs from the responsible for doing so. the previous rules were adopted, BLM proposal in that we modified paragraph decided not to burden the small miner (b) to make clear that if an operator Section 3809.505 How Do the with ‘‘confiscatory’’ bonding or undue modifies a notice that the operator Financial Guarantee Requirements of impairment to the point that mining was submitted prior to the effective date of This Subpart Apply to My Existing Plan no longer feasible. The commenter the rule, the operator must post a of Operations? asserted that BLM previously concluded financial guarantee to ensure This section allows those operating that requiring notice-level operations to reclamation for the entire area covered under an existing plan of operations 180 obtain bonds was unreasonable by the notice. We believe that this days from the effective date of today’s enforcement and the taking of capital to language, coupled with final § 3809.300 action to comply with the financial mine through bonding, a hardship that clearly answers any questions regarding guarantee requirements of this rule. took the operating capital from a small- the posting of financial guarantees for There are no substantive changes from entity operation. notices. This change is in response to the proposed rule; however we did add BLM disagrees as to the relevance of comments that the proposal was unclear a sentence to clarify that if an existing its decision in 1980 not to require that as to whether an operator has to post a financial guarantee complies with the notice-level operations be bonded. BLM financial guarantee if the operator requirements of this subpart, the has documented over 500 cases since modifies a notice that existed before the operator need not file a new financial 1980 where the operators, most of them effective date of this rule. guarantee. at the notice level, have abandoned their We also received a comment asking We received some comments asking operation without performing the BLM to clarify that the operator is only that we lengthen the time period for required reclamation. BLM now believes responsible for the disturbances created operators to comply to one year. Some that bonding is necessary to ensure by that operation. The commenter holders asked that BLM extend the performance of reclamation. The feared that BLM would hold operators requirements from 180 days to one year

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We also received a pose a potential threat and take areal extent or depth of activities the few comments suggesting that we clarify appropriate enforcement action. operator describes in the notice or the that notice level operators are not approved plan of operations. Paragraph Section 3809.551 What Are My subject to the requirements of this (b) BLM establishes the goal of periodic Choices for Providing BLM With a section. Several commenters asked that BLM review of the adequacy of the Financial Guarantee? we clarify proposed § 3809.505 to state estimated reclamation cost. Paragraph that the obligation to provide a financial These rules allow an operator to (c) authorizes BLM to require the guarantee meeting the requirements of provide: operator to establish a trust fund or • this subpart will not restrict the ability An individual financial guarantee other funding mechanism to ensure the of an operator to continue to operations for a single notice or plan of operations, continuation of long-term water • under an approved plan of operations. A blanket financial guarantee for treatment to achieve water quality State-wide or nation-wide operations or, One commenter said that the existing • standards or other long-term, post- financial guarantee should remain in Evidence of an existing financial mining maintenance requirements. place unless the operator modifies the guarantee under State law or The final rule omits a portion of the approved plan of operations. regulations. proposal contained in the supplemental There were comments that the These choices are identical to those proposed rule published on October 26, provisions of the rule for existing plans contained in the proposed rule. 1999 (64 FR 57613). See proposed require clarification. One commenter Several members of the mining § 3809.552(d). That portion of the suggested that proposed §§ 3809.430– industry commented that companies proposal would have required an 434 appear to have requirements that with several notice- or plan-level operator, when BLM identifies a need conflict with proposed § 3809.505. Final operations would be better served with for it, to establish a portion of the §§ 3809.430–434 apply to modifications one large financial guarantee, rather financial guarantee used to conduct site of existing plans of operations whereas than having several different financial stabilization and maintenance in a this section states that an operator has guarantees. Conversely, a large financial funding mechanism that would be 180 days to post a financial guarantee guarantee is seen by some commenters immediately redeemable by BLM. BLM meeting the requirements of this as a way that industry can skimp on would then use the funds to maintain subpart. The financial guarantee bonding and have all of their operations the area of operations in a safe and requirements are independent of covered. In addition, the same stable condition during the period modifications. Any modification of an commenters believe having one needed for bond forfeiture and approved plan of operations would financial guarantee for several plans of reclamation contracting procedures. require the operator to adjust the operations would make defaulting on a Some commenters feared that it financial guarantee before beginning to financial guarantee more of a would require operators to put up front operate under the modifications. One possibility. substantial sums of capital for commenter asked that we modify this Commenters suggested that the reclamation which could be used at section to state explicitly, ‘‘This blanket financial guarantee provision is BLM’s whim. Some saw it as potentially obligation does not affect your right to unclear as to whether the sum of the giving a competitive advantage to larger continue to operate under the approved financial guarantees will equal the sum companies. Others, silent on how BLM plan of operations both before and after of financial guarantees required for would use the money, felt the provision complying with the obligation in this individual operations. Others objected would tie up large sums of capital. section.’’ As stated above, we adopted to blanket guarantees because of the Another comment suggested that all language to make clear that operations administrative difficulties they could guarantees should be immediately may continue during the 180-day period cause BLM. redeemable. We also received several we grant in final § 3809.50. BLM allows nationwide blanket comments suggesting that the BLM decided to leave the 180-day guarantees in other mineral programs, supplemental proposed rule did not transition period in place as this and we believe we can administer the follow the requirements of the Small provides ample time to come into program soundly. Final § 3809.560(b) Business Regulatory Enforcement and compliance. The 180-day period applies states that BLM will accept the blanket Fairness Act, 5 U.S.C. 601–612, because to plans of operations, not notices. As financial guarantee if we determine that the regulatory flexibility document did most currently operating under a plan its terms and conditions are sufficient to not consider the impact of this proposed will already be complying with these comply with this subpart. As the change. provisions, we believe few, if any, operator must post a sufficient financial We decided to omit this provision operations will be impacted. But if an guarantee to cover the cost of from the final rule for some of the existing plan of operations does not reclamation for each individual project, reasons expressed in the comments. have a financial guarantee meeting the we believe that the amount of the Requiring a separate interim funding requirements of this subpart, there is a financial guarantee must equal the sum mechanism, while useful, could be need to upgrade the guarantee. Plans of of the reclamation estimates for each complicated, and the complications of operations frequently result in project. creating and maintaining such a fund in significant on-the-ground disturbance Sections 3809.552 Through 3809.556 every case could outweigh the and other impacts. However, shortening Individual Financial Guarantee advantage of having the fund available the time period to 60 days has the in the relatively fewer occasions when potential to unnecessarily cause Section 3809.552 What Must My it would be helpful. We believe the hardship in some instances due to the Individual Financial Guarantee Cover? regulatory flexibility document meets fact that some work is seasonal and that This final rule requires an individual the requirements of the Act, even requiring a financial guarantee could financial guarantee to cover reclamation though the economic analysis dated

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

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We chose not local field manager to work with the objected to third-party reclamation cost to define ‘‘acceptable’’ because the operator to determine need is preferable calculations as requiring contractors to decision as to what constitutes to trying to force a one-size-fits-all set of pay Davis-Bacon wages. ‘‘acceptable’’ must be made at the local criteria. Others believed that calculating the level by the field manager for each One comment asked that paragraph amount of each financial guarantee was project. (b) of this section require BLM to too labor intensive and suggested There were comments asking that prepare an annual report on the alternatives such as: BLM reinstate the remanded regulations adequacy of the financial guarantee. An • Establishing thresholds, for requiring a third-party professional association asked BLM to consider example, under $100,000, under engineer to certify the reclamation incorporating the financial assurance $500,000 and over $500,000, for estimate, even suggesting that BLM foot requirement used under California laws, determining the amount of the financial the bill if this would be overly including an annual review. Another guarantee; burdensome to small miners. The commenter recommended that we • For notices, establishing a fixed argument presented was that a company amend paragraph (b) to require BLM to amount; would ‘‘lowball’’ the estimate to lower review the adequacy of financial • Giving notice-level operators the its costs. This final rule requires that financial guarantees at least once every three option of using either a dollar per acre guarantees cover actual costs. We years. figure or a site-specific amount that the believe this is consistent with the NRC We are not requiring review of the operator calculates; or amounts of financial guarantees at • Report, which recommends that Establishing Statewide amounts. operators post financial guarantees predetermined periods. If a financial We received a series of comments guarantee is linked to market adequate to cover reclamation costs. The suggesting that BLM incorporate State rule is flexible enough to permit the fluctuations, the operator must certify models and guidelines to calculate the annually to BLM that the market value BLM field manager to establish fixed costs of reclamation. Some see this as a amounts for activities under his or her of the instrument is sufficient to cover way of avoiding double bonding. the cost of reclamation. See final jurisdiction, but also allows the field The NRC Report discussion of manager to require a financial guarantee § 3809.556(b). In other cases, the BLM bonding notes that ‘‘standard bond will monitor the adequacy of financial in an amount over or under the fixed amounts for certain types of activities amount if the cost of reclamation of a guarantee amounts through our on specific kinds of terrain should be inspection program. specific operation deviates from the established by the regulatory agencies. fixed amount. Section 3809.553 May I Post a * * * in lieu of detailed calculations of As we stated in the preamble of the Financial Guarantee for a Part of My bond amounts based on the engineering proposed rule (64 FR 6442, Feb. 9, Operations? design of a mine or mill.’’ Numerous 1999), the purpose of this section is to This final rule permits operators to commenters, while expressing general ensure that the estimated cost of provide financial guarantees on an support for the NRC discussion, noted reclamation, on which the financial incremental basis to cover only those that it would also be reasonable to guarantee amount is based, is sufficient areas being disturbed. Paragraph (b) calculate the amount for individual to pay for successful reclamation if the establishes BLM’s goal of reviewing the operations as necessary. One mining operator does not complete reclamation. financial guarantee for each increment association thought BLM ought to allow We explained that if funding were not of an operation at least annually. The operators to choose between a per-acre available in the financial guarantee to final rule is unchanged from the amount and an actual-cost-to-reclaim pay the administrative costs, the costs proposed rule. amount. Another industry group wrote would have to come out of the funds We received one comment on this that a one-size-fits-all standard financial available for the on-the-ground section which supported incremental guarantee amount would be counter to reclamation. This could result in bonding as a ‘‘welcome regulatory the heart of the NRC Report which incomplete or substandard reclamation. innovation.’’ emphasizes the need for site-specific This final rule reconfirms BLM’s desire flexibility. One mining company to assure complete reclamation without Section 3809.554 How Do I Estimate expressed specific support for the cost- the use of taxpayer funds. the Cost To Reclaim My Operations? estimating approach BLM used in the The comments that advocate This section requires that an operator proposed rule. However, other mining excluding BLM’s administrative costs estimate the reclamation cost as if BLM groups suggested that an amount could from the amount of the financial were to hire a third-party contractor to be set at the State level if BLM and the guarantee would not achieve the goal of perform reclamation of the operation State worked cooperatively. avoiding the taxpayer bearing the cost of after the operator has vacated the project Alaskan miners argued that BLM reclamation. Arguments that BLM area. It is unchanged from the proposed should establish standard amounts and administrative costs should be limited rule. that it is inappropriate to base financial to direct costs were not accepted There were numerous comments guarantee amounts on the basis of third- because BLM’s general policy regarding opposing this provision. Some party contractor rates. cost recovery is to include all charges, expressed the belief that the rule should There were comments that asked BLM direct and indirect. We found no reason limit financial guarantees to 100% of to incorporate the NRC proposal to for making an exception where reclamation costs so that BLM establish fixed amounts for financial reclamation financial guarantees are administrative costs would not be part guarantees as a means of streamlining calculated. Similarly, inclusion of of the calculation. This was seen as an the process, while also giving operators Davis-Bacon wages for third-party incentive to achieve reclamation. a way of knowing ahead of time what contracts in the calculation is something

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BLM, as well as all other Federal particularly on small miners, and on guarantee in place at the time of agencies, are required to do as a matter BLM because the BLM field manager cancellation to avoid a gap in coverage. of law. must still had to pass on the adequacy Several commenters asked BLM to We decided not to accept suggestions of the estimate to make sure the amount consider operators’ liability insurance as that we establish financial guarantee of the guarantee was adequate, an additional funding mechanism. thresholds, establish fixed amounts, or regardless of who made the estimate. Another comment asked us to include have different processes for notice The benefits of the process did not language which would, in essence, operations. Again, the purpose of these outweigh these burdens. The final allow BLM to take any form of guarantee provisions is to assure the availability of reinforces BLM field managers’ if it would achieve the objectives and funding to complete reclamation. responsibility to have an adequate purposes of the bonding program. The Especially in the case of operations financial guarantee in place before intent of this suggestion was to provide beyond the notice level, reclamation operations begin. the greatest possible flexibility for both costs vary widely depending on size, operators and BLM. location, and the mineral being Section 3809.555 What Forms of Another comment suggested that BLM developed. Using a threshold amount Individual Financial Guarantee Are require operators to replace an expiring would leave BLM vulnerable to having Acceptable to BLM? letter of credit 30 days before it expires, an insufficient guarantee, especially in The final rule expands the kinds of because after its expiration there would the case of larger mines. financial instruments that are be no guarantee to collect. The same Notice-level operations pose a acceptable. In addition to surety bonds, commenter said BLM should redeem the different set of problems. While cash, and negotiable securities, which letter of credit 30 days before it expires estimated reclamation costs might vary, were acceptable under the previous if the operator has not replaced it. One the range of costs will not be as great. rule, this expanded list of acceptable comment objected to our proposal to The rule will permit local BLM field instruments includes letters of credit, accept investment-grade securities managers to establish fixed amounts for certificates of deposit, State and because the commenter views them as reclamation of notice-level activities municipal bonds, investment-grade close to accepting corporate guarantees. and work with the operator to adjust the rated securities, and insurance. One comment suggested that BLM amount of financial guarantee in The final rule differs from the explore with the States creative forms of specific cases. This could work on a proposed rule in that we have decided guarantees including liens on property. district-wide basis. Establishing to include insurance as an acceptable This suggestion was proffered to ease Statewide amounts is more problematic. form of financial guarantee as paragraph the burden on small business. One For example, within a single State such (f) of this section. The form and function comment asked BLM to require the as California, climate, soil conditions, of the insurance must be to guarantee custodian of the security to submit water quantity may differ widely with the performance of regulatory monthly statements to BLM attesting to an accompanying difference in obligations in the event of operator the market value. reclamation costs. The approach we are default. In adding insurance, we BLM chose not to incorporate any of taking is not inconsistent with the NRC determined that the company must have the above suggestions. We did not Report, which recognized that different an A.M. Best rating of AA. This rating include operators’ liability insurance on-the-ground conditions require limits the risk to the government that because we consider liability insurance different levels of financial guarantees. the company will be unable to pay to be more appropriate for work-related This final rule does not incorporate should the operator fail to reclaim land liability, such as worker injury as State models and guidelines for after completing operations. Several opposed to liability for completing calculating the cost of reclamation. It commenters suggested that we add reclamation. Companies routinely would be very difficult to issue a insurance because it provides BLM as acquire this type of insurance and while national regulation incorporating the much protection as the other it would normally cover unintended guidelines of the individual States. instruments and operators are often able events during mining, such insurance However, there is nothing to prevent to obtain insurance at a reasonable cost. would not cover post-mining liabilities. individual States from working with We also added language to reference BLM chose not to add language BLM to incorporate all or part of their Treasury Circular 570 and removed the regarding expiring letters of credit guidelines into BLM-State MOUs. This word ‘‘Non-cancellable.’’ We added the because in most cases the letter of credit approach has advantages over a reference to Treasury Circular 570 in will be for a significant time period. As regulatory solution in that the site- response to suggestions that we clarify BLM will be reviewing the adequacy of specific needs can be addressed by that BLM will not accept any surety. financial guarantees on a periodic basis, those most familiar, and, as conditions BLM will only accept bonds of sureties the field manager will be aware of any or knowledge change, it is easier to that Treasury Circular 570 authorizes to letter of credit which is about to expire make adjustments if parties are not write Federal bonds. and take appropriate action if the locked into a methodology prescribed We took out the word ‘‘non- operator is not moving to replace it in by regulation. cancellable’’ after considering a timely manner. Redeeming a letter of When we proposed the financial comments which emphasized the credit solely because it is about to guarantee portion of today’s rulemaking, difficulty of obtaining a surety if it expire would not be consistent with the BLM chose not to incorporate a could never be canceled. BLM decided objective of the rule. We would only provision of the rules we previously these concerns had merit and that an redeem the letter of credit if the operator published on this subject that were operator’s liability would not change were unwilling or unable to complete remanded by a district court, which and BLM’s protection would not be reclamation. would have required a third party to appreciably diminished so long as the BLM can explore creative forms of certify the estimated cost of reclamation liability period of the surety would guarantees with the States, but our bonding. The experience under the cover any situation where BLM would experience is that the rules should not remanded rules was that requiring a make a demand on the surety. If a surety provide open-ended discretion in this third party to certify the estimated cost intends to cancel a bond, the operator area. If we determine a ‘‘creative’’ of reclamation was a burden, must have a replacement financial method is worth including in the list of

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In State-approved financial guarantee that The comment suggests that a guarantee the first instance, an investment-grade is redeemable by the Secretary, is held covering 100 percent of the reclamation security is not equivalent to a corporate or approved by a State agency for the guarantee because the value can be cost is sufficient. The purpose of same operations covered by a notice or determined daily in the marketplace requiring 110 percent is to provide plan of operations, and provides at least without having to consider intangible assurance that an adequate financial the same amount of financial guarantee corporate assets. Final § 3809.556 guarantee remains in place regardless of as required by this subpart. We are provides BLM adequate protection from market fluctuations. If we were to use requiring that any State-approved any declines in the value of the security. 100 percent it would be logical for us to financial guarantee be redeemable by The suggestion that the custodian ask for an increase in the guarantee if the Secretary so that, in case of failure provide a monthly statement would the level drops to 95 percent. This to reclaim, we have independent place an unnecessary burden on the would impose a burden on industry and authority to initiate forfeiture of the custodian without substantially BLM to constantly adjust the level of the financial guarantee to ensure increasing BLM’s protection. It would guarantee while not providing any real reclamation of public lands. The also place a burden on BLM to review increase in protection. redeemability requirement would not and file monthly reports. We believe apply to State bond pools. The final rule requiring annual review of these types Section 3809.560 Under What is unchanged from the proposed rule. of financial guarantee instruments will Circumstances May I Provide a Blanket We received one comment asking that be adequate. Financial Guarantee? BLM amend proposed paragraph (c) to provide that the State guarantee need This section allows operators to Section 3809.556 What Special not include funds to cover BLM costs provide a blanket guarantee covering Requirements Apply to Financial for issuing a third-party contract when State-wide or nation-wide operations. Guarantees Described in § 3809.555(e)? the State agreement provides for the The amount of any blanket financial This section of the rule requires State to implement a jointly approved guarantee would have to be sufficient to operators to provide BLM an annual reclamation plan that is in default. cover all of an operator’s reclamation statement describing the market value of There were comments that the obligations. This final rule is unchanged a financial guarantee which is in the proposal would end joint bonding form of traded securities. Paragraph (b) from the proposed rule. because a surety would not issue an requires the operator to post an We received a comment asking instrument redeemable by both the State additional financial guarantee if the whether the purpose of this section was and the Secretary of the Interior. One values decline by more than 10 percent to provide administrative convenience State asked that we amend the section or if BLM determines that a greater or something else. Other comments so that the Secretary of the Interior financial guarantee is necessary. expressed the fear that blanket would not have to sign the guarantee, Paragraph (c) allows the operator to ask guarantees make it easier for companies citing the MOU as providing a means to BLM to release that portion of an to post insufficient financial guarantees, protect both the State and BLM. Another account exceeding 110 percent of the declare bankruptcy and walk away. State pointed out that its law does not required financial guarantee. BLM will Others see blanket guarantees as a way provide for jointly held financial allow the release if the operator is in of avoiding detailed calculations of guarantees and suggested that to make compliance with the terms and financial guarantee amounts based on an MOU workable with respect to conditions of the operator’s notice or the engineering design of a mine or mill. financial guarantees could require the approved plan of operations. It is Others expressed the concern that the State legislature to act. One State unchanged from the proposed rule. blanket guarantees will not equal the expressed concern that BLM should One commenter suggested deleting sum of guarantees needed for all allow that State to hold the financial this paragraph because § 3809.552(b) individual projects. guarantee instrument because a joint contains the same general requirement instrument would be difficult to for an annual review. BLM decided to maintain the option administer. We chose not to delete paragraph (b) allowing blanket guarantees. The system In the context of State bonding, there because it provides the specific has been in place for many years and were many comments about using State requirements for certain types of provides administrative convenience to bond pools. One comment stated, ‘‘We financial guarantees. As the instruments both the operator and BLM. It is a are pleased that the State bond pool may vary in value, it is important that BLM system which is used successfully in continue to work as a means of allowing annually review the value to assure other BLM programs. In our experience, placer miners and others to easily their adequacy. In contrast, final a blanket guarantee does not increase comply with proposed regulations. In § 3809.552 establishes the framework for BLM’s risk of having to use taxpayer Alaska, all operations disturbing 5 acres all financial guarantees. Part of that funds to reclaim operations. BLM must or more are required to be bonded for framework is paragraph (b) which tells work with its field managers to review reclamation, and reclamation is required operators that BLM will periodically the blanket guarantees to be certain that for all operations of any size. The State review financial guarantees without sufficient funds are available for each of Alaska bond pool has been used establishing any specific time period for project covered in the event the operator successfully for many years, and has the review. Unlike this section, does not complete reclamation for been approved by the BLM for many § 3809.552(b) does not require the whatever reason. operations.’’

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Another comment said that BLM operators not cause unnecessary or the corporate guarantee would provide shouldn’t be able to recoup undue degradation, and this an appropriate level of protection. We administrative costs from the State bond appropriately includes a requirement asked for public comment on whether to pool because utilizing the pool saves that they assure reclamation of Federal continue this policy. A new section, BLM money. The same commenter land after mining. final § 3809.574, explains that BLM will noted that States ‘‘have the ability to We believe that continuing to use no longer accept corporate guarantees, audit all reclamation costs claimed State bond pools is appropriate, but will allow those in place to continue under a default situation, when monies especially to assist small miners who for that portion of the operation covered are drawn from the existing State bond might otherwise have difficulty by a corporate guarantee existing on the pool.’’ Finally, the commenter suggested obtaining a financial guarantee from effective date of this rule. that BLM proceed with legal action other sources, so long as the conditions Numerous commenters argued against against any and all liable parties before of the next section are met. The BLM permitting corporate guarantees, stating using State bond pool money to remedy State Director will have to determine that financial guarantees should be held the reclamation obligation. whether the pool is sound (see final by an independent third party. There were comments asserting BLM § 3809.571) before an operator would be Commenters noted that if BLM allows should not accept financial guarantees able to post a financial guarantee corporate bonding, the value of the ore that are part of State bond pools. These through the pool. If one large claim should not be considered an asset as it commenters see such pools as not would make the pool insolvent, the fluctuates over time and loses value as always solvent and note that one large State would need to find a means to it is mined. Thus, the soundness of the cost recovery may exceed the value of supply the financial guarantees guarantee might be most questionable at the pool. necessary to comply with the the time it is most needed. We also Other commenters asked why BLM requirements of subpart 3809. received a comment suggesting that would not adopt State rules. We also received a comment asking allowing corporate guarantees could be Commenters also questioned whether BLM to add language that would clarify inconsistent with the first operators would be able to obtain an that BLM may still require its own recommendation in the NRC Report instrument from a surety that named financial guarantee even if there is an because they may not provide assurance two different entities with the ability to existing State-approved financial that reclamation will be completed. redeem a guarantee. guarantee. We did not accept this Other commenters supported BLM did not accept the suggestion suggestion because we believe the allowing corporate guarantees and that a third-party contract not be language in final § 3809.570 makes clear suggested approaches the commenters included. Even when a State agreement that BLM will review State-held considered workable. One commenter exists, the responsibility for protecting financial guarantees and make an suggested that if BLM decides to permit Federal lands remains with BLM. BLM independent decision on whether to corporate bonds, we should use a must still administer any third party accept them. system similar to the system that the contracts needed to reclaim land after Finally, BLM disagrees that it should Office of Surface Mining (OSM) uses. operations, and this is a legitimate have to bring legal action against liable This is an elaborate system which limits expense. Estimates of the amount of the parties before using a bond pool. One the percentage of corporate bonding financial assurances are expected to principal purpose of financial based on the assets of a corporation. consider the administration of contracts, guarantees is to avoid the necessity of Other commenters suggested that BLM so it is not unreasonable to have lawsuits to accomplish reclamation. look at State models (specifically proceeds from a State bond pool pay Nevada and California) for determining this expense. BLM believes it must Section 3809.571 What Forms of State- the levels of corporate guarantees. One include its direct and indirect Approved Financial Guarantee Are comment described and supported the administrative costs in calculating the Acceptable to BLM? Nevada reclamation regulations estimated reclamation costs. These costs This section allows an operator to pertaining to corporate guarantees, should apply to State bond pools as provide a State-approved financial which allow them under certain well. In the event of a disagreement guarantee subject to the conditions in conditions of corporate financial with the State, BLM should be certain final § 3809.570, in the following forms: soundness, but only for 75 per cent of to have sufficient funds to pay for • The kinds of individual financial the estimated cost of reclamation. reclamation. See also the response to guarantees specified under § 3809.555; Another comment urged BLM to comments about the calculation of the • Participation in a State bond pool, consider, for small entities, the salvage estimate in final § 3809.554. if the State agrees it will draw on the value of equipment and other property We believe that making a financial pool where necessary to meet at the mine site. Numerous comments guarantee redeemable by the Secretary obligations on public lands, and the asked that we amend the rule to state is a fundamental principle of the BLM State Director determines that that guarantees under the California financial guarantee program. In final State bond pool provides equivalent program are automatically acceptable. § 3809.203, we state clearly that if the level of protection as required by this One commenter suggested that BLM financial guarantee is a single subpart; or use the OCS system which measures instrument, it must be redeemable by • A corporate guarantee existing on assets over liabilities on an annual basis. both the Secretary and the State, and the effective date of this final rule. One commenter suggested that BLM this section is consistent with that The final rule differs from the consider using as a model the requirement. We believe that surety proposed rule regarding whether BLM regulations adopted under Subtitle C of companies will cooperate and accept will accept a corporate guarantee as a the Resource Conservation and the notion, and that joint State-BLM financial guarantee. BLM proposed to Recovery Act (‘‘RCRA’’) with respect to bonding may proceed. We recognize continue its policy of accepting the financial assurance of closure and that sometimes State and Federal corporate guarantees under certain abandonment costs. interests are not the same. Under circumstances if the State in which the During a January 11, 2000 meeting FLPMA, the Secretary of the Interior is operations are occurring did so and if with the Western Governors’ ultimately responsible for assuring that the BLM State Director determined that Association, some State representatives

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However, some State laws This section states that BLM will guarantee, a rejected financial guarantee specifically allow corporate guarantees. notify the operator and the State in will not satisfy the regulatory We recognize that the final rule will, in writing if it rejects a financial requirement during the pendency of the some cases, require a reworking of instrument in an existing State- appeal, because a sufficient guarantee MOUs with the States. approved financial guarantee. BLM will must be in force at all times. We found the arguments opposing notify the operator within 30 days and Section 3809.573 What Happens if the corporate guarantees persuasive. We explain why it is taking such action. State Makes a Demand Against My agree that a corporate guarantee is less This section requires an operator to Financial Guarantee? secure than other forms of financial provide BLM with a financial guarantee Final § 3809.573 requires an operator guarantees, especially in light of acceptable under this subpart at least to replace or augment a financial equal to the amount of the rejected fluctuating commodity prices. Recent guarantee within 30 days when the State financial instrument before mining may bankruptcies added to the concern that makes a demand against the financial continue. guarantee and the available balance is corporate guarantees don’t provide The final rule is slightly different adequate protection. We believe the insufficient to cover the remaining from the proposal. In response to reclamation cost. This differs from the number of new mines that might have comments, we have added language wanted to rely on corporate guarantees proposed rule by the addition of a 30- which directs BLM to notify the State if day time frame for augmenting or is relatively small, and we also believe, we do not accept a State-approved replacing a financial guarantee. This given the economics of the industry, financial guarantee. We are making this action conforms to the NRC Report’s that companies that would have been change to assure that lines of first recommendation that ‘‘[f]inancial eligible to hold a corporate guarantee communication between BLM and State assurance should be required for should not have a significant problem governments are adequately maintained. reclamation of disturbances to the finding a third-party surety, or posting Some commenters stated that BLM environment caused by all mining the requisite assets. should defer to the States on financial activities beyond those classified as BLM currently accepts a corporate guarantees. Many comments questioned casual use.’’ It also responds to a guarantee only if there is an MOU with the criteria under which BLM would not comment from a Federal agency asking the State and the State accepts corporate accept a State bond, saying ‘‘if a state how BLM and a State would handle a accepts a bond, BLM should accept it.’’ guarantees. The proposed rules would situation where a financial guarantee is To do otherwise, these commenters have required BLM to evaluate the inadequate to cover demands made by suggest, might result in duplicate assets of individual companies before both entities, and another comment that bonding. One commenter asked for a list suggested BLM should add language allowing corporate guarantees. Specific of criteria under which BLM would not models cited in the comments all have specifying that the operator must inform accept a financial guarantee which the BLM within 15 days of the demand’s requirements to evaluate assets, State accepts. Other commenters noted occurrence and require a replacement or liabilities, and net worth. Some require that in the event BLM does not accept augmented guarantee within 15 days. judgments as to the amount of a a State financial guarantee, there is no We decided 15 days was too short, and company’s net worth in the United mechanism or time frame for BLM and stretching the process beyond 30 days States. Annual reviews would be the State to resolve what is an would leave a troubled operation necessary. BLM does not currently have acceptable financial guarantee. Another operating too long without a sufficient the expertise to perform these reviews commenter suggests establishing a time financial guarantee. Such situations on a periodic basis, and even if we did, frame for the operator to remedy the should be avoided if possible by taking a risk of default would remain. This situation. The same commenter asked care to establish a proper financial contributed to our decision not to allow BLM to establish an appeals procedure guarantee amount to cover both Federal additional corporate guarantees. under which BLM would accept the and State obligations. BLM and the State of Nevada State guarantee while the appeal is pending. Final §§ 3809.800–3809.809 Section 3809.574 What Happens if I currently hold a significant number of Have an Existing Corporate Guarantee? corporate guarantees. Some other States establishes an appeals procedure. There were some comments in As stated earlier, the final rule also allow corporate guarantees. We opposition to BLM accepting State continues to allow corporate guarantees have decided not to invalidate existing financial guarantees on the grounds that for existing operations to satisfy guarantees, so as not to require these the interests of the State and Federal financial guarantee requirements, if they operators to secure an alternative government can diverge. were accepted before the effective date financial guarantee instrument, so long The process we establish in this of this rule. BLM will not allow an as they are operating under already section assures that a strong financial operator to transfer a corporate approved plans. While we have decided guarantee will protect the Secretary if an guarantee to another entity or operator. not to require operators who currently operator is unable or chooses not to Paragraph (b) specifies that if the State hold State-approved corporate complete reclamation, or if a State changes its corporate guarantee criteria guarantees to post an alternative establishes a requirement that does not or requirements, the BLM State Director guarantee, the final rule seeks to reduce provide adequate protection. If BLM will review any outstanding guarantees the associated risk by explicitly does not accept a State-approved to ensure they still afford adequate requiring periodic review of financial financial guarantee, the operator may protection. If the State Director guarantees, and directing that not begin mining activities. For this determines they won’t provide adequate appropriate steps be taken if they are reason, we have declined to accept the protection, the State Director may determined to be no longer adequate. recommendation to add a time frame. terminate the existing corporate

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70075 guarantee and require the operator to cannot unilaterally terminate liability to allowing the public 30 calendar days post an alternative guarantee. for obligations that have accrued while to review a financial guarantee release. the bond was in effect. If the operator The final rule differs from the Sections 3809.580 Through 3809.582 submits, and BLM accepts, an adequate proposed rule by excluding notice-level Modification or Replacement of a replacement financial guarantee that activities from the public notice and Financial Guarantee covers the obligations covered by the comment provisions of paragraph (c). Section 3809.580 What Happens if I previous surety bond. Then the earlier Release of financial guarantees for Modify My Notice or Approved Plan of surety may be released from its notice-level operations do not need to Operations? obligations. undergo the same level scrutiny as the release of financial guarantees for plans This section requires an operator to Section 3809.582 How Long Must I of operations. Notice-level operations adjust the financial guarantee if the Maintain My Financial Guarantee? are much less likely to involve operator modifies a plan of operations significant disturbance and in most or a notice and the estimated This section requires an operator to cases generate little or no public reclamation cost increases. The final maintain the financial guarantee until interest. Additionally, the timing of the rule clarifies the regulatory text by also the operator, or a new operator, replaces release of the financial guarantee is explaining that if the estimated it, or until BLM releases the requirement important to many notice-level reclamation cost decreases, the operator to maintain the financial guarantee after the operator completes reclamation. operators as they need the release of one may request BLM reduce the amount of guarantee to post a guarantee on a new the required financial guarantee. This With minor editing, it is unchanged from the proposed rule. notice. Because the final rule limits change in the final rule was suggested notices to exploration, this change by numerous commenters who noted One comment suggested that the rule benefits small business without posing that the language in the proposed rule contain criteria for release of a financial a significant threat to the environment. did not allow BLM to approve a guarantee. BLM will not release the A second change from the proposed decrease in the amount of a financial financial guarantee until we determine rule is that the final rule includes guarantee even if a modification reclamation is complete. The standard is language that will give the BLM field resulted in a lower estimated the reclamation plan in the notice or manager the discretion to post the reclamation cost. approved plan of operations . The sole proposed release of the financial One comment asked us to clarify that criterion for judging whether the guarantee in the BLM office or publish an operator may request BLM to lower standard is met is the successful it in a local newspaper of general the amount of the financial guarantee. completion of reclamation. The circulation, or both. The proposed rule As noted in the preamble to the regulation is clear and therefore we did would have required BLM to publish proposed rule (see 64 FR 6443, Feb. 9, not change it. the proposed release of all financial 1999), this section makes clear that the guarantees in the newspaper. We chose proposed section does not preclude an Sections 3809.590 Through 3809.594 Release of Financial Guarantee this approach because today’s rule operator from requesting BLM’s limits notices to exploration, which approval to decrease the financial Section 3809.590 When Will BLM generally has limited impact and guarantee if the estimated reclamation Release or Reduce the Financial limited interest. A newspaper notice for cost decreases. Guarantee for My Notice or Plan of these actions is probably unnecessary. Operations? Section 3809.581 Will BLM Accept a Moreover, BLM already posts many proposed actions in its office for public Replacement Financial Instrument? The final rule authorizes an operator review; for example, Congress mandated to notify BLM that reclamation is Final § 3809.581(a), unchanged from that BLM post all oil and gas complete on all or part of notice or the proposed rule, authorizes BLM to applications for permit to drill (APD) in approved plan of operations and to approve an operator’s request to replace the office as a way of promoting public request a reduction in the financial a financial instrument. BLM will review involvement in decision making. In and act on the request within 30 guarantee upon BLM’s approval of the many cases, the (APD) results in more calendar days. We received no adequacy of the reclamation. BLM must surface disturbance than small mining comments specific to this section. promptly inspect the area, and we operations. BLM has added final § 3809.581(b) to encourage the operator to accompany Several commenters believe that BLM clarify a surety’s obligations, if for some the BLM inspector. If the reclamation is should amend paragraph (b) by reason a surety bond is no longer in acceptable to BLM, the operator may including a specific number of days effect. See, for example, the standard reduce the financial guarantee as within which we will inspect the BLM surety bond form entitled, Surface allowed in final § 3809.591. Paragraph operation. These commenters consider Management Bond Form (February (c) of this section requires BLM to post the term ‘‘promptly inspect’’ to be too 1993), Bond Condition No. 8. See also the proposed final release of the vague. Other comments suggested we U.S. and Nevada v. SAFECO Insurance financial guarantee in the field office continue the current requirement that Co. of America, CV–N–99–00361– having jurisdiction, or to publish notice the inspection include the owner and/ DWH(PHA), Order dated Aug. 12, 1999. of the proposed final release in a local or operator unless they notify BLM in The final rule makes it clear that a newspaper of general circulation and writing that the joint inspection is surety is not released from an obligation accept public comments for 30 calendar waived. Another commenter says that that accrued while the surety bond was days. BLM should publish the date of in effect, unless the replacement We received several comments asking inspection so that interested persons financial guarantee covers such that notice-level activities not be can attend. obligations to BLM’s satisfaction. This is included in the release procedures of The opportunity for public not a new policy, but BLM believes it paragraph (c). Because notice level participation is controversial. Many should be stated expressly so that if a activities entail less than 5 acres of respondents stated BLM should give the surety bond is canceled or terminated, surface disturbance, commenters public an opportunity to be involved in all parties understand that the surety suggested that there is no added value all phases of planning, assessment, and

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70076 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations bond setting, noting that mining may to be well-versed in many aspects of operator completes regrading he has affect local residents for a long period of mining or be familiar with the on-the- spent more than 60 per cent of the total time. Many others assert the public ground condition of the area for which cost of reclamation. These commenters already has input into this process the operator seeks release. BLM will state that even if there were to be a during the EIS stage, and their further review public comments as promptly as default on the remainder of the financial involvement will slow down the process possible to see if they should affect the guarantee, there would be more than due to the 30-day period for public release of the guarantee. Then we will adequate funds remaining to cover comment. These commenters feel that either release the guarantee or require actual costs and BLM administrative financial guarantee release is largely a additional work to meet the costs. Some suggest we should release mathematical exercise where a body of requirements of the performance 80 percent of the financial guarantee, as literature provides guidance on how to standards and the approved plan of once revegetation is completed, there is do the calculations. Other comments operations. Given the differences in the little left to reclaim. Conversely, other stated the general public is not educated size and complexity of mines and the comments asked that we reduce the in calculating and setting financial number of comments BLM might amount BLM releases to 40 per cent to guarantees, and the BLM professionals receive, the time it will take to analyze assure that funds are available for use if should continue to set these comments will vary greatly. Therefore, necessary. These comments also requirements. We also received we choose not to place a time limit on suggested setting a ten-year period for comments criticizing BLM for not the time to analyze comments. full release, because problems are often discussing the value of public comment We also chose not to hold financial undetected in the first year after mining. and explaining how differences would guarantees after release. The One commenter suggested that we be resolved. There were several performance bond guarantees add language requiring the NEPA comments suggesting that the final rules reclamation. BLM will release it when it document to identify the amount of should allow 30 days for BLM to inspect determines that the operator has financial obligation BLM should release an operation and release financial successfully accomplished reclamation. as each discrete phase of reclamation is guarantee, and to require BLM to pay While we know that the impacts of completed. interest if we take longer than 30 days mining are not always readily apparent, Releasing financial guarantee on a to release the financial guarantee. and mining-related problems can dollar-for-dollar basis would create a Other commenters pointed out that subsequently occur, under final somewhat more cumbersome process the impact of mining is not always § 3809.592, the operator and mining than relying on a fixed percentage. In known immediately at the time BLM claimant remain responsible for such addition, it would create a greater risk approves reclamation, and therefore problems. However, BLM does not think that toward the end of the reclamation BLM should establish a mechanism to it necessary to hold a financial process, the financial guarantee would hold bonds after reclamation approval. guarantee longer than the periods prove inadequate to cover the cost of the We changed the current rule which specified in final § 3809.591. remaining reclamation. Whether to requires written waivers of joint release 40, 60, or 80 percent of a inspections, and decided not to Section 3809.591 What Are the financial guarantee is admittedly a establish a time frame for when a joint Limitations on the Amount by Which judgment call. In the proposed rule we inspection can occur. It is our intent to BLM May Reduce My Financial chose 60 percent to assure that funds promptly inspect the reclaimed area, Guarantee? would be available at the end of the usually within 30 days. However, the This section governs incremental reclamation process. The comments on time when we do it depends not only on financial guarantee release. Paragraph both sides of the issue suggest that our our workload, but the availability of the (a) provides that this section does not proposal took a reasonable middle operator and weather conditions. To apply to any long-term funding ground. Therefore, we decided not to state a time frame in the rule would be mechanism that an operator establishes change the percentage of the financial too inflexible. Requiring the release under final § 3809.552(c). Paragraph (b) guarantee we will release. within a finite number of days could states that BLM will release up to 60 The final rule provides that once an lead to the inappropriate release of some percent of a financial guarantee for a operator completes reclamation, guarantees, or time-consuming appeals portion of a project area when BLM including revegetation of the disturbed when we have legitimate reasons for determines the operator has successfully area, the financial guarantee should be delaying the release. reclaimed that portion of the project released when the water quality One overall purpose of these final area. Paragraph (c) states that BLM will standards are achieved for one year. We rules is to permit an increase in public release the remainder of the financial believe this will provide a reasonable review of mining. The release of the guarantee when we determine the degree of confidence that reclamation is financial guarantee is an important step operator has successfully completed truly complete. In arid areas of the West, in the mine closure process. Allowing reclamation, if the area meets water a determination that an area has been the public an opportunity to comment quality standards for one year without successfully revegetated may require the on it should add value to the BLM needing additional treatment or if the passage of several growing seasons. review. The logistics of including the operator has established a long-term Until BLM makes that determination, public on inspections could result in funding mechanism under we will not fully release the financial many of the same problems that we § 3809.552(c). These are unchanged guarantee. identified in deciding not to incorporate from the proposed rule. BLM decided not to accept the the proposal for ‘‘citizen inspections’’ Several commenters suggested that suggestion to use the NEPA document to (See the discussion of proposed the release of financial guarantee should identify financial release amounts at § 3809.600(b) below.). Therefore, we did be on a dollar by dollar basis as the discrete phases of reclamation. This not add this as a step in the release of reclamation work is completed, rather would overly complicate the NEPA financial guarantees. than, as proposed, holding of a financial document and would have the same We view the opportunity for outside guarantee for ‘‘contingency or other problems associated with releasing the parties to comment as a positive. The unquantified purpose. Some financial guarantee on a dollar-for-basis public that is likely to comment tends commenters asserted that by the time an as discussed above. Also, because most

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70077 plans undergo numerous modifications, met, the guarantee should be released. A under § 3809.552 in the event that the BLM and the operator would have to few commenters suggested that we anticipated problem never occurs, or is review the financial guarantee release address definitive termination of eliminated prior to reclamation. If the points as we review each modification. liability for notice-level activities and problem does not occur or is eliminated, Such a process would be overly add it as a new section under notices. it is clear that the BLM field manager burdensome. On the other side of the issue, some may release these funds as part of the commenters expressed the opinion reclamation release process. Section 3809.592 Does Release of My financial guarantees should address Financial Guarantee Relieve Me of All perpetual treatment scenarios, and Section 3809.593 What Happens to My Responsibility for My Project Area? objected that one year of satisfactory Financial Guarantee if I Transfer My The final rule states that an operator’s water quality is not sufficient for release Operations? liability does not terminate when BLM of the financial guarantee, because This section states that a new operator releases the financial guarantee. We contaminants may not be observed for must satisfy the financial guarantee have included this provision to cover years after closure. This commenter requirements of this subpart. It also situations where latent defects exist, suggested releasing the financial states that the previous operator remains such as, for example, where a regraded guarantee after increasing by 50 per cent responsible for obligations or conditions and revegetated slope begins to slump the time predicted in the mine model created while that operator conducted or fail. Paragraph (b) of the final rule estimate. operations unless the new operator provides that release of a financial In the preamble to the proposed rule accepts responsibility. This means that guarantee does not release or waive (64 FR 6444), BLM anticipated these a financial obligation must remain in claims by BLM or other persons under types of objections to paragraph (a). We effect until BLM determines that the the Comprehensive Environmental pointed out that the issue of residual operator is no longer responsible for all Response, Compensation and Liability responsibility for a project area after or part of the operations. BLM has Act of 1980, as amended, 42 U.S.C. 9601 release of the financial guarantee has added the word ‘‘must’’ to clarify the et seq., (CERCLA) or under any other come up many times since 1980 and the intent of the proposal. applicable statutes or regulations. This current rules do not address this. We We received comments that the rule is unchanged from the proposed rule. continue to believe that this provision is does not make clear that BLM will We received a number of comments necessary to cover situations where, for promptly release the guarantee once the opposing the concept of continued example, a totally regraded and new operator provides a satisfactory liability. Their primary arguments are: revegetated slope begins to slump or guarantee and assumes the obligations (1) because release of the financial fail. As we pointed out in the preamble of the former operator. We believe the guarantee means BLM determined the to the proposed rule: ‘‘If BLM could not rule is clear that once, in the language operator has successfully met the require the operator or mining claimant of the rule, ‘‘BLM determines that you reclamation terms of the approved to come back and fix the problem, are no longer responsible for all or part notice, it is not reasonable for BLM to unnecessary or undue degradation of of the operation,’’ BLM will promptly later say that reclamation is no longer public lands caused by the operator’s release the financial guarantee. considered successful; and (2) once the activities would be a likely result.’’ We Therefore, we did not adopt the reclamation is complete and the land do not anticipate a large number of suggestion. opened up to other uses, someone other cases where we would have to direct an than the operator may be responsible for operator to come back after release and Section 3809.594 What Happens to My any degradation occurring. fix problems, but we believe the final Financial Guarantee When My Mining Other commenters found continued rule will help prevent unnecessary or Claim or Mill Site Is Patented? liability objectionable because it could undue degradation. This section states BLM will release last into perpetuity, with the operator Regarding the concerns expressed the portion of a financial guarantee that never knowing when BLM might require about perpetual liability, and about applies to operations within the additional mitigation. Some possible difficulties in establishing a boundaries of the patented land. The commenters compared FLPMA to causal link between mining and final rules added the term ‘‘mill site’’ to CERCLA and stated that FLPMA does subsequently occurring degradation, for make clear that BLM will also release not permit BLM to hold operators liability to be imposed, there must be any financial guarantee associated with perpetually liable. Some commenters evidence that ties the on-the-ground a patented mill site. pointed out that financial guarantee problem to the operator’s activities. As We received one comment asking to release and release from environmental time passes, it may be increasingly delete paragraph (c) from the proposed liability are different issues. One difficult to demonstrate that a particular rule because it addressed only access commenter suggested that we add a environmental problem was caused by and therefore does not belong in this section addressing the release of a long- an operator’s mining activities, and not rule. We agree and have deleted it in the term funding mechanism if the by independent causes. final rule. anticipated problem never occurs, or is As we explained in the preamble to We received one comment asking that eliminated prior to reclamation. the proposed rule, paragraph (b) BLM assign the financial guarantee on Other commenters see this section as clarifies the relationship between this newly patented land to the State to meaning financial guarantees will either subpart and other regulations, by assure that the private surface is never be returned, or it will be difficult providing that the release of a financial reclaimed according to State law. or impossible to obtain financial guarantee held to satisfy the Similarly, the EPA commented that if a guarantees because surety underwriters requirements of this subpart doesn’t cleanup became necessary on patented will see this provision as exposing affect any responsibility an operator land, the government would likely have themselves to an unacceptable risk. may have under other laws. to spend money, thereby suggesting that Another commenter stated that the We believe it is not necessary to we maintain the financial guarantee on standards for the release of the financial include language here addressing the newly patented land. guarantee are part of the approved plan release of a long-term funding Once land is patented, BLM is no of operations and thus when they are mechanism (trust fund) established longer a party in interest with regard to

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70078 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations the reclamation of the patented land. protracted than State-level procedures One commenter suggested BLM BLM will, however, retain portions of a and that State procedures can actually amend the rule to limit recovery to financial guarantee whose purpose is to resolve the on-the-ground problem ‘‘reasonable’’ costs of reclamation. guarantee reclamation of the public quicker. In response, we hope we will Another commenter said that the joint lands. BLM will work with States to see only rarely have to initiate forfeiture and several liability provisions should if portions of the financial guarantee can procedures, and that BLM and the State be eliminated because BLM does not be transferred to States to meet State will be able as necessary to work have the authority to propose such a bonding requirements. Because this is together to resolve the issues before requirement. likely to vary from State to State, we did initiating forfeiture. Of course, if the The ‘‘reasonable cost’’ of reclamation not incorporate these suggestions into operator, State, and BLM cannot agree is what it takes to reclaim the land and this final rule. on a course of action, BLM must take associated resources in accordance with the steps necessary to prevent these regulations. The primary purpose Sections 3809.595 Through 3809.599 unnecessary or undue degradation. of posting a financial guarantee is to Forfeiture of Financial Guarantee Although the procedures may appear ensure that the taxpayer does not have Section 3809.595 When May BLM detailed, BLM doesn’t view them as to pay for the failure of an operator to Initiate Forfeiture of My Financial protracted. Therefore, we decided to reclaim land after completing Guarantee? keep the proposed language in the final operations. We have not incorporated rule. This section states BLM may initiate the suggestion to limit recovery to the forfeiture procedures for all or part of a Section 3809.597 What if I Do Not ‘‘reasonable’’ costs of reclamation, financial guarantee if the operator Comply With BLM’s Forfeiture Decision? which are in the eye of the beholder. Regarding BLM’s authority to impose refuses or is unable to complete This section describes the next steps joint and several liability, see the reclamation as provided in the notice or in the forfeiture process—how BLM will discussion earlier in this preamble of the approved plan of operations, if the collect the forfeited amount, and how the provisions of final § 3809.116. operator fails to meet the terms of the BLM will use the funds to implement notice or decision approving the plan of the reclamation plan. This final rule Section 3809.599 What if the Amount operations, or if the operator defaults on differs from the proposed rule in that we Forfeited Exceeds the Cost of any condition under which the operator changed the term ‘‘forfeiture notice’’ to Reclamation? obtained the financial guarantee. ‘‘forfeiture decision.’’ We believe this is This section states that BLM will The final rule changes the word a more accurate description and is return the unused portion of a forfeited ‘‘will’’ in the proposed rule to ‘‘may,’’ to consistent with final § 3809.596 which guarantee to the party from whom we clarify that BLM has discretion in discusses ‘‘BLM’s decision to require collect it. It is unchanged from the deciding under what circumstances to the forfeiture.’’ BLM begins forfeiture by proposed rule. We did not receive any initiate forfeiture. Many commenters issuing a formal decision. comments on this section. suggested that the term ‘‘will’’ would One comment said the State, not Sections 3809.600 Through 3809.605 require BLM to initiate forfeiture BLM, should be the collection agency Inspection and Enforcement procedures even for minor violations, and that this should be established in an and that this was not a reasonable MOU. Another commenter asked us to This portion of the final rule approach, because it would be add language allowing BLM to use the (§§ 3809.600 through 3809.605) sets burdensome on BLM and would not funds to continue interim reclamation forth BLM’s policies applicable to give the operator an opportunity to operations as permitted in proposed inspection of operations under subpart correct the violation. We agree and § 3809.552. 3809. The final rules follow the made the change to indicate that BLM As BLM has the ultimate proposed rules, with one exception may, but does not have to, initiate responsibility to protect Federal lands related to allowing members of the forfeiture for every violation. Final from unnecessary or undue degradation, public to accompany BLM inspectors to § 3809.596(d) describes how an operator BLM and a State may use a general or the site of a mining operation. The final may avoid forfeiture after BLM issues a site-specific MOU to address procedures rules also set forth the procedures BLM decision to require forfeiture. and responsibilities to assure that will use to enforce the subpart, An industry association suggested monies are collected and used to including identifying several types of that we consider using California perform needed reclamation. enforcement orders, specifying how statutory language for clarity. We have The final rule does not include they will be served, outlining the generally avoided using State-specific language contained in proposed consequences of noncompliance, and language to ensure the rule is flexible § 3809.552 that would have allowed specifying certain prohibited acts. The enough to meet conditions in all States. BLM to continue interim reclamation, inspection and enforcement rules apply Section 3809.596 How Does BLM and does not incorporate the suggestion to all operations on the effective date of Initiate Forfeiture of My Financial regarding interim reclamation in this the final rule. section. Guarantee? Section 3809.600 With What Except for minor editing, this section Section 3809.598 What if the Amount Frequency Will BLM Inspect My is unchanged from the proposed rule. It Forfeited Will Not Cover the Cost of Operations? describes the process BLM will follow Reclamation? Final § 3809.600 clarifies BLM’s to initiate forfeiture of a financial This section makes clear that if the authority, as the manager of the public guarantee. The section also describes amount of the financial guarantee lands under FLPMA and the entity that the actions an operator can take to avoid forfeited by an operator is insufficient to administers the mining laws, to conduct forfeiture by demonstrating that the pay the full cost of reclamation, the inspections of mining operations. BLM’s operator or another person will operator(s) and mining claimants(s) are authority to inspect operations on the complete reclamation. jointly and severally liable for the public lands derives from 43 U.S.C. A State agency and others commented remaining costs. It is unchanged from sections 1732, 1733, and 1740 and 30 that Federal procedures are more the proposed rule. U.S.C. 22 (RS 2319). This section

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70079 incorporates previous §§ 3809.1–3(e) based on observations ‘‘for many years, These final rules reflect policy choices and 3809.3–6. both near home and also throughout the that BLM believes appropriate. BLM Final § 3809.600(a) provides that at region,’’ many others fail miserably. The will determine whether budget and any time, BLM may inspect all commenter urged that land managers resources are sufficient for operations, including all structures, need enough teeth in the regulations to implementation and, if they are not, equipment, workings, and uses located insure the compliance of all. Other seek additional resources consistent on the public lands, and that the commenters asserted that the proposed with fiscal constraints and inspection may include verification that inspection and enforcement rules do not Administration priorities. the operations comply with subpart go far enough and supported the Specific inspection issues raised by 3809. Final § 3809.600(b), which was stronger inspection and enforcement commenters follow: proposed as paragraph (c), provides that measures set forth in Alternative 4 of Inspection Frequency at least 4 times each year, BLM will the draft EIS . inspect operations using cyanide or BLM generally agrees with the A number of commenters addressed other leachate or where there is commenters who urged strengthening of the issue of inspection frequency. On significant potential for acid drainage. the BLM inspection and enforcement one side, commenters urged that This paragraph codifies existing BLM rules. inspection and enforcement of the policy with regard to inspection of those regulations need to be more frequent General Comments Against the Proposal operations at which this hazard exists. and rigorous, and include unannounced See Cyanide Management Policy, Some commenters opposed the inspection of mining operations, and Instruction Memorandum 90–566, proposed inspection and enforcement more frequent inspections of high-risk August 6, 1990, amended November 1, rules, asserting that this section is operations. These commenters asserted 1990. As was stated in the proposed overly broad and will be that mining companies have shown rule, BLM believes that cyanide and administratively infeasible. Commenters through the years that they will not acid-generating operations have the stated that the industry’s record with conduct environmentally responsible potential for greater adverse impacts to notice level compliance, although not operations unless forced to by law. the public lands than other types of spotless, is generally very good. Instead Therefore, it is extremely important that operations and should receive a greater of revising the regulations, they urged, enforcement include frequent quantity of BLM’s inspection resources. BLM should allocate more resources unannounced inspections. A commenter Proposed paragraph (b) is not adopted and get more inspection personnel in requested that the final rule address as proposed, but has been replaced by the field. BLM disagrees with the whether inspections would be a more moderate provision allowing comment, and believes that the rules, scheduled in advance or unannounced. once-a-year public visits to mines, are not too broad and will be workable. Some commenters suggested mandated inspection schedules for all codified as § 3809.900, discussed below. Budget The recommendations of the NRC operations, suggesting quarterly for Report did not address BLM’s The adequacy of BLM resources was example. For others, quarterly inspection program. Therefore, the a recurring theme. Commenters asserted inspection is not sufficient, urging that inspection provisions of the final rules that BLM must evaluate the personnel every mine needs to be inspected at are not inconsistent with the NRC and funding it will take to implement least monthly, and a sophisticated BLM Report. the proposed inspection and lab needs to be big enough to process enforcement provisions since BLM’s samples of air, water, tailings, dumps, Comments Related to Inspection current resources will be inadequate etc. on a monthly basis, including BLM received numerous comments and no funding increases have been chemical analysis of ground water, addressing the proposed rules related to requested. For example, a commenter tailings, air, etc. Others suggested that inspection and enforcement, both for asserted, it is questionable whether BLM the number and frequency of BLM and against the proposal. A number of has the necessary resources to conduct inspections should be directly linked to the comments addressed inspection and inspections ‘‘at least four times a year documented risk evaluated in the NEPA enforcement together, and are discussed * * * if you use cyanide or where there compliance documents and together for convenience. is significant potential for acid incorporated in the approved plan of drainage.’’ Rather than cut back on the operations. General Comments Supporting the proposal, some commenters suggested a Several commenters opposed Proposal cost-recovery program, under which incorporating into the rules the current Many commenters urged that miners pay fees to cover inspection and BLM policy of inspecting cyanide inspection and enforcement must be enforcement. These commenters stated operations four times a year. There were improved, asserting that inspection and that it is sad if fees and reclamation suggestions that the number is arbitrary enforcement of mining regulations is a requirements put mining companies out and does not reflect any documented critical element of the regulatory of business, but the reality is that our problem with a lack of BLM inspections process. Without it, they asserted, nation’s history has brought many nor does it recognize that many improved rules will be meaningless. changes since 1872 that alter how we operations in some areas like Alaska are These commenters asserted that look at and value safety and seasonal. Some complained that the inspection and enforcement activities environmental integrity along with the requirement for a minimum frequency also need to be strengthened to assure importance of mineral wealth. If of inspections appears to be based, at that environmental damage is as limited operators cannot afford to mine least in part, on an incomplete as possible and, in particular, to protect responsibly, then they should not be assessment of other State and Federal people, livestock, water, wildlife, and mining at all. Other commenters stated regulatory programs, and that BLM all other resources, from the modern that the agency needs to build in budget failed to properly account for the realities of mining activity. One line items for inspection and number of inspections which are commenter stated that although many enforcement. required by States (e.g., pursuant to the miners now operate and clean up in a BLM is cognizant of budgetary issues air, water, waste and cyanide processing responsible manner, unfortunately, related to implementation of these rules. programs) and by EPA.

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BLM agrees that inspections are an categories of coal mines ‘‘to free area with low acid drainage potential important part of any regulatory resources that can focus on existing or might be significant concern. The program, but one limited by available potential problems at high risk sites.’’ 59 commenter suggested that a table such resources. BLM has decided to inspect FR 60876 (Nov. 18, 1994) (OSM rule as BLM has used in other parts of the the more hazardous operations at least reducing frequency of inspections for proposed 3809 regulations would help four times a year, and not to mandate an abandoned, but not completely sharpen BLM intentions and provide for inspection frequency for other reclaimed, coal mines). The operator uniform application between Resource operations. When necessary, the concluded that the goal of quarterly Area, Districts, and States. inspections will be unannounced. inspections is a useful goal, but should BLM appreciates the comment, but The U.S. Environmental Protection not be written into the regulations as a does not believe it requires providing a Agency suggested that to assure mandatory requirement. The operator definition of the concept of ‘‘significant effective environmental compliance at suggested as an alternative, BLM should potential for acid drainage,’’ but rather mine sites, inspection efforts must occur consider regulatory language that calls for common sense in administering from the start of operations and be directed the BLM field officers to target this section of the rules. ongoing. It suggested that the their inspection and compliance Requests for Inspection regulations be amended to require that resources at ‘‘high risk’’ sites or at sites BLM coordinate with the applicable during critical periods (such as Some commenters wanted BLM to State and Federal environmental placement of liners or during provide opportunities for citizens to agencies to conduct a complete multi- construction periods). The operator also request inspections of mines. BLM does media inspection of mines within five proposed that the regulations include a not view it necessary for its rules to years after beginning full-scale provision that would require a follow- provide citizens with the opportunity to operations. The regulations should send up inspection when a major notice of request inspections. Anyone may inform a strong message that a coordinated noncompliance has been issued. These BLM of the existence of problems and Federal and State effort will occur at the provisions would give the agency more request inspections. BLM is not aware of beginning of the mine life to check flexibility and would be more effective a lack of responsiveness of its personnel environmental compliance. EPA in preventing unnecessary or undue that needs to be addressed in its rules. suggested that these types of degradation than a formulaic approach Inspection—How? coordinated compliance inspections to compliance inspections. should also occur every five years BLM fully intends to cooperate with Commenters addressed the nature of throughout the mine life. other agencies with regulatory inspections and the measurement of Other commenters asserted that jurisdiction over mining operations. compliance. One commenter asserted proposed § 3809.600, which would BLM agrees that it should coordinate that the practical realities of judging establish new provisions related to the both its inspection and enforcement compliance with unachievable nature and frequency of BLM’s activities with State agencies and with performance standards to eliminate inspections of mining operations, are other Federal agencies. Such impacts will create substantial problems generally unnecessary and coordination can become formalized for both the BLM and the mining inappropriate and reflect BLM’s failure through memoranda of understanding of industry. For instance, how will BLM to consider the substantial implications agreements, as suggested by the NRC inspectors determine when erosion of its proposal. Some commenters Report, to prevent duplications of effort control and acid generation disagreed with BLM’s statement that and to promote efficiency. See NRC management measures comply with the establishing a specific number of Report at p. 104. Nevertheless BLM ‘‘minimize’’ performance standard? Will inspections is needed to prevent adverse believes it important to codify its each mine or mineral exploration site be environmental impacts, although certain existing policy of four inspections a year judged on a case-by-case basis, subject large operators did not object to more for operations using cyanide or other to the individual inspectors’ frequent BLM inspections or visits to leachate or which have a significant discretionary interpretation of what the mine sites. These operators stated acid-generating potential. This policy constitutes minimize? BLM disagrees that contact between BLM and the has been effective so far, in BLM’s that substantial problems will result. operator keeps the operator informed of judgment. The reference to the OSM Trained, professional BLM inspectors BLM’s concerns and educates BLM rule is not on point because that rule will use their best judgment in about the mine operations, concluding dealt with situations involving determining whether operators comply that this is desirable and can prevent abandoned coal mines where continued with their approved plan of operations. misunderstandings or compliance quarterly inspections serve no purpose. Although the rules contain standards problems. On a technical level, one commenter such as ‘‘minimize’’ rather than numeric One operator expressed two concerns asked that BLM define the term standards, the plans will specify the with the proposed rule. First, it is not ‘‘significant potential for acid drainage,’’ activities that are allowable, and where clear that a mandatory inspection asserting that there is a wide range of appropriate, the acceptable parameters schedule is the most efficient use of confusing and ambiguous applications at a particular location. BLM’s limited resources. Second, BLM of the concept of a mining operation has considered its own inspection that may or may not produce significant Scope and Timing of Inspections program in isolation from other State acid drainage. These can range from Some commenters objected to the and Federal regulatory authorities. The standard core drilling a high sulfide scope and timing of inspections, operator asserted that a mandatory mineral deposit, to open trenching, to asserting the BLM inspector cannot inspection frequency is inappropriate if underground mining, to open pit mining inspect ‘‘at any time’’ as provided by it has no relationship to the risk or to road or airport construction that will proposed § 3809.600(a). Some mining compliance problems associated with expose sulfide bearing country rock. companies did not object to BLM’s the site to be inspected. The operator Even where there may be high acid proposal for BLM employees to inspect pointed to an Office of Surface Mining drainage potential, a small scale mining mining operations on public lands, as rule that eliminated a mandatory operation may not be threatening. long as such inspections are made at inspection frequency for certain Conversely, a large-scale operation in an reasonable times—during normal

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70081 business hours. These commenters Inspection of Residential Structures inspections. Under the proposal, BLM asserted that without a specific grant of A commenter asked that BLM revise would have been able to authorize authority from Congress, inspections proposed § 3809.600(a) to indicate the members of the public to accompany a must be conducted at reasonable times. extent and authority of BLM to inspect BLM inspector onto mining sites, as Some commenters asserted that the inside of private residential long as the presence of the public would not materially interfere with mining inspectors must notify the operator of structures owned by workers at the their presence, and must permit operations or with BLM’s activities, or mine site. The commenter asked that representatives of the operator to create safety problems. Under the BLM define residential structures for the accompany them during any such proposal, when BLM authorized a purposes of this subpart because the inspections. In addition, allowing member of the public to accompany the referenced 43 CFR 3715.7 focuses on a inspectors unrestricted access to ‘‘all inspector, the operator would have been wide variety of uses that are exclusive structures, equipment, workings and required to provide access to operations. of mining. For example, the commenter uses located on public lands’’ is too asked, does this include unlimited BLM Opposition to BLM Proposal sweeping in its effect and creates inspection of living accommodations for significant safety concerns. Inspectors’ Many commenters opposed public the work force at a medium-sized access should be limited to property involvement in the inspection process. (both real and personal) having a remote mine in Alaska with workers Specific objections included: reasonable relationship to BLM’s role of living in trailers/campers. The Undue influence—The only members ensuring compliance with the proposed commenter requested that BLM define of the public likely to accompany a BLM revisions. Such limited access is how this provision applies to large and inspector onto a mine site are apt to be especially appropriate in light of small size mines where there are no political opponents of the mine or other applicable Federal and State health and alternative living provisions. individuals with anti-mining agendas safety mandates. As referenced in the rule for the looking for a means to harass the mine To perform its inspections properly, convenience of readers, inspection of operators. To allow ‘‘biased BLM needs to be able to inspect residences located on the public lands environmentalists’’ along will create whenever, wherever, or whatever is is covered by 43 CFR 3715.7. Section unnecessary and undue influence. required to assure compliance with its 3715.7(b) provides that BLM will not Safety considerations—Allowing the regulations on the public lands. Many inspect the inside of structures used public on mine sites with BLM mining operations are conducted solely for residential purposes, unless inspectors poses an unacceptably high around the clock, and problems can an occupant or court of competent risk. There is no guarantee or assurance arise anytime and anywhere on a mine jurisdiction gives permission. For of personal safety of the visitor. MSHA site. When appropriate, BLM inspectors additional information concerning requires that the BLM inspectors have may allow operator representatives to BLM’s occupancy rules, the reader is specific MSHA training in order to enter accompany them, but not to the extent directed to the July 16, 1996 Federal certain hazardous areas of the mine of interfering with their inspections. Register preamble at 61 FR 37125. such as the pits and mill. Citizens do not have that level of training and BLM expects that its inspectors will Self-Monitoring ordinarily inform operators of their would not be allowed in most areas of presence. BLM inspectors will conform Commenters opposed self-monitoring a mine. Untrained people could cause a to applicable health and safety by operators. The commenters asserted serious accident, if not a fatality. mandates. that mine operators have a huge vested Liability—BLM and mine operators interest in ensuring that the results of could incur liability for injury or death Who Should Inspect? such testing do not adversely affect of public or BLM personnel resulting A number of commenters asserted operations at the mine. They questioned from untrained people being allowed on that those who enforce the regulations the reliability of asking someone in such mining sites. There could be BLM should not be the same as those who a position to produce accurate and liability for public claims of exposure to approve mine permits, if possible, and honest results. Also, commenters toxic chemicals while at mine or mill that the enforcement and regulatory asserted that there are some mine sites. Increased risk to BLM personnel processes should be otherwise kept operators who may be honest but could also occur because of such apart. Such commenters were concerned unskilled in doing accurate scientific personnel being responsible for about the independence of the measurements. untrained accompanying public. One inspectors. They suggested that BLM Although BLM will perform commenter asserted that ‘‘[i]t is should consider dividing the agency inspections, the rules also require unreasonable to require the company to into those who approve the mines and monitoring plans under which operators carry liability insurance for the public at those who enforce environmental perform monitoring. Despite the large on-site. It is also unfair to the BLM protection. concerns expressed by commenters, employee. There is no place for the Although BLM understands the operator monitoring can be an effective public on a mine site unless the commenters’ concern, the final rules do way to keep track of activities at an company provides the tour and is able not address who can or cannot perform operation. Records have to be to set access limits. It is unreasonable inspections. BLM agrees that inspectors maintained, and falsification or for the federal government to establish need to be impartial in enforcing the misrepresentation is a violation of regulations that create unnecessary risk rules, but persons who are involved in Federal law. to the industry and the public, unless making decisions on plans of operations the government is willing to assume all Proposed § 3809.600(b) Citizen should not necessarily be precluded liability created by this action.’’ from determining whether operators Participation in Inspection Authority—Commenters asserted the have complied with the plans. Such One of the most controversial issues ‘‘BLM does not have the authority to persons will be more familiar with what in the proposed rule, generating many allow citizen inspections and therefore, is allowable under a plan of operations comments, was the BLM proposal to the citizen inspection provision should than a person who has had no earlier allow members of the public to be deleted. FLPMA is silent on this involvement. accompany BLM inspectors on mine issue and cannot be cited as providing

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They noted that citizens Mines A commenter asserted that allowing should have access to public lands and members of the public to accompany On the other hand, BLM firmly that the BLM should allow citizens to believes that the public should be able BLM officials when they make accompany BLM employees on mine inspections would be a Government to observe activities on the public land, inspections to ensure that no violations including mining operations. BLM has authorization of trespass. of regulations occurs. One commenter Confidentiality—Allowing a member thus adopted a provision, to be codified asserted that public involvement in the of the public to accompany BLM as § 3809.900, designed to allow public inspections of mines is merely an officials during a site inspection raises visits to mines once each year, but not serious issues of confidentiality. ‘‘There extension of open government and in such a way to interfere with BLM or is nothing in the proposal to constrain should be part of the privilege of operator activities or to compromise citizens from disseminating and operating on the public lands. ‘‘The safety or confidentiality. This provision disclosing information about the land the mining companies use are is intended to respond to many of the confidential business materials and public lands, which the public should objections raised by commenters. A visit processes they may encounter during an be allowed to visit, especially during will effectively be a mine tour, not an inspection. Nothing could stop a these inspections, because the mining inspection, and operators can specify potential competitor from company is present during these areas that will not be available, and accompanying BLM as a ruse to obtain inspections. * * * to balance that limit the nature of the visit. such information, and due to the ‘undue influence’ on the inspectors Specifically, final § 3809.900 provides difficulty in proving disclosure of from the mining companies, the public that if requested by a member of the confidential information, it would be should have their own people present public, BLM may sponsor and schedule hard to rewrite this provision in a too. This would create a balance among a public visit to a mine on public land manner that would allow meaningful the miners, the public, and the once each year. The purpose of the visit policing of a nondisclosure agreement.’’ government caught in between.’’ A is to give the public an opportunity to A company whose shares are traded on commenter supporting the BLM view the mine site and associated any stock exchange cannot allow proposal agreed that public involvement facilities. Visits will be limited to member(s) of the public to gain insider in mine inspections must depend upon surface areas and surface facilities information that would affect the the caveat that there are no significant ordinarily made available to visitors on trading of the company’s stock. This safety concerns. public tours. BLM will schedule visits issue is of critical importance during the A commenter agreed that the public during normal BLM business hours at initial exploration stages when a should be kept away from any the convenience of the operator to avoid mineral discovery is being made. potentially dangerous situations such as disruption of operations. Under the final Vandalism and Theft—Small miners underground mines, but asserted there provision, operators must allow the visit have a lot of supplies and small are safe opportunities for the public to and must not exclude persons whose equipment at their remote mining view what is going on. Allowing participation BLM authorizes. BLM may camps. If non-BLM people visit the inspections may have to be considered limit the size of a group for safety claims, it may result in loss of on a case-by-case basis rather than reasons. An operator’s representative equipment, vandalism, or both. Citizens opening everything up to inspections as must accompany the group on the visit. entering a mining operation could learn was proposed. The commenter asserted Operators must make available any where each piece of equipment is that the public should be allowed to see necessary safety training that they located and what is vulnerable to acts of what’s happening, with some provide to other visitors. BLM will destruction. restrictions, and the mining industry provide the necessary safety equipment Workload—Public participation in should be willing to go along with that, if the operator is unable to do so. field inspections could be a especially since they are always Members of the public must provide cumbersome task if multiple people complaining about the public not their own transportation to the mine show up at some remote site and need understanding the industry. site, unless provided by BLM. Operators to be transported. ‘‘BLM should also BLM Conclusion don’t have to provide transportation consider how the presence of the public within the project area, but if they don’t, may affect the conduct of an inspection. BLM has carefully considered all of they must provide access for BLM- Certainly, a trained inspector who is the comments concerning members of sponsored transportation. familiar with a mine site will be the public accompanying BLM BLM believes that a once a year visit considerably slowed by the presence of inspectors on inspections, as well as its sponsored by BLM will not impose untrained members of the public. own experience on those few occasions unreasonable burdens on operators, who Longer inspections will require more when members of the public did typically already provide limited mine inspectors or fewer inspections will be accompany BLM inspectors. BLM has tours, or interfere with operators’ rights completed.’’ decided not to finalize the provision as to develop minerals under the mining Comments also questioned how proposed. Many of the objections and laws. The provision is authorized by citizen involvement in inspections risks pointed out by the commenters FLPMA sections 302(b), 303(a), and 310 would work. For instance, if the BLM have merit. In addition, BLM’s (43 U.S.C. 1732, 1733, and 1740), as visits the site, is this the point when the experience with allowing members of well as by the mining laws, 30 U.S.C. 22 proposed citizen inspector accompanies the public to accompany inspectors is (R.S. 2319). the BLM inspector? Will the operator be that the site visits typically become told that citizen inspectors are coming, more of a tour than an actual inspection, Enforcement and under what circumstances will the and that the inspector has to reinspect BLM is adopting its enforcement inspection be done? the operation to perform his or her job provisions generally as proposed. Each

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

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A commenter stated that if BLM (other than anecdotal) demonstrating characterization of the recommendation proceeds with this final rulemaking, whether existing authorities are being as solely a proposal for legislative BLM will indeed change the way the applied in a consistent and uniform change. The NRC Report discussion surface management regulations are manner. made clear that, assuming BLM found working on the public lands. It will BLM disagrees that it should wait for that authority already existed for it, change the regulatory system from one further information before updating its BLM should revise and expand the which encourages cooperation between enforcement regulations. The NRC existing enforcement provisions in the mine operators and regulatory agencies Report did not indicate that action in 3809 regulations to include into one which relies upon this area was premature. The administrative penalty authority for confrontational enforcement authorities. enforcement provisions adopted today violations of the regulations. NRC BLM disagrees with the comment. provide practical methods for BLM to Report at p. 104. BLM will continue to encourage assure compliance with its rules. We Commenters concluded that because cooperation between the regulated hope that BLM will not have the NRC Report recommended no community and the regulators. widespread need to use enforcement changes in regulatory provisions Cooperation and seeking voluntary actions to compel compliance, but the regarding inspections and enforcement compliance will remain the top priority, availability of such remedies should apart from the administrative penalty but BLM must have, as the NRC Report help to prevent unnecessary or undue recommendation, the proposed has underscored, better access to an degradation of the public lands. enforcement revisions are inconsistent array of enforcement tools, for use when with the recommendations of the NRC NRC Report Recommendation 6 cooperation and voluntary compliance Report. Commenters suggested that in don’t work. Recommendation 6 of the NRC Report order to remain consistent with the A commenter concluded that the stated that BLM should have both (1) recommendations of the NRC Report, information provided to the public in authority to issue administrative BLM should defer any proposed the draft EIS and preamble was penalties for violations of the hard rock changes in the inspection and misleading, self-serving, and violates mining regulations, subject to enforcement provisions of the the conditions of several court rulings, appropriate due process, and (2) clear regulations until it has implemented NEPA, Department of Interior policy procedures for referring activities to those measures recommended by the and regulations, and the Administrative other Federal and State agencies for NRC Report to improve efficiency and Procedure Act. enforcement. NRC Report at p. 102. The the use of staff and resources to BLM disagrees with this comment. committee found that administrative implement the existing inspection and BLM perceived a need to strengthen its penalty authority should be added to enforcement requirements. enforcement remedies and so informed the array of enforcement tools in order BLM disagrees that the final the public in the draft EIS and the to make the notice of noncompliance a enforcement rules are inconsistent with proposed rule. The NRC Report also credible and expeditious means to the NRC Report recommendations. BLM recognized the need for better secure compliance. NRC Report at p. construes the term ‘‘administrative enforcement mechanisms. 103. penalty’’ as used by the NRC to Some commenters stated that BLM Commenters asserted that the NRC encompass the full range of proposed could make better use of the concluded BLM does not have administrative sanctions, including enforcement tools it currently possesses administrative penalty authority under suspension and revocation orders, as through improved implementation and current law. One State agreed that well as monetary penalties. training. BLM agrees that improved Congressional action would be Recommendation 6 was intended to implementation and training are useful, necessary to give BLM authority to issue make notices of noncompliance a but that does not negate the need for administrative penalties. Therefore, it credible and expeditious means of better enforcement tools. considered NRC Report securing compliance (NRC Report at p. For consistency in enforcement, one Recommendation 6 as a proposal for 103), and the NRC Report stated in commenter thought the same definitions legislative change, not a change in the connection with the Recommendation and standards should be applied for all regulations. In addition, the commenter that an operator should be given the Federal lands, regardless of which noted that the NRC Report endorsed opportunity to rectify the circumstance agency managed the lands (for example, only administrative penalty authority. of noncompliance (NRC Report at p. BLM, Forest Service), referring as an The commenter concluded that 104). This applies equally to suspension example, the 5-acre limitation on proposed revisions to the 3809 and revocation orders, as to monetary disturbance. A number of commenters regulations include broad new penalties. To the extent that the NRC repeated the theme that the BLM and inspection and enforcement authority Report recommendations simply do not the Forest Service should have for BLM which it characterized as address certain provisions of the final comparable provisions and definitions. neither authorized by statute nor rule, such as inspection, no The goal of having BLM and the required to administer an effective inconsistency exists with regard to the Forest Service use the same definitions program. recommendations. Therefore, there is no and standards is laudable. However, it BLM disagrees with the commenters’ need to defer changes to the inspection must be recognized that the two assertion that the NRC Report and enforcement rules for purposes of agencies operate under different organic concluded that BLM did not have consistency. statutes and have different management authority to establish administrative At the other end of the spectrum, responsibilities. BLM will continue to penalty authority. The NRC was neutral some commenters asserted that the NRC work with the Forest Service to use on the issue of BLM authority to Report supported establishing a common standards and procedures establish administrative penalty ‘‘mandatory’’ enforcement program for wherever practicable. authority. It expressly stated that BLM regulating mining on Federal lands. Some commenters asserted that it is should seek additional authority from They stated that the NRC Report affirms premature to conclude that additional Congress only ‘‘if statutory that a clear and effective enforcement is enforcement and penalty provisions are authorization is necessary’’ NRC Report needed to replace the existing needed in the absence of information at p. 104. BLM also disagrees with the enforcement mechanisms, and DOI’s

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70085 proposed rules need to be strengthened constitutes a violation and to avoid suits statutory provisions. These commenters to achieve the goals of this to compel compliance with duties asserted that when Congress intends to recommendation. The commenters established by the rules. Commenters grant administrative enforcement and stated that this recommendation makes supporting discretionary enforcement penalty mechanisms, it provides clear that BLM enforcement on the asserted that there are numerous ways specific statutory authority, which does ground is imperative to protecting to gain compliance, and issuing not appear in FLPMA. For example, in against unnecessary or undue violations with associated civil the context of regulation of the mining degradation. The commenters focused penalties should be looked at as only industry, it has done so in the Federal on a passage of the NRC Report that one possible tool. Some stated that Mine Safety and Health Act of 1977 and states, ‘‘[f]ield-level BLM and Forest coordination on enforcement activities in SMCRA. Specific proposals that Service personnel told the committee with State regulatory agencies is an commenters asserted go beyond the that they have experienced difficulty, in absolute necessity, and States should be BLM’s authority include: Suspension some cases, in enforcing compliance allowed to take the lead on enforcement. and revocation orders, administrative with regulations and the requirements These commenters asserted that State civil penalties, and criminal penalties. of notices and plans of operations.’’ enforcement can usually occur in a Multiple provisions of FLPMA, and NRC Report at p. 102. more timely manner, resulting in one under the mining laws, authorize The commenters concluded that the improved on the ground compliance. the establishment of administrative best way to ensure that BLM field BLM agrees that a firmly administered sanctions, including suspension and personnel take the required measures to enforcement program will improve revocation orders and monetary civil ensure compliance with the regulations compliance, but concludes such a penalties. These include the first and is to make such enforcement mandatory, program is possible without mandatory last sentences of 43 U.S.C. 1732(b), 43 i.e. require BLM to take enforcement enforcement. Under the final rules, U.S.C. 1732(c), the first sentence of 43 action and to assess fines against all trained professional BLM inspectors U.S.C. 1733, 43 U.S.C. 1740, and the observed violations. For instance, a will exercise their judgment and take authority to prescribe regulations under commenter stated that operations that enforcement actions when necessary. 30 U.S.C. 22 (R.S. § 2319). Section are clearly hazardous to the BLM has been concerned that 302(b) provides the Secretary the environment and to human health and mandating enforcement action for every authority to publish rules to regulate the public safety should be closed down violation, no matter how small, would use, occupancy, and development of the until brought into compliance. Others clog the system with unnecessary public lands. The last sentence of suggested that any and all violations administrative proceedings and delays, section 302(b) directs the Secretary to should be documented and, when the and tend to create the confrontational take any action necessary to prevent health of the watershed is threatened, atmosphere that BLM, the States, and unnecessary or undue degradation of operations ordered to cease until the the regulated community wish to avoid. the public lands. Section 302(c) operator can show compliance. Others BLM certainly intends to coordinate provides for the suspension and urged enforcement to protect with State regulators and, where revocation of instruments providing for groundwater from violations. Without appropriate to assure timely the use, occupancy, and development of mandatory enforcement, commenters compliance, allow other Federal the public lands. The first sentence of asserted BLM field personnel will agencies and States to take the 43 U.S.C. 1733 directs the Secretary to experience the same ambiguity and enforcement lead. What BLM has tried issue regulations with respect to the confusion as to what degree of to do in these regulations is to make management, use, and protection of the enforcement is appropriate. enforcement tools available to BLM public lands. The use of suspension and Commenters objected that the inspectors so they will not be hamstrung revocation orders and administrative discretionary enforcement system by the lack of administrative remedies. civil penalties are an integral part of a proposed by BLM will be rendered Providing these tools will strengthen regulatory scheme to manage and meaningless by what they say are poorly BLM enforcement, without requiring protect the public lands. Administrative trained agency staff who are more likely operators be cited for every violation. enforcement orders and monetary to ‘‘try to work things out’’ with BLM also disagrees that the NRC Report penalties establish more immediate and representatives of the mining industry recommends that BLM enforcement be tangible consequences than the when conflicts over land regulations mandatory rather than discretionary. To possibility of future judicial exist, rather than take action that would the contrary, the NRC Report suggests enforcement after a referral to the compel compliance with the that BLM acknowledge and rely on Attorney General. All of these sanctions regulations. In the commenters’ view, enforcement authorities of other will help achieve compliance with even in the event of gross abuse of Federal, State, and local agencies as subpart 3809, and will help prevent public resources at a mine site, BLM much as possible. NRC Report at p. 104. continuing unnecessary or undue will not mandate that enforcement degradation of the public lands when Authority actions be taken. The commenters state violations occur. that this approach to enforcing the One theme addressed repeatedly by BLM disagrees with the commenters’ proposed regulations fails to create a the comments is BLM’s authority to assertion that the provision allowing the climate in which effective regulation is promulgate the administrative Attorney General to seek the judicial likely to take place. Thus, some enforcement rules. Some commenters imposition of injunctive or other commenters conclude, allowing wholly agreed that enforcement is a necessary judicial relief, 43 U.S.C. 1733(b), limits discretionary enforcement of violations part of any regulatory program, but the Secretary’s administrative authority. out in the field would be inconsistent opposed the proposed enforcement That section, together with a portion of with the NRC Report recommendations. rules as exceeding the BLM’s legal 43 U.S.C. 1733(a) establishing criminal Commenters representing State authority under FLPMA. The violations, provides affirmative regulatory authorities urged BLM to commenters reasoned that FLPMA authority for judicial enforcement. They make enforcement discretionary, so that provides express enforcement do not, however, address or limit the BLM and the States do not get caught up authorities, both civil and criminal, and scope of the Secretary’s authority to in unnecessary disputes as to what BLM is limited to the bounds of the regulate activities on the public lands

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70086 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations under other provisions of FLPMA and to 1733(b). Under these final rules, before FLPMA section 302(b) requirement to establish administrative enforcement seeking judicial enforcement BLM may prevent unnecessary or undue remedies. issue enforcement orders in addition to degradation of the public lands. Commenters stated that BLM’s issuing a notice of noncompliance, Approval of the plan of operations is the previous subpart 3809 regulations including issuance of suspension key to allowing use, occupancy, and reflect the correct interpretation of orders, plan revocations, or monetary development in a manner that will FLPMA’s enforcement authorities, and penalties. If an operator does not prevent unnecessary or undue discussed the history of the previous comply with any of these administrative degradation. Until BLM approves a plan enforcement rules. In the Subpart 3809 orders, the Secretary may then seek of operations, an operator cannot use, regulations as originally proposed (41 judicial enforcement under section occupy or develop its mineral interests Fed. Reg. 53428 (Dec. 6, 1976)), 1733(b). in the public lands even if it has rights § 3809.2–5(b) would have authorized Commenters also asserted that under the mining laws. The next-to-last initiation of suspension of operations if Congress apparently limited BLM’s sentence of section 302(b) of FLPMA BLM ascertained the existence of enforcement authority because it makes this clear when it says, in ‘‘significant disturbance of * * * authorized the Secretary of the Interior pertinent part, that ‘‘except as provided surface resources * * * unforeseen at to achieve ‘‘maximum feasible reliance’’ * * * in the last sentence of this the time of filing the Plan of upon State and local law enforcement paragraph,’’ nothing in FLPMA amends Operations.’’ Id. at 53431. Suspension officials in enforcing the Federal laws the 1872 Mining Law or impairs the would have been obligatory for and regulations ‘‘relating to the public ‘‘rights of any locators or claims under operations, or parts thereof, which were lands or their resources.’’ 43 U.S.C. at that Act.’’ The ‘‘last sentence of this ‘‘unnecessarily or unreasonably causing 1733(c)(1). paragraph’’ it refers to sets out the irreparable damage to the environment.’’ BLM disagrees with the commenter’s Secretary’s duty to protect the public Id. See also proposed §§ 3809.4–1 and interpretation of FLPMA. Section lands from unnecessary or undue 3809.4–2. Id. at 53432. These provisions 1733(c)(1) authorizes the Secretary of degradation. A plan of operations is the were not included, however, when BLM the Interior to enter into contracts for instrument allowing an operator to reproposed the Subpart 3809 rules on the assistance of and use appropriate proceed with its use, occupancy or March 3, 1980. 45 FR 13956, explaining: local officials in enforcing Federal laws development of public lands consistent ‘‘After further examination of the and regulations relating to the public with the duty not to unnecessarily or authority of the Secretary to issue these lands or their resources. That section unduly degrade the lands.6 Suspension regulations, it has been decided that does not constrain the Secretary from or revocation doesn’t interfere with [BLM] will not unilaterally suspend establishing necessary enforcement operator rights under the mining laws regulations. operations without first obtaining a because such rights are dependent upon Commenters asserted that BLM’s court order enjoining operations which operator compliance with the approved reliance on section 302(c) of FLPMA, 43 are determined to be in violation of the plan. Accordingly, section 302(c) is a regulations.’’ Id. at 13958. Thus, the U.S.C. 1732(c), to justify suspensions or revocations of plans is misplaced. statutory basis for the sections providing commenters concluded the Interior for suspension and revocation of plans Department’s contemporaneous FLPMA section 302(c) provides suspension and revocation authority for of operation. interpretation of FLPMA was that the A commenter requested that the new Department lacked administrative ‘‘instrument[s] providing for the use, occupancy or development of the public regulations clearly identify when BLM authority to suspend operations will refer a documented noncompliance associated with mining claims without lands.’’ The commenter asserted that a plan of operations under the 3809 to the Department of Justice for first obtaining injunctive relief pursuant initiation of judicial action. The to section 303(b) of FLPMA, 43 U.S.C. regulations is not ‘‘an instrument providing for the use, occupancy, or commenter stated that this information 1733(b). should also describe and evaluate the BLM acknowledges that the previous development of the public lands consequences of any differences rules reflected a permissible * * *,’’ because the mining laws between the various Department of implementation of FLPMA, but not the already authorize the ‘‘use, occupancy, only permissible one. The Department or development of the public lands.’’ In Justice units having jurisdiction over of the Interior did not state in 1980 that the commenter’s view, the plan of mining and how these differences can it had concluded the Secretary lacked operations is simply an administrative be resolved to assure that all similar legal authority to suspend mining means of regulating that development documented noncompliances are treated operations by administrative order; it activity to prevent unnecessary or in a similar manner. concluded only that it would not assert undue degradation of the public lands The standards for referral to the such authority in its subpart 3809 as addressed by FLPMA. A commenter Department of Justice for judicial regulations. BLM’s earlier policy asserted, moreover, that Section 302(c) enforcement are not covered by subpart approach was to ask the Attorney is inapplicable to mining operations 3809. This will either be handled on a General to initiate a civil action under because section 302(b) provides that no case-by-case basis or be the subject of 43 U.S.C. 1733(b) for failure to comply provision of the Act shall ‘‘in any way’’ BLM guidance. with a notice of noncompliance, amend the mining laws unless that A number of comments supported without the intermediate step of BLM provision is specifically cited. BLM’s proposed enforcement rules. For issuance of an administrative order, for BLM disagrees with the assertion that instance, EPA supported BLM’s instance, directing an operator to plans of operations are not instruments 6 The Interior Board of Land Appeals has held suspend its operations. Section 1733(b), providing for the use, occupancy, or that the requirements of 43 U.S.C. section 1732(c) however, does not circumscribe the development of the public lands, and are not restricted to instruments issued by BLM Secretary’s actions before he or she asks that suspension or revocation of a plan under section 1732(b). ‘‘Inclusion of the fourth that a civil action be initiated. of operations under FLPMA section proviso [of 43 U.S.C. section 1732(c)] makes it clear that Congress intended this requirement to extend The current rule takes a different 302(c) interferes with an operator’s to all land use authorizations issued by the approach from the previous rules, one rights under the mining laws. Rights Department under any law for lands managed by that is also consistent with section under the mining laws are subject to the BLM.’’ James C. Mackay, 96 IBLA 356 at 365.

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70087 proposed regulations at §§ 3809.601 and conduct an inspection and can obtain may result in harm or danger or 3809.602, including the authority for copies of inspection reports. The substantially departs from the notice or BLM to suspend operations, and at commenter did not show that BLM is plan, BLM cannot suspend operations. §§ 3809.702 and 3809.703 to issue not adequately responding to citizen or Before issuance of a suspension order, administrative civil penalties based on tribal requests to inspect. As explained BLM is required to notify the recipient non-compliance with the subpart. earlier in this preamble, BLM has of its intent to issue a suspension order; Commenters stated that BLM clearly decided that enforcement should remain and to provide an opportunity for an needs to have the tools available to shut discretionary. informal hearing before the BLM State down a ‘‘renegade’’ mining operation or A number of comments supported a Director to object to a suspension. These jail a ‘‘renegade’’ operator. One provision providing citizens the right to latter procedures are intended to satisfy commenter pointed out that when the sue to correct violations. Such a the procedural requirements of FLPMA BLM issues a Record of Decision based provision is beyond BLM authority and section 302(c). on a final EIS, the operator is would require a legislative change. Final § 3809.601(b)(2) provides that responsible for carrying out the Plan as BLM may order an immediate, specified, and if the operator makes Additional Definitions Requested temporary suspension of all or any part changes without BLM analysis and Commenters suggested that BLM of operations for noncompliance approval, the BLM should have the define a number of the terms used in the without issuing a noncompliance order, authority to levy fines and suspend enforcement context. These include advance notification, or providing an operations. BLM agrees with these ‘‘noncompliance order’’ as used in final opportunity for an informal hearing if comments. § 3809.601(a), ‘‘suspension orders’’ as an immediate, temporary suspension is necessary to protect health, safety, or Permit Blocks used in final § 3809.601.(b), ‘‘immediate, temporary suspension’’ as the environment from imminent danger A number of commenters used in final § 3809.601(b), ‘‘imminent or harm. This provision implements the recommended adoption of a rule which danger or harm’’ as used in final third proviso of FLPMA section 302(c). would prevent BLM from approving § 3809.601(b)(2)(ii), ‘‘violation’’ as used Being mindful of the importance of an future plans of operation for operators in final § 3809.702, and ‘‘pattern of advance opportunity to object, the final with unresolved noncompliances until violations’’ as used in final rule limits temporary immediate the violations are corrected. A § 3809.602(a)(2). Specifically, the suspensions to situations involving commenter stated that the new BLM commenter stated that the BLM imminent danger, that is, situations rules—while certainly an standard or threshold must be included where the harm could occur before a improvement—do not allow the agency to avoid ambiguity and arbitrary and hearing would be held and a decision to reject an operation outright. These capricious application by the issued. commenters asserted that BLM needs responsible BLM field official. The final rule establishes one the ability to block historically BLM declines to add the suggested presumption. BLM may presume that an irresponsible operators, as well as definitions. The meaning of many of the immediate suspension is necessary if a parent and subsidiary companies, from terms are apparent from their context. person conducts notice- or plan-level obtaining new mining permits. These Implementation will occur on a case-by- operations without having an approved commenters believed that denial of case basis. Where necessary BLM will plan of operations or having submitted plans of operations is an important tool issue guidance to assure consistent a complete notice, as applicable. BLM to protect public lands and waters from application of the enforcement believes that operations that have not environmental damage. One State provisions. undergone the required BLM review and suggested language preventing the approval, including operator operator from obtaining a permit Section-Specific Issues and Comments preparation and submittal of detailed anywhere on public lands until all Section 3809.601 What Type of plans, are presumed to be operating compliance issues have been resolved to Enforcement Action May BLM Take if I without the care necessary to operate the satisfaction of the BLM. That State Do Not Meet the Requirements of This properly, and thus constitute an said it uses a permit block section, and Subpart? imminent danger to the environment. In has found it to be useful, especially in a clarifying change from the proposal, addressing the repeat offender issue. Final § 3809.601 specifies the kinds of the final rule references the sections BLM has decided not to institute such enforcement orders BLM may issue, requiring plan approvals and notice a system at this time. The improvements when they can be issued, the contents submittals. in the enforcement mechanisms of such orders, and when they will be Final § 3809.601(b)(3) provides that contained in this final rule have the terminated. For the most part, the final BLM will terminate a suspension order promise, BLM believes, to satisfactorily rule tracks the proposal. Final when BLM determines the violation has address all enforcement issues. They § 3809.601(a) allows the issuance of been corrected. The proposed rule should be given the chance to work noncompliance orders for operations would have had BLM terminate the before something as administratively that do not comply with provisions of suspension order no later than the date complex and cumbersome as a ‘‘permit a notice, plan of operations, or a person corrects the violation, but block’’ system is considered further. requirement of subpart 3809. Final unless BLM is present, it would not be § 3809.601(b)(l)(i) provides that the BLM able to terminate the suspension on that Citizen Petitions and Suits may order suspension of operations if date. Thus, the final rule bases the A commenter suggested that citizens the operator fails to timely comply with termination on the date BLM determines and tribes should have the right to a noncompliance order for a significant the correction has occurred. petition for inspection and enforcement violation. A significant violation is one Final § 3809.601(c) specifies the in order to spur the BLM into fully that causes or may result in contents of enforcement orders, implementing its FLPMA obligations. environmental or other harm or danger including: (1) How an operator failed to BLM disagrees that a rule is needed to or that substantially deviates from the comply with the requirements of address the commenter’s concerns. complete notice or approved plan of subpart 3809; (2) the portions of Individuals can presently request BLM operations. Thus, unless the violation operations, if any, that must cease; (3)

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70088 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations the corrective actions to be taken, and order to specifically promote the administrative appellate process. Any the time, not to exceed 30 calendar dissemination of information and to BLM enforcement order may be days, to begin such actions; and (4) the advise the public and to use appealed to the Interior Board of Land time to complete corrective action. A administrative resolution rather than Appeals, and a stay may be requested minor change from the proposal clarifies prosecution for violation. under the provisions of 43 CFR 4.21. that the 30 days to begin corrective BLM disagrees with the comment. Thus a temporary suspension is not action are calendar days. BLM has a duty to take any action final agency action, for which review is Commenters stated that for the needed to prevent unnecessary or undue available in Federal Court. Rights of mainstream mining industry, a notice of degradation as stated in section 302(b) claimants under the mining laws are not noncompliance will almost invariably of FLPMA. Suspending operators that impaired by BLM enforcement actions resolve the problem without protracted are causing unnecessary or undue because such rights do not include the controversy. These commenters asserted degradation is within BLM’s authority. right to operate in a manner that causes that mine operators have enormous Commenters stated that the proposed unnecessary or undue degradation. incentives to maintain positive and rules are entirely too vague and leave Commenters suggested that BLM cooperative relations with the Federal too much power in the hands of a few revise proposed § 3809.601(b) to land management agencies, and that BLM employees. For instance, the rules substitute the term ‘‘unnecessary or judicial enforcement is pursued in rare would leave to the BLM inspector’s undue degradation’’ for language like instances of recalcitrant operators, discretion just what is imminent danger ‘‘imminent danger or harm to the usually where individuals are engaging or harm to the public health, safety or environment.’’ The commenters stated in sham operations. The commenters environment. Commenters asserted that that there is only one primary authority conclude that the rare use of judicial no business should be shut down for BLM to issue a noncompliance enforcement authorities in the past without a ruling by a Federal judge. finding or temporary suspension—the attests to the lack of need for new BLM disagrees with the comment. In approved plan of operations is not being enforcement authorities today. implementing the procedure followed and BLM has determined that BLM agrees that in many instances contemplated by FLPMA section 302(c), the variance is significant. notices of noncompliance will lead to trained professional BLM inspectors BLM declines to accept the successful resolution and abatement of will exercise their judgment carefully. suggestion. Although BLM recognizes violations. There will be instances, In the absence of imminent danger, an that failure to comply with the however, where notices of operator will have the opportunity to regulations and an approved plan of noncompliance will not completely raise objections to the State Director. operations constitutes unnecessary or resolve the issue, and the danger of And operators will be able to undue degradation, the suspension rules harm will continue. That is when the immediately appeal temporary implement FLPMA section 302(c) as other remedies can prove useful. The immediate suspensions to the Interior well as FLPMA section 302(b). BLM rare use of judicial enforcement in the Board of Land Appeals. Although believes that the terminology of the final past may be attributed to the difficulty judicial rulings may ultimately occur, rule provides a better sense of when in successfully initiating civil actions the BLM has the initial responsibility to suspension orders can be issued than rather than the lack of need for such administer the provisions of FLPMA, the use of the phrase ‘‘unnecessary or actions. including section 302(c). undue degradation.’’ Commenters asserted that in both Commenters asserted that the The commenters also asked that BLM subparagraphs of § 3809.601(b), BLM proposed rule allowing BLM to order a and the Forest Service use comparable officials should not be authorized to temporary suspension without issuing a standards for non-compliance and shut down operations unless there is a noncompliance order violates the temporary suspension. BLM declines significant violation that both may principle of due process to which all because the two agencies’ regulations result in environmental harm and that individuals and companies are entitled are based on different authority. substantially deviates from the to under United States Law. A commenter requested that BLM completed notice or approved plan of Commenters also asserted that revise proposed § 3809.601 to identify operations. suspension and revocation orders the responsible BLM official for issuing BLM disagrees with the comment. indefinitely shutting down entire mine noncompliance and suspension orders, BLM believes that a suspension is operations would ‘‘impair the rights of’’ and to include the place and time of any warranted under § 3809.601(b)(2) in locators under the mining laws. These appeal so [that] there is a clear either situation when an operator fails commenters stated that such understanding of the DOI administrative to correct the significant violation enforcement authorities cannot appeal process. The commenter stated within the allotted time. The danger of reasonably be implied from the general that because the appeal process varies environmental or other harm from an mandate to ‘‘prevent unnecessary or according to the level of the BLM unabated violation justifies a undue degradation’’ of the public lands. official signing the order, it is important suspension. BLM also believes that it Furthermore, the commenters stated for everyone to know that process. should be authorized to direct an that if finalized as proposed, a BLM declines to modify the rules as operator to suspend activities that temporary suspension order presumably suggested. In addition to subpart 3809 substantially deviate from what was would be considered final agency action specifying appeal procedures in final approved. since there exist no provisions for a § 3809.800, each enforcement order A commenter stated that although hearing either prior to or within a ordinarily will inform the recipient of FLPMA allows BLM to use specific reasonable time after the suspension. his or her appeal rights. enforcement mechanisms in cases when Thus, the party adversely affected by One commenter asserted that the the operator is noncompliant, the such action may seek review and relief suspension order process proposed by proposed regulations exceeded BLM from a Federal District Court pursuant § 3809.601 is too cumbersome for a authority by giving BLM the power to to the APA. declining BLM workforce. The suspend and nullify operations. The BLM disagrees with the comment. It commenter requested that BLM clarify commenter asserted FLPMA intended to is well established that due process may that the BLM notification of its intent to limit BLM’s enforcement capability in be, as here, satisfied through an issue a suspension order

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(§ 3809.601(b)(1)(ii)) can be combined the set of orders identified in 43 CFR Section 3809.602—Can BLM Revoke My with notification of the opportunity for 3715.7–1, with the exception of the Plan of Operations or Nullify My an informal hearing suspension order being called a Notice? (§ 3809.601(b)(1)(iii)). cessation order in § 3715.7–1. Final § 3809.602 tracks the proposed The process set forth in final BLM has chosen not to make these rule and implements the revocation § 3809.601(b) is necessary to implement suggested changes because the portion of FLPMA section 302(c). It the notice and hearing requirement of provides that BLM may revoke a plan of FLPMA section 302(c). BLM agrees with suggested reordering does not appear to operations or nullify a notice upon the commenter that the BLM be much different from the final and finding that—(1) a violation exists of notification of its intent to issue a proposed rules, and even with the any provision of the notice, plan of suspension order (§ 3809.601(b)(1)(ii)) changes there would not be a complete operation, or subpart 3809, and the can be combined with notification of the correlation with subpart 3715. violation was not corrected within the opportunity for an informal hearing A commenter requested that BLM time specified in an enforcement order (§ 3809.601(b)(1)(iii)). revise proposed § 3809.601 to provide issued under § 3809.601; or (2) a pattern One commenter recommended that that BLM is liable for all owner/operator once an operator files bankruptcy, the of violations exists at the operations. documented costs from an arbitrary and The finding is not effective until BLM operation should automatically receive capricious suspension order that is a record of non-compliance subjecting notifies the operator of its intent to overturned during the administrative revoke the plan or nullify the notice, all notices and plans of operations to a appeal process or from litigation. higher level of compliance enforcement and BLM provides an opportunity for an (more frequent inspections), bonding, BLM does not intend to take informal hearing before the BLM State and penalties. Another commenter enforcement actions in an arbitrary and Director. The final rule also provides suggested the rule include a provision capricious manner. Furthermore, it is that if BLM nullifies a notice or revokes for EPA or a State environmental agency not authorized to assume monetary a plan of operations, the operator must to petition BLM to suspend operations liability in such circumstances. There not conduct operations on the public or withdraw an operating plan if there are situations in which, either through lands in the project area, except for is a continued history of non- Congressional statute or court-evolved reclamation and other measures compliance with environmental common law, the regulated community specified by BLM. regulations. may sometimes recover their costs or A commenter asserted that although BLM agrees that the operations of an attorneys fees if they are successful in revocation of a plan of operations is the entity that files for bankruptcy should overturning an agency regulatory last step in the enforcement process, it be subject to continual scrutiny to decision. But agencies may not make must be used in those circumstances in assure that regulatory obligations are commitments to spend money or which other enforcement orders have satisfied. BLM also agrees with the provide compensation that has not been failed to compel compliance with the commenter that it is important to assure authorized or appropriated by Congress. regulations governing mining on public the adequacy of the financial guarantee lands. The commenter stated that BLM A commenter objected that the feature must be willing to stop an operation in of an operator in bankruptcy. BLM of the proposed rule that would believes, however, that enforcement which major environmental damage is authorize BLM to issue temporary action should await the occurrence of occurring, or other impacts are taking immediate suspensions without first violations, and that a bankruptcy filing place, and all other efforts to stop the holding an informal hearing violates an does not necessarily represent the problem have failed. The commenter operator’s due process rights. BLM existence of violations. Once a violation requested that proposed § 3809.602(a) occurs, BLM will take whatever action disagrees. Section 302(c) of FLPMA, 43 should be revised to change the ‘‘may’’ is best to assure that the violation will U.S.C. 1732(c), specifically provides for to ‘‘shall’’, to make permit revocation be corrected. the issuance of temporary immediate mandatory. The commenter stated that A commenter stated that under 43 suspensions prior to a hearing. Final BLM’s mandate to prevent ‘‘unnecessary U.S.C. 1732(c), an immediate temporary § 3809.601(b)(2) carries out the statutory or undue degradation’’ is not suspension is separate from, rather than provision. The statute and the discretionary—it is a mandatory duty, a subtype of, a suspension. The implementing regulation are limited to and cited Sierra Club v. Hodel, 848 F.2d commenter recommended that, for the situations where BLM determines that 1068 (10th Cir. 1988). According to the sake of more clearly distinguishing such action is necessary to protect commenter, this revision would also be between the two types of suspension health, safety or the environment. The consistent with the NRC Report orders, change the labeling in rule adds the further gloss that recommendations. § 3809.601 to the following: (a) temporary immediate suspensions not BLM declines to make permit Noncompliance order; (b) Suspension occur unless imminent danger or harm revocation mandatory. BLM agrees that order; (c) Immediate temporary exists. Thus, temporary immediate it is important to achieve operator suspension order; and (d) Contents of suspensions are intended to address compliance with BLM regulations, and enforcement orders. These proposed those situations where a delay in has provided a range of actions it can subdivisions would more faithfully making the suspension effective could take, including administrative represent the intent of 43 U.S.C. 1732(c) exacerbate existing or imminent harm. enforcement orders, such as suspension and also make this section more Under such circumstances and well- and revocation, administrative understandable to the public by clearly established case law, an operator’s due penalties, and judicial intervention. The differentiating between a suspension process rights are fully satisfied by the appropriate remedy may differ in order and an immediate temporary operator’s ability to seek administrative individual cases and the rules provide suspension order, which is one of the review of the temporary suspension flexibility for BLM to use whichever one goals of rewriting these regulations in from the Interior Board of Land will cause the violations to be corrected. plain language. In addition, this Appeals, including the right to request BLM agrees that it is required to prevent proposed labeling would allow for a a stay of the BLM action under IBLA unnecessary or undue degradation of complete one-to-one correlation with procedures set forth at 43 CFR 4.21. the public lands, but concludes that it

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BLM agrees, however, A commenter suggested that BLM notification or order by certified mail or that an information copy should be revise proposed § 3809.602 to inform by hand to the operator or his or her promptly mailed to the operator or his operators expressly that the BLM will designated agent, or by any means or her agent to assure that responsible revoke their plan of operations or consistent with the rules governing management persons not located at the nullify their notice if the financial service of a summons and complaint mining site are notified of the BLM guarantee is not properly maintained. under rule 4 of the Federal Rules of actions. BLM does not accept the suggestion. Civil Procedure. Service is complete Commenters also suggested that BLM As mentioned in the previous response, upon offer of the notification or order or revise proposed § 3809.603 to require BLM will do what is necessary to of the certified mail. BLM to provide a copy of any achieve compliance, but BLM has a Service could also occur by offering a noncompliance or suspension order to variety of means to do so. Plan copy at the project area to the all other Federal, State, and local revocation is but one such means. designated agent or to the individual entities that have permits or Among those objecting to the policies who, based upon reasonable inquiry, authorizations and Native entities and embodied in the proposal, commenters appears to be in charge. If no such private landowners of the surfaces that asserted that it is too harsh for BLM to individual can be located at the project are directly linked with the BLM- be able to revoke a plan of operations for area, BLM may offer a copy to any approved plan of operations. a single violation. individual at the project area who BLM declines to accept the suggestion BLM generally agrees that a plan of appears to be an employee or agent of to put such a requirement into its rules. operations should not be revoked on the the person to whom the notification or BLM intends to consult with other basis of one violation. If the violation is order is issued. Service would be regulators, both State and Federal, when significant enough, however, with the complete when the notice or order is it takes enforcement action. Private potential to cause serious harm, and the offered and would not be incomplete entities, however, will not ordinarily be operator refuses to correct the violation, because of refusal to accept. In response party to enforcement actions and will BLM needs to have the option to to a comment, the final rule requires not necessarily receive copies of consider whatever remedy-including that if service occurs at the project area, enforcement orders. revocation-that it believes will best BLM will send an information copy by Section 3809.604 What Happens if I achieve compliance. certified mail to the operator or the Do Not Comply With a BLM Order? A commenter suggested that BLM operator’s designated agent. This will revise proposed § 3809.602(c) to clarify assure that regardless of who receives Final § 3809.604 is adopted as that operators continue to be authorized the copy of the order at the project area, proposed. Final § 3809.604(a) provides to use equipment and perform necessary operator management will receive a that if a person does not comply with a reclamation following the suspension or copy. BLM order issued under §§ 3809.601 or revocation of a plan of operations. The The service rules recognize that 3809.602, the Department of the Interior commenter questioned what form of mining claimants, as well as operators, may request the United States Attorney authorization BLM will use, who is the are responsible for activities on a to institute a civil action in United responsible BLM official to issue that mining claim or mill site and provide States District Court for an injunction or authorization, and the extent, if any, for that BLM may serve a mining claimant order to enforce its order, prevent an public and other Federal, State, local, in the same manner an operator is operator from conducting operations on native, and private surface ownership served. the public lands in violation of this input to the new BLM authorization. The final rule allows a mining subpart, and collect damages resulting Revocation of a plan of operations claimant or operator to designate an from unlawful acts. This reflects the does not terminate an operator’s agent for service of notifications and judicial remedies provided in 43 U.S.C. obligation to satisfy outstanding orders. A written designation has to be 1733(b), and informs the regulated obligations. The authorization to provided in writing to the local BLM community of the tie between BLM perform the activities to fulfill such field office having jurisdiction over the administrative enforcement and obligations can derive from the original lands involved. subsequent judicial actions. plan, or be part of the order revoking the Commenters objected to proposed The final rule makes clear that plan. Because this would be a § 3809.603(a)(1), which provided that judicial relief may be sought in addition continuation of existing obligations, BLM may serve an enforcement action to the enforcement actions described in BLM does not contemplate formal on ‘‘an individual at the project area §§ 3809.601 and 3809.602 and the public participation. On the other hand, who appears to be an employee or agent penalties described in §§ 3809.700 and BLM intends to coordinate with State of the operator.’’ Commenters asserted 3809.702. and other interested Federal agencies that this method of service, particularly A commenter recommended that civil before revoking a plan of operations. considering the seriousness of actions be brought by States rather than enforcement actions under these in Federal Court as specified in Section 3809.603 How Does BLM Serve regulations, does not comply with proposed § 3809.604 because State Me With an Enforcement Action? fundamental principles of due process. procedures tend to be quicker, more Final § 3809.603 deals with the means These commenters recommended that cost-effective, and more outcome-based by which BLM will serve a this section be revised to require BLM than Federal actions, and that noncompliance order, a notification of to serve notices by certified mail or implementation of Federal enforcement intent to issue a suspension order, a personally on the person the operator will be delayed by the existing DOI suspension order, or other enforcement designates as authorized to accept appeals process. order. The previous service provision service. Final § 3809.604(a) identifies the appeared in § 3809.3–2(b)(1). BLM agrees in part. The final rule will availability of civil actions in United Under the final rule, service will be continue to allow service to be complete States District Courts, as provided in made on the person to whom it is based on actions at the project area FLPMA section 303(b). It does not

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70091 preclude States from enforcing their BLM promulgates this section. Such crime to violate any provision of an programs in State courts. BLM will work prosecutions can occur regardless of entire subpart. Rather, commenters with State regulators to determine whether BLM identifies specific asserted, in other public land which entity, State or Federal, should prohibited acts, as some commenters management programs, BLM has taken have the enforcement lead, and the urge. The necessary element of a the essential effort of distilling those appropriate judicial forum to initiate ‘‘knowing and willful’’ violation can be substantive violations that will be any required civil action. satisfied in a specific case regardless of subject to criminal sanctions. Final § 3809.604(b) specifies that if a a regulatory listing of such acts by BLM. Commenters asked that the agency person fails to timely comply with a Such a listing is not required by 43 specifically identify and list in the rule noncompliance order issued under U.S.C. 1733(a). those actions by operators which are so § 3809.601(a), and remains in Final § 3809.700(a) specifies that serious as to justify criminal sanctions, noncompliance, BLM may order that individuals who knowingly and or else delete the entire section. The person to submit plans of operations willfully violate the requirements of commenters asserted that the preamble under § 3809.401 for current and future subpart 3809 may be subject to arrest must state the basis for BLM’s notice-level operations. This paragraph and trial under section 303(a) of conclusion that it needs, to assure continues the requirement contained in FLPMA. 43 U.S.C. 1733(a). Individuals compliance, to have the threat of previous § 3809.3–2(e). convicted are subject to a fine of not criminal penalties for such ‘‘crimes’’ as: more than $100,000 or the alternative submitting an incomplete plan of Section 3809.605 What Are Prohibited fine provided for in the applicable operations; holding financial guarantees Acts Under This Subpart? provisions of 18 U.S.C. 3571, or that BLM has determined (in its revision Final § 3809.605 is a new section that imprisonment not to exceed 12 months, of an estimate of reclamation costs lists certain prohibited acts under or both, for each offense. under § 3809.552(b)) is no longer subpart 3809. The list includes the most Final § 3809.700(b) specifies that adequate; failing to modify a notice significant and most commonly violated organizations or corporations that under § 3809.331(a)(2) that BLM thinks prohibitions, but is not intended to be knowingly or willfully violate the (and the operator does not think) exhaustive. BLM reserves the right to requirements of subpart 3809 are subject constitutes a ‘‘material change’’ to the take enforcement action on other to trial and, if convicted, will be subject operations. The commenter stated that violations of the requirements of this to a fine of not more than $200,000, or the list of ‘‘violations’’ of the rules is subpart that are not specifically listed in the alternative fine provided for in the endless, and most ‘‘violations’’ are this section. None of the items on the applicable provisions of 18 U.S.C. 3571. minutiae. The commenter stated that if list are new requirements; all were Many of the comments supporting a plan is incomplete, this is not a crime; included in the proposed rule. strengthened enforcement also the plan must be completed before We added this section in response to supported the criminal sanctions processing can occur. comments. Some commenters suggested described in proposed § 3809.700. BLM As discussed above, BLM has not received a considerable number of that a list of prohibited acts would be accepted the commenters’ suggestion comments, however, objecting to the beneficial to regulated parties by and has published a list providing criminal sanctions provision, proposed alerting them to potential pitfalls. Other examples of the more common § 3809.700. Commenters asserted that commenters suggested that the list prohibited acts under subpart 3809. It is provision is beyond the scope of BLM’s would be helpful to those engaged in impractical, and probably not possible, FLPMA authority and would carrying out the enforcement program to catalog all the violations of the unintentionally criminalize actions that under this subpart, such as BLM regulations that could warrant criminal are not appropriately subject to rangers, U.S. District Attorneys, and prosecution, and the list is not intended prosecution. Commenters stated that judges, by providing an easily to be exhaustive. FLPMA establishes these are rules and not laws, so no referenced and clearly stated list of the that knowing and willful violations of criminal penalties should be assigned most common violations on which to the regulations can be prosecuted under by these rules. Under no circumstances base enforcement actions, prosecutorial section 303(a). 43 U.S.C. 1733(a). BLM should the BLM or the Department of decisions, and judgments. does not expect or advocate that minor the Interior be given authority to file violations be prosecuted. BLM expects Sections 3809.700 Through 3809.703 criminal charges against a citizen of this that United States Attorneys will Penalties country. continue to exercise their prosecutorial These rules do not establish new Section 3809.700 What Criminal discretion in determining when to bring criminal sanctions, and BLM itself does Penalties Apply to Violations of This criminal prosecutions. not file criminal charges; only the A commenter stated that if proposed Subpart? Department of Justice may do that on § 3809.700 is just informational, Final § 3809.700 tracks the proposal behalf of the United States. These rules criminal enforcement cannot occur until and describes criminal penalties are intended to bring existing criminal 43 CFR part 9260 is changed. Those associated with violations of subpart provisions to the attention of the rules provide ‘‘in a single part a 3809. Final § 3809.700 identifies the regulated community, and for that compilation of all criminal violations criminal penalties established by statute reason are included in subpart 3809. relating to public lands that appear for individuals and organizations for The conduct that is criminal is exactly throughout title 43.’’ 43 CFR 9260.0–2. violations of subpart 3809. It was that provided for in 43 U.S.C. 1733(a) There were and are no provisions of 43 previously included in § 3809.3–2(f) of Some commenters objected to the CFR 3809 listed there. In fact, ‘‘Subpart the rules that were remanded in May establishment of ‘‘across the board’’ 9263-Minerals Management’’ is 1998. This regulation is intended to criminal penalties for any knowing and ‘‘Reserved.’’ Thus, the unrevised part inform the public of existing criminal willful violations of the requirements of 9260 remains the controlling, effective statutory provisions. These statutes exist subpart 3809. Commenters stated that criminal penalty rule, and the absence independent of subpart 3809, and this is unjustified overkill, and that in of any provisions in that subpart persons can be prosecuted, and have no other public land management pertaining to hardrock mining been prosecuted, regardless of whether program does BLM establish that it is a operations means there are none.

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Although BLM disagrees with the Section 3809.701 What Happens if I of noncompliance a credible and assertion that prosecutions cannot occur Make False Statements to BLM? expeditious means to secure under 43 U.S.C. 1733(a) until BLM Final § 3809.701 tracks the proposed compliance.’’ NRC Report at p. 103. The final rule provides that following changes 43 CFR part 9260, BLM agrees rule. It informs the regulated issuance of an order under § 3809.601, that to avoid confusion subpart 9263 community of the existing criminal BLM may assess a proposed civil should contain a cross-reference to sanctions for making false statements to penalty of up to $5,000 for each subpart 3809. Thus, this final rule BLM. Under Federal statute (18 U.S.C. violation against a person who (1) incorporates such a cross-reference in 1001), persons are subject to arrest and subpart 9263. Again, the statute violates any term or condition of a plan trial before a United States District controls, regardless of what is contained of operations or fail to conform with Court if, in any matter under this in either subpart 3809 or subpart 9263 operations described in a notice; (2) subpart, they knowingly and willfully of BLM’s regulations. The absence of violates any provision of subpart 3809; falsify, conceal, or cover up by any trick, such a cross-reference would not or (3) fails to comply with an order scheme, or device a material fact, or invalidate any properly obtained issued under § 3809.601. The rule make any false, fictitious, or fraudulent conviction under 43 U.S.C. 1733(a). provides that BLM may consider each Commenters objected to the criminal statements or representations, or make day of continuing violation a separate enforcement provisions as violating the or use any false writings or document violation for purposes of penalty mining laws. One commenter stated that knowing the same to contain any false, assessments. In determining the amount section 302(b) of FLPMA indicates that, fictitious, or fraudulent statement or of the penalty, BLM will consider the unless specified otherwise, FLPMA does entry. If a person is so convicted, he or violator’s history of previous violations not amend the mining laws. FLPMA she will be subject to a fine of not more at the particular mining operation; the section 303 is not listed in section than $250,000 or the alternative fine seriousness of the violation, including 302(b). The commenter asserted that provided for in the applicable any irreparable harm to the environment there were no criminal penalty provisions of 18 U.S.C. 3571, or and any hazard to the health or safety provisions in the 1980 3809 regulations imprisonment of not more than 5 years, of the public; whether negligence is for this reason. The Secretary’s authority or both. As with final § 3809.700, BLM involved; and whether the violator to prevent unnecessary and undue is not establishing any criminal demonstrates good faith in attempting to degradation must exercised by other, sanctions by promulgating final achieve rapid compliance after lawful means, not by means that § 3809.701. notification of the violation. BLM will Congress specifically established would Some commenters thought that also accommodate small entities and not apply to ‘‘locators or claims’’ under proposed §§ 3809.700 and 3809.701 will, under appropriate circumstances, the mining laws. provide excessively severe penalties of consider reducing or waiving a civil BLM disagrees with these comments. from $100,000 to $250,000 fines and/or penalty and may consider ability to pay Criminal enforcement under 43 U.S.C. imprisonment for five years for in determining a penalty assessment. 1733(a) neither amends the mining violations of the regulations or making To afford due process of law, the rule laws, nor impairs rights established of false statements. specifies that a final administrative under that law. The mining laws create BLM is simply providing, as a matter assessment of a civil penalty occurs no right in any person to violate BLM’s of information to the regulated only after BLM has notified the violator lawfully promulgated regulations, community, pertinent information about of the assessment and provided a 30-day particularly those implementing the the existing statutes. The penalties the opportunity to request a hearing by the unnecessary or undue degradation commenters object to cannot be changed Office of Hearings and Appeals (OHA). standard of FLPMA section 302(b), by BLM regulation. BLM may extend the time to request a which does amend the mining laws. Commenters asked: What does the hearing during settlement discussions. If A commenter requested that BLM BLM consider to be a false statement? the violator requests a hearing, OHA define the term ‘‘knowingly and Will the BLM include false statements will issue a decision on the penalty willingly’’ as used in proposed or accusation made by private parties assessment. If BLM issues a proposed § 3809.700. The commenter stated that against operators during comment civil penalty and the recipient fails to this is especially important since BLM period for bonding or other NEPA request a hearing on a timely basis, the has chosen to include this section only processes? What standards will the BLM proposed assessment becomes a final for information purposes. use to determine if the statements are order of the Department, and the BLM does not accept this suggestion. false? penalty assessed becomes due upon The Congress defines, and the courts U.S. Attorneys initiate prosecutions expiration of the time allowed to request apply, the elements of such generic under 18 U.S.C. 1001. The courts a hearing. criminal statutes. interpret that law, and a body of case The proposed rules allowing BLM to A commenter asked that BLM revise law exists interpreting 18 U.S.C. 1001. assess monetary penalties drew many proposed § 3809.700 to make it clear the BLM defers interpretation of the statute comments. Many commenters stated extent, if any, this section applies to to appropriate officials with that BLM enforcement should allow for existing approved mining operations on responsibility to enforce that statute. the assessment of administrative civil public lands. penalties against mining operators. As stated earlier, 43 U.S.C. 1733(a) Section 3809.702 What Civil Penalties Commenters stated that civil penalties applies by its own terms to any person Apply to Violations of This Subpart? will play a vital role in providing an who knowingly and willfully violates a Final § 3809.702 adopts the civil incentive that operators understand. regulation issued under FLPMA. There penalty provision that was proposed. Commenters asserted that enforcement is no exception for existing approved This is consistent with NRC Report only works if the penalties for being operations. To the degree, however, that Recommendation 6 by providing ‘‘caught’’ are far more expensive than subpart 3809 excepts existing approved administrative civil penalties, subject to the profits to be made through non- operations from certain new regulatory appropriate due process. Administrative performance. EPA supported the requirements, such requirements cannot penalties are described in the NRC authority for BLM to issue civil form the basis for criminal conduct. Report as necessary ‘‘to make the notice administrative penalties based on non-

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70093 compliance with subpart 3809. BLM existence of new bonding authorities such as EPA. For example, the agrees with the comments supporting will lead to greater success in bringing commenter stated that BLM’s penalty the use of administrative penalties. civil actions for injunctive relief. assessments would likely be the subject A commenter suggested that the A commenter emphasized the NRC of innumerable appeals. That reality penalties BLM collects be put into a Report statement that ‘‘federal land should be considered in light of the fact fund for reclaiming mine lands and not management agencies need to that the Interior Board of Land Appeals go into the U.S. Treasury or some acknowledge and to rely on the is already staggering under a multi-year general Department of the Interior fund. enforcement authorities of other federal, backlog. Appeals stemming from BLM The proper disposition of penalties State, and local agencies as much as penalty assessments would have the collected is, however, determined by possible’’ (NRC Report at p. 103) and potential to bring the system to a Congress and may not be changed by suggested that the regulations should complete halt. The commenter also BLM regulation. incorporate the requirement that BLM stated that BLM assumption of civil Commenters asserted that FLPMA is defer to enforcement by Federal or State penalty responsibilities would impair quite specific about the enforcement agencies with primary jurisdiction over the agency’s capacity to perform its land authorities provided to BLM by environmental requirements. The management responsibilities. Congress, stating 43 U.S.C. 1733(b) commenter suggested the regulations Although the use of civil penalties expressly allows only the Attorney should also incorporate the NRC Report could increase BLM’s workload and add General to institute civil penalties for statement that BLM develop formal additional appellate cases, BLM violations of regulations promulgated by understandings or memoranda of disagrees that the additional resource the Secretary of Interior pursuant to understanding with State and Federal needs will be as dramatic as the FLPMA, The commenter asserts that the permitting agencies to prevent commenters assert. BLM does not absence of express administrative civil duplication and promote efficiency expect that a great number of civil penalty provisions in FLPMA confirms (NRC Report at p. 104). The commenter penalties will be issued, particularly if the Congressional intent that BLM not stated that the NRC Report intended that States and other Federal agencies take impose civil penalties. the BLM use the new administrative the enforcement lead in many instances. BLM disagrees with the commenters’ penalty authority only where the agency Final § 3809.702 provides civil assertion that the provision allowing the ‘‘needs to act immediately to protect penalties of up to $5,000 per day for Attorney General to seek the judicial public lands or resources, or in cases violation of the regulations, violation of imposition of injunctive or other where the other agency is unable or a plan of operations, or failure to judicial relief limits the Secretary’s unwilling to act with appropriate comply with an order of the BLM. administrative authority. That section, speed’’ (NRC Report at p. 104) and Commenters stated that the draft together with a portion of 43 U.S.C. suggested that these limitations should penalties section is extremely stringent 1733(a) establishing criminal violations, be written directly into the regulations. and excessive considering that a single provides affirmative authority for BLM agrees with the policies violation of one of the new performance judicial activity. As discussed earlier, embodied in the NRC Report, to the standards could likely occur even if the neither provision addresses the scope of extent reliance on other agencies will operator was diligent, prudent and the Secretary’s authority to establish achieve compliance with BLM acting in good faith. One commenter civil penalties under other provisions of regulations and public lands and suggested the maximum penalty should law. resources will be adequately protected. be $1,000 per day, a noncompliance Commenters stated that although they Inclusion of the suggested limits in the order be issued first, together with an recognize that BLM wants new civil regulations, however, could be opportunity to cure the violation, and penalty authorities to address ‘‘bad construed to establish jurisdictional bars appeals of penalty assessments be actors,’’ recalcitrant operators would to BLM enforcement. Such limits would heard, in the first instance, by BLM continue to flout any new BLM complicate individual enforcement State Directors. administrative authorities, and that civil actions with issues related to matters BLM believes that the administrative or criminal court action would such as the extent of BLM reliance on civil penalty system is fair. The issuance ultimately be necessary to resolve such other agencies. These types of issues can of monetary penalties in any amount is problems as in the case now. The lead to disputes between BLM and the discretionary. In many instances, BLM commenters asserted that BLM’s States, as is evidenced by the experience will not issue any monetary penalty. proposed new bonding authorities will of the Office of Surface Mining in The $5,000 per day maximum amount help make such cases of noncompliance implementing 30 U.S.C. 1271. BLM of a penalty is just that, a maximum. more clear-cut and render easier the task believes it preferable, instead, to BLM does not expect that penalty of persuading a U.S. Attorney to pursue develop understandings and agreements amounts will always approach the such actions. with States and other agencies to maximum, particularly if a violation is BLM disagrees with the comment. exercise its discretion appropriately to an isolated incident and an operator is Although BLM cannot assure that the defer to other agencies, without diligent, prudent, and acting in good imposition of civil penalties will always including jurisdictional bars in the BLM faith. The rule contains criteria for cause entities to come into compliance, regulations. assessing penalties, with appropriate the additional administrative sanctions Other commenters asserted that the reductions for small entities. Setting a will provide greater incentive for administration of a civil penalty system maximum amount of less than $5,000 operators to do so. A person may decide will impose new and unjustified per day may be inadequate to reflect the to delay correcting a violation to see resource and personnel requirements on harm caused by serious violations. whether a court will issue injunctive the agency, not to mention the States. Before any penalty becomes final, the relief, but that person may decide to Commenters stated that from a practical recipient may seek a settlement abate a violation in the face of a Federal perspective, BLM should also consider agreement with the BLM State Director administrative order directing him or the procedural issues and complexities under final § 3809.703, discussed below. her to suspend operations or a associated with the civil penalty The recipient may also petition OHA for continually accruing monetary penalty. policies and the implementation of a hearing under final § 3809.702(b). A BLM also is not persuaded that the similar programs by other agencies, hearing gives the person assessed a

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70094 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations penalty the opportunity to explain BLM in 1998 legal briefs defending its modified form the State Director review extenuating circumstances and seek a earlier bonding rules. BLM will provisions proposed in October 1999. reduction in the penalty amount or a interpret the term ‘‘small entity’’ BLM has revised final § 3809.800 and determination that the violation did not consistent with the definition of that added §§ 3809.801 through 3809.809 to occur. The Hearings Division of OHA term established by the Small Business account for the two processes for has extensive experience with monetary Administration in its regulations at 13 seeking review. penalty hearings. BLM agrees that CFR 121.201. Section 3809.800 Who May Appeal generally penalties will not be assessed A commenter asked whether the 30- BLM Decisions Under This Subpart? until a noncompliance order has been day appeal period specified in proposed issued and there has been a failure to § 3809.702(b) referred to calendar days Final § 3809.800 establishes the two comply, but occasionally a serious or business days. The final rule includes review processes. Portions of proposed violation may warrant the issuance of the phrase ‘‘calendar days’’ to clarify § 3809.800 are contained in final monetary penalty, or another agency this. §§ 3809.801, 3809.802 and 3809.803, may have issued the enforcement order A commenter recommended that a discussed below. and BLM would not wish to duplicate system of positive incentives be Final § 3809.800(a) provides that a that order. developed in lieu of administrative party adversely affected by a decision Instead of penalties, a commenter penalties to encourage environmental under subpart 3809 may ask the State asserted that compliance through stewardship, keeping in mind that Director of the appropriate BLM State financial guarantees should be adequate. financial assurance in the form of Office to review the decision. Final BLM disagrees with the comment. BLM reclamation bonds will still be in place § 3809.800(b) provides that an adversely would prefer that an operator correct to ensure compliance. The commenter affected party may bypass State Director violations that occur. Administrative was also concerned that the rules do not review, and directly appeal a BLM enforcement orders and civil penalties provide enough guidance to provide for decision under subpart 3809 to OHA provide an incentive for operator action consistent application of the under 43 CFR part 4. In other words, a that does not exist through the financial administrative civil penalty provisions party may elect to ask for State Director guarantee. In addition, forfeiting and without imposing personal biases of review or may appeal to OHA. collecting on a financial guarantee can individual regulators. Although BLM Providing a choice of appealing either be a lengthy process and may not be encourages environmental stewardship to OHA or seeking State Director review warranted for individual violations. and positive incentives (such as is consistent with the October 1999 A commenter suggested the BLM reclamation awards to operators who proposal. It is a change from the should use the judicial system for the provide environmentally superior previous rule which required operators assessment of civil penalties, as the only reclamation), it also needs to have to appeal to the State Director before fair way to administer penalties. The administrative sanctions available. being able to file an appeal with OHA, commenter felt that if a violation is These rules provide such sanctions, and did not allow other parties to seek serious enough to warrant a penalty, while providing opportunities for State Director review. This choice may then the judicial system should appeals and review that will guard allow issues to be resolved at the State administer it. The commenter was against enforcement biases. Director review level without the concerned about the impartiality of necessity of a potentially more complex BLM and the Interior Board of Land Section 3809.703 Can BLM Settle a IBLA appeal. In addition, operators may Appeals. Another commenter suggested Proposed Civil Penalty? decide to proceed directly with an that the BLM should provide a fair Final § 3809.703 clarifies that BLM appeal to the IBLA, thus reducing the appeal process from civil penalties, may negotiate a settlement of civil State Director review workload. which includes a committee composed penalties, in which case BLM will One change from the proposal made of representatives of both government prepare a settlement agreement. The in response to comments is to limit and industry. BLM State Director or his or her appeal rights to an adversely affected BLM disagrees with the comment. designee must sign the agreement. This ‘‘party,’’ as was set forth both in The same difficulties and uncertainties section is unchanged from the proposal. previous § 3809.4 and in the current exist with obtaining judicial imposition OHA appellate rules at 43 CFR 4.410(a), of civil penalties under 43 U.S.C. as Sections 3809.800 Through rather than to allow any adversely with getting injunctive relief under that 3809.809 Appeals affected ‘‘person’’ to file an appeal. The section. Persons who believe they are Proposed § 3809.800 addressed word ‘‘party’’ is intended to include a treated unfairly by the Department may appeals of BLM decisions, but also said person who previously participated in appeal an IBLA ruling to Federal that State Director review would occur the BLM proceeding, such as by filing District Court. BLM also disagrees with if consistent with 43 CFR part 1840, comments or objections with BLM. the suggested use of multi-interest anticipating BLM publication of revised Commenters objected to the granting appeal boards. The appeal of a civil BLM State Director review rules. The of appeal rights to an ‘‘undefined and penalty involves an individual factual October 26, 1999 supplemental open-ended’’ class of ‘‘persons dispute involving a specific application proposed rule elaborated and sought adversely affected by a decision made of the regulations. This is not the type comments on BLM’s State Director under this subpart.’’ Commenters stated of proceeding where a committee review provisions for subpart 3809 that the preamble to the proposal composed of multiple interests would because separate BLM State Director contains no rationale whatsoever for add value, such as in making review regulations were not published this ‘‘wholly unauthorized expansion of recommendations on policy issues. at that time and part 1840 did not allow rights.’’ Another commenter suggested A commenter asked that BLM define State Director review. See 64 FR 57613, that BLM should adopt the Alaska the term ‘‘small entity’’ as used in 57618. standard that administrative appeals proposed § 3809.702(a)(3). In the These final rules finalize in modified and litigation can be initiated only by commenter’s view, the current form the February 9, 1999 proposal for persons that meaningfully participated interpretation of the term conflicts with appeals to the Office of Hearings and in the public participation elements of the term ‘‘small business’’ as used by Appeals (OHA), and also adopt in the decision process. A commenter

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70095 pointed out the difference in language State Director declines to accept the Comments Related to Appeals to the between proposed § 3809.800(a) which request for review, the party may file IBLA authorized any ‘‘person’’ adversely with OHA an appeal of the original A commenter on the February affected by a BLM decision to appeal the decision within 30 calendar days of the proposal stated that it thought that the decision under 43 CFR parts 4 and 1840, date the party receives the State intent of proposed § 3809.800(a) is to and the wording of 43 CFR section 4.410 Director’s decision not to review. Thus have both the operator and affected which states: ‘‘Any party to a case a party seeking third party review will third parties appeal directly to IBLA. It which is adversely affected * * *’’ shall not be prejudiced and lose his or her stated the sentence about the BLM State have a right to appeal’’ (emphasis appeal rights to OHA if the State Director review and the reference in part added). The commenter correctly Director declines to accept the request 1840 is rather confusing and does not observed that a potential appellant may for review. clearly state when the BLM State be adversely affected by a BLM Under final § 3809.801(a)(3), if a party Director would or would not review an decision, but not be a party to the BLM requests State Director review and the appeal. Therefore, the commenter stated proceeding. A commenter requested that State Director has agreed to accept the BLM should remove the last sentence BLM clarify the discrepancy between request for review, a party may file with about the BLM State Director review, these sections by providing for appeal OHA an appeal of the original decision since all appeals are going to be sent to by parties which can show they are before the State Director makes a IBLA. adversely affected or have a legitimate decision. This allows a party to change BLM attempted to clarify its intent in interest in the effects of the action either his or her mind and appeal to OHA if, the October 1999 supplemental on or off-site. for instance, he or she does not receive proposed rule. The confusing sentence As noted above, the final rule limits a timely decision from the State has been removed. The final rule allows appeals to ‘‘parties.’’ BLM agrees that it Director. operators and adversely affected third is helpful for potentially adversely Under final § 3809.801(a)(4), if a affected persons to participate parties the choice of seeking State person requests State Director review meaningfully in the BLM proceeding, Director review or appealing to the and the State Director makes a decision, and to raise objections or concerns IBLA. The final rules clarifies when a person may file with OHA an appeal before BLM makes a decision. In the appeals may be made. of the new decision within 30 calendar Commenters stated that BLM should absence of comments or objections, days of the date the person receives or carefully weigh the impacts of BLM will not necessarily be aware of is notified of the State Director’s particular issues and its decision will be additional appeals on the agency and its decision. reasonable based on the information resources. A number of comments before it. Although persons who do not Under final § 3809.801(b), and as focused on the increased workload and participate in a BLM proceeding could provided in the February proposal, a delays that would be caused by the be aggrieved by either the on- or off-site person must file a notice of appeal in appeal process of proposed § 3809.800. effects of a decision, BLM does not writing with the BLM office where the Commenters stated that the detailed think it burdensome for those persons to decision was made in order for OHA to new permitting requirements contained have voiced their concerns to BLM consider an appeal of a BLM decision. in the 3809 proposal will greatly increase the number of BLM decisions before BLM makes a decision. In most Section 3809.802 What Must I Include that ultimately will be subject to instances BLM expects that persons who in My Appeal to OHA? will be adversely affected will inform administrative appeals to the Interior BLM of their objections, particularly in Final § 3809.802 addresses the Board of Land Appeals (‘‘IBLA’’), as light of the opportunity to submit public contents of appeals to OHA, and well as increase the potential grounds comments under final § 3809.411(c). includes the material proposed as for such appeals. Commenters asserted Finally, BLM has concluded that the § 3809.800(c). It provides that a written that an appeal to the IBLA is relatively issue of who has standing to file an appeal must contain the appellant’s simple and inexpensive for opponents appeal to OHA should be resolved name and address, and the BLM serial to a mining project because opponents consistently for all of BLM’s programs, number of the notice or plan of can simply repackage their NEPA and BLM should not create an exception operations that is the subject of the comments as a statement of reasons, and for an individual program, such as for appeal. The person must also submit a obtain an administrative rehearing on subpart 3809. statement of reasons for the appeal and all of their claims, regardless of whether any arguments the appellant wishes to they have merit. But, the commenters Section 3809.801 When May I File an present that would justify reversal or continued, the burden of an appeal on Appeal of the BLM Decision With OHA? modification of the decision within the BLM is substantial. Regulations require Final § 3809.801 describes when an time frame specified in 43 CFR part 4 that the agency assemble and transmit appeal can be filed with OHA. Final (usually within 30 calendar days after the entire administrative record to the § 3809.801(a) describes the various filing the appeal). The word ‘‘calendar’’ IBLA and the agency must respond to an scenarios when an appeal may be filed was added as a clarification. appellant’s statement of reasons. Responding to an appeal can require a with OHA, taking the State Director Section 3809.803 Will the BLM substantial amount of time from field review process into account. These are Decision Go Into Effect During an office personnel, time that is lost from as follows: Appeal to OHA? Under final § 3809.801(a)(1), if a party permit processing, compliance does not request State Director review, Under final § 3809.803, and also as inspections or enforcement, or other the party has 30 calendar days from provided in proposed § 3809.800(b), all duties. Commenters stated that BLM receipt of the original BLM decision to BLM decisions under subpart 3809 go cannot ignore an appeal, because if BLM file an OHA appeal. This is consistent into effect immediately and remain in does not respond adequately, the with the February proposal, and the effect while appeals are pending before decision will likely be remanded, OHA regulations. OHA, unless a stay is granted under 43 imposing an additional burden on the Under final § 3809.801(a)(2), if a party CFR § 4.21(b). This derives from agency and its employees. BLM’s draft requests State Director review and the previous § 3809.4(f). EIS acknowledges that the ‘‘current

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

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Sections 3809.804 Through 3809.809 BLM has revisited this and has Section 3809.808 How Will Decisions State Director Review concluded that seven days may not be Go into Effect When I Request State Final §§ 3809.804 through 3809.809 sufficient for the State Director to Director Review? flesh out the mechanics of the State determine whether to conduct the Final § 3809.808 describes how Director review process, and generally review of an earlier decision and thus decisions go into effect when a person follow the process described in the has provided 21 days to make that requests State Director review. Under October 1999 supplemental proposal. determination. final § 3809.808(a), the original BLM Section 3809.804 When May I Ask the Final §§ 3809.806(b) and (c) describe decision remains in effect while State BLM State Director To Review a BLM address possible overlapping OHA Director review is pending, except that Decision? appeals and State Director review the State Director may stay the decision proceedings. Final § 3809.806(b) during the pendency of his or her Final § 3809.804 establishes the time review. This is consistent with previous frame for requesting State Director provides that a State Director will not begin a review, and will end an ongoing § 3809.4(b) and (f). Under final review. It provides that the State § 3809.808(b), the State Director’s Director must receive a request for State review if the party who requested State Director review or another party files an decision will be effective immediately Director review no later than 30 and remain in effect, unless a stay is appeal of the original BLM decision calendar days after a person receives or granted by OHA under 43 CFR 4.21. is notified of the BLM decision sought with OHA under § 3809.801 before the to be reviewed. The supplemental State Director issues a decision, unless Section 3809.809 May I Appeal a proposed rule did not detail the time OHA defers consideration of the appeal Decision Made by the State Director? frame for requesting State Director pending the State Director decision. Final § 3809.809 addresses whether a review, and the 30-day period is Final § 3809.806(c) provides that a party may appeal a decision made by consistent with the period specified in party filing an appeal with OHA after the State Director. Final § 3809.809(a) previous § 3809.4(b) for requesting State requesting State Director review must provides that an adversely affected party Director review. Thus, an adversely may appeal the State Director’s decision affected party has 30 days to request notify the State Director. After receiving such a notice, the State Director may to OHA under 43 CFR part 4 except that State Director review or to file an OHA a party may not appeal a denial of his appeal. request OHA to defer consideration of the appeal. Final § 3809.806(d) provides or her request for State Director review Section 3809.805 What Must I Send that if a party who requested State or for a meeting with the State Director. BLM To Request State Director Review? Director review fails to notify the State This is consistent with previous Final § 3809.805 specifies what a Director of his or her appeal to OHA, § 3809.4(e). Persons who did not person must send BLM to request State any decision issued by the State participate in the State Director review Director review. It provides that a State Director may be voided by a subsequent process, but who participated in the Director review request must be a single OHA decision. underlying BLM proceeding that was package that includes a brief written appealed are considered parties and statement explaining why BLM should Section 3809.807 What Happens Once may appeal State Director review change its decision and any documents the State Director Agrees to My Request decisions. that support the written statement. The for a Review of a Decision? Final § 3809.809(b) provides that once envelope should be marked ‘‘State the State Director issues a decision on Final § 3809.807(a) directs the State Director Review,’’ and a telephone or the review, only the State Director’s fax number should be provided. These Director to promptly send the requester decision can be appealed, and not the requirements are consistent with those a written decision. BLM intends to act original BLM decision. This is because previously found in § 3809.4(c). A promptly on requests for State Director when the State Director issues a person may accompany his or her review. This is consistent with previous decision, it replaces the original BLM request for State Director review with a § 3809.4(d). Although there is no decision, which is no longer in effect. consequence if the State Director does request for a meeting with the State Comments on State Director Review Director. Holding a meeting is not issue the decision promptly, the discretionary, but the State Director will party may choose to appeal the original Some commenters supported having notify the person seeking review as soon BLM decision to OHA at any time before the opportunity to appeal BLM field as possible if he or she can the State Director issues the decision. office decisions to BLM State Directors. Some stated that they favored State accommodate the meeting request. Under the final rule, the State Director review as a mechanism to save Section 3809.806 Will the State Director’s decision may be based on any time on appeal. Others favored the Director Review the Original BLM of the following: the information the development of an appeals process that Decision if I Request State Director requester submits; the original BLM involves and emphasizes the input of Review? decision and any information BLM local and State managers. Others Final § 3809.806(a) provides that the relied on for that decision; and any objected to State Director review. BLM State Director may, but is not obliged to additional information, including agrees that it is useful to have a process accept requests for State Director information obtained from a meeting the whereby the appeals can be resolved in review. Based on factors such as requester held with the State Director. a timely manner in the State where the workload or complexity of the issues, The State Director may affirm, reverse, decision was made. the State Director may conclude that it or modify the original BLM decision, A commenter interpreted the is appropriate for appeals to be heard and the State Director’s decision may proposed regulations as allowing each directly by OHA rather than at the BLM incorporate any part of the original BLM BLM State Director to grant a stay on a State Director level. The October decision. If the original BLM decision positive Record of Decision for a mining proposal stated that the State Director was published in the Federal Register, operation. The commenter stated that would have seven days to decide the State Director will also publish his this power is currently reserved to the whether to accept a request for review. or her decision in the Federal Register. Interior Board of Land Appeals,

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As the NRC may stay a BLM field office or other require agencies to undertake benefit- noted, although mining operations are decision that approves a plan of cost analysis for regulatory actions. The regulated under a variety of operation. The commenter is not material presented below summarizes environmental protection laws correct, however, in asserting that this is the analyses that have been conducted. implemented by Federal and State a new feature. Previous § 3809.4(b) agencies, these laws may not adequately specifically provided that a request for Background and Need for the protect all the valuable environmental a stay could accompany an appeal to the Regulation resources at a particular location State Director. The need for the regulation is proposed for mining development. associated with both a compelling Furthermore, the existing definition of Section 3809.900 Will BLM Allow the public need and market failures. ‘‘unnecessary or undue degradation’’ Public To Visit Mines on Public Lands? Congress, the General Accounting does not explicitly provide authority to The discussion of final § 3809.900 Office, and the public have increasingly protect all valuable resources. appears earlier in this preamble under recognized the need for improving • Mitigation is not defined in BLM the discussion of comments received on BLM’s surface management program regulations to allow BLM to compensate the proposed requirement to allow under the subpart 3809 regulations. for impacts offsite where disturbed areas citizens to accompany BLM inspectors Since the original subpart 3809 cannot be reclaimed to the point of to mine sites, proposed § 3809.600(b). regulations were issued in 1980, mining giving plants, animals, and people the Section 9263.1 Operations Conducted technology and processes have changed same benefits that existed before Under the Mining Law of 1872 considerably. The following list of disturbance. This fact has resulted in an issues related to the 1980 regulations overall decrease in productivity around The discussion of final § 9263.1 suggests that revisions are warranted: the area of operations. appears earlier in this preamble under • Plan-level operations are not • BLM cannot suspend or nullify the discussion of comments received on required to have financial guarantees; operations that disregard enforcement the proposed penalty provisions at BLM has discretion whether to require actions or pose a imminent danger to § 3809.700. a financial guarantee. The regulations human safety or the environment. III. How Did BLM Fulfill Its Procedural do not allow BLM to require financial Criminal penalties under the existing Obligations? guarantees for notice-level operations. A regulations have often proven large number of operations have gone ineffective. The existing regulations do Executive Order 12866, Regulatory unreclaimed, causing environmental not allow BLM to use civil penalties as Planning and Review damage and imposing reclamation costs an enforcement tool. The NRC Report These regulations are a ‘‘significant on taxpayers as a whole. A 1999 survey recommended that BLM have the regulatory action,’’ as defined in section of BLM field offices found more than authority to issue administrative 3(f) of Executive Order 12866, and 500 operations that operators had penalties for violations of the require an assessment of potential costs abandoned and left BLM with the regulations. and benefits of the regulatory action, reclamation responsibility. Many of • BLM can require modifications to including an explanation of the manner these were small mining operations plans of operations only after review by in which the regulatory action is conducted under notices. The NRC the State Director concludes that the consistent with a statutory mandate and, Report recommended that secure event could not have reasonably been to the extent permitted by law, promotes financial assurances be required for foreseen in the original approval. The the President’s priorities and avoids reclamation of all disturbances beyond NRC Report recommended that this undue interference with State, local, casual use, including notice-level ‘‘looking backward’’ process should be and tribal governments in the exercise activity and that all mining and milling abandoned in favor of one that focuses of their governmental functions. As a operations be conducted under plans of on what may be needed in the future to ‘‘significant regulatory action,’’ the operations, and that notices be used correct the environmental harm and that regulations are subject to review by the only for exploration. the regulations be revised to provide Office of Management and Budget. • Some small mining operations with more effective criteria for BLM to In accordance with E.O. 12866, BLM high environmental risks, such as require plan modifications where performed a benefit-cost analysis for the cyanide use or acid drainage potential, needed to protect Federal land. proposed action. We used as a baseline can proceed without NEPA review or • The existing regulations do not the existing regulation and current BLM BLM approval, simply because they distinguish between temporarily idle administrative costs. The potential costs disturb less than 5 acres and qualify as mines and abandoned operations. This associated with the regulation are a notice. distinction is needed to determine increased operating costs for miners and • The lack of clarity in the types of which mines need just to be stabilized, increased administrative costs for BLM. activities permissible under ‘‘casual if idle, or reclaimed, if abandoned. The The potential benefits are use’’ has led to inconsistencies and NRC Report recommended that the environmental improvements. Both environmental damage in some regulations be changed to define the benefits and costs are difficult to instances. temporary versus abandoned conditions quantify because many of the possible • BLM has no official way of clearing and to require interim management impacts associated with the regulation records for notices. Notice-level plans for operations that are only will be site- or mining-operation- activities are often never completed, or temporarily closed. specific. in some cases never started. Without a • The existing regulations do not The intent of the benefit/cost/ reclamation bond, or an expiration term, provide for long-term site maintenance, Unfunded Mandate Act analysis and the notices are often left open for years with water treatment, or protection of

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This value use’’ has led to inconsistencies and, rescind the 1980 regulations and return can change over time, depending on the occasionally, environmental damage. to the prior surface management time path of prices, interest rates, and Damage results mostly when many program strategy, under which State or extraction costs. Estimating these values people concentrated in a small area other Federal regulations governed is also complex due to uncertainty about engage in casual use. The cumulative locatable mineral operations on public timing effects, technology changes, and impacts of such groups often exceeds land. future commodity prices. the ‘‘negligible disturbance’’ in the Alternative 3: Proposed Regulations. Information from mine cost models existing definition of casual use. This final rule would replace the was used with other data collected by • In some operations proposed under regulations at 43 CFR 3809. BLM to develop estimates of the annual the 1980 regulations, the legal status of Alternative 4: Maximum Protection. cost of the regulation. Given the the material to be mined is in dispute Under Alternative 4, the 3809 limitations of the models, the as to locatable under the mining laws or regulations would contain prescriptive uncertainty about the magnitude of saleable as a common variety mineral. design requirements for resource permitting costs, the extent to which BLM needs regulations to resolve protection. These requirements would delays can be attributed to the disputes without unreasonably delaying increase the level of environmental regulations, and the wide variety of mining operations. protection and give BLM very broad mining activity occurring on public • The 1980 regulations have no discretion in determining the lands, these estimates should be requirement for preventing disturbances acceptability of proposed operations. interpreted with some caution. In in areas closed to mineral entry until a Major changes from the current particular, the baseline cost information discovery is determined to be valid or regulations include the following: best applies to the operations modeled not. In areas closed to the operation of • Expanded application to public and may not accurately describe the cost the mining laws, surface disturbance lands with any mineral or surface conditions associated with operations of should be allowed only where the right interest. different size or commodities. To to mine predates the segregation or • Numerical performance standards account for the fact that the cost models withdrawal. for mineral operations. may not be representative of the types Absent a regulatory intervention, the • Required pit backfilling. of mining activity occurring on public market alone would be unlikely to • Elimination of notices so that all land, sensitivity analysis was done by ensure that sufficient and timely disturbances greater than casual use varying the baseline costs by plus or reclamation occurred or that society had require plans of operations. minus 20%. sufficient information to minimize • Required conformance with land- The economic cost of the permitting/ environmental damages and determine use plans. compliance components regulation were appropriate reclamation activities. • Prohibitions against causing developed by estimating the annual cost Without requirements for financial irreparable harm or having to changes associated with the regulation guarantees, firms would have weaker permanently treat water. for new and existing plans of operation incentives to reclaim disturbed lands. Alternative 5: NRC and for new and existing notices. This The costs associated with offsite Recommendations. Alternative 5 would manner in which this was done is damages would be particularly difficult change the existing regulations only described in detail in the benefit/cost to internalize absent some type of where specifically recommended by the analysis. The analysis incorporates a market intervention. The extent to NRC Report. Under Alternative 5, the number of behavioral assumptions which the parties could resolve these definition of ‘‘unnecessary or undue concerning the extent to which the situations themselves is limited due to degradation’’ would remain same as the regulation might affect the number and the high transaction costs and the current regulations. The prudent distribution of future notices and plans. unequal bargaining power of the entities operator standard would be retained, These assumptions parallel those used involved. Currently, a large class of and operators would have to follow in the final EIS to project minerals operators on public lands are not ‘‘usual, customary, and proficient’’ activity. required to provide financial guarantees. measures, mitigate impacts, comply New plans of operations: For new These operators have little incentive to with all environmental laws, perform plans of operations, the estimated restore mined lands to a state where reclamation, and not create a nuisance. number of plans was multiplied by the they will be able to provide a pre- Disturbance categories and thresholds appropriate cost increase for each mine mining level of ecosystem services. would be the same as under Alternative model. This total was then adjusted to Absent revisions to the regulations, 3, but Alternative 5 would not expand account for the fact that only 20% of the operators would have fewer incentives the types of special status lands. The plans would be affected by the to undertake sufficient baseline change threshold would be based on the regulation, given that an estimated 80% environmental studies, disclose the division between exploration and of the operators are already complying nature and extent of their activities to mining. All mining, milling, and bulk with the requirements of the regulation. the public, and monitor environmental sampling involving more than 1,000 Permitting costs were assumed to conditions during and after mining. tons would require a plan. Exploration increase from $600,000 to $900,000 for disturbing less than 5 acres would still the open pit model; from $100,000 to Description of Regulation and require a notice unless occurring on $125,000 for the strip/industrial model; Alternatives Considered special status lands. Actual-cost from $50,000 to $80,000 for the medium The alternatives we considered are bonding would be required for all placer model; from $10,000 to $100,000 described in detail in the Final EIS and notices and plans. for the underground model; and from

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

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

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70102 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations would leave the preferred and NRC be easily compared to the other $0.23–$2.70. Based on the estimated alternatives as providing roughly alternatives because both the costs and population residing within 5 miles of a equivalent levels of net benefits. On this benefits differ. However, the economic mine, the annual costs per capita range basis, the NRC alternative would appear benefits would have to be substantially from $5.3–$61; based on the number of to have slightly lower costs to attain the larger than those associated with the households within 5 miles, the annual same level of benefits as provided by the other alternatives to offset the higher per household costs range from about preferred alternative. estimated costs. $13–$153. Annual cost per acre for the Including the SIH standard could As stated above, it is difficult to preferred alternative, based on the result in substantially higher benefits (if quantify the net benefits of the estimated reduction in the number of it results in the preservation of unique alternatives. However, if the costs are acres disturbed could range up to about resources), but it is also likely to have relatively low (as in the preferred and production effects. The opportunity cost NRC alternatives in the case of low $2,500 per acre, depending on the associated with preserving these forgone production which have change in acreage disturbed. On a per- resources is the forgone production. estimated annual costs of about $15–20 capita basis, the magnitude of These values could be quite large, but million), the benefits would not have to environmental benefits associated with one would need to account for the be large to equal or exceed the costs. the regulation could be quite small and probability of occurrence (i.e., the Table 26 in the benefit-cost analysis, still offset the estimated costs. Also, in probability the SIH standard would be reproduced below, summarizes the some locations mining has the potential invoked and result in the preservation estimated cost of the regulation on a to impact unique resources. The of a unique resource) and for timing per-capita and per-acre basis. Based on potential environmental benefits of effects. These probability and timing the population and number of protecting even a small number of effects are very difficult to evaluate. households in the study area, the unique resources over time could easily The net benefits associated with the estimated annual cost per capita of the offset the costs of the regulation. maximum protection alternative cannot preferred alternative ranges from about

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BLM is placing the full benefit/cost State Office, P.O. Box 12000, Reno, entities potentially impacted, the analysis on file in the BLM Nevada 89520, and on BLM’s home page magnitude of the impacts, summarize Administrative Record at the Nevada at www.blm.gov. the significant issues raised in public State Office, P.O. Box 12000, Reno, comment on the proposed rule, and Regulatory Flexibility Act and Small Nevada 89520, or you may contact identify the steps the agency has taken Business Regulatory Enforcement BLM’s Regulatory Affairs Group at 202/ to minimize the significant economic Fairness Act 452–5030. impact on small entities consistent with National Environmental Policy Act Congress enacted the Regulatory the stated objectives of the applicable Flexibility Act of 1980 (RFA), as statutes. The final RFA analysis also These proposed regulations constitute amended, 5 U.S.C. 601–612, to ensure fulfills the requirements of the Small a major Federal action significantly that Government regulations do not Business and Regulatory Enforcement affecting the quality of the human unnecessarily or disproportionately Flexibility Act (SBREFA) analysis. environment under section 102(2)(C) of burden small entities. The RFA requires SBREFA requires agencies to analyze the National Environmental Policy Act a regulatory flexibility analysis if a rule the impact of regulatory actions on of 1969, 42 U.S.C. 4332(2)(C). BLM has would have a significant economic small entities; to prepare and publish an prepared a final environmental impact impact, either detrimental or beneficial, initial regulatory flexibility analysis statement (EIS), which will be on file on a substantial number of small when proposing a regulation; and a final and available to the public in the BLM entities. The purpose of the final RFA analysis when issuing a final rule for Administrative Record at the Nevada analysis is to estimate the number of each rule that will have a significant

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70104 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations economic impact on a substantial the initial RFA analysis and responses criteria. SBA goes on to state, number of small entities. The Small to these comments. More detailed ‘‘Moreover, over 60 percent of small Business Administration (SBA) has responses to comments are found in businesses do not claim a profit and do determined that the size standard for Appendix A to the final RFA analysis. not pay taxes; therefore, an agency businesses engaged in mining of metals Many commenters asserted that the would not be able to apply a profit- and non-metallic minerals, except fuels, proposed regulation would substantially based criterion to these firms.’’ This is 500 employees. See 13 CFR 121.201. reduce profits in the mining industry. point is particularly relevant for Thus, any business employing 500 or BLM agrees that the new regulations exploration activities and for small fewer employees is considered ‘‘small’’ could reduce profits, but that the extent miners who may not be involved in for the purposes of this analysis. We to which this occurs and which firms commercial scale activities. As believe that virtually all businesses are affected depends on a variety of recommended by the SBA in their currently engaged in mining on public factors that include commodity prices, comments on the proposed rule, the lands could be considered ‘‘small’’ management expertise and firm revised analysis also shows estimated under the SBA 500-employee standard. capitalization, technological changes impacts based on changes in estimated In February 1999 BLM published a over time, location and type of annual profits for the mine models. In proposed rule for regulating mining activities, other Federal and non-Federal commenting on a proposed BLM rule activities on public lands. BLM also regulations, as well as any BLM dealing with onshore oil and gas leasing prepared and made available for regulation-driven operating and operations, SBA asserted that a 10% comment an initial RFA analysis. BLM permitting cost changes. BLM also notes impact on a business’s profits is the published a summary of the initial RFA that evaluating profit changes is difficult threshold for determining significance analysis along with the proposed rule, in many situations where small entities (See comments submitted by SBA’s made the full initial RFA analysis are involved due the discretion these Office of Advocacy on proposed rule available along with the proposed rule, entities often have in the treatment of ‘‘Onshore Oil and Gas Leasing and sought public comment on its certain costs. Operations’’). SBA did not, however, findings. BLM received about 2,500 Commenters stated that BLM did not state whether the 10% threshold is on public comments on the proposed adequately consider what constituted a an annual basis, on a net present value regulation and associated documents. ‘‘significant impact’’ on a small entity. basis over the period of analysis, or BLM has undertaken a substantial effort BLM considered these comments and whether it represents an average over to both consider and disclose the believes its approach is reasonable. The some period. SBA also did not discuss potential implications of the regulation initial RFA analysis specifically how it arrived at its estimate of for small entities. The final RFA identified what BLM considered to be a ‘‘significant.’’ BLM views the 10% analysis also summarizes the significant ‘‘significant impact.’’ The final RFA threshold as a percentage that would be analysis evaluates ‘‘significance’’ based public comments received on the initial considered significant under any terms. on both cost and profit changes. The RFA analysis and responses to these Finally, the significance threshold is definition of ‘‘significant impact’’ used comments. important in situations where in this analysis is an impact that causes The public comments we received determinations are made that a rule will a 3% or more impact on estimated enabled us to refine and revise our not have a significant impact on a annual operating costs or on the ratio of analysis of the potential impact of substantial number of small entities. In the annualized compliance costs to subpart 3809 on small entities. BLM has this case, as discussed above, BLM has annual gross revenues or a greater than concluded that the final regulation will determined that the final rule will have 10% reduction in annual profits. have a significant economic impact on a significant impact. a substantial number of small entities. As with the other concepts, BLM notes that one of the primary ‘‘significance’’ is a relative measure. The Commenters stated that BLM did not differences between the proposed and criteria used to evaluate ‘‘significant’’ adequately evaluate the impact of the final rule is the inclusion of the are similar to that adopted by other proposed bonding requirements on ‘‘significant irreparable harm’’ standard. agencies. NOAA defines a ‘‘significant small entities. BLM believes that the In the interest of informing the public impact’’ as: a regulation that is likely to initial RFA analysis adequately about the impacts of the rule on small result in a reduction in gross revenues analyzed the bonding requirements in entities, the implications of including by more than 5%; a regulation that the proposed rule. However, the final this provision are summarized below increases total costs of production by RFA analysis includes results from and discussed in more detail in section more than 5%; a regulation that causes additional mine models that have X of the Final RFA. small entities to incur compliance costs bonding requirements that vary You can find detailed information on that are 10% more than the compliance somewhat depending on the type of the alternatives considered in the costs of large entities; or a regulation mining activity. The final rule has also summary of the benefit/cost analysis that causes 2% of small entities to cease adopted a number of measures that will above, the preamble, the Final EIS, and business operations. See, for example, mitigate the impact of bonding on small the benefit/cost analysis. The alternative 64 FR 6869–75, Feb. 11, 1999 and 64 FR entities. See section IX of the final RFA selected was judged to be the best in 28143–51, May 25, 1999. EPA defines analysis. Given that bonding for all terms of not being inconsistent with the ‘‘significant’’ as an impact of more than mining operations is a specific NRC recommendations in the NRC report, 3% on small business sales, cash flow, recommendation, BLM’s ability to being responsive to public comments, or profit (Small Business mitigate potential the impacts of maximizing net economic benefits, and Administration (SBA), undated; EPA, bonding requirements on notices is minimizing the impacts on small 1997). The SBA (The Regulatory limited (this of course would not entities while still achieving the desired Flexibility Act: An Implementation preclude non-Federal entities from objectives. Guide for Federal Agencies, 1998, p. 17– developing mechanisms to facilitate 18) discusses the use of criteria to small entities obtaining appropriate Comments on the Proposed Rule determine ‘‘significance.’’ SBA financial guarantees). If small mining This section summarizes the identifies several examples where entities were not required to have significant public comments received on Federal agencies have used cost-based financial guarantees, BLM would not be

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TABLE 9.ÐESTIMATED NUMBER OF SMALL ENTITIES POTENTIALLY AFFECTED BY THE REGULATION

BLM data Census data Employment category Estimated Notices b Plans b Est. number of firms percent of companies d

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

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

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TABLE 25.ÐSUMMARY OF ESTIMATED IMPACTS FROM THE MINE MODELS a

Estimated annual percentage Mine model Profit Comment Cost change reduction

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

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

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The IMPLAN analysis estimates that costs borne by firms. But aggregate already incorporate most of the the value of mine production originating levels of output might not change, given provisions of the proposed action, so the from public lands under the proposed more efficient mining and reclamation estimated 10%–30% decline in action will decrease by 10% to 30%, or techniques, a possible shift in production might be overstated. $169 million to $484 million across the production to non-Federal lands, or The conclusion of this analysis is that study area. This level of decreased other changes in market conditions. the regulation would affect a substantial production is associated with the Total quantity produced could remain number of small entities in significant following decreases across the study unchanged. Alternatively, the regulatory manner. The magnitude of the impacts area: 2,100 to 6,050 jobs, $305 million cost burden imposed by the proposed will vary considerably depending on the to $877 million in total industry output, regulations could be overwhelmed by nature and location of the activities, site $138 million to $396 million in total other market forces—such as specific factors, the particular financial personal income (of which $76 million commodity prices—that might play a and managerial characteristics of the to $218 million is employee relatively more important role in operations, the presence (and content) compensation), and $157 million to miners’ production decisions. of any agreements with States, and $453 million in value-added. For the Further, the regulations would not be when the operation would be subject, if study areas’s total current value-added implemented in a static environment. at all, to the new regulations. Given as measured by gross state product Both miners and BLM would probably these uncertainties, it is not possible to (GSP), this $157 to $453 million would become more efficient in meeting the estimate specifically which entities represent a 2%—6% decrease in GSP- requirements of the regulations over would be affected, the magnitude of the related value in the metals and time. In the long run, the regulations impacts, or the average impacts on the nonmetallic sectors. might even create incentives for firms to potentially affected entities. The Most States would see decreased seek new lower cost approaches to modeling undertaken suggests that the levels of mining on public lands, mining and reclamation. This is a largest cost impacts would be felt by ranging from $101,000 to $302,000 reasonable assumption given the exploration activities; however, all of thousand in Oregon to $117 million to inclination most firms have to the other modeled mines also have the $351 million in Nevada. Nevada’s share constantly seek least-cost technology potential to experience significant profit of the loss would be 70% of the loss for and business practices. This assumption reductions. the study area as a whole. However, implies that the costs of the regulations Description of Projected Record Keeping with the exception of the substantial could decline over time. and Other Compliance Requirements irreparable harm standard, Nevada’s Rural communities might or might not existing regulations already incorporate be affected, depending on a variety of Final §§ 3809.301 and 3809.401 most of the provisions of the proposed factors: the current local level of identify the specific information that action, so the estimated 10%—30% activity; the degree of dependency or must be included in a notice or a plan decline in that State’s production is ‘‘specialization’’ a community may have of operations. The level of detail for likely to be overstated. On the other in mining subject to proposed specific notices and plans of operations hand, the impacts in Nevada are based regulations; and the size of the will vary depending upon the type of only on the portion of production community, its isolation, and other operation, the local environmental coming from public lands. To the extent factors. Except possibly in Nevada, setting, and the issues of concern. Often that the affected portion coming from small rural communities in most States the information provided for an public lands may negatively affect a would lose only a small number of jobs analogous State requirement would be larger portion of production coming and output relative to overall adequate. The general types of skills from non-BLM lands, the impacts to employment and output levels. And that might be required includes mining Nevada may be understated; conversely, some or all of this decrease might be engineering, geology, hydrology, and if it leads to more production from non- due to forgone future mining rather than other natural resource specialties. Not BLM lands, the impacts may be current operations shutting down, or all notices and plans would require overstated. closing earlier than originally planned these skills. BLM will assist operators in A 10%–30% decline overall in due to a reduction in economic reserves. preparing notices or plans when mineral production from current levels In other words, there might be no necessary. would result from a variety of responses impact to current mining in these In response to comments stating that by the mining industry. Some potential communities, but new operations in the plan content requirements were too future operations would now be future might not be developed. detailed or were too open-ended, BLM considered uneconomic and therefore In Nevada, impacts to rural has revised the regulations to specify would not be developed. Future communities might be greater than in that the level of detail must be sufficient operations might have shorter mine other States due to the greater estimated for BLM to determine that the plan of lives. Or current operations that might decrease in activity (1,050 to 3,200 jobs operations would prevent unnecessary expand under these new regulations and $181 to 543 million in industry or undue degradation. BLM recognizes might close sooner than they otherwise output). But the impact to any particular that the level of detail required will be would, holding constant other factors community in the State would depend determined by the needs of the (e.g. technology, commodity prices, and on whether it results from existing individual review process. political and economic conditions for mines closing prematurely or potential mining in other countries). A lower future operations not being developed. Minimizing the Impacts on Small level of exploration due to more Any impacts at the community level Entities restrictions would also tend to decrease would not likely occur in the short term This rule is a major rule under opportunities for future development, so while the proposed regulations are SBREFA (5 U.S.C. 804(2)). This rule some deposits would not even be found. being implemented because mines with may have an annual effect on the This analysis is based on BLM’s best existing permits would not be affected economy of $100 million or more. See estimates of potential overall reductions unless they submit amendments to their the discussion under E.O. 12866 above. in the level of production of mineral plans of operations. But, as previously In accordance with SBREFA, BLM has commodities and estimates of increased stated, Nevada’s existing regulations taken steps to minimize the compliance

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70108 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations burden on small miners. During the • Pending plans: If a plan is pending • State Director appeal: The scoping process for the development of at time regulations are issued, then the regulations provide that individuals the proposed regulation, BLM actively pre-existing plan content and who believe a BLM decision adversely sought comments from small miners. performance standards apply. affects their interests can appeal to BLM BLM’s activities associated with • Modifications/extensions: No State Directors. soliciting comments from interested changes are required for notices that are • Joint and several liability: BLM parties is described in more detail in not modified or extended. revised the final rule (§ 3809.116) to • this final rule preamble. Economically and technically clarify the joint and several liability The following components of the feasible: The term ‘‘economically and provisions. The final rule provides that regulation have been explicitly technically feasible’’ has been inserted mining claimants are responsible only developed to mitigate the potential in a number of places in the regulation. for obligations arising from activities or impacts on small entities. This preamble For example, requirements to return conditions on their mining claims or contains considerable additional detail disturbed wetlands and riparian areas to millsites. on changes to the regulation that properly functioning conditions are • ESA: In the final rule, BLM clarified mitigate the impacts on small entities. only required when economically and that the reference to ‘‘threatened or Examples include: technically feasible (final § 3809.415); • endangered species or their critical Plan content and information the same ‘‘economically and technically habitat’’ in the proposed rule means requirements: BLM has revised feasible’’ standard applies to Federally proposed or listed threatened proposed § 3809.401 to specify that the minimizing surface disturbance or endangered species or their proposed level of detail must be sufficient for associated with roads and structures. • or designated critical habitat. BLM to determine that the plan of Pit backfilling: Pit backfilling is • Waiver of penalties: BLM is allowed operations would prevent unnecessary based on site-specific factors, taking into to waive and consider ability to pay in or undue degradation. BLM has also account ‘‘economic, environmental, and civil penalty situations (final deleted ‘‘fully’’ from the paragraph and safety concerns’’ (section 3809.415). We § 3809.702). instead will have the level of detail be have removed the proposed • Plain language: The regulation uses driven by the needs of the individual presumption from the final rule. clear and simple language which allows review process. The required level of • Demonstration that implementation the rule to be easily understood by small detail will vary greatly by both type of is not practical: Additional site- and entities that do not have access to legal activity proposed and environmental operation-specific flexibility in the staff or extensive legal experience. resources in the project area. On large context of plan modifications is BLM recognized that the requirement EIS-level projects scoping may actually included by providing operators an to provide a portion of the financial start before a plan of operations is opportunity to demonstrate to BLM that guarantee in a form that would be submitted through discussion with BLM application of the regulation is ‘‘not ‘‘immediately redeemable’’ by BLM staff on the anticipated issues and level practical’’ (final § 4809.433). of details expected. A certain level of • Corporate guarantees: Existing could impose a cost on operators, detail is needed to begin public scoping. corporate guarantees can continue to be particularly small operators. Thus, BLM In the initial plan submission it is up to used (final § 3809.571). has deleted this requirement from the the operator to determine what level of • Minimize the potential for delays: final rule. detail to include in the plan. BLM will The final rule requires to review a BLM also has existing procedures in then advise the operator if more detail notice application within 15 calendar place to mitigate the requirements of the is required, concurrent with conducting days. regulation on small entities. These the scoping under NEPA. BLM has also • Performance standards: Proposed procedures have been used in locations revised the final regulations to eliminate § 3809.420 was modified in response to such as the California Desert the ‘‘detailed’’ requirement from comments mainly by providing added Conservation Area (CDCA), part of the descriptions of operations and flexibility to operators. Requirements to California Desert District (CDD), where reclamation in order to let the issues of prevent the introduction of noxious the FLPMA requires stricter permitting a specific plan of operations determine weeds, and prevent erosion, siltation requirements. The CDCA area provides the appropriate level of detail. and air pollution were replaced with a an indication of how the regulation will • Phase in for financial guarantees: requirement to minimize introduction of be implemented BLM-wide. The goal in Final § 3809.503 provides that miners noxious weeds and minimize erosion, the CDD is to mitigate the burden of the do not need to provide a financial siltation, and air pollution. This was permitting requirements on small guarantee if their existing notice is not done in response to public comments entities. changed. Final § 3809.505 provides that that pointed out an operator cannot The CDD covers about 12.5 million miners have 180 days to provide always prevent impacts from occurring. acres, of which about 11 million are financial guarantee for plans. • Existing State agreements: Final within the CDCA. About 40% of the • The final regulation does not § 3809.204 provides that portions of acreage within the CDCA is classified include contingency bonding because of existing Federal/State agreements or such that all mineral activity above the uncertainty it might create. MOAS that are inconsistent with this casual use requires a plan of operation. • The final regulation does not final rule can remain in effect for up to Recently, CDD averaged about 40–50 prevent BLM field managers from three years. For these situations, the plans per year. For a plan that would be implementing a financial guarantee implementation of the rule could be a notice in other locations, the program on a standard per acre basis as delayed for up to three years. information that the operator must long as the operator posts a financial • State administration: When submit is not as extensive as that guarantee covering the full cost of requested, BLM must give states the required for a large-scale mining reclamation that is acceptable to BLM. lead where the State program is at least operation. The compliance burdens on • Existing terms and conditions: as stringent as BLM requirements. This small entities are minimized because Operators can continue to operate under will allow the surface management BLM conducted a programmatic the terms and conditions for existing program to be tailored to State-specific assessment to address most formal ESA plans. conditions. section 7 consultation requirements.

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Another example of how BLM is regulatory policies that have federalism to which the concerns of State and local likely to undertake program-wide implications.’’ ‘‘Policies that have officials have been met. measures to implement the regulation is federalism implications’’ is defined in Extent of Consultation from Arizona, where BLM prepared a the Executive Order to include programmatic environmental regulations that have ‘‘substantial direct In the development of this final rule, assessment for processing notices where effects on the States, on the relationship BLM engaged in a comprehensive there are use and occupancy issues (See between the national government and consultation process with the States. 43 CFR subpart 3715). Similar the States, or on the distribution of BLM recognizes that the States are its programmatic efforts are likely to be power and responsibilities among the primary partners in regulating mining undertaken for subpart 3809 in selected various levels of government.’’ activities on public lands. Throughout areas. This will reduce the burden on Under section 6 of E.O. 13132, BLM the process, BLM solicited the States’ small entities. The extent to which this may not issue a regulation that has views, both collectively and occurs will depend on the nature and federalism implications, that imposes individually, on how best to avoid extent of the specific activities. One substantial direct compliance costs, and duplication and encourage cooperation. possible case is in locations where that is not required by statute, unless BLM met with the representatives of known and predictable levels of suction the Federal Government provides the State agencies under the auspices of the dredging occur. funds necessary to pay the direct Western Governors Association (WGA) The final regulation provides compliance costs incurred by State and in April 1997, March 1998, September substantial opportunities to mitigate the local governments, or BLM consults 1998, and January 2000. We also posted impacts of the regulation on small with State and local officials early in the two successive drafts of regulatory entities. The elements of the regulation process of developing the proposed provisions on the Internet for public that mitigate the impacts on small regulation. BLM also may not issue a information purposes in February and entities were identified and discussed regulation that has federalism August 1998. We received and above. As required by the Regulatory implications and that preempts State considered many comments from a Flexibility Act, BLM will publish a law, unless the BLM consults with State variety of interested parties, including small entity compliance guide and make and local officials early in the process States, as a result of both the WGA the guide readily available. of developing the proposed regulation. meetings and the Internet postings. For additional information, see the If BLM complies by consulting, E.O. In addition to the meetings sponsored final RFA analysis on file in the BLM 13132 requires BLM to provide to the by the Western Governors Association, Administrative Record at the Nevada Office of Management and Budget BLM conducted numerous meetings State Office, P.O. Box 12000, Reno, (OMB), in a separately identified section with representatives of individual Nevada 89520, or contact BLM’s of the preamble to the rule, a federalism States. These meetings typically Regulatory Affairs Group at 202/452– summary impact statement. The involved BLM State Directors or their 5030. summary impact statement must staff members briefing representatives of include a description of the extent of State legislatures and State agencies. As Unfunded Mandates Reform Act BLM’s prior consultation with State and an example of this activity, we are These regulations do not impose an local officials, a summary of the nature including the following list of meetings unfunded mandate on State, local, or of their concerns and BLM’s position conducted in Nevada, the major tribal governments or the private sector supporting the need to issue the hardrock mining State: of more than $100 million per year; nor regulation, and a statement of the extent March 10, 1999 do these proposed regulations have a to which the concerns of State and local BLM public briefing for Nevada and significant or unique effect on State, officials have been met. Also, when California agencies and State local, or tribal governments or the BLM transmits a draft final rule with mining associations private sector. federalism implications to OMB for March 26, 1999 review pursuant to E. O. 12866, BLM BLM public briefing for Nevada Executive Order 12630, Governmental must include a certification from the Actions and Interference with Department of Conservation and agency’s Federalism Official stating that Natural Resources, Advisory Board Constitutionally Protected Property BLM has met the requirements of E. O. Rights (Takings) on Natural Resources 13132 in a meaningful and timely September 9, 1999 The final rule does not have manner. Public briefing for Nevada Legislative significant takings implications. It This final rule does have federalism Committee on Public Lands doesn’t affect property rights or interests implications in that in certain September 13, 1999 in property, such as mining claims; it circumstances it may preempt State law. Public briefing for Nevada State Land- governs how an individual or It will not have a substantial direct Use Planning Advisory Council corporation exercises those rights. effect on the States, on the relationship meeting Therefore, the Department of the between the national government and October 1, 1999 Interior has determined that the rule the States, or on the distribution of Public briefing for Nevada State Land- would not cause a taking of private power and responsibilities among the Use Planning Advisory Council property or require further discussion of various levels of government. The final meeting takings implications under this rule will provide States greater January 26, 2000 Executive Order. opportunities to administer the mining Public briefing for Nevada Legislative regulatory program on public lands. The Committee on Public Lands. Executive Order 13132, Federalism following paragraphs contain a Executive Order 13132, entitled description of the extent of BLM’s prior Nature of State Concerns and BLM’s ‘‘Federalism’’ (64 FR 43255, Aug. 10, consultation with State and local Response to the Concerns 1999), requires BLM to develop an officials, a summary of the nature of During the three and one-half years accountable process to ensure their concerns and BLM’s position that we have been developing this final ‘‘meaningful and timely input by State supporting the need to issue the rule and throughout the consultation and local officials in the development of regulation, and a statement of the extent process we have conducted with the

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States, we have heard many concerns address regulatory ‘‘gaps’’ (pp. 7–9). A State-level resources. At the same time, expressed, both of a general and a recent communication from the Western we recognize and have explained to the specific nature. One general concern Governors Association confirms that States that BLM does not have the expressed by the States in the early they have changed their original view authority to provide funding to States stages of our consultation is that BLM that there is no need for any regulatory under a § 3809.200(b) agreement. Only must demonstrate a need for any changes. A letter to Secretary of the Congress can do that. regulatory changes, and in this case, had Interior Babbitt, dated February 23, Early in the consultation process, not demonstrated the need for the 3809 2000, and signed by 10 Western before the 3809 task force had rulemaking. BLM agrees that, in general, Governors, states: developed a written proposal, we met a regulatory change should be based on ‘‘The NRC’s report did identify a few with State representatives under the an effort to address a real-world regulatory gaps in the current system. We auspices of the Western Governors problem. BLM doesn’t enter into the suggest BLM refocus its efforts on addressing Association to discuss at a conceptual lengthy and expensive rulemaking those gaps. We recommend that the BLM level the areas the rulemaking should process without sufficient reason. In coordinate with the states to identify any address. At that meeting, which took this case, we responded to the States’ gaps, which may be different for each state, place in April 1997, the States and develop solutions that are state specific. expressed views on a number of specific concern about the need for the Closing the gaps in each state could involve rulemaking by setting forth in detail our a combination of policy and rule issues. For example, several States reasons for undertaking this rulemaking development at the state and/or federal shared the view that the rulemaking in the proposed rule preamble. In level.’’ should avoid prescriptive national pertinent part, we said: reclamation standards. The States A related general concern expressed believe that the regulations have to take ‘‘Both the authority and the need exist for by the States in the course of the this rulemaking. This rulemaking is based into account the differences between the upon BLM’s non-delegable and independent consultation process is that revising types of minerals sought, the types of responsibility under FLPMA to manage the BLM’s existing regulations would cause mines, climate, topography, and the public lands to prevent unnecessary or duplication of existing State programs. nature of various mineral processing undue degradation of the public lands, and BLM, too, wants to avoid duplication activities. There should be no one-size- a recognition that BLM’s current rules may and has carefully designed this final fits-all design or operating blueprint not be adequate to assure this result. In rule to achieve that purpose. The required by the regulations because it enacting FLPMA, Congress intended that the Secretary’s January 6, 1997, could never take into account the Secretary of the Interior determine what memorandum, which re-initiated this constitutes unnecessary or undue inherent variation of mining operations degradation and not that the States would do rulemaking, specifically directed BLM across the West. Other views expressed so on a State-by-State basis. Sections 302(b), to carefully address coordination with by the States include the following: 303(a), and 310 of FLPMA reflect this State regulatory programs to prevent • A regulatory approach that requires responsibility. This rulemaking, therefore, unnecessary or undue degradation best available control technology reflects the Secretary’s judgment of the while minimizing duplication and (BACT) is not effective since it stifles regulations required to prevent unnecessary promoting cooperation among innovative approaches and doesn’t take or undue degradation. regulators. Following the Secretary’s ‘‘BLM recognizes that many of the States into account differences in geology and directive, we have designed a set of climate. have upgraded their regulation of locatable • minerals mining since 1980. It is clear, regulations under which BLM and a BLM should not duplicate or however, the Federal rules need upgrading, State can have an agreement to divide supersede Federally delegated or State- regardless of State law. Areas where the program responsibilities (final legislated environmental authority. existing rules require upgrading include § 3809.200(a)) or an agreement under • Specified time frames for BLM to financial guarantees (to require financial which BLM defers to State process notices, plans of operations, and guarantees for all operations greater than administration of some or all of the other required documents are an casual use, thereby ensuring the availability requirements of this subpart (final important component of regulatory of resources for the completion of § 3809.200(b)). Under the previous processes. reclamation); enforcement (to implement • section 302(c) of FLPMA and provide rules, BLM only had the authority for Bonding is an integral part of the the former agreement (previous regulatory and reclamation process. administrative enforcement tools and • penalties); threshold for notice operations (to § 3809.3–1(c)). Thus, in our view, we BLM should continue to focus its require plans of operations for operations have created under this final rule greater performance standards on outcomes on more likely to pollute the land and those in opportunities for the States to assume the ground. sensitive areas); withdrawn areas (to require control over the surface management • BLM should examine validity exams before allowing plans of program, subject only to BLM oversight implementation of existing tools, operations to be approved in such areas); or, in the case of approving plans of recognize legitimacy of different casual use (to clarify which activities do or operations, BLM concurrence. approaches, examine claims carefully do not constitute casual use); performance Another State concern expressed standards and the definition of unnecessary and avoid extreme or out-of-date during the consultation process was examples. or undue degradation (to establish objective • standards to reflect current mining whether BLM would provide funding The revised regulations should technology); and others. As mentioned earlier for States who elected to operate the focus on interagency and in this preamble, many of these shortcomings regulatory program under a intergovernmental cooperation. have been pointed out since 1986 in a series § 3809.200(b) agreement. Some State BLM took these views into account in of Congressional hearings, General representatives felt that BLM should developing our first draft of proposed Accounting Office reports, and Departmental turn over to the State a portion of BLM’s regulations. We posted this draft on the Inspector General reports.’’ budget along with the program Internet in February 1998 for public 64 FR 6422, 6424, Feb. 9, 1999. After management responsibility under a information. In response to the States’ we published the proposed rule, the § 3809.200(b) agreement. BLM is concerns, this first draft retained the NRC Report bolstered our view that sensitive to the funding issue and the time frames for BLM to process notices regulatory changes are necessary by impact that BLM’s deferral to a State of and plans of operations, reinstated the recommending specific actions to all or part of a program could have on remanded financial guarantee (bonding)

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After we published the proposed rule we again met with State representatives • One year may not be enough time and the 120-day comment period had under the auspices of the Western to complete the review of existing closed, Congress directed that BLM pay Governors Association to discuss any Federal/State memoranda of for a NRC study of the existing concerns related to the first draft. This understanding. regulations. Congress subsequently meeting took place in March 1998. • BLM should look for a pattern of directed BLM to reopen the comment Some of the general concerns expressed performance in evaluating State period for 120 days to give the public by the State representatives at this operation of a program, as opposed to an opportunity to comment on the meeting included whether the focusing on individual actions. proposed rule in light of the NRC regulations would preempt more • Concurrence by BLM on plans may Report. As described earlier in this stringent State law; would BLM pay for be interpreted differently by different preamble, BLM published the reopening States to assume some or all of program BLM offices. notice on October 26, 1999 (64 FR responsibilities; that the regulations • The definition of ‘‘minimize,’’ when 57613). The comment period extended should specify that BLM would ‘‘concur equated to prevention implies that from October 26, 1999 to February 23, with’’ State approval of plans not disturbance can be prevented. When 2000. During the comment period, the ‘‘approve’’ them; exactly how would a BLM means ‘‘prevent,’’ it should say 3809 task force again met with State State receive BLM’s approval to ‘‘prevent,’’ not ‘‘minimize.’’ representatives under the auspices of administer all or part of the surface • Will existing operations have to the Western Governors’ Association. management program in a State; the comply with bond release provisions? The purpose of the meeting was regulations should base inspection • Citizens accompanying inspectors primarily to get comments on the frequency on risk associated with each will cause problems with joint State/ proposed rule in light of the NRC operation; and the definition of BLM inspections. Report. The meeting took place in ‘‘operator’’ may extend liability for a site • Could an operator be subject to both Denver in January 2000. The thrust of to stockholders in a corporation, an State and Federal enforcement for a the States’ comments at that meeting action that may supersede principles of violation? was agreement with the conclusions of • corporate law. There were also a BLM shouldn’t require a detailed the NRC Report—that the current number of specific comments on the monitoring plan at the time of plan regulatory system is working well, and February draft. submittal. The monitoring plan should there is no need for sweeping changes. Following this meeting, the 3809 task be conceptual at that point. Also, BLM should focus its rulemaking • force made changes to the working draft BLM shouldn’t require public efforts strictly on addressing NRC- of the regulations and posted a revised comment on bond amount. identified gaps. And, BLM and the • version on the Internet in August 1988 BLM shouldn’t require operators to Forest Service should pursue non- for public information. In response to comply with standards that are the regulatory approaches identified in the the general comments, we clarified that responsibility of other agencies to NRC Report. there would be no conflict between the enforce. Based on the sequence of events 3809 regulations and State law or The task force took the comments summarized above, BLM believes that regulations if the State law or from this meeting into account in we have fully complied with the regulations require a higher standard of developing the proposed rule that was requirement of the Executive Order to protection for public lands than 3809. published on February 9, 1999 (64 FR consult with State and local officials We changed the draft to require only 6422). Some of the changes we made to early in the process of developing the that BLM ‘‘concur’’ with a State the proposed rule as a result of this proposed regulation. BLM also believes approval of a plan of operations, meeting include asking in the proposed that we have addressed the concerns deleting the requirement that BLM rule preamble for views on whether one expressed by State representatives to the ‘‘approve’’ the State approval. We added year would be enough time to review extent possible given the Secretary of provisions specifying the process that existing Federal/State agreements for the Interior’s independent and non- BLM would follow in approving a State consistency with the 3809 regulations. delegable responsibility to determine request to administer all or part of the In the final rule, we are adopting what constitutes unnecessary or undue surface management program in a State. provisions that allow up to 3 years for degradation of the public lands. We also changed the proposed the review to be completed. BLM definition of ‘‘operator’’ to avoid responded to another State comment by Paperwork Reduction Act inadvertently assigning liability to clarifying in the preamble to the This final rule requires collection of stockholders by requiring material proposed rule that BLM would not look information from 10 or more persons. participation in the management, at isolated incidents in determining that As required by the Paperwork direction, or conduct of a mining a State is not in compliance with a Reduction Act of 1995 (44 U.S.C. operation as a prerequisite for liability. Federal/State agreement. BLM would 3507(d)), BLM submitted an information After the 3809 task force posted a consider patterns, trends, and collection approval package (OMB Form second revised draft on the Internet in programmatic issues more important 83–I) to the Office of Management and August 1998, we met with State indicators of State performance. We also Budget (OMB) for review when we representatives in Denver in September. changed the proposed definition of published the proposed rule in February The purpose of the meeting was to get ‘‘minimize’’ to accommodate the States’ 1999. We received numerous comments the States’ reaction to the changes we concern about the use of the word on the approval package and, as a result, had made in response to their comments ‘‘prevent.’’ In response to the States’ re-examined the information collection

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Our lands-mineral resources, Reporting and Authority: 43 U.S.C. 869 et seq., 43 U.S.C. responses to the comments we received recordkeeping requirements, Surety 1701 et seq., and 31 U.S.C. 9701. on the original approval package are bonds, Wilderness areas. part of the revised package, and we have Subpart 2741ÐRecreation and Public concluded that it is unnecessary for 43 CFR Part 9260 Purposes Act: Requirements BLM to seek further public comment at Continental shelf, Forests and forest § 2741.7 [Amended] this time. OMB has approved the products, Law enforcement, Penalties, 9. In § 2741.7, remove paragraph (d). information collections contained in Public lands, Range management, this final rule and has assigned them Recreation and recreation areas, PART 3800ÐMINING CLAIMS UNDER OMB Clearance Number 1004–0194. wildlife. THE GENERAL MINING LAWS BLM intends to collect information under this final rule to ensure that Sylvia V. Baca, 10. BLM is amending part 3800 by persons conducting exploration or Assistant Secretary, Land and Minerals revising subpart 3809 to read as follows: mining activities on public land Management. Subpart 3809ÐSurface Management conduct only necessary and timely Accordingly, BLM is amending 43 surface-disturbing activities, determine CFR parts 2090, 2200, 2710, 2740, 3800 Sec. that proposed exploration or mining and 9260 as set forth below: will meet the performance standards of General Information subpart 3809, determine appropriate PART 2090ÐSPECIAL LAWS AND 3809.1 What are the purposes of this mitigation and reclamation measures for RULES subpart? the site, ensure compliance with 3809.2 What is the scope of this subpart? 1. The authority citation for part 2090 3809.3 What rules must I follow if State law environmental laws, and comply with continues to read as follows: conflicts with this subpart? NEPA, the Endangered Species Act, and 3809.5 How does BLM define certain terms section 106 of the National Historic Authority: 16 U.S.C. 3124; 30 U.S.C. 189; used in this subpart? Preservation Act. A response is and 43 U.S.C. 322, 641, 1201, 1624, and 3809.10 How does BLM classify operations? mandatory and required to obtain the 1740. 3809.11 When do I have to submit a plan benefit of conducting exploration or of operations? Subpart 2091ÐSegregation and 3809.21 When do I have to submit a notice? mining activities on public land. BLM Opening of Lands estimates the total annual burden for 3809.31 Are there any special situations that affect what submittals I must make § 2091.2±2 [Amended] subpart 3809 is 306,536 hours. before I conduct operations? Authors 2. In § 2091.2–2, remove and reserve 3809.100 What special provisions apply to paragraph (b). operations on segregated or withdrawn The principal authors of this final rule lands? are the members of the Departmental § 2091.3±2 [Amended] 3809.101 What special provisions apply to 3809 Task Force, chaired by Robert M. 3. In § 2091.3–2, remove paragraph (c) minerals that may be common variety Anderson; Deputy Assistant Director, and redesignate paragraph (d) as minerals, such as sand, gravel, and Minerals, Realty, and Resource paragraph (c). building stone? Protection; Bureau of Land 3809.111 Will BLM disclose to the public PART 2200ÐEXCHANGES: GENERAL the information I submit under this Management; (202) 208–4201. subpart? PROCEDURES List of Subjects 3809.115 Can BLM collect information under this subpart?. 43 CFR Part 2090 4. The authority citation for part 2200 3809.116 As a mining claimant or operator, continues to read as follows: what are my responsibilities under this Airports, Alaska, Coal, Grazing lands, subpart for my project area? Indians-lands, Public lands, Public Authority: 43 U.S.C. 1716 and 1740. Federal/State Agreements lands-classification, Public lands- Subpart 2201ÐExchangesÐSpecific mineral resources, Public lands- Requirements 3809.200 What kinds of agreements may withdrawal, Seashores. BLM and a State make under this § 2201.1±2 [Amended] subpart? 43 CFR Part 2200 3809.201 What should these agreements 5. In § 2201.1–2, remove paragraph (d) Administrative practice and address? and redesignate paragraph (e) as 3809.202 Under what conditions will BLM procedure, Antitrust, Coal, National paragraph (d). defer to State regulation of operations? forests, Public lands. 3809.203 What are the limitations on BLM 43 CFR Part 2710 PART 2710ÐSALES: FEDERAL LAND deferral to State regulation of operations? POLICY AND MANAGEMENT ACT 3809.204 Does this subpart cancel an Administrative practice and existing agreement between BLM and a procedure, Public lands-mineral 6. The authority citation for part 2710 State? resources, Public lands-sale. continues to read as follows: Operations Conducted Under Notices 43 CFR Part 2740 Authority: 43 U.S.C. 1713 and 1740. 3809.300 Does this subpart apply to my existing notice-level operations? Intergovernmental relations, Public Subpart 2711ÐSales: Procedures 3809.301 Where do I file my notice and lands-sale, Recreation and recreation what information must I include in it? areas, Reporting and recordkeeping § 2711.5±1 [Removed] 3809.311 What action does BLM take when requirements. 7. Remove § 2711.5–1. it receives my notice?

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3809.312 When may I begin operations after 3809.555 What forms of individual Penalties filing a complete notice? financial guarantee are acceptable to 3809.700 What criminal penalties apply to 3809.313 Under what circumstances may I BLM? violations of this subpart? not begin operations 15 calendar days 3809.556 What special requirements apply 3809.701 What happens if I make false after filing my notice? to financial guarantees described in statements to BLM? 3809.320 Which performance standards § 3809.555(e)? 3809.702 What civil penalties apply to apply to my notice-level operations? Blanket Financial Guarantee violations of this subpart? 3809.330 May I modify my notice? 3809.703 Can BLM settle a proposed civil 3809.560 Under what circumstances may I 3809.331 Under what conditions must I penalty? modify my notice? provide a blanket financial guarantee? Appeals 3809.332 How long does my notice remain State-Approved Financial Guarantee in effect? 3809.570 Under what circumstances may I 3809.800 Who may appeal BLM decisions 3809.333 May I extend my notice, and, if provide a State-approved financial under this subpart? so, how? guarantee? 3809.801 When may I file an appeal of the 3809.334 What if I temporarily stop 3809.571 What forms of State-approved BLM decision with OHA? conducting operations under a notice? financial guarantee are acceptable to 3809.802 What must I include in my appeal 3809.335 What happens when my notice BLM? to OHA? expires? 3809.572 What happens if BLM rejects a 3809.803 Will the BLM decision go into 3809.336 What if I abandon my notice-level financial instrument in my State- effect during an appeal to OHA? operations? approved financial guarantee? 3809.804 When may I ask the BLM State 3809.573 What happens if the State makes Director to review a BLM decision? Operations Conducted Under Plans of 3809.805 What must I send BLM to request Operations a demand against my financial guarantee? State Director review? 3809.400 Does this subpart apply to my 3809.574 What happens if I have an 3809.806 Will the State Director review the existing or pending plan of operations? existing corporate guarantee? original BLM decision if I request State 3809.401 Where do I file my plan of Director review? operations and what information must I Modification or Replacement of a Financial 3809.807 What happens once the State include with it? Guarantee Director agrees to my request for a 3809.411 What action will BLM take when 3809.580 What happens if I modify my review of a decision? it receives my plan of operations? notice or approved plan of operations? 3809.808 How will decisions go into effect 3809.412 When may I operate under a plan 3809.581 Will BLM accept a replacement when I request State Director review? of operations? financial instrument? 3809.809 May I appeal a decision made by 3809.415 How do I prevent unnecessary or 3809.582 How long must I maintain my the State Director? undue degradation while conducting financial guarantee? Public Visits To Mines operations on public lands? Release of Financial Guarantee 3809.420 What performance standards 3809.900 Will BLM allow the public to visit apply to my notice or plan of operations? 3809.590 When will BLM release or reduce mines on public lands? 3809.423 How long does my plan of the financial guarantee for my notice or operations remain in effect? plan of operations? Subpart 3809ÐSurface Management 3809.424 What are my obligations if I stop 3809.591 What are the limitations on the conducting operations? amount by which BLM may reduce my Authority: 16 U.S.C. 1280; 30 U.S.C. 22; 30 financial guarantee? U.S.C. 612; 43 U.S.C. 1201; and 43 U.S.C. Modifications of Plans of Operations 3809.592 Does release of my financial 1732, 1733, 1740, 1781, and 1782. 3809.430 May I modify my plan of guarantee relieve me of all responsibility operations? for my project area? General Information 3809.431 When must I modify my plan of 3809.593 What happens to my financial guarantee if I transfer my operations? § 3809.1 What are the purposes of this operations? subpart? 3809.432 What process will BLM follow in 3809.594 What happens to my financial reviewing a modification of my plan of guarantee when my mining claim or The purposes of this subpart are to: operations? millsite is patented? (a) Prevent unnecessary or undue 3809.433 Does this subpart apply to a new Forfeiture of Financial Guarantee degradation of public lands by operations authorized by the mining modification of my plan of operations? 3809.595 When may BLM initiate forfeiture 3809.434 How does this subpart apply to of my financial guarantee? laws. Anyone intending to develop pending modifications for new or 3809.596 How does BLM initiate forfeiture mineral resources on the public lands existing facilities? of my financial guarantee? must prevent unnecessary or undue Financial Guarantee Requirements— 3809.597 What if I do not comply with degradation of the land and reclaim General BLM’s forfeiture decision? disturbed areas. This subpart establishes 3809.598 What if the amount forfeited will 3809.500 In general, what are BLM’s procedures and standards to ensure that not cover the cost of reclamation? operators and mining claimants meet financial guarantee requirements? 3809.599 What if the amount forfeited 3809.503 When must I provide a financial exceeds the cost of reclamation? this responsibility; and guarantee for my notice-level operations? (b) Provide for maximum possible 3809.505 How do the financial guarantee Inspection and Enforcement coordination with appropriate State requirements of this subpart apply to my 3809.600 With what frequency will BLM agencies to avoid duplication and to existing plan of operations? inspect my operations? ensure that operators prevent 3809.551 What are my choices for 3809.601 What type of enforcement action unnecessary or undue degradation of providing BLM with a financial may BLM take if I do not meet the public lands. guarantee? requirements of this subpart? 3809.602 Can BLM revoke my plan of Individual Financial Guarantee § 3809.2 What is the scope of this operations or nullify my notice? subpart? 3809.552 What must my individual 3809.603 How does BLM serve me with an (a) This subpart applies to all financial guarantee cover? enforcement action? 3809.553 May I post a financial guarantee 3809.604 What happens if I do not comply operations authorized by the mining for a part of my operations? with a BLM order? laws on public lands where the mineral 3809.554 How do I estimate the cost to 3809.605 What are prohibited acts under interest is reserved to the United States, reclaim my operations? this subpart? including Stock Raising Homestead

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70114 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations lands as provided in § 3809.31(c). When Casual use means activities ordinarily of August 4, 1892, as amended (27 Stat. public lands are sold or exchanged resulting in no or negligible disturbance 348); the Saline Placer Act of January under 43 U.S.C. 682(b) (Small Tracts of the public lands or resources. For 31, 1901 (31 Stat. 745); the Surface Act), 43 U.S.C. 869 (Recreation and example— Resources Act of 1955 (30 U.S.C. 611– Public Purposes Act), 43 U.S.C. 1713 (1) Casual use generally includes the 614); and the Federal Land Policy and (sales) or 43 U.S.C. 1716 (exchanges), collection of geochemical, rock, soil, or Management Act of 1976 (43 U.S.C. minerals reserved to the United States mineral specimens using hand tools; 1701 et seq.). continue to be removed from the hand panning; or non-motorized Mitigation, as defined in 40 CFR operation of the mining laws unless a sluicing. It may include use of small 1508.20, may include one or more of the subsequent land-use planning decision portable suction dredges. It also following: expressly restores the land to mineral generally includes use of metal (1) Avoiding the impact altogether by entry, and BLM publishes a notice to detectors, gold spears and other battery- not taking a certain action or parts of an inform the public. operated devices for sensing the action; (b) This subpart does not apply to presence of minerals, and hand and (2) Minimizing impacts by limiting lands in the National Park System, battery-operated drywashers. Operators the degree or magnitude of the action National Forest System, and the may use motorized vehicles for casual and its implementation; National Wildlife Refuge System; use activities provided the use is (3) Rectifying the impact by repairing, acquired lands; or lands administered consistent with the regulations rehabilitating, or restoring the affected by BLM that are under wilderness governing such use (part 8340 of this environment; review, which are subject to subpart title), off-road vehicle use designations (4) Reducing or eliminating the 3802 of this part. contained in BLM land-use plans, and impact over time by preservation and (c) This subpart applies to all patents the terms of temporary closures ordered maintenance operations during the life issued after October 21, 1976 for mining by BLM. of the action; and claims in the California Desert (2) Casual use does not include use of (5) Compensating for the impact by Conservation Area, except for any mechanized earth-moving equipment, replacing, or providing substitute, patent for which a right to the patent truck-mounted drilling equipment, resources or environments. vested before that date. motorized vehicles in areas when Operations means all functions, work, (d) This subpart does not apply to designated as closed to ‘‘off-road facilities, and activities on public lands private land except as provided in vehicles’’ as defined in § 8340.0–5 of in connection with prospecting, paragraphs (a) and (c) of this section. this title, chemicals, or explosives. It exploration, discovery and assessment For purposes of analysis under the also does not include ‘‘occupancy’’ as work, development, extraction, and National Environmental Policy Act of defined in § 3715.0–5 of this title or processing of mineral deposits locatable 1969, BLM may collect information operations in areas where the under the mining laws; reclamation of about private land that is near to, or may cumulative effects of the activities result disturbed areas; and all other reasonably be affected by, operations authorized in more than negligible disturbance. incident uses, whether on a mining under this subpart. Exploration means creating surface claim or not, including the construction (e) This subpart applies to operations disturbance greater than casual use that of roads, transmission lines, pipelines, that involve locatable minerals, includes sampling, drilling, or and other means of access across public including metallic minerals; some developing surface or underground lands for support facilities. industrial minerals, such as gypsum; workings to evaluate the type, extent, Operator means any person who and a number of other non-metallic quantity, or quality of mineral values manages, directs, or conducts operations minerals that have a unique property present. Exploration does not include at a project area under this subpart, which gives the deposit a distinct and activities where material is extracted for including a parent entity or an affiliate special value. This subpart does not commercial use or sale. who materially participates in such Minimize means to reduce the adverse apply to leasable and salable minerals. management, direction, or conduct. An impact of an operation to the lowest Leasable minerals, such as coal, operator on a particular mining claim practical level. During review of phosphate, sodium, and potassium; and may also be the mining claimant. operations, BLM may determine that it salable minerals, such as common Person means any individual, firm, is practical to avoid or eliminate varieties of sand, gravel, stone, and corporation, association, partnership, particular impacts. pumice, are not subject to location trust, consortium, joint venture, or any Mining claim means any unpatented other entity conducting operations on under the mining laws. Parts 3400, 3500 mining claim, millsite, or tunnel site and 3600 of this title govern mining public lands. located under the mining laws. The Project area means the area of land operations for leasable and salable term also applies to those mining claims upon which the operator conducts minerals. and millsites located in the California operations, including the area required § 3809.3 What rules must I follow if State Desert Conservation Area that were for construction or maintenance of law conflicts with this subpart? patented after the enactment of the roads, transmission lines, pipelines, or If State laws or regulations conflict Federal Land Policy and Management other means of access by the operator. with this subpart regarding operations Act of October 21, 1976. Mining Public lands, as defined in 43 U.S.C. on public lands, you must follow the ‘‘claimant’’ is defined in § 3833.0–5 of 1702, means any land and interest in requirements of this subpart. However, this title. land owned by the United States within there is no conflict if the State law or Mining laws means the Lode Law of the several States and administered by regulation requires a higher standard of July 26, 1866, as amended (14 Stat. 251); the Secretary of the Interior through the protection for public lands than this the Placer Law of July 9, 1870, as BLM, without regard to how the United subpart. amended (16 Stat. 217); and the Mining States acquired ownership, except— Law of May 10, 1872, as amended (17 (1) Lands located on the Outer § 3809.5 How does BLM define certain Stat. 91); as well as all laws Continental Shelf; and terms used in this subpart? supplementing and amending those (2) Lands held for the benefit of As used in this subpart, the term: laws, including the Building Stone Act Indians, Aleuts, and Eskimos.

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Reclamation means taking measures specific laws in areas such as the threatened or endangered species or required by this subpart following California Desert Conservation Area, their proposed or designated critical disturbance of public lands caused by Wild and Scenic Rivers, BLM- habitat, unless BLM allows for other operations to meet applicable administered portions of the National action under a formal land-use plan or performance standards and achieve Wilderness System, and BLM- threatened or endangered species conditions required by BLM at the administered National Monuments and recovery plan; and conclusion of operations. For a National Conservation Areas; or (7) National Monuments and National definition of ‘‘reclamation’’ applicable (4) Occur on mining claims or Conservation Areas administered by to operations conducted under the millsites located after October 21, 1976 BLM. mining laws on Stock Raising (or on unclaimed lands) and result in Homestead Act lands, see part 3810, substantial irreparable harm to § 3809.21 When do I have to submit a notice? subpart 3814 of this title. Components significant scientific, cultural, or of reclamation include, where environmental resource values of the (a) You must submit a complete applicable: public lands that cannot be effectively notice of your operations 15 calendar (1) Isolation, control, or removal of mitigated. days before you commence exploration acid-forming, toxic, or deleterious causing surface disturbance of 5 acres or § 3809.10 How does BLM classify less of public lands on which substances; operations? (2) Regrading and reshaping to reclamation has not been completed. conform with adjacent landforms, BLM classifies operations as— See § 3809.301 for information on what (a) Casual use, for which an operator facilitate revegetation, control drainage, you must include in your notice. need not notify BLM. (You must reclaim and minimize erosion; (b) You must not segment a project (3) Rehabilitation of fisheries or any casual-use disturbance that you area by filing a series of notices for the wildlife habitat; create. If your operations do not qualify purpose of avoiding filing a plan of (4) Placement of growth medium and as casual use, you must submit a notice operations. See §§ 3809.300 through establishment of self-sustaining or plan of operations, whichever is 3809.336 for regulations applicable to revegetation; applicable. See §§ 3809.11 and notice-level operations. (5) Removal or stabilization of 3809.21.); § 3809.31 Are there any special situations buildings, structures, or other support (b) Notice-level operations, for which an operator must submit a notice that affect what submittals I must make facilities; before I conduct operations? (6) Plugging of drill holes and closure (except for certain suction-dredging of underground workings; and operations covered by § 3809.31(b)); and (a) Where the cumulative effects of (7) Providing for post-mining (c) Plan-level operations, for which an casual use by individuals or groups monitoring, maintenance, or treatment. operator must submit a plan of have resulted in, or are reasonably Riparian area is a form of wetland operations and obtain BLM’s approval. expected to result in, more than transition between permanently negligible disturbance, the State § 3809.11 When do I have to submit a plan Director may establish specific areas as saturated wetlands and upland areas. of operations? he/she deems necessary where any These areas exhibit vegetation or (a) You must submit a plan of physical characteristics reflective of individual or group intending to operations and obtain BLM’s approval conduct activities under the mining permanent surface or subsurface water before beginning operations greater than influence. Typical riparian areas laws must contact BLM 15 calendar casual use, except as described in days before beginning activities to include lands along, adjacent to, or § 3809.21. Also see §§ 3809.31 and contiguous with perennially and determine whether the individual or 3809.400 through 3809.434. group must submit a notice or plan of intermittently flowing rivers and (b) You must submit a plan of operations. (See § 3809.300 through streams, glacial potholes, and the shores operations for any bulk sampling in 3809.336 and § 3809.400 through of lakes and reservoirs with stable water which you will remove 1,000 tons or 3809.434.) BLM will notify the public levels. Excluded are areas such as more of presumed ore for testing. via publication in the Federal Register ephemeral streams or washes that do (c) You must submit a plan of of the boundaries of such specific areas, not exhibit the presence of vegetation operations for any operations causing as well as through posting in each local dependent upon free water in the soil. surface disturbance greater than casual BLM office having jurisdiction over the Tribe means, and Tribal refers to, a use in the following special status areas lands. Federally recognized Indian tribe. where § 3809.21 does not apply: Unnecessary or undue degradation (1) Lands in the California Desert (b) Suction dredges. (1) If your means conditions, activities, or Conservation Area (CDCA) designated operations involve the use of a suction practices that: by the CDCA plan as ‘‘controlled’’ or dredge, the State requires an (1) Fail to comply with one or more ‘‘limited’’ use areas; authorization for its use, and BLM and of the following: The performance (2) Areas in the National Wild and the State have an agreement under standards in § 3809.420, the terms and Scenic Rivers System, and areas § 3809.200 addressing suction dredging, conditions of an approved plan of designated for potential addition to the then you need not submit to BLM a operations, operations described in a system; notice or plan of operations, unless complete notice, and other Federal and (3) Designated Areas of Critical otherwise provided in the agreement State laws related to environmental Environmental Concern; between BLM and the State. protection and protection of cultural (4) Areas designated as part of the (2) For all uses of a suction dredge not resources; National Wilderness Preservation covered by paragraph (b)(1) of this (2) Are not ‘‘reasonably incident’’ to System and administered by BLM; section, you must contact BLM before prospecting, mining, or processing (5) Areas designated as ‘‘closed’’ to beginning such use to determine operations as defined in § 3715.0–5 of off-road vehicle use, as defined in whether you need to submit a notice or this title; § 8340.0–5 of this title; a plan to BLM, or whether your (3) Fail to attain a stated level of (6) Any lands or waters known to activities constitute casual use. If your protection or reclamation required by contain Federally proposed or listed proposed suction dredging is located

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Upon occupy or use a site for activities under § 3851.1 of this title; or relinquishment or final departmental ‘‘reasonably incident’’ to mining, as (2) A person may only conduct determination that the mining claim(s) defined in § 3715.0–5 of this title, exploration under a notice that is is null and void, you must promptly whether you are operating under a limited to taking samples to confirm or close and reclaim your operations notice or a plan of operations, you must corroborate mineral exposures that are unless you are authorized to proceed also comply with part 3710, subpart physically disclosed and existing on the under parts 3600 and 3610 of this title. 3715, of this title. mining claim before the segregation or (d) Disposal. BLM may dispose of (d) If your operations are located on withdrawal date, whichever is earlier. common variety minerals from an lands patented under the Stock Raising (c) Time limits. While BLM prepares unpatented mining claim with a written Homestead Act and you do not have the a mineral examination report under waiver from the mining claimant. written consent of the surface owner, paragraph (a) of this section, it may then you must submit a plan of suspend the time limit for responding to § 3809.111 Will BLM disclose to the public operations and obtain BLM’s approval. a notice or acting on a plan of the information I submit under this Where you have surface-owner consent, operations. See §§ 3809.311 and subpart? you do not need a notice or a plan of 3809.411, respectively. Part 2 of this title applies to all operations under this subpart. See part (d) Final decision. If a final information and data you submit under 3810, subpart 3814, of this title. departmental decision declares a mining this subpart. If you submit information (e) If your proposed operations are claim to be null and void, the operator or data under this subpart that you located on lands conveyed by the must cease all operations, except believe is exempt from disclosure, you United States which contain minerals required reclamation. must mark each page clearly reserved to the United States, then you ‘‘CONFIDENTIAL INFORMATION.’’ must submit a plan of operations under § 3809.101 What special provisions apply You must also separate it from other to minerals that may be common variety materials you submit to BLM. BLM will § 3809.11 and obtain BLM’s approval or minerals, such as sand, gravel, and building a notice under § 3809.21. stone? keep confidential information or data marked in this manner to the extent (a) Mineral examination report. On § 3809.100 What special provisions apply required by part 2 of this title. If you do to operations on segregated or withdrawn mining claims located on or after July not mark the information as lands? 23, 1955, you must not initiate confidential, BLM, without notifying operations for minerals that may be (a) Mineral examination report. After you, may disclose the information to the ‘‘common variety’’ minerals, as defined the date on which the lands are public to the full extent allowed under in § 3711.1(b) of this title, until BLM has withdrawn from appropriation under part 2 of this title. the mining laws, BLM will not approve prepared a mineral examination report, a plan of operations or allow notice- except as provided in paragraph (b) of § 3809.115 Can BLM collect information level operations to proceed until BLM this section. under this subpart? has prepared a mineral examination (b) Interim authorization. Until the Yes, the Office of Management and report to determine whether the mining mineral examination report described in Budget has approved the collections of claim was valid before the withdrawal, paragraph (a) of this section is prepared, information contained in this subpart and whether it remains valid. BLM may BLM will allow notice-level operations under 44 U.S.C. 3501 et seq. and require preparation of a mineral or approve a plan of operations for the assigned clearance number 1004–0194. examination report before approving a disputed mining claim for— BLM will use this information to plan of operations or allowing notice- (1) Operations limited to taking regulate and monitor mining and level operations to proceed on samples to confirm or corroborate exploration operations on public lands. segregated lands. If the report concludes mineral exposures that are physically that the mining claim is invalid, BLM disclosed and existing on the mining § 3809.116 As a mining claimant or will not approve operations or allow claim; operator, what are my responsibilities notice-level operations on the mining (2) Performance of the minimum under this subpart for my project area? claim. BLM will also promptly initiate necessary annual assessment work (a)(1) Mining claimants and operators contest proceedings. under § 3851.1 of this title; or (if other than the mining claimant) are (b) Allowable operations. If BLM has (3) Operations to remove possible jointly and severally liable for not completed the mineral examination common variety minerals if you obligations under this subpart that report under paragraph (a) of this establish an escrow account in a form accrue while they hold their interests. section, if the mineral examination acceptable to BLM. You must make Joint and several liability, in this report for proposed operations regular payments to the escrow account context, means that the mining concludes that a mining claim is for the appraised value of possible claimants and operators are responsible invalid, or if there is a pending contest common variety minerals removed together and individually for proceeding for the mining claim, under a payment schedule approved by obligations, such as reclamation, (1) BLM may— BLM. The funds in the escrow account resulting from activities or conditions in (i) Approve a plan of operations for must not be disbursed to the operator or the areas in which the mining claimants the disputed mining claim proposing to the U.S. Treasury until a final hold mining claims or mill sites or the

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Operator C conducts mining operations Federal/State Agreements Director receives the State’s request, he/ she will notify the public and provide on a project area that includes both claimant § 3809.200 What kinds of agreements may A’s mining claims and claimant B’s mining BLM and a State make under this subpart? an opportunity for comment. The State claims and millsites. Mining claimant A and Director will then review the request To prevent unnecessary operator C are each 100 percent responsible and determine whether the State’s for obligations arising from activities on administrative delay and to avoid requirements are consistent with the mining claimant A’s mining claims. Mining duplication of administration and claimant B has no responsibility for such enforcement, BLM and a State may requirements of this subpart, and obligations. Mining claimant B and operator make the following kinds of agreements: whether the State has necessary legal C are each 100 percent responsible for (a) An agreement to provide for a joint authorities, resources, and funding for obligations arising from activities on mining Federal/State program; and an agreement. The State requirements claimant B’s mining claims and millsites. may be contained in laws, regulations, Mining claimant A has no responsibility for (b) An agreement under § 3809.202 such obligations. which provides that, in place of BLM guidelines, policy manuals, and Example 2. Mining claimant L holds administration, BLM defers to State demonstrated permitting practices. mining claims totaling 100 acres on which administration of some or all of the (2) For the purposes of this subpart, operators M and N conduct activities. requirements of this subpart subject to BLM will determine consistency with Operator M conducts operations on 50 acres. the limitations in § 3809.203. Operator N conducts operations on the other the requirements of this subpart by 50 acres. Operators M and N are independent § 3809.201 What should these agreements comparing this subpart and State of each other and their operations do not address? standards on a provision-by-provision overlap. Mining claimant L and operator M (a) The agreements should provide for basis to determine— are each 100 percent responsible for obligations arising from activities on the 50 maximum possible coordination with (i) Whether non-numerical State acres on which operator M conducts the State to avoid duplication and to standards are functionally equivalent to activities. Mining claimant L and operator N ensure that operators prevent BLM counterparts; and are each 100 percent responsible for unnecessary or undue degradation of obligations arising from activities on the 50 public lands. Agreements should cover (ii) Whether numerical State acres on which operator N conducts any or all sections of this subpart and standards are the same as corresponding activities. Operator M has no responsibility should consider, at a minimum, numerical BLM standards, except that for the obligations arising from operator N’s common approaches to review of plans State review and approval time frames activities. of operations, including effective do not have to be the same as the Example 3. Mining claimant X holds corresponding Federal time frames. mining claims totaling 100 acres on which cooperation regarding the National operators Y and Z conduct activities. Environmental Policy Act; performance (3) A State environmental protection Operators Y and Z each engage in activities standards; interim management of standard that exceeds a corresponding on the entire 100 acres. Mining claimant X, temporary closure; financial guarantees; Federal standard is consistent with the operator Y, and operator Z are each 100 inspections; and enforcement actions, requirements of this subpart. percent responsible for obligations arising including referrals to enforcement from all operations on the entire 100 acres. (c) State Director decision. The BLM authorities. BLM and the State should State Director will notify the State in (2) In the event obligations are not also include provisions for the regular met, BLM may take any action review or audit of these agreements. writing of his/her decision regarding the authorized under this subpart against (b) To satisfy the requirements of State’s request. The State Director will either the mining claimants or the § 3809.31(b), if BLM and the State elect address whether the State requirements operators, or both. to address suction dredge activities in are consistent with the requirements of (b) Relinquishment, forfeiture, or the agreement, the agreement must this subpart, and whether the State has abandonment of a mining claim does require a State to notify BLM of each necessary legal authorities, resources, not relieve a mining claimant’s or application to conduct suction dredge and funding to implement any operator’s responsibility under this activities within 15 calendar days of agreement. If BLM determines that the subpart for obligations that accrued or receipt of the application by the State. State’s requirements are consistent with conditions that were created while the BLM will inform the State whether the requirements of this subpart and the mining claimant or operator was Federally proposed or listed threatened State has the necessary legal authorities, responsible for operations conducted on or endangered species or their proposed resources, and funding, BLM must enter that mining claim or in the project area. or designated critical habitat may be into an agreement with the State so that (c) Transfer of a mining claim or affected by the proposed activities and the State will regulate some or all of the operation does not relieve a mining any necessary mitigating measures. operations on public lands, as described claimant’s or operator’s responsibility Operations must not begin until BLM in the State request. under this subpart for obligations that completes consultation or conferencing (d) Appeal of State Director decision. accrued or conditions that were created under the Endangered Species Act. while the mining claimant or operator The BLM State Director’s decision will was responsible for operations § 3809.202 Under what conditions will BLM be a final decision of BLM and may be conducted on that mining claim or in defer to State regulation of operations? appealed to the Assistant Secretary for the project area until— (a) State request. A State may request Land and Minerals Management, but not (1) BLM receives documentation that BLM enter into an agreement for State to the Department of the Interior Office a transferee accepts responsibility for regulation of operations on public lands of Hearings and Appeals. See the transferor’s previously accrued in place of BLM administration of some § 3809.800(c) for the items you should obligations, and or all of the requirements of this include in the appeal.

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§ 3809.203 What are the limitations on both Federal and State reclamation make necessary revisions no later than BLM deferral to State regulation of requirements, but may be held as one one year from January 20, 2001. operations? instrument. If the financial guarantee is (b) The BLM State Director may Any agreement between BLM and a held as one instrument, it must be extend the review period described in State in which BLM defers to State redeemable by both the Secretary and paragraph (a) of this section for one regulation of some or all operations on the State. BLM must concur in the more year upon the written request of public lands is subject to the following approval, release, or forfeiture of a the Governor of the State or the limitations: financial guarantee for public lands. delegated representative of the (a) Plans of Operations. BLM must (e) State performance. If BLM Governor, and if necessary, for a third concur with each State decision determines that a State is not in year upon another written request. The compliance with all or part of its approving a plan of operations to assure existing agreement or memorandum of Federal/State agreement, BLM will compliance with this subpart, and BLM understanding terminates no later than notify the State and provide a retains responsibility for compliance one year after January 20, 2001 if this reasonable time for the State to comply. with the National Environmental Policy review and any necessary revision does Act (NEPA). The State and BLM may (f) Termination. (1) If a State does not comply after being notified under not occur, unless extended under this decide who will be the lead agency in paragraph. the plan review process, including paragraph (e) of this section, BLM will preparation of NEPA documents. take appropriate action, which may (c) This subpart applies during the (b) Federal land-use planning and include termination of all or part of the review period described in paragraphs other Federal laws. BLM will continue agreement. (a) and (b) of this section. Where a to be responsible for all land-use (2) A State may terminate its portion of a Federal/State agreement or planning on public lands and for agreement by notifying BLM 60 calendar memorandum of understanding existing implementing other Federal laws days in advance. on January 20, 2001 is inconsistent with relating to the public lands for which this subpart, that portion continues in § 3809.204 Does this subpart cancel an effect until the agreement or BLM is responsible. existing agreement between BLM and a memorandum of understanding is (c) Federal enforcement. BLM may State? revised under this subpart or take any authorized action to enforce (a) No, this subpart doesn’t cancel a terminated. the requirements of this subpart or any Federal/State agreement or term, condition, or limitation of a notice memorandum of understanding in effect Operations Conducted Under Notices or an approved plan of operations. BLM on January 20, 2001. A Federal/State may take this action regardless of the agreement or memorandum of § 3809.300 Does this subpart apply to my existing notice-level operations? nature of its agreement with a State, or understanding will continue while BLM actions taken by a State. and the State perform a review to To see how this subpart applies to (d) Financial guarantee. The amount determine whether revisions are your operations conducted under a of the financial guarantee must be required under this subpart. BLM and notice and existing on January 20, 2001, calculated based on the completion of the State must complete the review and follow this table:

If BLM has received your complete notice before January 20, 2001Ð ThenÐ

(a) You are the operator identified in the notice on file with BLM on You may conduct operations for 2 years after January 20, 2001 under January 20, 2001. the terms of your existing notice and the regulations in effect imme- diately before that date. (See 43 CFR parts 1000-end, revised as of Oct. 1, 1999.) After 2 years, you may extend your notice under § 3809.333. BLM may require a modification under § 3809.331(a)(1). See § 3809.503 for financial guarantee requirements applicable to notices.

(b) You are a new operator, that is, you were not the operator identified The provisions of this subpart, including § 3809.320, govern your oper- in the notice on file with BLM on January 20, 2001. ations for 2 years after January 20, 2001, unless you extend your notice under § 3809.333.

(c) You later modify your notice ...... (1) You may conduct operations on the original acreage for 2 years after January 20, 2001 under the terms of your existing notice and the regulations in effect immediately before that date (See 43 CFR parts 1000-end, revised as of Oct. 1, 2000.) After 2 years, you may extend your notice under § 3809.333. BLM may require a modifica- tion under § 3809.331(a)(1). See § 3809.503(b) for financial guar- antee requirements applicable to notices. (2) Your operations on any additional acreage come under the provi- sions of this subpart, including §§ 3809.11 and 3809.21, and may re- quire approval of a plan of operations before the additional surface disturbance may.

(d) Your notice has expired ...... You may not conduct operations under an expired notice. You must promptly submit either a new notice under § 3809.301 or a plan of operations under § 3809.401, whichever is applicable, or imme- diately begin to reclaim your project area. See §§ 3809.11 and 3809.21.

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§ 3809.301 Where do I file my notice and (3) Reclamation Plan. A description of § 3809.312 When may I begin operations what information must I include in it? how you will complete reclamation to after filing a complete notice? (a) If you qualify under § 3809.21, you the standards described in § 3809.420; (a) If BLM does not take any of the must file your notice with the local BLM and actions described in § 3908.313, you office with jurisdiction over the lands (4) Reclamation cost estimate. An may begin operations no sooner than 15 involved. BLM does not require that the calendar days after the appropriate BLM estimate of the cost to fully reclaim your notice be on a particular form. office receives your complete notice. operations as required by § 3809.552. (b) To be complete, your notice must BLM may send you an include the following information: (c) BLM may require you to provide acknowledgement that indicates the (1) Operator Information. The name, additional information, if necessary to date we received your notice. If you mailing address, phone number, ensure that your operations will comply don’t receive an acknowledgement or taxpayer identification number of the with this subpart. have any doubt about the date we operator(s), and the BLM serial (d) You must notify BLM in writing received your notice, contact the office number(s) of any unpatented mining within 30 calendar days of any change to which you sent the notice. This claim(s) where the disturbance would of operator or corporate point of contact, subpart does not require BLM to occur. If the operator is a corporation, approve your notice or inform you that you must identify one individual as the or of the mailing address of the operator or corporate point of contact. your notice is complete. point of contact; (b) If BLM completes our review (2) Activity Description, Map, and § 3809.311 What action does BLM take sooner than 15 calendar days after Schedule of Activities. A description of when it receives my notice? receiving your complete notice, we may the proposed activity with a level of notify you that you may begin detail appropriate to the type, size, and (a) Upon receipt of your notice, BLM operations. location of the activity. The description will review it within 15 calendar days (c) You must provide to BLM a must include the following: to see if it is complete under § 3809.301. financial guarantee that meets the (i) The measures that you will take to (b) If your notice is incomplete, BLM requirements of this subpart before prevent unnecessary or undue will inform you in writing of the beginning operations. degradation during operations; additional information you must (d) Your operations may be subject to (ii) A map showing the location of submit. BLM may also take the actions BLM approval under part 3710, subpart your project area in sufficient detail for described in § 3809.313. 3715, of this title relating to use or BLM to be able to find it and the (c) BLM will review your additional occupancy of unpatented mining location of access routes you intend to claims. use, improve, or construct; information within 15 calendar days to (iii) A description of the type of ensure it is complete. BLM will repeat § 3809.313 Under what circumstances may equipment you intend to use; and this process until your notice is I not begin operations 15 calendar days (iv) A schedule of activities, including complete, or until we determine that after filing my notice? the date when you expect to begin you may not conduct operations To see when you may not begin operations and the date you expect to because of your inability to prevent operations 15 calendar days after filing complete reclamation; unnecessary or undue degradation. your notice, follow this table:

If BLM reviews your notice and, within 15 calendar daysÐ ThenÐ

(a) Notifies you that BLM needs additional time, not to exceed 15 cal- You must not begin operations until the additional review time period endar days, to complete its review. ends.

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

(c) Requires you to consult with BLM about the location of existing or You must not begin operations until you consult with BLM and satisfy proposed access routes. BLM's concerns about access.

(d) Determines that an on-site visit is necessary ...... You must not begin operations until BLM visits the site, and you satisfy any concerns arising from the visit. BLM will notify you if we will not conduct the site visit within 15 calendar days of determining that a visit is necessary, including the reason(s) for the delay.

(e) BLM determines you don't qualify under § 3809.11 as a notice-level You must file a plan of operations before beginning operations. See operation. §§ 3809.400 through 3809.420.

§ 3809.320 Which performance standards (b) BLM will review your notice (2) If you plan to make material apply to my notice-level operations? modification the same way it reviewed changes to your operations. Material Your notice-level operations must your initial notice under §§ 3809.311 changes are changes that disturb areas meet all applicable performance and 3809.313. not described in the existing notice; change your reclamation plan; or result standards of § 3809.420. § 3809.331 Under what conditions must I modify my notice? in impacts of a different kind, degree, or § 3809.330 May I modify my notice? extent than those described in the (a) You must modify your notice— (a) Yes, you may submit a notice existing notice. modification at any time during (1) If BLM requires you to do so to (b) You must submit your notice operations under a notice. prevent unnecessary or undue modification 15 calendar days before degradation; or

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The name, you to proceed before the 15-day period equipment and facilities from the mailing address, phone number, has elapsed to prevent unnecessary or project area other than for purposes of taxpayer identification number of the undue degradation. completing reclamation according to operator(s), and the BLM serial your reclamation plan, do not maintain number(s) of any unpatented mining § 3809.332 How long does my notice the project area, discharge local claim(s) where disturbance would remain in effect? workers, or there is no sign of activity occur. If the operator is a corporation, If you filed your complete notice on in the project area over time. you must identify one individual as the or after January 20, 2001, it remains in (b) If BLM determines that you point of contact. You must notify BLM effect for 2 years, unless extended under abandoned your operations without in writing within 30 calendar days of § 3809.333, or unless you notify BLM completing reclamation, BLM may any change of operator or corporate beforehand that operations have ceased initiate forfeiture under § 3809.595. If point of contact or in the mailing and reclamation is complete. BLM will the amount of the financial guarantee is address of the operator or corporate conduct an inspection to verify whether inadequate to cover the cost of point of contact; you have met your obligations, will reclamation, BLM may complete the (2) Description of Operations. A notify you promptly in writing, and reclamation, and the operator and all description of the equipment, devices, terminate your notice, if appropriate. other responsible persons are liable for or practices you propose to use during the cost of reclamation. operations including, where § 3809.333 May I extend my notice, and, if so, how? applicable— Operations Conducted Under Plans of (i) Maps of the project area at an Yes, if you wish to conduct operations Operations appropriate scale showing the location for 2 additional years after the § 3809.400 Does this subpart apply to my of exploration activities, drill sites, expiration date of your notice, you must existing or pending plan of operations? mining activities, processing facilities, notify BLM in writing on or before the (a) You may continue to operate waste rock and tailing disposal areas, expiration date and meet the financial under the terms and conditions of a support facilities, structures, buildings, guarantee requirements of § 3809.503. plan of operations that BLM approved and access routes; You may extend your notice more than before January 20, 2001. All provisions (ii) Preliminary or conceptual designs, once. of this subpart except plan content cross sections, and operating plans for § 3809.334 What if I temporarily stop (§ 3809.401) and performance standards mining areas, processing facilities, and conducting operations under a notice? (§§ 3809.415 and 3809.420) apply to waste rock and tailing disposal facilities; (a) If you stop conducting operations such plan of operations. See § 3809.505 for the applicability of financial (iii) Water management plans; for any period of time, you must— (iv) Rock characterization and (1) Maintain public lands within the guarantee requirements. (b) If your unapproved plan of handling plans; project area, including structures, in a (v) Quality assurance plans; operations is pending on January 20, safe and clean condition; (vi) Spill contingency plans; (2) Take all steps necessary to prevent 2001, then the plan content (vii) A general schedule of operations unnecessary or undue degradation; and requirements and performance from start through closure; and (3) Maintain an adequate financial standards that were in effect (viii) Plans for all access roads, water guarantee. immediately before that date apply to supply pipelines, and power or utility your pending plan of operations. (See 43 (b) If the period of non-operation is services; CFR parts 1000–end, revised as of Oct. likely to cause unnecessary or undue (3) Reclamation Plan. A plan for 1, 1999.) All other provisions of this degradation, BLM, in writing, will— reclamation to meet the standards in subpart apply. (1) Require you to take all steps § 3809.420, with a description of the (c) If you want this subpart to apply equipment, devices, or practices you necessary to prevent unnecessary or to any existing or pending plan of undue degradation; and propose to use including, where operations, where not otherwise applicable, plans for— (2) Require you, after an extended required, you may choose to have this period of non-operation for other than (i) Drill-hole plugging; subpart apply. (ii) Regrading and reshaping; seasonal operations, to remove all (iii) Mine reclamation, including structures, equipment, and other § 3809.401 Where do I file my plan of information on the feasibility of pit facilities and reclaim the project area. operations and what information must I include with it? backfilling that details economic, § 3809.335 What happens when my notice (a) If you are required to file a plan environmental, and safety factors; (iv) Riparian mitigation; expires? of operations under § 3809.11, you must (a) When your notice expires, you (v) Wildlife habitat rehabilitation; file it with the local BLM field office (vi) Topsoil handling; must— with jurisdiction over the lands (vii) Revegetation; (1) Cease operations, except involved. BLM does not require that the (viii) Isolation and control of acid- reclamation; and plan be on a particular form. Your plan forming, toxic, or deleterious materials; (2) Complete reclamation promptly of operations must demonstrate that the (ix) Removal or stabilization of according to your notice. proposed operations would not result in buildings, structures and support (b) Your reclamation obligations unnecessary or undue degradation of facilities; and continue beyond the expiration or any public lands. (x) Post-closure management; termination of your notice until you (b) Your plan of operations must (4) Monitoring Plan. A proposed plan satisfy them. contain the following information and for monitoring the effect of your

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BLM is available to be consistent with State water quality potential problems, and to supply advise you on the exact type of requirements. information that will assist in directing information and level of detail needed (b) Pending final approval of your corrective actions should they become to meet these requirements; and plan of operations, BLM may approve necessary. Where applicable, you must (2) Other information, if necessary to any operations that may be necessary for include in monitoring plans details on ensure that your operations will comply timely compliance with requirements of type and location of monitoring devices, with this subpart. Federal and State laws, subject to any sampling parameters and frequency, (d) Reclamation cost estimate. At a terms and conditions that may be analytical methods, reporting time specified by BLM, you must submit needed to prevent unnecessary or undue procedures, and procedures to respond an estimate of the cost to fully reclaim degradation. to adverse monitoring results. your operations as required by (c) Following receipt of your complete Monitoring plans may incorporate § 3809.552. BLM will review your plan of operations and before BLM acts existing State or other Federal reclamation cost estimate and notify you on it, we will publish a notice of the monitoring requirements to avoid of any deficiencies or additional availability of the plan in either a local duplication. Examples of monitoring information that must be submitted in newspaper of general circulation or a programs which may be necessary order to determine a final reclamation NEPA document and will accept public include surface- and ground-water cost. BLM will notify you when we have comment for at least 30 calendar days quality and quantity, air quality, determined the final amount for which on your plan of operations. revegetation, stability, noise levels, and you must provide financial assurance. (d) Upon completion of the review of wildlife mortality; and your plan of operations, including (5) Interim management plan. A plan § 3809.411 What action will BLM take when analysis under NEPA and public to manage the project area during it receives my plan of operations? comment, BLM will notify you that— periods of temporary closure (including (a) BLM will review your plan of (1) BLM approves your plan of periods of seasonal closure) to prevent operations within 30 calendar days and operations as submitted (See part 3810, unnecessary or undue degradation. The will notify you that— subpart 3814 of this title for specific interim management plan must include, (1) Your plan of operations is plan-related requirements applicable to where applicable, the following: complete, that is, it meets the content operations on Stock Raising Homestead (i) Measures to stabilize excavations requirements of § 3809.401(b); Act lands.); and workings; (2) Your plan does not contain a (2) BLM approves your plan of (ii) Measures to isolate or control complete description of the proposed operations subject to changes or toxic or deleterious materials (See also operations under § 3809.401(b). BLM conditions that are necessary to meet the requirements in will identify deficiencies that you must the performance standards of § 3809.420 § 3809.420(c)(4)(vii).); address before BLM can continue and to prevent unnecessary or undue (iii) Provisions for the storage or processing your plan of operations. If degradation. BLM may require you to removal of equipment, supplies and necessary, BLM may repeat this process incorporate into your plan of operations structures; until your plan of operations is other agency permits, final approved (iv) Measures to maintain the project complete; or engineering designs and plans, or other area in a safe and clean condition; (3) The description of the proposed conditions of approval from the review (v) Plans for monitoring site operations is complete, but BLM cannot of the plan of operations filed under conditions during periods of non- approve the plan until certain § 3809.401(b); or operation; and (3) BLM disapproves, or is (vi) A schedule of anticipated periods additional steps are completed, including one or more of the following: withholding approval of your plan of of temporary closure during which you operations because the plan: (i) You collect adequate baseline data; would implement the interim (i) Does not meet the applicable management plan, including provisions (ii) BLM completes the environmental content requirements of § 3809.401; for notifying BLM of unplanned or review required under the National (ii) Proposes operations that are in an extended temporary closures. Environmental Policy Act; area segregated or withdrawn from the (c) In addition to the requirements of (iii) BLM completes any consultation operation of the mining laws, unless the paragraph (b) of this section, BLM may required under the National Historic requirements of § 3809.100 are met; or require you to supply— Preservation Act, the Endangered (iii) Proposes operations that would (1) Operational and baseline Species Act, or the Magnuson-Stevens result in unnecessary or undue environmental information for BLM to Fishery Conservation and Management degradation of public lands. If BLM analyze potential environmental Act; disapproves your plan of operations impacts as required by the National (iv) BLM or the Department of the based on paragraph (4) of the definition Environmental Policy Act and to Interior completes other Federal of ‘‘unnecessary or undue degradation’’ determine if your plan of operations responsibilities, such as Native in § 3809.5,BLM must include written will prevent unnecessary or undue American consultation; findings supported by a record clearly degradation. This could include (v) BLM conducts an on-site visit; demonstrating each element of information on public and non-public (vi) BLM completes review of public paragraph (4), including— lands needed to characterize the comments on the plan of operations; (A) That approval of the plan of geology, paleontological resources, cave (vii) For public lands where BLM operations would create irreparable resources, hydrology, soils, vegetation, does not have responsibility for harm; wildlife, air quality, cultural resources, managing the surface, BLM consults (B) How the irreparable harm is and socioeconomic conditions in and with the surface-managing agency; substantial in extent or duration;

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(C) That the resources substantially management plans under 16 U.S.C. water quality; filter sediment, capture irreparably harmed constitute 1451, as appropriate. bedload, and aid floodplain significant scientific, cultural, or (4) Mitigation. You must take development; improve floodwater environmental resources; and mitigation measures specified by BLM retention and ground-water recharge; (D) How mitigation would not be to protect public lands. develop root masses that stabilize effective in reducing the level of harm (5) Concurrent reclamation. You must streambanks against cutting action; below the substantial or irreparable initiate and complete reclamation at the develop diverse ponding and channel threshold. earliest economically and technically characteristics to provide the habitat feasible time on those portions of the and water depth, duration, and § 3809.412 When may I operate under a disturbed area that you will not disturb plan of operations? temperature necessary for fish further. production, waterfowl breeding, and You must not begin operations until (b) Environmental performance other uses, and support greater BLM approves your plan of operations standards. biodiversity. and you provide the financial guarantee (1) Air quality. Your operations must (iii) You must mitigate impacts to required under § 3809.551. comply with applicable Federal, Tribal, wetlands under the jurisdiction of the § 3809.415 How do I prevent unnecessary State, and, where delegated by the State, U.S. Army Corps of Engineers (COE) or undue degradation while conducting local government laws and and other waters of the United States in operations on public lands? requirements. accord with COE requirements. You prevent unnecessary or undue (2) Water. You must conduct (iv) You must take appropriate degradation while conducting operations to minimize water pollution mitigation measures, such as restoration operations on public lands by— (source control) in preference to water or replacement, if your operations cause (a) Complying with § 3809.420, as treatment. You must conduct operations the loss of nonjurisdictional wetland or applicable; the terms and conditions of to minimize changes in water quantity riparian areas or the diminishment of your notice or approved plan of in preference to water supply their proper functioning condition. operations; and other Federal and State replacement. Your operations must (4) Soil and growth material. (i) You laws related to environmental comply with State water law with must remove, segregate, and preserve protection and protection of cultural respect to water use and water quality. topsoil or other suitable growth material (i) Surface water. (A) Releases to resources; to minimize erosion and sustain surface waters must comply with (b) Assuring that your operations are revegetation when reclamation begins. applicable Federal, Tribal, State, ‘‘reasonably incident’’ to prospecting, (ii) To preserve soil viability and interstate, and, where delegated by the mining, or processing operations and promote concurrent reclamation, you State, local government laws and uses as defined in § 3715.0–5 of this must directly transport topsoil from its requirements. title; and original location to the point of (c) Attaining the stated level of (B) You must conduct operations to prevent or control the discharge of reclamation without intermediate protection or reclamation required by stockpiling, where economically and specific laws in areas such as the pollutants into surface waters. (ii) Ground water. (A) You must technically feasible. California Desert Conservation Area, (5) Revegetation. You must— Wild and Scenic Rivers, BLM- comply with State standards and other applicable requirements if your (i) Revegetate disturbed lands by administered portions of the National establishing a stable and long-lasting Wilderness System, and BLM- operations affect ground water. (B) You must conduct operations to vegetative cover that is self-sustaining administered National Monuments and minimize the discharge of pollutants and, considering successional stages, National Conservation Areas. will result in cover that is— (d) Avoiding substantial irreparable into ground water. (C) You must conduct operations (A) Comparable in both diversity and harm to significant scientific, cultural, affecting ground water, such as density to pre-existing natural or environmental resource values of the dewatering, pumping, and injecting, to vegetation of the surrounding area; or public lands that cannot be effectively minimize impacts on surface and other (B) Compatible with the approved mitigated. natural resources, such as wetlands, BLM land-use plan or activity plan; § 3809.420 What performance standards riparian areas, aquatic habitat, and other (ii) Take all reasonable steps to apply to my notice or plan of operations? features that are dependent on ground minimize the introduction of noxious The following performance standards water. weeds and to limit any existing apply to your notice or plan of (3) Wetlands and riparian areas. (i) infestations; operations: You must avoid locating operations in (iii) Use native species, when (a) General performance standards. wetlands and riparian areas where available, to the extent technically (1) Technology and practices. You possible, minimize impacts on wetlands feasible. If you use non-native species, must use equipment, devices, and and riparian areas that your operations they must not inhibit re-establishment practices that will meet the performance cannot avoid, and mitigate damage to of native species; standards of this subpart. wetlands and riparian areas that your (iv) Achieve success over the time (2) Sequence of operations. You must operations impact. frame approved by BLM; and avoid unnecessary impacts and facilitate (ii) Where economically and (v) Where you demonstrate reclamation by following a reasonable technically feasible, you must return revegetation is not achievable under this and customary mineral exploration, disturbed wetlands and riparian areas to paragraph, you must use other development, mining and reclamation a properly functioning condition. techniques to minimize erosion and sequence. Wetlands and riparian areas are stabilize the project area, subject to BLM (3) Land-use plans. Consistent with functioning properly when adequate approval. the mining laws, your operations and vegetation, land form, or large woody (6) Fish, wildlife, and plants. (i) You post-mining land use must comply with debris is present to dissipate stream must minimize disturbances and the applicable BLM land-use plans and energy associated with high water flows, adverse impacts on fish, wildlife, and activity plans, and with coastal zone thereby reducing erosion and improving related environmental values.

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(ii) You must take any necessary (iii) When commercial hauling on an system that will minimize the release of measures to protect Federally proposed existing BLM road is involved, BLM leaching solutions to the environment. or listed threatened or endangered may require you to make appropriate You must monitor to detect potential species, both plants and animals, or arrangements for use, maintenance, and releases of contaminants from heaps, their proposed or designated critical safety. process ponds, tailings impoundments, habitat as required by the Endangered (iv) You must remove and reclaim and other structures and remediate Species Act. roads and structures according to BLM environmental impacts if leakage (iii) You must take any necessary land-use plans and activity plans, occurs. action to minimize the adverse effects of unless retention is approved by BLM. (iii) You must design, construct, and your operations, including access, on (2) Drill holes. (i) You must not allow operate cyanide or other leaching BLM-defined special status species. drilling fluids and cuttings to flow off facilities and impoundments to contain (iv) You must rehabilitate fisheries the drill site. precipitation from the local 100-year, and wildlife habitat affected by your (ii) You must plug all exploration drill 24-hour storm event in addition to the operations. holes to prevent mixing of waters from maximum process solution inventory. (7) Cultural, paleontologic, and cave aquifers, impacts to beneficial uses, Your design must also include resources. (i) You must not knowingly downward water loss, or upward water allowances for snowmelt events and disturb, alter, injure, or destroy any loss from artesian conditions. draindown from heaps during power scientifically important paleontologic (iii) You must conduct surface outages in the design. remains or any historic, archaeologic, or plugging to prevent direct inflow of (iv) You must construct a secondary cave-related site, structure, building, surface water into the drill hole and to containment system around vats, tanks, resource, or object unless — eliminate the open hole as a hazard. or recovery circuits adequate to prevent (A) You identify the resource in your (3) Acid-forming, toxic, or other the release of toxic solutions to the notice or plan of operations; deleterious materials. You must environment in the event of primary (B) You propose action to protect, incorporate identification, handling, containment failure. remove or preserve the resource; and (C) and placement of potentially acid- (v) You must exclude access by the BLM specifically authorizes such action forming, toxic or other deleterious public, wildlife, or livestock to solution in your plan of operations, or does not materials into your operations, facility containment and transfer structures that prohibit such action under your notice. design, reclamation, and environmental contain lethal levels of cyanide or other (ii) You must immediately bring to monitoring programs to minimize the solutions. BLM’s attention any previously formation and impacts of acidic, (vi) During closure and at final unidentified historic, archaeologic, alkaline, metal-bearing, or other reclamation, you must detoxify leaching cave-related, or scientifically important deleterious leachate, including the solutions and heaps and manage tailings paleontologic resources that might be following: or other process waste to minimize altered or destroyed by your operations. (i) You must handle, place, or treat impacts to the environment from You must leave the discovery intact potentially acid-forming, toxic, or other contact with toxic materials or leachate. until BLM authorizes you to proceed. deleterious materials in a manner that Acceptable practices to detoxify BLM will evaluate the discovery and minimizes the likelihood of acid solutions and materials include natural take action to protect, remove, or formation and toxic and other degradation, rinsing, chemical preserve the resource within 30 deleterious leachate generation (source treatment, or equally successful calendar days after you notify BLM of control); alternative methods. Upon completion the discovery, unless otherwise agreed (ii) If you cannot prevent the of reclamation, all materials and to by the operator and BLM, or unless formation of acid, toxic, or other discharges must meet applicable otherwise provided by law. deleterious drainage, you must standards. (iii) BLM has the responsibility for minimize uncontrolled migration of (vii) In cases of temporary or seasonal determining who bears the cost of the leachate; and closure, you must provide adequate investigation, recovery, and (iii) You must capture and treat acid maintenance, monitoring, security, and preservation of discovered historic, drainage, or other undesirable effluent, financial guarantee, and BLM may archaeologic, cave-related, and to the applicable standard if source require you to detoxify process paleontologic resources, or of any controls and migration controls do not solutions. human remains and associated funerary prove effective. You are responsible for (5) Waste rock, tailings, and leach objects. If BLM incurs costs associated any costs associated with water pads. You must locate, design, with investigation and recovery, BLM treatment or facility maintenance after construct, operate, and reclaim waste will recover the costs from the operator project closure. Long-term, or post- rock, tailings, and leach pads to on a case-by-case basis, after an mining, effluent capture and treatment minimize infiltration and contamination evaluation of the factors set forth in are not acceptable substitutes for source of surface water and ground water; section 304(b) of FLPMA. and migration control, and you may rely achieve stability; and, to the extent (c) Operational performance on them only after all reasonable source economically and technically feasible, standards. and migration control methods have blend with pre-mining, natural (1) Roads and structures. (i) You must been employed. topography. design, construct, and maintain roads (4) Leaching Operations and (6) Stability, grading and erosion and structures to minimize erosion, Impoundments. (i) You must design, control. (i) You must grade or otherwise siltation, air pollution and impacts to construct, and operate all leach pads, engineer all disturbed areas to a stable resources. tailings impoundments, ponds, and condition to minimize erosion and (ii) Where it is economically and solution-holding facilities according to facilitate revegetation. technically feasible, you must use standard engineering practices to (ii) You must recontour all areas to existing access and follow the natural achieve and maintain stability and blend with pre-mining, natural contour of the land to minimize surface facilitate reclamation. topography to the extent economically disturbance, including cut and fill, and (ii) You must construct a low- and technically feasible. You may to maintain safe design. permeability liner or containment temporarily retain a highwall or other

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70124 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations mine workings in a stable condition to regulations issued under the Solid (11) Protection of survey monuments. preserve evidence of mineralization. Waste Disposal Act, as amended by the (i) To the extent economically and (iii) You must minimize erosion Resource Conservation and Recovery technically feasible, you must protect all during all phases of operations. Act (42 U.S.C. 6901 et seq.). survey monuments, witness corners, (7) Pit reclamation. (i) Based on the (ii) You must remove from the project reference monuments, bearing trees, and site-specific review required in area, dispose of, or treat all non-mine line trees against damage or destruction. § 3809.401and the environmental garbage, refuse, or waste to minimize analysis of the plan of operations, BLM their impact. (ii) If you damage or destroy a will determine the amount of pit (9) Fire prevention and control. You monument, corner, or accessory, you backfilling required, if any, taking into must comply with all applicable Federal must immediately report the matter to consideration economic, environmental, and State fire laws and regulations, and BLM. BLM will tell you in writing how and safety factors. take all reasonable measures to prevent to restore or re-establish a damaged or (ii) You must apply mitigation and suppress fires in the project area. destroyed monument, corner, or measures to minimize the impacts (10) Maintenance and public safety. accessory. created by any pits or disturbances that During all operations and after mining— are not completely backfilled . (i) You must maintain structures, § 3809.423 How long does my plan of (iii) Water quality in pits and other equipment, and other facilities in a safe operations remain in effect? water impoundments must comply with and orderly manner; Your plan of operations remains in applicable Federal, State, and where (ii) You must mark by signs or fences, effect as long as you are conducting appropriate, local government water or otherwise identify hazardous sites or operations, unless BLM suspends or quality standards. Where no standards conditions resulting from your revokes your plan of operations for exist, you must take measures to protect operations to alert the public in accord failure to comply with this subpart. wildlife, domestic livestock, and public with applicable Federal and State laws water supplies and users. and regulations; and § 3809.424 What are my obligations if I (8) Solid waste. (i) You must comply (iii) You must restrict unaccompanied stop conducting operations? with applicable Federal, State, and public access to portions of your where delegated by the State, local operations that present a hazard to the (a) To see what you must do if you government standards for the disposal public, consistent with §§ 3809.600 and stop conducting operations, follow this and treatment of solid waste, including 3712.1 of this title. table:

IfÐ ThenÐ

(1) You stop conducting operations for any period of time ...... (1) You must follow your approved interim management plan submitted under § 3809.401(b)(5); (ii) You must submit a modification to your interim management plan to BLM within 30 calendar days if it does not cover the circumstances of your temporary closure per § 3809.431(a); (iii) You must take all necessary actions to assure that unnecessary or undue degradation does not occur; and (iv) You must maintain an adequate financial guarantee.

(2) The period of non-operation is likely to cause unnecessary or undue The BLM will require you to take all necessary actions to assure that degradation. unnecessary or undue degradation does not occur, including requir- ing you, after an extended period of non-operation for other than seasonal operations, to remove all structures, equipment, and other facilities and reclaim the project area.

(3) Your operations are inactive for 5 consecutive years ...... BLM will review your operations and determine whether BLM should terminate your plan of operations and direct final reclamation and closure.

(4) BLM determines that you abandoned your operations ...... BLM may initiate forfeiture under § 3809.595. If the amount of the fi- nancial guarantee is inadequate to cover the costs of reclamation, BLM may complete the reclamation, and the operator and all other responsible persons are liable for the costs of such reclamation. See § 3809.336(a) for indicators of abandonment.

(b) Your reclamation and closure § 3809.431 When must I modify my plan of circumstances or information, including obligations continue until satisfied. operations? the following: You must modify your plan of Modifications of Plans of Operations (1) Development of acid or toxic operations when any of the following drainage; apply: § 3809.430 May I modify my plan of (2) Loss of surface springs or water operations? (a) Before making any changes to the operations described in your approved supplies; Yes, you may request a modification plan of operations; (3) The need for long-term water of the plan at any time during (b) When BLM requires you to do so treatment and site maintenance; operations under an approved plan of to prevent unnecessary or undue (4) Repair of reclamation failures; operations. degradation; and (c) Before final closure, to address (5) Plans for assuring the adequacy of impacts from unanticipated events or containment structures and the integrity conditions or newly discovered of closed waste units;

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(6) Providing for post-closure in the same manner as it reviewed and additional analysis under the National management; and (7) Eliminating approved your initial plan under Environmental Policy Act. hazards to public safety. §§ 3809.401 through 3809.420; or § 3809.433 Does this subpart apply to a § 3809.432 What process will BLM follow (b) BLM will accept a minor new modification of my plan of operations? in reviewing a modification of my plan of modification without formal approval if To see how this subpart applies to a operations? it is consistent with the approved plan modification of your plan of operations (a) BLM will review and approve a of operations and does not constitute a that you submit to BLM after January 20, modification of your plan of operations substantive change that requires 2001, refer to the following table.

If you have an approved plan of operations on January 20, 2001 ThenÐ

(a) New facility. You subsequently propose to modify your plan of oper- The plan contents requirements (§ 3809.401) and performance stand- ations by constructing a new facility, such as waste rock repository, ards (§ 3809.420) of this subpart apply to the new facility. Those fa- leach pad, impoundment, drill site, or road. cilities and areas not included in the modification may continue to operate under the terms of your existing plan of operations. (b) Existing facility. You subsequently propose to modify your plan of The plan contents requirements (§ 3809.401) and performance stand- operations by modifying an existing facility, such as expansion of a ards (§ 3809.420) of this subpart apply to the modified portion of the waste rock repository, leach pad, or impoundment; layback of a mine facility, unless you demonstrate to BLM's satisfaction it is not prac- pit; or widening of a road. tical to apply them for economic environmental, safety, or technical reasons. If you make the demonstration, the plan content require- ments (43 CFR 3809.1±5) and performance standards (43 CFR 3809.1±3(d) and 3809.2±2) that were in effect immediately before January 20, 2001 apply to your modified facility. (See 43 CFR parts 1000±end, revised as of Oct. 1, 2000.)

§ 3809.434 How does this subpart apply to a plan of operations that was pending (d) If you want this subpart to apply pending modifications for new or existing on January 20, 2001. See § 3809.505 for to your pending modification of a plan facilities? applicability of financial guarantee of operations, where not otherwise (a) This subpart applies to requirements. required, you may choose to have this modifications pending before BLM on subpart apply. January 20, 2001 to construct a new (c) If your unapproved modification of facility, such as a waste rock repository, a plan of operations is pending on Financial Guarantee Requirements— leach pad, drill site, or access road; or January 20, 2001, then the plan content General to modify an existing mine facility such requirements (§ 3809.1–5) and the as expansion of a waste rock repository performance standards (§§ 3809.1–3(d) § 3809.500 In general, what are BLM's or leach pad. and 3809.2–2) that were in effect financial guarantee requirements? (b) All provisions of this subpart, immediately before January 20, 2001 To see generally what BLM’s financial except plan content (§ 3809.401) and apply to your modification of a plan of guarantee requirements are, follow this performance standards (§§ 3809.415 and operations. (See 43 CFR parts 1000–end, table: 3809.420) apply to any modification of revised as of Oct. 1, 2000).

IfÐ ThenÐ

(a) Your operations constitute casual use, ...... You do not have to provide any financial guarantee.

(b) You conduct operations under a notice or a plan of operations ...... You must provide BLM or the State a financial guarantee that meets the requirements of this subpart before starting operations oper- ations. For more information, see §§ 3809.551 through under a 3809.573.

§ 3809.503 When must I provide a financial guarantee for my notice-level operations? To see how this subpart applies to your notice, follow this table:

IfÐ ThenÐ

(a) Your notice was on file with BLM on January 20, 2001 ...... You do not need to provide a financial guarantee unless you modify the notice or extend the notice under § 3809.333.

(b) Your notice was on file with BLM before January 20, 2001 and you You must provide a financial guarantee before you can begin oper- choose to modify your notice as required by this subpart on or after ations under the modified notice. If you modify your notice, you must that date. post a finacial guarantee for the entire notice.

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

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§ 3809.505 How do the financial guarantee than July 19, 2001 at the local BLM § 3809.551 What are my choices for requirements of this subpart apply to my office with jurisdiction over the lands providing BLM with a financial guarantee? existing plan of operations? involved. You do not need to post a new You must provide BLM with a For each plan of operations approved financial guarantee if your existing financial guarantee using any of the 3 before January 20, 2001, you must post financial guarantee satisfies this options in the following table: a financial guarantee according to the subpart. requirements of this subpart no later

IfÐ ThenÐ

(a) You have only one notice or plan of operations, or wish to provide a You may provide an individual financial guarantee that covers only the financial guarantee for a single notice or plan of operations. cost of reclaiming areas disturbed under the single notice or plan of operations. See §§ 3809.552 through 3809.556 for more information.

(b) You are currently operating under more than one notice or plan of You may provide a blanket financial guarantee covering statewide or operations. nationwide operations. See § 3809.560 for more information.

(c) You do not choose one of the options in paragraphs (a) and (b) of You may provide evidence of an existing financial guarantee under this section. State law or regulations. See §§ 3809.570 through 3809.573 for more information.

Individual Financial Guarantee § 3809.553 May I post a financial guarantee account of the United States Treasury by for a part of my operations? BLM; § 3809.552 What must my individual (a) Yes, BLM may authorize you to (c) Irrevocable letters of credit from a financial guarantee cover? provide a financial guarantee covering a bank or financial institution organized (a) If you conduct operations under a part of your operations if— or authorized to transact business in the notice or a plan of operations and you (1) Your operations do not go beyond United States; provide an individual financial what is specifically covered by the (d) Certificates of deposit or savings guarantee, it must cover the estimated partial financial guarantee; and accounts not in excess of the maximum cost as if BLM were to contract with a (2) The partial financial guarantee insurable amount as set by the Federal third party to reclaim your operations covers all reclamation costs within the Deposit Insurance Corporation; and (e) Either of the following instruments according to the reclamation plan, incremental area of operations. having a market value of not less than including construction and maintenance (b) BLM will review the amount and the required dollar amount of the costs for any treatment facilities terms of the financial guarantee for each increment of your operations at least financial guarantee and maintained in a necessary to meet Federal and State annually. Securities Investors Protection environmental standards. The financial Corporation insured trust account by a guarantee must also cover any interim § 3809.554 How do I estimate the cost to licensed securities brokerage firm for stabilization and infrastructure reclaim my operations? the benefit of the Secretary of the maintenance costs needed to maintain (a) You must estimate the cost to Interior, acting by and through BLM: the area of operations in compliance reclaim your operations as if BLM were (1) Negotiable United States with applicable environmental hiring a third-party contractor to Government, State and Municipal requirements while third-party contracts perform reclamation of your operations securities or bonds; or are developed and executed. after you have vacated the project area. (2) Investment-grade rated securities (b) BLM will periodically review the Your estimate must include BLM’s cost having a Standard and Poor’s rating of estimated cost of reclamation and the to administer the reclamation contract. AAA or AA or an equivalent rating from Contact BLM to obtain this adequacy of any funding mechanism a nationally recognized securities rating administrative cost information. established under paragraph (c) of this service. (b) Your estimate of the cost to section and require increased coverage, (f) Insurance, if its form and function reclaim your operations must be is such that the funding or enforceable if necessary. acceptable to BLM. pledges of funding are used to guarantee (c) When BLM identifies a need for it, performance of regulatory obligations in you must establish a trust fund or other § 3809.555 What forms of individual financial guarantee are acceptable to BLM? the event of default on such obligations funding mechanism available to BLM to by the operator. Insurance must have an ensure the continuation of long-term You may use any of the following A.M. Best rating of ‘‘superior’’ or an treatment to achieve water quality instruments for an individual financial equivalent rating from a nationally standards and for other long term, post- guarantee, provided that the BLM State recognized insurance rating service. Director has determined that it is an mining maintenance requirements. The acceptable financial instrument within § 3809.556 What special requirements funding must be adequate to provide for the State where the operations are apply to financial guarantees described in construction, long-term operation, proposed: § 3809.555(e)? maintenance, or replacement of any (a) Surety bonds that meet the (a) If you choose to use the treatment facilities and infrastructure, requirements of Treasury Department instruments permitted under for as long as the treatment and facilities Circular 570, including surety bonds § 3809.555(e) in satisfaction of financial are needed after mine closure. BLM may arranged or paid for by third parties; guarantee requirements, you must identify the need for a trust fund or (b) Cash in an amount equal to the provide BLM, before you begin other funding mechanism during plan required dollar amount of the financial operations and by the end of each review or later. guarantee, to be deposited and calendar year thereafter, a certified maintained in a Federal depository statement describing the nature and

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations 70127 market value of the instruments State-Approved Financial Guarantee (b) Replace or augment the financial maintained in that account, and guarantee within 30 calendar days if the § 3809.570 Under what circumstances may available balance is insufficient to cover including any current statements or I provide a State-approved financial reports furnished by the brokerage firm guarantee? the remaining reclamation cost. to the operator or mining claimant When you provide evidence of an § 3809.574 What happens if I have an concerning the asset value of the existing financial guarantee under State existing corporate guarantee? account. law or regulations that covers your (a) If you have an existing corporate (b) You must review the market value operations, you are not required to guarantee on January 20, 2001 that of the account instruments by December provide a separate financial guarantee applies to public lands under an 31 of each year to ensure that their under this subpart if— approved BLM and State agreement, market value continues to be not less (a) The existing financial guarantee is your corporate guarantee will continue than the required dollar amount of the redeemable by the Secretary, acting by in effect. BLM will not accept any new financial guarantee. When the market and through BLM; corporate guarantees or increases to (b) It is held or approved by a State existing corporate guarantees. You may value of the account instruments has agency for the same operations covered declined by more than 10 percent of the not transfer your existing corporate by your notice(s) or plan(s) of guarantee to another operator. required dollar amount of the financial operations; and guarantee, you must, within 10 calendar (b) If the State revises existing (c) It provides at least the same corporate guarantee criteria or days after its annual review or at any amount of financial guarantee as time upon the written request of BLM, requirements that apply to a corporate required by this subpart. guarantee existing on January 20, 2001, provide additional instruments, as the BLM State Director will review the defined in § 3809.555(e), to the trust § 3809.571 What forms of State-approved financial guarantee are acceptable to BLM? revisions to ensure that adequate account so that the total market value of You may provide a State-approved financial coverage continues. If the BLM all account instruments is not less than financial guarantee in any of the State Director determines it is in the the required dollar amount of the following forms, subject to the public interest to do so, the State financial guarantee. You must send a conditions in §§ 3809.570 and 3809.574: Director may terminate a revised certified statement to BLM within 45 (a) The kinds of individual financial corporate guarantee and require an calendar days thereafter describing your guarantees specified under § 3809.555; acceptable replacement financial actions to raise the market value of its (b) Participation in a State bond pool, guarantee after due notice and a account instruments to the required if— reasonable time to obtain a replacement. dollar amount of the financial (1) The State agrees that, upon BLM’s guarantee. You must include copies of request, the State will use part of the Modification or Replacement of a Financial Guarantee any statements or reports furnished by pool to meet reclamation obligations on the brokerage firm to you documenting public lands; and § 3809.580 What happens if I modify my such an increase. (2) The BLM State Director notice or approved plan of operations? determines that the State bond pool (a) If you modify a notice or an (c) If your review under paragraph (b) provides the equivalent level of of this section demonstrates that the approved plan of operations under protection as that required by this § 3809.331 or § 3809.431 respectively, total market value of trust account subpart; or instruments exceeds 110 percent of the and your estimated reclamation cost (c) A corporate guarantee that existed increases, you must increase the amount required dollar amount of the financial on January 20, 2001, subject to the guarantee, you may ask BLM to of the financial guarantee to cover any restrictions on corporate guarantees in estimated additional cost of reclamation authorize a written release of that § 3809.574. and long-term treatment in compliance portion of the account that exceeds 110 with § 3809.552. percent of the required financial § 3809.572 What happens if BLM rejects a financial instrument in my State-approved (b) If you modify a notice or an guarantee. BLM will approve your financial guarantee? approved plan of operations under request only if you are in compliance If BLM rejects a submitted financial § 3809.331 or § 3809.431 respectively, with the terms and conditions of your instrument in an existing State- and your estimated reclamation cost notice or approved plan of operations. approved financial guarantee, BLM will decreases, you may request BLM Blanket Financial Guarantee notify you and the State in writing, with decrease the amount of the financial a complete explanation of the reasons guarantee for your operations. § 3809.560 Under what circumstances may for the rejection within 30 calendar days I provide a blanket financial guarantee? § 3809.581 Will BLM accept a replacement of BLM’s receipt of the evidence of financial instrument? State-approved financial guarantee. You (a) If you have more than one notice- (a) Yes, if you or a new operator have must provide BLM with a financial or plan-level operation underway, you an approved financial guarantee, you guarantee acceptable under this subpart may provide a blanket financial may request BLM to accept a at least equal to the amount of the guarantee covering statewide or replacement financial instrument at any rejected financial instrument. nationwide operations instead of time after the approval of an initial individual financial guarantees for each § 3809.573 What happens if the State instrument. BLM will review the offered operation. makes a demand against my financial instrument for adequacy and may reject guarantee? (b) BLM will accept a blanket any offered instrument, but will do so by a decision in writing, with a financial guarantee if we determine that When the State makes a demand against your financial guarantee, thereby complete explanation of the reasons for its terms and conditions are sufficient to reducing the available balance, you the rejection, within 30 calendar days of comply with the regulations of this must do both of the following: the offering. subpart. (a) Notify BLM within 15 calendar (b) A surety is not released from an days; and obligation that accrued while the surety

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(c) BLM may release the remainder of (b) BLM will release the remainder of your financial guarantee for the same the financial guarantee, including the § 3809.582 How long must I maintain my portion covering approved access financial guarantee? portion of the project area when— (1) BLM determines that you have outside the boundaries of the mining You must maintain your financial successfully completed reclamation, claim, when you have completed guarantee until you or a new operator including revegetating the area reclamation to the standards of this replace it with another adequate disturbed by operations; and subpart. financial guarantee, subject to BLM’s (2) Any effluent discharged from the written concurrence, or until BLM Forfeiture of Financial Guarantee area has met applicable effluent releases the requirement to maintain limitations and water quality standards § 3809.595 When may BLM initiate your financial guarantee after you have for one year without needing additional forfeiture of my financial guarantee? completed reclamation of your treatment, or you have established a BLM may initiate forfeiture of all or operation according to the requirements funding mechanism under § 3809.552(c) part of your financial guarantee for any of § 3809.320 (for notices), including to pay for long-term treatment, and any project area or portion of a project area any measures identified as the result of effluent discharged from the area has if— consultation with BLM under met applicable effluent limitations and (a) You (the operator or mining § 3809.313, or § 3809.420 (for plans of water quality standards water for one claimant) refuse or are unable to operations). year with or without treatment. conduct reclamation as provided in the Release of Financial Guarantee reclamation measures incorporated into § 3809.592 Does release of my financial your notice or approved plan of § 3809.590 When will BLM release or guarantee relieve me of all responsibility for operations or the regulations in this my project area? reduce the financial guarantee for my notice subpart; or plan of operations? (a) Release of your financial guarantee (b) You fail to meet the terms of your (a) When you (the mining claimant or under this subpart does not release you notice or your approved plan of operator) have completed all or any (the mining claimant or operator) from operations; or portion of the reclamation of your responsibility for reclamation of your (c) You default on any of the operations in accordance with your operations should reclamation fail to conditions under which you obtained notice or approved plan of operations, meet the standards of this subpart. the financial guarantee. you may notify BLM that the (b) Any release of your financial reclamation has occurred and request a guarantee under this subpart does not § 3809.596 How does BLM initiate reduction in the financial guarantee or release or waive any claim BLM or other forfeiture of my financial guarantee? BLM approval of the adequacy of the persons may have against any person When BLM decides to require the reclamation, or both. under the Comprehensive forfeiture of all or part of your financial (b) BLM will then promptly inspect Environmental Response, Compensation guarantee, BLM will notify you (the the reclaimed area. We encourage you to and Liability Act of 1980, as amended, operator or mining claimant) by accompany the BLM inspector. 42 U.S.C. 9601 et seq., or under any certified mail, return receipt requested; (c) For your plan of operations, BLM other applicable statutes or regulations. the surety on the financial guarantee, if will either post in the local BLM office any; and the State agency holding the or publish notice of final financial § 3809.593 What happens to my financial financial guarantee, if any, informing guarantee release in a local newspaper guarantee if I transfer my operations? you and them of the following: of general circulation and accept You remain responsible for (a) BLM’s decision to require the comments for 30 calendar days. obligations or conditions created while forfeiture of all or part of the financial Subsequently, BLM will notify you, in you conducted operations unless a guarantee; writing, whether you may reduce the transferee accepts responsibility under (b) The reasons for the forfeiture; financial guarantee under § 3809.591, or § 3809.116, and BLM accepts an (c) The amount that you will forfeit the reclamation is acceptable, or both. adequate replacement financial based on the estimated total cost of guarantee. Therefore, your financial achieving the reclamation plan § 3809.591 What are the limitations on the guarantee must remain in effect until requirements for the project area or amount by which BLM may reduce my BLM determines that you are no longer portion of the project area affected, financial guarantee? responsible for all or part of the including BLM’s administrative costs; (a) This section applies to your operation. BLM can release your and financial guarantee, but not to any financial guarantee on an incremental (d) How you may avoid forfeiture, funding mechanism established under basis. The new operator must provide a including— § 3809.552(c) to pay for long-term financial guarantee before BLM will (1) Providing a written agreement treatment of effluent or site allow the new operator to conduct under which you or another person will maintenance. Calculation of bond operations. perform reclamation operations in percentages in paragraphs (b) and (c) of accordance with a compliance schedule this section does not include any funds § 3809.594 What happens to my financial which meets the conditions of your held in that kind of funding mechanism. guarantee when my mining claim or millsite notice or your approved plan of (b) BLM may release up to 60 percent is patented? operations and the reclamation plan, of your financial guarantee for a portion (a) When your mining claim or and a demonstration that such other of your project area when BLM millsite is patented, BLM will release person has the ability to satisfy the determines that you have successfully the portion of the financial guarantee conditions; and completed backfilling; regrading; that applies to operations within the (2) Obtaining written permission from establishment of drainage control; and boundaries of the patented land. This BLM for a surety to complete the stabilization and detoxification of paragraph does not apply to patents reclamation, or the portion of the leaching solutions, heaps, tailings, and issued on mining claims within the reclamation applicable to the bonded

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If your of your notice, plan of operation, or this § 3809.597 What if I do not comply with subpart, and you have failed to correct BLM's forfeiture decision? operations do not comply with any provision of your notice, plan of the violation within the time specified If you fail to meet the requirements of operations, or requirement of this in the enforcement order issued under BLM’s forfeiture decision provided subpart, BLM may issue you a § 3809.601; or under § 3809.596, and you fail to appeal noncompliance order; and (2) a pattern of violations exists at the forfeiture decision under your operations. (b) Suspension orders. (1) BLM may §§ 3809.800 to 3809.807, or the Interior (b) The finding is not effective until order a suspension of all or any part of Board of Land Appeals does not grant a BLM notifies you of its intent to revoke your operations after— stay under 43 CFR 4.321, or the decision your plan or nullify your notice, and appealed is affirmed, BLM will— (i) You fail to timely comply with a BLM provides you an opportunity for an (a) Immediately collect the forfeited noncompliance order for a significant informal hearing before the BLM State amount as provided by applicable laws violation issued under paragraph (a) of Director. for the collection of defaulted financial this section. A significant violation is (c) If BLM nullifies your notice or guarantees, other debts, or State bond one that causes or may result in revokes your plan of operations, you pools; and environmental or other harm or danger must not conduct operations on the or that substantially deviates from the (b) Use funds collected from financial public lands in the project area, except complete notice or approved plan of for reclamation and other measures guarantee forfeiture to implement the operations; reclamation plan, or portion thereof, on specified by BLM. the area or portion of the area to which (ii) BLM notifies you of its intent to issue a suspension order; and § 3809.603 How does BLM serve me with financial guarantee coverage applies. an enforcement action? (iii) BLM provides you an opportunity § 3809.598 What if the amount forfeited for an informal hearing before the BLM (a) BLM will serve a noncompliance will not cover the cost of reclamation? State Director to object to a suspension. order, a notification of intent to issue a suspension order, a suspension order, or If the amount forfeited is insufficient (2) BLM may order an immediate, other enforcement order on the person to pay for the full cost of reclamation, temporary suspension of all or any part to whom it is directed or his or her the operators and mining claimants are of your operations without issuing a designated agent, either by— jointly and severally liable for the noncompliance order, notifying you in (1) Sending a copy of the notification remaining costs. BLM may complete or advance, or providing you an or order by certified mail or by hand to authorize completion of reclamation of opportunity for an informal hearing if— the operator or his or her designated the area covered by the financial (i) You do not comply with any agent, or by any means consistent with guarantee and may recover from provision of your notice, plan of the rules governing service of a responsible persons all costs of operations, or this subpart; and summons and complaint under rule 4 of reclamation in excess of the amount (ii) An immediate, temporary the Federal Rules of Civil Procedure. forfeited. suspension is necessary to protect Service is complete upon offer of the § 3809.599 What if the amount forfeited health, safety, or the environment from notification or order or of the certified exceeds the cost of reclamation? imminent danger or harm. BLM may mail and is not incomplete because of presume that an immediate suspension If the amount of financial guarantee refusal to accept; or is necessary if you conduct plan-level (2) Offering a copy at the project area forfeited is more than the amount operations without an approved plan of to the designated agent or to the necessary to complete reclamation, BLM operations or conduct notice-level individual who, based upon reasonable will return the unused funds within a operations without submitting a inquiry, appears to be in charge. If no reasonable amount of time to the party complete notice. such individual can be located at the from whom they were collected. (3) BLM will terminate a suspension project area, BLM may offer a copy to Inspection and Enforcement order under paragraph (b)(1) or (b)(2) of any individual at the project area who appears to be an employee or agent of § 3809.600 With what frequency will BLM this section when BLM determines you inspect my operations? have corrected the violation. the person to whom the notification or (c) Contents of enforcement orders. order is issued. Service is complete (a) At any time, BLM may inspect Enforcement orders will specify— when the notice or order is offered and your operations, including all (1) How you are failing or have failed is not incomplete because of refusal to structures, equipment, workings, and accept. Following service at the project uses located on the public lands. The to comply with the requirements of this subpart; area, BLM will send an information inspection may include verification that copy by certified mail to the operator or your operations comply with this (2) The portions of your operations, if the operator’s designated agent. subpart. See § 3715.7 of this title for any, that you must cease or suspend; (b) BLM may serve a mining claimant special provisions governing inspection (3) The actions you must take to in the same manner an operator is of the inside of structures used solely correct the noncompliance and the time, served under paragraph (a)(1) of this for residential purposes. not to exceed 30 calendar days, within section. (b) At least 4 times each year, BLM which you must start corrective action; (c) The mining claimant or operator will inspect your operations if you use and may designate an agent for service of cyanide or other leachate or where there (4) The time within which you must notifications and orders. You must is significant potential for acid drainage. complete corrective action. provide the designation in writing to the

VerDate 112000 17:22 Nov 20, 2000 Jkt 194001 PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 E:\FR\FM\21NOR2.SGM pfrm01 PsN: 21NOR2 70130 Federal Register / Vol. 65, No. 225 / Tuesday, November 21, 2000 / Rules and Regulations local BLM field office having Penalties history of previous violations at the jurisdiction over the lands involved. particular mining operation; the § 3809.700 What criminal penalties apply seriousness of the violation, including to violations of this subpart? § 3809.604 What happens if I do not any irreparable harm to the environment comply with a BLM order? The criminal penalties established by and any hazard to the health or safety (a) If you do not comply with a BLM statute for individuals and organizations of the public; whether you were order issued under §§ 3809.601 or are as follows: negligent; and whether you demonstrate (a) Individuals. If you knowingly and 3809.602, the Department of the Interior good faith in attempting to achieve willfully violate the requirements of this may request the United States Attorney rapid compliance after notification of subpart, you may be subject to arrest to institute a civil action in United the violation. and trial under section 303(a) of FLPMA States District Court for an injunction or (43 U.S.C. 1733(a)). If you are convicted, (4) If you are a small entity, BLM will, order to enforce its order, prevent you you will be subject to a fine of not more under appropriate circumstances from conducting operations on the than $100,000 or the alternative fine including those described in paragraph public lands in violation of this subpart, provided for in the applicable (a)(3) of this section, consider reducing and collect damages resulting from provisions of 18 U.S.C. 3571, or or waiving a civil penalty and may unlawful acts. This relief may be in imprisonment not to exceed 12 months, consider ability to pay in determining a addition to the enforcement actions or both, for each offense; and penalty assessment. described in §§ 3809.601 and 3809.602 (b) Organizations. If an organization (b) A final administrative assessment and the penalties described in or corporation knowingly and willfully of a civil penalty occurs only after BLM §§ 3809.700 and 3809.702. violates the requirements of this has notified you of the assessment and (b) If you fail to timely comply with subpart, it is subject to trial and, if given you opportunity to request within a noncompliance order issued under convicted, will be subject to a fine of not 30 calendar days a hearing by the Office § 3809.601(a), and remain in more than $200,000, or the alternative of Hearings and Appeals. BLM may noncompliance, BLM may order you to fine provided for in the applicable extend the time to request a hearing submit plans of operations under provisions of 18 U.S.C. 3571. during settlement discussions. If you § 3809.401 for current and future notice- request a hearing, the Office of Hearings § 3809.701 What happens if I make false level operations. and Appeals will issue a decision on the statements to BLM? penalty assessment. § 3809.605 What are prohibited acts under Under Federal statute (18 U.S.C. (c) If BLM issues you a proposed civil this subpart? 1001), you are subject to arrest and trial penalty and you fail to request a hearing before a United States District Court if, Prohibited acts include, but are not as provided in paragraph (b), the in any matter under this subpart, you limited to, the following: proposed assessment becomes a final knowingly and willfully falsify, conceal, order of the Department, and the (a) Causing any unnecessary or undue or cover up by any trick, scheme, or penalty assessed becomes due upon degradation; device a material fact, or make any false, expiration of the time allowed to request (b) Beginning any operations, other fictitious, or fraudulent statements or a hearing. than casual use, before you file a notice representations, or make or use any false as required by § 3809.21 or receive an writings or document knowing the same § 3809.703 Can BLM settle a proposed civil approved plan of operations as required to contain any false, fictitious, or penalty? by § 3809.412; fraudulent statement or entry. If you are Yes, BLM may negotiate a settlement convicted, you will be subject to a fine (c) Conducting any operations outside of civil penalties, in which case BLM of not more than $250,000 or the will prepare a settlement agreement. the scope of your notice or approved alternative fine provided for in the plan of operations; The BLM State Director or his or her applicable provisions of 18 U.S.C. 3571 designee must sign the agreement. (d) Beginning operations prior to or imprisonment for not more than 5 providing a financial guarantee that years, or both. Appeals meets the requirements of this subpart; § 3809.702 What civil penalties apply to § 3809.800 Who may appeal BLM (e) Failing to meet the requirements of violations of this subpart? decisions under this subpart? this subpart when you stop conducting (a)(1) Following issuance of an order (a) A party adversely affected by a operations under a notice (§ 3809.334), under § 3809.601, BLM may assess a decision under this subpart may ask the when your notice expires (§ 3809.335), proposed civil penalty of up to $5,000 State Director of the appropriate BLM or when you stop conducting operations for each violation against you if you— State Office to review the decision. under an approved plan of operations (i) Violate any term or condition of a (b) An adversely affected party may (§ 3809.424); plan of operations or fail to conform bypass State Director review and (f) Failing to comply with any with operations described in your directly appeal a BLM decision under applicable performance standards in notice; this subpart to the Office of Hearings § 3809.420; (ii) Violate any provision of this and Appeals (OHA) under part 4 of this subpart; or (g) Failing to comply with any title. See § 3809.801. (iii) Fail to comply with an order enforcement actions provided for in issued under § 3809.601. § 3809.801 When may I file an appeal of § 3809.601; or (2) BLM may consider each day of the BLM decision with OHA? (h) Abandoning any operation prior to continuing violation a separate violation (a) If you intend to appeal a BLM complying with any reclamation for purposes of penalty assessments. decision under this subpart, use the required by this subpart or any order (3) In determining the amount of the following table to see when you must provided for in § 3809.601. penalty, BLM must consider your file a notice of appeal with OHA:

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Then if you intend to appeal, you must file a no- IfÐ AndÐ tice of appeal with OHAÐ

(1) You do not request State Director review ...... Within 30 calendar days after the date you re- ceive the original decision. (2) You request State Director review ...... The State Director does not accept your re- On the original decision within 30 calendar days quest for review. of the date you receive the State Director's de- cision not to review. (3) You request State Director review ...... The State Director has accepted your re- On the original decision before the State Director quest for review, but has not made a deci- issues a decision. sion on the merits of the appeal. (4) You request State Director review ...... The State Director makes a decision on the On the State Director's decision within 30 cal- merits of the appeal. endar days of the date you receive, or are noti- fied of, the State Director's decision.

(b) In order for OHA to consider your you as soon as possible if he or she can (b) Any decision issued by the State appeal of a decision, you must file a accommodate your meeting request. Director under this subpart may affirm notice of appeal in writing with the the original BLM decision, reverse it BLM office where the decision was § 3809.806 Will the State Director review completely, or modify it in part. The the original BLM decision if I request State made. Director review? State Director’s decision may incorporate any part of the original BLM § 3809.802 What must I include in my (a) The State Director may accept your decision. appeal to OHA? request and review a decision made (c) If the original BLM decision was under this subpart. The State director (a) Your written appeal must contain: published in the Federal Register, the will decide within 21 days of a timely (1) Your name and address; and State Director will also publish his or filed request whether to accept your (2) The BLM serial number of the her decision in the Federal Register. notice or plan of operations that is the request and review the original BLM subject of the appeal. decision. If the State Director does not § 3809.808 How will decisions go into (b) You must submit a statement of make a decision within 21 days on effect when I request State Director review? your reasons for the appeal and any whether to accept your request for (a) The original BLM decision remains arguments you wish to present that review, you should consider your in effect while State Director review is would justify reversal or modification of request for State Director review pending, except that the State Director the decision within the time frame declined, and you may appeal the may stay the decision during the specified in part 4 of this chapter original BLM decision to OHA. pendency of his or her review. (usually within 30 calendar days after (b) The State Director will not begin (b) The State Director’s decision will filing your appeal). a review and will end an ongoing be effective immediately and remain in review if you or another affected party effect, unless a stay is granted by OHA § 3809.803 Will the BLM decision go into files an appeal of the original BLM under § 4.21 of this title. effect during an appeal to OHA? decision with OHA under section All decisions under this subpart go § 3809.801 before the State Director § 3809.809 May I appeal a decision made into effect immediately and remain in issues a decision under this subpart, by the State Director? effect while appeals are pending before unless OHA agrees to defer (a) An adversely affected party may OHA unless OHA grants a stay under consideration of the appeal pending a appeal the State Director’s decision to § 4.21(b) of this title. State Director decision. OHA under part 4 of this title, except (c) If you file an appeal with OHA that you may not appeal a denial of your § 3809.804 When may I ask the BLM State after requesting State Director review, Director to review a BLM decision? request for State Director review or a you must notify the State Director who, denial of your request for a meeting The State Director must receive your after receiving your notice, may request with the State Director. request for State Director review no later OHA to defer considering the appeal. (b) Once the State Director issues a than 30 calendar days after you receive (d) If you fail to notify the State decision under this subpart, it replaces or are notified of the BLM decision you Director of your appeal to OHA, any the original BLM decision, which is no seek to have reviewed. decision issued by the State Director longer in effect, and you may appeal § 3809.805 What must I send BLM to may be voided by a subsequent OHA only the State Director’s decision. request State Director review? decision. Public Visits to Mines (a) Your request for State Director § 3809.807 What happens once the State review must be a single package that Director agrees to my request for a review § 3809.900 Will BLM allow the public to includes a brief written statement of a decision? visit mines on public lands? explaining why BLM should change its (a) The State Director will promptly (a) If requested by any member of the decision and any documents that send you a written decision, which may public, BLM may sponsor and schedule support your written statement. Mark be based on any of the following: a public visit to a mine on public land your envelope ‘‘State Director Review.’’ (1) The information you submit; once each year. The purpose of the visit You must also provide a telephone or (2) The original BLM decision and is to give the public an opportunity to fax number for the State Director to any information BLM relied on for that view the mine site and associated contact you. decision; facilities. Visits will include surface (b) When you submit your request for (3) Any additional information, areas and surface facilities ordinarily State Director review, you may also including information obtained from made available to visitors on public request a meeting with the State your meeting, if any, with the State tours. BLM will schedule visits during Director. The State Director will notify Director. normal BLM business hours at the

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