# Mining Claims Under the General Mining Laws; Surface Management

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URL: https://www.frixlaw.com/law-library/documents/fr%3A00-29472

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** November 21, 2000
- **Citation:** 65 FR 69998

## Text

DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2090, 2200, 2710, 2740, 3800 and 9260
[WO-300-1990-00]
RIN 1004-AD22
Mining Claims Under the General Mining Laws; Surface Management

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Final rule.

SUMMARY:

The Bureau of Land Management (BLM or “we”) amends its regulations governing mining operations involving metallic and some other minerals on public lands. We are amending the regulations to improve their clarity and organization, address technical advances in mining, incorporate policies we developed after we issued the previous regulations twenty years ago, and better protect natural resources and our Nation's natural heritage lands from the adverse impacts of mining. We intend these regulations to prevent unnecessary or undue degradation of BLM-administered lands by mining operations authorized under the mining laws.

DATES:

This rule is effective January 20, 2001.

FOR FURTHER INFORMATION CONTACT:

Robert M. Anderson, 202/208-4201; or Michael Schwartz, 202/452-5198. Individuals who use a telecommunications device for the deaf (TDD) may contact us through the Federal Information Relay Service at 1-800/877-8339.

SUPPLEMENTARY INFORMATION:

I. What is the Background of this Rulemaking?

II. How did BLM Change the Proposed Rule in Response to Comments?

III. How did BLM Fulfill its Procedural Obligations?

I. What Is the Background of This Rulemaking?

Under the Constitution, Congress has the authority and responsibility to manage public land. See U.S. Const. art. IV, § 3, cl. 2. Through statute, Congress has delegated this authority to executive-branch agencies, including the Bureau of Land Management (BLM). The Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701
et seq.
, directs the Secretary of the Interior, by regulation or otherwise, to take any action necessary to prevent unnecessary or undue degradation of the public lands. See 43 U.S.C. 1732(b). FLPMA also directs the Secretary of the Interior, with respect to public lands, to promulgate rules and regulations to carry out the purposes of FLPMA and of other laws applicable to the public lands. See 43 U.S.C. 1740. “Public lands” are defined in FLPMA (in pertinent part) as “any land and interest in land owned by the United States * * * and administered by the Secretary of the Interior through the Bureau of Land Management. * * *” See 43 U.S.C. 1702. This final rule is also authorized by 30 U.S.C. 22, the portion of the mining laws that opens public lands to exploration and purchase “under regulations prescribed by law.”
1

1
Although BLM is responsible for administration of the mining laws for lands within the National Forest System, the Secretary of Agriculture has responsibility for promulgating rules and regulations applicable to surface management of lands within the National Forest System. For this reason, none of the regulatory changes we are adopting apply to the National Forests. See 36 CFR part 228 for regulations governing mining operations on National Forests.

Under this statutory authority, BLM issued regulations in 1980 to protect public lands from unnecessary or undue degradation and to ensure that areas disturbed during the search for and extraction of mineral resources are reclaimed. See 45 FR 78902-78915, November 26, 1980. We call these regulations the “surface management” regulations. They are located in subpart 3809 of part 3800 of Title 43 of the Code of Federal Regulations. For this reason, they are also called the “3809” regulations.

We amended the 1980 regulations in 1997 to strengthen the bonding requirements, but the 1997 amendments were overturned. Thus, the 1980 regulations, unchanged for 20 years, remain in place. Please refer to the “Background” section of the proposed rule for a detailed description of our efforts to develop revised regulations (64 FR 6423-6425, February 9, 1999).

On February 9, 1999, we published in the
Federal Register
a proposed rule to amend the 3809 regulations. See 64 FR 6422-6468. The 120-day public comment period closed on May 10, 1999. We issued the notice of availability for the draft environmental impact statement (EIS) that analyzes the potential impacts of the proposed changes to the 3809 regulations on February 17, 1999 (64 FR 7905). The comment period on the draft EIS also closed on May 10, 1999.

In the 1998 Omnibus Consolidated and Emergency Supplemental Appropriations Act (Pub. L. 105-277, sec. 120(a)), Congress directed BLM to pay for a study by the National Research Council (NRC) Board on Earth Sciences and Resources. The study was to examine the environmental and reclamation requirements relating to mining of locatable minerals on Federal lands and the adequacy of those requirements to prevent unnecessary or undue degradation of Federal lands in each State in which such mining occurs. The law directed NRC to complete the study by July 31, 1999.

In the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-31, sec. 3002), Congress prohibited the Department of the Interior from completing its work on the February 9, 1999, proposed rule and issuing a final rule until we provide at least 120 days for public comment on the proposed rule after July 31, 1999. The NRC completed and published its report, entitled,
Hardrock Mining on Federal Lands
(hereafter the NRC Report), in late September 1999. Accordingly, we reopened the comment period on the proposed rule and the draft EIS for 120 days. See 64 FR 57613, October 26, 1999. We also supplemented the proposed rule with some of the recommendations from the NRC and asked for public comment on them.

In the fiscal year 2000 appropriations bill for the Department of the Interior (Pub. L. 106-113, sec. 357), Congress prohibited the Secretary from spending money to issue final 3809 rules, except that he may issue final rules “which are not inconsistent with the recommendations contained in the [NRC Report] so long as these regulations are also not inconsistent with existing statutory authorities.” Congress also added this provision to the Department's fiscal year 2001 appropriations bill (Pub. L. 106-291, section 156).

We received and considered a total of about 2,500 public comments during both 120-day comment periods. While many comments merely expressed support or opposition for the proposed rule, some comments offered useful and constructive suggestions for changes to the proposed rule. Where possible and advisable, we made changes to the proposed rule to incorporate the suggestions contained in these comments. Part II of this preamble describes the substantive changes to the proposed rule that we incorporated into this final rule.

Legal Basis for the Final Rule

This final rule is supported by FLPMA and the Mining Law of 1872, as amended (hereafter “mining laws”). Section 302(b) of FLPMA, 43 U.S.C. 1732(b), directs the Secretary to manage

development of the public lands. In addition, the final rule we are adopting today carries out the FLPMA directive that, “[i]n managing the public lands, the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the public lands.” See 43 U.S.C. 1732(b). The “any action necessary” language of this provision shows that Congress granted the Secretary broad latitude in the preventive actions that he could take. Congress did not define the term “unnecessary or undue degradation,” but it is clear from the use of the conjunction “or” that the Secretary has the authority to prevent “degradation” that is necessary to mining, but undue or excessive. This includes the authority to disapprove plans of operations that would cause undue or excessive harm to the public lands. Readers should note that the Secretary has delegated to BLM many of his management responsibilities under FLPMA and the mining laws.

The final rule we are adopting today is consistent with the FLPMA directive, as well as the general rulemaking authorities of FLPMA and the mining laws (43 U.S.C. 1740 and 30 U.S.C. 22 respectively). Other portions of this preamble contain discussions of legal authorities for this rule in the context of specific sections of the regulations.

As explained in more detail later in this preamble, we are continuing the 3-tiered classification of operations with the attendant increasing degree of BLM involvement in review or approval. As mining operations increase in size and complexity, BLM's up-front involvement should also increase. We are continuing, with necessary refinements, the set of outcome-based performance standards that operations must comply with to prevent unnecessary or undue degradation. We are adopting financial guarantee requirements for exploration and mining operations that go beyond “casual use” to prevent unnecessary or undue degradation caused by failure to fulfill the reclamation obligation. We are adopting reasonable and graduated enforcement procedures and penalties, which incorporate due process, as a deterrent to practices that would result in unnecessary or undue degradation. These and other provisions described later in this preamble are focused on preventing unnecessary or undue degradation while at the same time avoiding, to the extent possible and foreseeable, unintended adverse impacts on the ability of mining claimants and operators to explore for and develop mineral resources.

In addition to this preamble, the preamble to the February 9, 1999 proposed rule (64 FR 6422) and the comment responses in the final EIS (Volume 2) also contribute to the basis and purpose of this rule.

Consistency With the NRC Report Recommendations

In the fiscal year 2000 appropriations bill for the Department of the Interior (Pub. L. 106-113, sec. 357), Congress prohibited the Secretary from spending money to issue final 3809 rules other than those “which are not inconsistent with the recommendations contained in the [NRC Report] so long as these regulations are also not inconsistent with existing statutory authorities.” Comments we received during the second comment period indicate that there are divergent views on the consistency question. Some commenters appear to strongly believe that the “not inconsistent with” provision should be interpreted as setting strict limits on what we can include in this rulemaking. That is, we can promulgate only regulations that conform exactly to specific NRC Report recommendations, and no more.

We do not agree with these comments. The NRC Report,
Hardrock Mining on Federal Lands
(1999), was prepared in response to a Congressional directive in our fiscal year 1999 appropriations (Pub. L. 105-277, sec. 120(a)). Congress asked the NRC to assess the adequacy of the existing regulatory framework for hardrock mining on Federal lands. Congress did not ask the NRC to analyze our proposed rule, and the NRC Report did not do so. As a result, while portions of the NRC Report overlap the proposed rule, the study is not coterminous with the proposal, and a number of the issues addressed in the proposed rule are not covered by the NRC Report recommendations.

Congress was aware that the NRC Report and our proposed rule were not coterminous when Congress was considering the appropriations bill in the Fall of 1999. The proposed rule was published in February 1999. Congress was also aware of the regulatory recommendations made in the NRC Report, which was published on September 29, 1999. The appropriations bill did not pass Congress until November 19, 1999. (The President signed the bill on November 29, 1999.) Thus, six weeks elapsed between the issuance of the NRC Report and Congressional action on our appropriations bill. If Congress had intended for this rulemaking to be limited strictly to things recommended by the NRC Report, it could have said so, but did not. Congress used the “not inconsistent with” language, which is much less restrictive than other possible formulations, such as the rules must be “limited to” or “restricted to” or “must not go beyond” the recommendations of the NRC Report.

This interpretation of Congress's purpose in the fiscal year 2000 Interior appropriation is supported by recent Congressional action to twice expressly reject language (once in bill text and once in a conference report) that would have imposed a greater limitation on the Secretary's authority to amend subpart 3809 than the “not inconsistent with” language of the fiscal year 2000 appropriations rider (Pub. L. 106-113, section 357). By way of background, on December 8, 1999, the Interior Department Solicitor issued an opinion interpreting section 357. The opinion concluded that the “not inconsistent with” language of section 357 applied only to the numbered, bold-faced recommendations in the NRC Report. The Solicitor also concluded that final rules addressing subjects that lie outside the specific NRC Report recommen- dations would not be affected by section 357.

Subsequently, in the second session of the 106th Congress, legislative language was added to an agriculture appropriations bill that would have limited the final rules to “only the regulatory gaps identified at pages 7 through 9 of the [NRC Report].” See section 3105 of S. 2536, as contained in S. Rpt. 106-288. This language would have imposed additional limits on the Secretary's authority to amend subpart 3809. The amendment was dropped and replaced in the conference on the current year Interior appropriations bill by the more neutral “not inconsistent with” language of section 156 of Pub. L. 106-291.

Similarly, Conference Committee report language to accompany section 156 was proposed that would have expressed the committee's intent “for [BLM] to adopt changes to its rules at 43 CFR part 3809
only if those changes are called for
in the NRC report.” (Reported in
Public Land News
, vol. 25, no. 19, Sept. 29, 2000. Emphasis added.) See also 146 Cong. Rec. S10239, statement of Sen. Durbin. This language was dropped from the final conference report. See H. Rpt. 106-914, p. 154. Although the Conference Report cautioned that re-enactment of the “not inconsistent with” language in the fiscal year 2000 Interior appropriations was not intended to constitute congressional ratification of the Solicitor's December 8, 1999 opinion, the Conference Report

does not explain how it interprets section 156 in any way different from how the Solicitor interpreted the identical language in section 357 of the previous year's appropriations.

Our view of the plain meaning of the “not inconsistent with” language in both the fiscal year 2000 and 2001 appropriations acts remains as the Solicitor described it in his December 8, 1999 opinion as follows: To the extent that an NRC Report recommendation and the proposed rule overlap, then the final rule must be entirely consistent with the recommendation. However, it is reasonable to interpret the “not inconsistent with” language as not applying to parts of this final rule related to subjects lying outside the recommendations of the NRC Report. In these cases, there can be no question of consistency with the NRC Report recommendations because those recommendations are silent on an issue or not dispositive of an issue.

As discussed in more detail later in this preamble, all the provisions of this final rule that overlap the recommendations of the NRC Report are not inconsistent with the report. Other provisions of this final rule, for which there is no corresponding NRC Report recommendation, are consistent with the Secretary's statutory authority to prevent unnecessary or undue degradation of the public lands and other legal authorities supporting the final rule. BLM wishes to emphasize that we carefully reviewed the entire NRC Report and gave appropriate weight to its entire contents. Even if the “not inconsistent with” language were construed to mean that these final rules could not be inconsistent with the entire NRC Report, BLM believes that this final rule would comply.

A commenter stated that even without the limits placed on BLM by the “not inconsistent with” language of section 357 of H.R. 3423 (the FY 2000 Interior Appropriations bill, which was enacted by reference in the Consolidated Appropriations Act, Pub. L. 106-113), neither FLPMA nor any other authority grants BLM the power to promulgate the regulations as proposed. The commenter stated that in addition to a general lack of authority to promulgate the 3809 proposal, Congress's specific and direct commands in section 357 further restricting BLM's authority to promulgate regulations related to subpart 3809 independently demonstrate that the proposed regulation is not authorized by law.

BLM disagrees with the comment. As discussed earlier in this preamble, BLM has the authority to issue these final regulations. The “not inconsistent with” language of section 357 of H.R. 3423 (and its successor, section 156 of Pub. L. 106-291) imposes a separate requirement. BLM's underlying statutory authority under FLPMA and the mining laws remains intact. Indeed, both section 357 of fiscal year 2000 Interior appropriations and section 156 of fiscal year 2001 Interior appropriations recognize that BLM's “existing statutory authorities” continue to apply to these rules. These rules have been reviewed, and changed as necessary, to address the requirements of sections 357 and 156. Thus, the final rules are not inconsistent with the recommendations contained in the NRC Report.

Record of Decision Under the National Environmental Policy Act

This preamble constitutes BLM's record of decision, as required under the Council on Environmental Quality regulations at 40 CFR 1505.2. The decision is based on the proposed action and alternatives presented in the Final Environmental Impact Statement, “Surface Management Regulations for Locatable Mineral Operations.”

After considering all relevant issues, alternatives, potential impacts, and management constraints, BLM selects Alternative 3 of the Final EIS for implementation. Alternative 3 changes the existing 3809 regulations in several general areas: (1) it changes the definition of unnecessary or undue degradation to better protect significant resources from substantial irreparable harm, (2) it requires mineral operators to file a plan of operations for any mining activity beyond casual use regardless of disturbance size, (3) it requires operators to provide reclamation bonds for any disturbance greater than casual use, (4) it specifies outcome-based performance standards for conducting operations on public lands, (5) it provides an improved program from enforcement of the regulations in cases of noncompliance, and (6) it provides options for Federal-State coordination in implementing the regulations. A comprehensive description of Alternative 3 is presented in Chapter 2 of the Final EIS. The specific regulation language to carry out Alternative 3 follows the preamble discussion.

Alternatives Considered

BLM considered a full range of program alternatives for development of the 3809 regulations. See Chapter 2 of the final EIS for a description of how specific issues drove the formulation of the alternatives. BLM developed the five alternatives considered in the EIS in response to issues raised by the public during the EIS scoping period and comments we received on the draft EIS. The alternatives ranged from the required “no action” alternative, which would have retained the 1980 regulations, to Alternative 4, the “maximum protection” alternative. A fifth alternative, Alternative 5, was added to the final EIS in response to comments that BLM should only make changes to the 3809 regulations that were specifically recommended in the NRC Report. The following is a brief description of the alternatives and the rationale behind their formulation:

Alternative 1, No Action
—This alternative would not have changed the regulations. Locatable mineral operations would continue to be managed under the regulations that BLM promulgated in 1980. This alternative served as the baseline for the EIS analysis. The No Action alternative encompasses the view expressed by many in industry and State governments that changes in the regulations are not needed, and that BLM should make non-regulatory changes to improve the way the program works prior to proposing any regulatory changes.

Alternative 2, State Management
—The State Management alternative would have required rescinding the 1980 regulations and returning to the prior surface management program strategy, under which State or other Federal regulations governed locatable mineral operations on public land. Compliance with these other regulations would have been deemed adequate to prevent unnecessary or under degradation under Alternative 2. We developed this alternative in response to comments that BLM should evaluate ways to encourage mineral development through less regulation, and that a BLM regulatory role was not needed since the respective State regulatory programs were adequate to protect the environment. Consideration of Alternative 2 also served as a benchmark for considering the effectiveness of State programs absent a BLM regulatory role.

Alternative 3, Proposed Final Regulations
—This alternative considered the implementation of the proposed regulations developed by the 3809 Task Force. Alternative 3 is the BLM's proposed action and the agency's “preferred alternative.” The alternative was changed between the draft and final EIS in order to incorporate conclusions and recommendations from the NRC Report and in response to public comments. This alternative represents the preferred regulatory approach of agency management and program specialists after considering the results

of public scoping, comments on the February and October 1999 proposed rules, results of the NRC Report, and the effects of other alternatives discussed in the EIS.

Alternative 4, Maximum Protection
—The maximum protection alternative was developed presuming that the 3809 regulations could not change the basic mineral resource allocations made by the mining laws, and that the public lands are open to entry, location, and development of valuable mineral deposits unless segregated or withdrawn. While a total prohibition on mining activity would also achieve maximum environmental protection, it would be beyond the scope of the action, which is to manage activity authorized by the mining laws in a way that prevents unnecessary or undue degradation. A surface management program under Alternative 4 would allow BLM to give the highest priority to protecting resource values and impose design-based performance criteria. We developed this alternative in response to comments that stronger environmental requirements were needed, that BLM should have total discretion to deny certain mining operations, and that designed-based performance standards should be developed as a nationwide minimum best management practice.

Alternative 5, NRC Recommendations
—Alternative 5, like Alternative 3, incorporates the recommendations made by the NRC Report. However, Alternative 5 limits changes in the regulations to those specifically recommended by the NRC. See the NRC Report, especially pages 7 to 9. We developed this alternative in response to public comments and a then-pending budget rider that would have restricted BLM to implementing only some of the recommendations of the NRC Report.

Environmentally Preferred Alternative

Although not selected for implementation, the environmentally preferred alternative is Alternative 4, the maximum protection alternative. While many of the environmental protection measures contained in Alternative 4 were included in the final regulations under Alternative 3, the BLM decided not to select Alternative 4 due to its adverse economic impact and administrative cost compared to the environmental benefit.

Decision Rationale

BLM has included all practical means to avoid or minimize environmental harm in the selected alternative. The following is a summary of the rationale for selection of the preferred alternative as compared to the other alternatives. A detailed rationale for the selection of each regulatory provision is discussed in this preamble.

Definition of “Unnecessary or Undue Degradation”

The selected alternative satisfactorily addresses the overall program issue of improving BLM's ability to prevent unnecessary or undue degradation, as required by FLPMA. The regulations change the definition of “unnecessary or undue degradation” to clarify that operators must not cause substantial irreparable harm to significant resources that cannot be effectively mitigated. Clarifying that the definition specifically addresses situations of “undue” as well as “unnecessary” degradation will more completely and faithfully implement the statutory standard, by protecting significant resource values of the public lands without presuming that impacts necessary to mining must be allowed to occur.

In comparison, Alternatives 1 and 5 would not protect significant scientific, cultural, or environmental resource values of the public lands from substantial irreparable harm because they would not change the definition of “unnecessary or undue degradation.” Alternative 2 would remove the definition as a regulatory criteria, and BLM would not have a reasonable assurance that unnecessary or undue degradation would be prevented since BLM would have no role in the review of individual projects.

Although under Alternative 2 operators would have to comply with State regulations and other environmental laws, certain resources, such as wildlife not proposed or listed as threatened or endangered, cultural resources, and riparian areas would not necessarily be given appropriate consideration in planning and conducting mineral operations.

Alternative 4 would tie the definition of “unnecessary or undue degradation” to use of design-based standards and best available technology, which BLM does not believe are flexible enough for application to the wide variety of mining operations and environmental conditions on public lands, resulting in over- or under-regulation of some operations.

Performance Standards

The selected alternative provides performance standards that enumerate specific outcomes or conditions, yet do not mandate specific designs. This type of performance standard provides BLM with the level of detail needed to ensure that all environmental components are addressed, and at the same time preserves flexibility to consider site-specific conditions and allows for innovation in environmental protection technology. The performance standards developed under the selected alternative often require compliance with, or achievement of, the applicable State standard. This facilitates coordination with the States and reduces the potential for a single operation to be subject to conflicting standards. The final 3809 regulations also provide for monitoring programs to be adopted as part of individual project approvals to ensure compliance with the necessary mitigating measures. The final regulations specify the content requirements of these monitoring programs.

We did not select Alternatives 1 or 5 because they would retain the performance standards in the 1980 regulations, which are sometimes too vague and subjective, causing them to be applied inconsistently.

Under Alternative 2, operators would have to comply with the performance standards of the State in which their operations are located. While BLM has found the standards in many States generally adequate in the areas they cover, BLM believes that minimum Federal standards are needed for operations on public lands in order to prevent unnecessary or undue degradation. Relying on individual State standards which may vary widely, which may not address all resources of concern to BLM, or which are subject to change or varying application would not, in our judgment, allow BLM to prevent unnecessary or undue degradation. Therefore, Alternative 2 has not been selected for implementation.

The performance standards under Alternative 4 would be design-based and would not be flexible enough to account for the variety of mining operations and environmental conditions on public lands. The performance standards under Alternative 4 may be overly stringent for some operations or possibly not stringent enough in other cases. In addition, the NRC report recommended against the adopting of prescriptive design-based standards such as those in Alternative 4.

Notice/Plan of Operations Threshold

BLM's main mechanism for preventing unnecessary or undue degradation is review of notices and review and approval of plans of operations. The threshold for when to

file a plan, what it must contain, and how it is reviewed are part of this issue. After considering a variety of approaches for setting the notice/plan of operations threshold, including the NRC Report recommendations, BLM decided the threshold should generally be set between exploration and mining. In special category lands, BLM decided to set the threshold at any activity greater than “casual use.” By using these thresholds, the selected alternative will provide for the more detailed review and environmental analysis process conducted for a plan of operations to be targeted at the activity (mining) most likely to create significant environmental impacts. Exploration generally has not created major environmental impacts, or does not involve issues difficult to mitigate. Casual use generally results in no or negligible disturbance of the public lands. The requirement to file a notice for operations involving exploration activities, combined with the selected alternative's financial guarantee requirements and performance standards, will prevent unnecessary or undue degradation.

BLM has also included other changes to the regulations applicable to plans of operations in the selected alternative. We have developed a more comprehensive list of content requirements to ensure that critical items, such as plans for interim management and environmental baseline studies, are not overlooked. We have added a mandatory public notice and comment requirement to the process of reviewing proposed plans of operations to ensure the public has an opportunity to comment prior to approval of plan activity that may impact public resources.

We did not choose Alternative 1 because the 1980 regulations have not functioned well with the notice/plan of operations threshold generally set at 5 acres of disturbance. Some small mining operations disturbing less than 5 acres have created significant environmental impacts or compliance problems. These problems could have been avoided or reduced if the operator had submitted a plan of operations and had been subject to environmental review under NEPA and BLM approval.

Alternative 2 would not have addressed this issue satisfactorily. While generally all States have some permit review process, most do not have a comprehensive review process similar to NEPA. Others may have permits geared towards specific media like air or water, which may not address concerns such as cultural resources, or may not always include a public involvement process.

Conversely, Alternative 4 would require a plan of operations for any activity greater than casual use, including exploration. Use of agency resources to process plans of operations for exploration projects, which have a low environmental risk, would not be efficient and would result in unnecessary delay to the mineral operator. In addition, this requirement would not be consistent with the NRC Report, which recommended that plans of operations be required for mining and milling operations (but not exploration activities), even if the area disturbed is less than 5 acres.

While Alternative 5 has the same notice/plan of operations threshold as the selected alternative, it does not have the more specific plan of operations content or public notice and comment requirements. BLM believes these requirements are necessary for the identification and prevention, or mitigation, of environmental impacts associated with mining.

Financial Guarantees

The posting of a financial guarantee for performance of the required reclamation is a major component of the regulatory program under all the alternatives considered. The selected alternative requires that all notice-and plan-level operators post a financial guarantee adequate to cover the cost as if BLM were to contract with a third party to complete reclamation according to the reclamation plan, including construction and maintenance costs for any treatment facilities necessary to meet Federal and State environmental standards. BLM decided to require financial guarantees for all notices and plans of operations because of the inability or unwillingness of some operators to meet their reclamation obligations. At present, the potential taxpayer liability for reclamation of unbonded or underbonded disturbances conducted under the 3809 regulations is in the millions of dollars. BLM has decided that to protect and restore the environment and to limit taxpayer liability, financial guarantees for reclamation should be required at 100 percent of the estimated cost for BLM to have the reclamation work performed. This includes any costs that may be necessary for long-term water treatment or site care and maintenance.

The 1980 regulations (Alternative 1) do not contain financial guarantee requirements adequate to achieve this level of protection. Under the 1980 regulations, notice-level operators are not required to provide a financial guarantee for reclamation, and financial guarantees for plan-level operations are discretionary. A number of notice-level operations have been abandoned by operators, leaving the reclamation responsibilities to BLM. In addition, the existing regulations are silent on the need to provide bonding for any necessary water treatment or site maintenance. BLM believes it is necessary to specify this requirement to eliminate any argument about requiring such resource protection measures.

Alternative 2 would rely on State financial guarantee programs. While BLM intends to work with the States under the selected alternative to avoid double bonding, relying exclusively on State bonding may not provide adequate protection of the public resources. Not all states require a financial guarantee for all disturbance at 100 percent of the estimated reclamation cost.

Alternative 4 requires financial guarantees for reclamation of all disturbance at 100 percent of the estimated reclamation costs. Alternative 4 would also require bonding for undesirable events, accidents, failures, or spills. BLM believes it would be overly burdensome on the operator to require a financial guarantee for the remediation of events with a low probability of occurrence and has therefore not selected the Alternative 4 financial guarantee provisions. Such potential problems are best addressed by a thorough review of the operating plans and the development of contingency measures, which are part of the selected alternative.

Alternative 5 would impose financial guarantee requirements similar to the selected alternative. However, under Alternative 5, the procedural requirements for establishing the amount of a financial guarantee are more limited than those followed under the selected alternative. For example, there is no public notification before release of the financial guarantee, as there is in the selected alternative. BLM believes these procedures are of value in arriving at a final reclamation financial guarantee amount and has therefore not selected the Alternative 5 financial guarantee requirements.

Enforcement

The selected alternative contains a program for enforcement of the regulations through issuance of enforcement orders and use of civil and criminal penalties where appropriate. It has been developed in response to the cumbersome enforcement provisions of the existing regulations which often necessitate involvement of the U.S. Attorney to pursue noncompliance

actions. BLM believes the selected alternative's enforcement program will improve operator compliance while reducing the administrative burden on the government. This approach is also part of Alternative 5.

Relying exclusively on the States' enforcement programs under Alternative 2 may have limited utility in achieving Federal land management or reclamation objectives. Conversely, State enforcement in such delegated programs as air quality or water quality may be more effective than BLM enforcement action. The selected alternative provides for cooperation with the State in order to quickly resolve noncompliance in these delegated programs areas.

Alternative 4 contains a requirement for mandatory enforcement. This means when a violation is observed in the field, the BLM inspector must issue a noncompliance and must assess a penalty. Resolution of the problem in the field with the operator must be preceded by the notice of noncompliance. The problem with this approach is that there may be extenuating circumstances that an inspector should consider before taking an enforcement action, or it may be possible to resolve the violation in the field without issuing a notice of noncompliance. We have not selected this mandatory enforcement provision. BLM believes the regulatory approach to compliance in Alternative 4 may actually hinder the resolution of compliance problems by providing an incentive for their concealment.

Federal/State Coordination

Most of the mineral activity under the 3809 program occurs in the Western states. These States have regulatory programs applicable to mineral operations in the form of either specific regulations that apply to mining, overall environmental protection regulations for a specific resource such as water quality, or both. How the BLM surface management program is coordinated with the State programs is an issue that crosses all elements of the alternatives considered. After consultation with the States, consideration of BLM resource protection needs, and evaluation of the various alternatives, BLM has selected the Federal/State coordination approach in Alternative 3 for implementation.

Alternative 3 provides a combination of Federal/State agreements that can be used to coordinate efforts, reduce duplication, and improve resource protection while not overly burdening the operator. The selected alternative provides for two types of Federal/State agreements, those that provide for joint administration of the program, and those in which BLM defers part or all of the program to the State (with BLM retaining minimum involvement). BLM selected this alternative to provide flexibility for the BLM field offices to develop their own Federal/State program specific to their States' operating and regulatory environment. By also incorporating State performance standards into the BLM performance standards, as described above, this alternative facilitates coordination between BLM and the State regulatory agencies when it comes to development and implementation of Federal/State agreements.

While the 1980 regulations (Alternative 1) provide for Federal/State agreements, they do not provide for BLM to concur in the State's approval of each plan of operations or in the approval, release, or forfeiture of a financial guarantee. BLM believes that retaining at least a concurrence role in these actions is the minimum required to prevent unnecessary or undue degradation of the public lands.

Alternative 2 would leave review, approval, and enforcement for mineral operations to the respective State programs. Total reliance on State regulation may not be adequate to protect all the public land resources from unnecessary or undue degradation. BLM as a land manager has to meet a comprehensive requirement to protect all the resources on public lands from unnecessary or undue degradation. A State regulatory agency would not be able to provide the resource protection required for public lands without BLM involvement in the review, approval and compliance processes. In addition, this would be a burden on the State for which BLM would not be able to provide compensation. For these reasons, we didn't select Alternative 2.

BLM didn't select Alternative 4 because it would assert Federal control over operations without any effort to coordinate with State activities. Such an approach could lead to conflicting, or at least confusing, standards for operators, and duplication of effort. Independent BLM standards would be difficult to administer because of the intermingling of private and public land that occurs at many mining operations. Alternative 4 could result in situations where two different performance requirements apply within the same operating area depending upon the land status. Nor does Alternative 4 result in substantial environmental benefits. Where the States have developed performance standards for mineral operations, they are generally considered adequate for operations on public lands. Where there are regulatory gaps in State standards or programs, development of a specific BLM requirement is warranted.

Federal/State coordination under Alternative 5 would not differ greatly from the 1980 regulations. Alternative 5 would provide procedures for referral of enforcement actions to the State. However, it would not provide for retention of a minimal level of involvement by BLM in individual project approvals or financial guarantees. BLM believes this minimal level of participation is needed to meet its obligation to prevent unnecessary or undue degradation. For these reasons, BLM has not selected Alternative 5.

Consistency With the NRC Report

Since release of the NRC Report, “Hardrock Mining on Federal Lands,” the last two Congressional appropriations acts have contained a requirement that any final 3809 regulations must be “not inconsistent with” the recommendations in the NRC Report. The Department of the Interior Solicitor has interpreted the key phrase “not inconsistent with” to mean that so long as the final rule does not contradict the specific recommendations of the NRC Report, the rule can address whatever subject areas BLM determines are warranted to improve the regulations and meet the FLPMA mandate to prevent unnecessary or undue degradation of the public lands. This Congressional requirement places some management constraints on the selection of a final alternative for implementation. Of the five alternatives in the Final EIS, only Alternatives 3 and 5 would clearly not be inconsistent with the recommendations in the NRC Report.

The “No Action” Alternative would retain the 1980 regulations, but would clearly be inconsistent with the recommendations of the NRC Report. The NRC report identified specific gaps in the regulations and made six recommendations for regulatory changes. See the NRC Report, pages 7-9. BLM could not now decide that the existing regulations were adequate without being inconsistent with the NRC recommendations and violating the applicable Congressional mandate.

Selection of Alternative 2 would be inconsistent with most of the NRC recommendations. Alternative 2 does not provide reclamation bonding for all disturbance greater than casual use, does not provide for a plan of operations for all mining activity, does not provide for clear procedures for modifying plans of operations, and does not require interim management plans. The NRC report clearly recommends regulatory

changes that are inconsistent with the decreased BLM role inherent in Alternative 2.

Regulations developed under Alternative 4 would be more stringent than those suggested by the NRC and therefore inconsistent the NRC recommendations. The Alternative 4 requirement to file a plan of operations for all activity greater than casual use would be inconsistent with the NRC finding that exploration involving less than 5 acres of disturbance should be allowed under a notice. The use of design-based standards and mandatory pit backfilling under Alternative 4 would be inconsistent with the NRC recommendation that BLM use performance-based standards. It is also not in harmony with a discussion (which was not incorporated in a specific recommendation) of the NRC Report which suggested that pit backfilling should be determined on a case-by-case basis.

Neither Alternative 3 nor Alternative 5 would be inconsistent with the NRC recommendations. Both alternatives would incorporate the NRC recommendations into the 3809 regulations. The main difference between these two alternatives is that Alternative 5 limits the changes in the regulations to the specific NRC recommendations, while Alternative 3 includes both the changes recommended by NRC and additional regulatory changes to address issues identified by BLM. These additional changes reflect the Secretary's judgment as to what is required to prevent unnecessary or undue degradation of the public lands, and since they are not addressed in the NRC Report, are not inconsistent with it. Selection of Alternative 3 does not preclude BLM from pursuing the NRC recommendations for non-regulatory changes in the surface management program.

Additional discussion of the consideration of EIS alternatives and of how the NRC Report and Congressional budget rider affect the final rule adopted today can be found in other portions of the preamble and in the responses to comments in the Final EIS.

Summary of Rule Adopted

This part of the preamble describes in general terms some of the major features of the final rule. A reader who is interested in a quick overview of the final rule may find this part useful. However, if you are looking for a detailed description of the final rule, you should look at the section-by-section analysis which appears later in this preamble.

The final rule continues, with some modification, BLM's three-tier classification scheme for mining operations on Federal lands. For activities that ordinarily result in no or negligible disturbance of the public lands or resources (“casual use”), a person would not have to notify BLM or seek our approval. In certain situations, described later in this preamble, persons conducting activities on the public lands must contact BLM in advance so that we may determine that the proposed activities, both individually and cumulatively with other activities, will not result in more than negligible disturbance. For exploration operations disturbing less than 5 acres and some kinds of bulk sampling, the operator would have to notify BLM 15 calendar days in advance of initiating operations. For all mining operations and for exploration operations disturbing more than 5 acres, the operator would have to submit a plan of operations and receive BLM's approval.

The final rule continues BLM's authority to enter into agreements or memoranda of understanding with States for joint Federal/State programs. The final rule also provides for Federal/State agreements in which BLM would defer to State administration of some or all of the surface management regulations. These agreements enable BLM and the States to coordinate activities to the maximum extent possible and avoid duplication of effort. Federal/State agreements currently in effect would be reviewed for consistency with this final rule. Existing agreements could continue in effect during the review period. If the review results in a BLM finding of no inconsistency, existing agreements could continue.

In the final rule provisions applicable to notices, BLM continues its goal of reviewing notices in 15 calendar days. The final rule explicitly provides that BLM can require a prospective notice-level operator to modify a notice. Existing notices can continue under the current operator for two years, or longer, if the notice is extended. BLM is not requiring financial guarantees for existing notices until they are extended or modified. When a notice expires, all disturbed areas must be reclaimed.

For plans of operations, which are required for all mining, even if the disturbed area is less than 5 acres, the final rule expands the list of items that an operator must include in a plan. However, BLM will require less information about smaller and simpler mining operations. We are adding a 30-day public comment period on plans of operations. Existing and pending plans of operations may continue to be regulated under the plan content and performance standards of the previous surface management regulations. The list of performance standards applicable to plans of operations is expanded to explicitly include many items that were implicit in the previous performance standards. The final rule applies to modifications of existing plans of operations that add a new facility. Modifications to existing facilities would not necessarily come under the final rule if the operator demonstrates it is not practical to do so.

The final rule requires financial guarantees for all notices and plans of operations. Each existing plan of operations has 180 days from the effective date of the final rule to post the required financial guarantee if any existing financial guarantee doesn't satisfy this subpart. Acceptable forms of financial guarantee include bonds, marketable securities, and certain kinds of insurance. Corporate guarantees will no longer be accepted, although existing corporate guarantees are not affected by the final rule. At the time of final financial guarantee release, BLM will either post in the local BLM office or publish a notice in a local newspaper and accept comments from the public for 30 days.

The final rule sets forth BLM's goal of inspecting certain operations, including those using cyanide leaching technology, at least four times each year. In the procedures for ensuring compliance with the 3809 regulations, BLM can issue a variety of orders—from requiring an operator to take specified action within a specified time frame to requiring an immediate suspension of operations. The final rule provides for administrative civil penalties of up to $5,000 for each violation. Affected parties have the right to appeal a BLM decision under this subpart to the State Director and to the Interior Board of Land Appeals. The final rule also allows BLM to schedule public visits to mines on public lands if a visit is requested by a member of the public.

II. How did BLM Change the Proposal in Response to Comments?

In this preamble, we respond to the significant comments we received from the public and other interested parties on the February 9, 1999, and October 26, 1999, proposed rules (64 FR 6422 and 64 FR 57613, respectively). Interested readers should also refer to the final EIS for additional responses to comments.

General Comments

Many commenters questioned the need for changes to BLM's surface management regulations. “If it ain't broke, don't fix it,” was a common refrain. Other commenters asserted that BLM had failed to justify the proposed changes or to point out the exact problems the revisions are designed to solve. Other commenters argued that sufficient regulations governing mining activities on Federal lands are already in place, either at the State or Federal level. The NRC Report indicated that the overall structure of Federal and State laws and regulations is generally effective (p. 5). Many commenters perceived this general conclusion by the NRC to obviate any regulatory changes. Some commenters felt that the proposed regulatory changes were unnecessary because they would duplicate the provisions of existing State regulatory programs. Other commenters suggested BLM use other mechanisms, such as policy changes or better implementation of existing regulations, as the means to address problems. On the other hand, many commenters argued for strengthening the 3809 regulations to provide adequate protection for communities and the environment and to ensure that the mining industry does not burden taxpayers with the costs of cleaning up environmental degradation of the public lands.

Congress has expressly directed the Secretary, in managing the public lands, to prevent unnecessary or undue degradation of the public lands. This final rule represents the Secretary's judgment of the regulations required to prevent unnecessary or undue degradation.

Some of the regulations adopted today are designed to address real-world, on-the-ground environmental problems caused by exploration and mining operations on the public lands. For example, provisions that increase or amplify the information that an operator must include in a proposed plan of operations are intended to address unanticipated problems that occur after BLM has approved a plan of operations, such as dewatering of springs, acid seeps and drainages, failure or slumping of waste or tailings piles, and so on. Some of the regulations adopted today address the recommendations for filling regulatory gaps included in the NRC Report. For example, the final rule requires financial guarantees for all notice- and plan-level operations. See recommendation number 1 (p. 93). Some of the regulations adopted today are designed to clarify and streamline administrative processes. For example, we are adopting changes to the regulations governing review of notices to clarify the circumstances under which BLM will need longer than 15 days to review a notice. Some of the changes we are adopting today are designed to make information easier to find in the regulations, and once found, easier to understand. For example, we have broken up the regulations into more and shorter sections. This increases the amount of information that is printed in the table of contents of subpart 3809, making it easier to find specific information without having to read through non-relevant sections. In summary, all the changes we are adopting today are necessary for one or more reasons and are aimed at preventing unnecessary or undue degradation, either directly or indirectly.

Although BLM recognizes that many States have programs in place to regulate the operations covered by this rule, BLM has a non-delegable responsibility to manage the public lands in a way that prevents unnecessary or undue degradation. These rules are intended to establish a Federal floor for such regulation, but to do so in a manner that will not unnecessarily intrude where other regulatory schemes are working properly.

Sections 3809.1 to 3809.116 General Information

Section 3809.1 What Are the Purposes of This Subpart? and Section 3809.2 What Is the Scope of This Subpart?

The final rule at § 3809.1 describes the purposes of this subpart, which are to (1) prevent unnecessary or undue degradation of public lands by operations authorized by the mining laws and (2) provide for maximum possible coordination with appropriate State agencies to avoid duplication and to ensure that operators prevent unnecessary or undue degradation of public lands.

The final rule states at § 3809.2 that this subpart applies to all operations authorized by the mining laws on public lands where the mineral interest is reserved to the United States, including Stock Raising Homestead lands as provided in final § 3809.31(c). It also states that this subpart lists the lands to which the regulations do not apply and includes a reference to the patented mining claims in the California Desert Conservation Area that are subject to the regulation. Additionally it describes the mineral commodities subject to the regulation and those excluded from the operation of the mining laws by statute.

The preamble discussion of §§ 3809.1 and 3809.2 in the proposed rule consolidated several sections and covered a wide range of subjects on which we received comments during the scoping process. First, the discussion noted that the language of the proposed rule did not include previous language that expressed the Departmental policy to encourage development of Federal mineral resources and reclamation of disturbed lands, a deletion made in the interest of brevity.

The preamble to the proposed rule also briefly mentioned the November 7, 1997 Solicitor's Opinion [M-36988] regarding the proper acreage ratio for mining claims and mill sites and its implementation via the existing 3809 regulations. This final rule does not contain provisions expressly addressing that opinion. It should be noted, however, that approval of a plan of operations under this subpart constitutes BLM approval to occupy public lands in accordance with its provisions whether or not associated mining claims on millsites are determined invalid. Such authority is provided by section 302(b) of FLPMA. See also the preamble discussion of final § 3809.100, below.

The language in these sections and the accompanying preamble discussion prompted comments. We received comments on removal of some of the objectives language, implying that the exclusion of the language was not based on a search for brevity, but was in fact based on the desire to have BLM field personnel forget the Departmental policy when implementing the regulations. We received comments demanding reform or repeal of the mining law as well as comments supporting the mining law and demanding an end to BLM's administrative reform or repeal of the law. There were comments both pro and con regarding the continued utility of mining law, mineral patenting and payment of royalties. Other commenters expressed concern about the proposed rule's apparent extension of BLM's surface management jurisdiction to unclaimed lands. We received comments on royalties and taxes, patenting costs, liability and the moratorium on processing patent applications. Lastly we received comments on recent policy changes and the new regulations.

Changes to the Proposal

The language of this section is a slight revision of the original language contained in the 1980 regulations. We have added a sentence to final

§ 3809.2(a) to specify that when public lands are sold or exchanged under 43 U.S.C. 682(b) (the Small Tracts Act
2

), 43 U.S.C. 869 (the Recreation and Public Purposes Act), 43 U.S.C. 1713 (sales) or 43 U.S.C. 1716 (exchanges), minerals reserved to the United States continue to be segregated from the operation of the mining laws unless a subsequent land-use planning decision expressly restores the land to mineral entry, and BLM publishes a notice to inform the public. We added this sentence to clarify that this final rule does not restore land that has been removed from mineral entry under the mining laws because of disposal of the surface by sale or exchange (that is, non-Federal surface over Federal minerals). As proposed, subpart 3809 could have had this effect because section 209(a) of FLPMA, 43 U.S.C. 1719(a), and BLM's land resource management regulations (43 CFR §§ 2091.2-2(b), 2091.3-2(c), 2201.1-2(d), 2711.5-1, and 2741.7(d)) state that public lands with reserved minerals are closed, segregated, or removed from the operation of the mining laws until the Secretary issues regulations addressing such lands. If the 3809 proposed rule has been put in final as proposed, it could have been considered as the issuance of regulations referred to in the land resource management rules, and thus could have removed the regulatory barriers contained in those regulations.

2
Although the Small Tracts Act was repealed by FLPMA, and therefore new conveyances are not being made, tracts previously conveyed under that Act contain minerals that were reserved to the United States.

We have added a second sentence of section 3809.2(a), however, to prevent the issuance of these rules from automatically restoring all such lands to mineral entry under the mining laws, and maintaining the status quo pending future BLM action. The lands will continue to remain removed from operation of the mining laws until subsequent land-use planning decisions expressly restore the land to mineral entry, and BLM publishes a notice to inform the public. Because the addition of this sentence in the final rule makes the references to future regulations in BLM's land resource management rules superfluous, we have removed those references in this rulemaking as technical conforming changes.

The reason for this change is as follows: Keeping lands with reserved minerals removed from mineral entry under the mining laws indefinitely pending the issuance of rules in the future (as was the status under the former land resource management rules) is not a reasoned approach to land-use planning. Conversely, promulgation of subpart 3809 rules is not an appropriate basis for generally restoring all such lands throughout the country to mineral entry. BLM believes strongly that site-specific conditions need to be factored into the determination whether to restore areas currently removed from mineral entry under the mining laws. Such considerations are best addressed in land-use decisions that will be subject to public participation. Thus, although these rules remove the regulatory bars in the former land resource management rules which prevented public lands with reserved minerals from being restored to mineral entry under the mining laws, they allow such restoration to occur on an area-specific basis only after subsequent land-use planning decisions occur, and BLM notifies the public.

As a conforming change, we deleted the references to the Small Tracts Act and the Recreation and Public Purposes Act from what was proposed as § 3809.2(b).

We have also added a sentence to final § 3809.2(d) to clarify that the final regulations do not apply to private land unless the lands were patented under the Stock Raising Homestead Act or are a post-FLPMA mineral patent in the California Desert Conservation Area. The same sentence states that BLM may collect information about private land that is near to, or may be affected by, operations authorized under this subpart for purposes of analysis under the National Environmental Policy Act of 1969.

Consistency With the NRC Report Recommendations

Final §§ 3809.1 and 3809.2 are not inconsistent with the NRC Report recommendations because those recommendations don't address the issues of the purposes and scope of subpart 3809.

Comments and Responses

Commenters asserted that as the 1872 Mining Law was written over 100 years ago it is “out of date,” “anachronistic,” “antiquated,” and a “subsidy.” Other comments pointed out that the law was written during a period favorable to resource development and that time had changed, thus the law needed to change. The general sentiments expressed by these commenters favored outright repeal/reform of the mining law.

Repeal or reform of the mining laws is not within the jurisdiction of the agency. While the Administration has and continues to support reform of the mining laws, that process must be undertaken by the Congress and not the Executive branch. Further, BLM agrees that some of the past practices carried out under the mining laws have had undesirable environmental results. That is the very reason that the regulations being published today were developed. BLM further notes that the flexibility demonstrated by the mining laws and laws like FLPMA allows BLM to incorporate a greater degree of environmental protection within its own regulations, in addition to any imposed by other agencies under the environmental protection laws.

Some commenters praised the 1872 Mining Law for more than 100 years' service as “effective,” “fair,” “resilient” and perhaps more efficient them most other Federal programs. Several comments accused the BLM and the Secretary of attempting to administratively effect a “back-door” reform or repeal of the mining laws, stating that it is not BLM's job to re-write the laws and that job belongs to the Congress. Other commenters noted the legal constraints on the mining laws, including the environmental protection laws, yet the law continued to effectively function.

BLM responds that it is not attempting to effect a “back-door” reform of the mining laws. BLM agrees with the comment that the reform of the mining laws is the job of the Congress and the Administration will continue working with the Congress to get common sense reforms. BLM also agrees with the commenter who noted the legal constraints that apply to operations conducted under the mining laws. In developing these regulations BLM has been careful to incorporate where appropriate references to the environmental protection statutes that apply to operations under the mining laws.

One commenter objected strenuously to the removal of language contained in previous § 3809.0-2. BLM consolidated several sections of the regulations in the interest of clarity and brevity. The commenter asserts this is an attempt to divert attention away from the rights granted to the miner under the mining laws during the application of the regulations.

BLM disagrees with the assertion that the change is intended to divert attention away from the miner's rights. BLM personnel are aware that miners may have property rights in their claims, but generally speaking, their rights may be regulated to prevent unnecessary or undue degradation.

Commenters objected to the proposed removal of previous § 3809.0-6, which recognized the declaration of policy in section 102 of FLPMA that the “public

lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals * * * from the public lands including implementation of the Mining and Mineral Policy Act of 1970 * * *” 43 U.S.C. 1701(a)(12). One commenter characterized BLM's duty as “to encourage development of Federal mineral resources.” The commenters also stated that the proposed regulations conflict with the 1970 Mining and Mineral Policy Act and the 1980 National Materials Policy Research and Development Acts, because they would not only inhibit most small-scale operations, but also keep new people from wanting to get into prospecting and mining to begin with. Commenters asserted that BLM appears intent on reducing the level of mineral activity on the public lands through the creation of an unnecessary and redundant scheme, and that BLM is not in compliance with FLPMA unless it takes into account the impacts of cumulative regulations that apply to supplying the Nation's need for domestic sources of minerals. The commenters concluded that if BLM truly intends to fulfill its statutory obligation to encourage development of Federal mineral resources, then this language is an important part of the rules and should be retained.

BLM disagrees with the comments. Section 102(a) of FLPMA contains a number of diverse policies, including implementation of the Mining and Minerals Policy Act of 1970 (section 102(a)(12)) and protection of the environment and other resources on public lands (section 102(a)(8)). All of these policies, however, cannot be maximized on each parcel of public lands. BLM has made a reasoned effort to reconcile these policies and to meet its statutory responsibilities. The reference to the Mining and Minerals Policy Act has been removed from subpart 3809 because it is not necessary for regulatory purposes. This does not change any of the statutory requirements of FLPMA or the Mining and Minerals Policy Act. BLM is still subject to the requirements of these acts and of other acts such as the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). It is neither necessary nor appropriate to present a complete listing of all applicable acts in the regulations, or all the policies set forth in the 13 paragraphs of section 102(a) of FLPMA.

BLM understands that the final regulations, which are based in part on the NRC Report recommendations that all mining operators obtain a BLM-approved plan of operations and submit financial guarantees, may have an impact on the small miner who works on an individual basis. We have found, however, that the small, notice-level mining operations create a disproportionate share of the abandonment and compliance problems. A 1999 survey of BLM field offices showed over 500 abandoned 3809 operations where BLM was left with the reclamation responsibility. Most of these were notice-level operations. BLM believes, as did the NRC, that these changes to the 3809 regulations are necessary to address this problem, prevent unnecessary or undue degradation, and to provide for environmentally responsible mineral operations.

Several commenters observed that royalties and taxes should be imposed on operations subject to these regulations. Other commenters observed that any royalty or tax must be enacted by Congress. While the Administration has and will continue to support a fair return to the taxpayer for the miner's use of Federal mineral resources, BLM agrees with the commenters that observed that the creation of such taxes and royalties is the sole province of the Congress.

A commenter observed that an agency cannot end the patenting process, which allows mining companies to obtain public land for a fraction of its value as that requires congressional action. Some commenters objected to the low purchase price paid by mining claimants for their mineral patents. One commenter suggested there had been a recent inversion in land prices for mineral lands (formerly high compared to non-mineral lands, but now low) versus non-mineral land (formerly low relative to mineral lands and but now high) seeming to imply the need for a change. Another commenter suggested that the price of a patent be indexed to account for inflation since 1872. Another commenter observed that patented land reduces liability to BLM, aids in protecting mining-related improvements, and should be “restored,” albeit at fair market prices. Other commenters raised national security concerns in supporting the patent provisions of the mining laws. Other commenters argued that the process to get a patent is neither quick nor cheap and costs significantly more than the purchase price. These same commenters objected to the amount of time required to complete the Secretarial review process.

BLM agrees with the commenters who note that congressional action is required to end the patenting process. BLM also agrees with the comments regarding the low prices for mineral patents and that the purchase price should be changed. The Administration will continue to support congressional action that will end patenting once and for all. BLM does not agree that the patent process is the only way to protect mining related improvements. For example, BLM's regulations at 43 CFR 3715 create a specific process to deal with trespass and damage to mining improvements. As to the amount of time and expense in pursuing the patent process, and in particular the amount of time required by the Secretarial review process, BLM agrees that the process is expensive and time consuming, but because the patent gives away what could be very valuable Federally owned resources for a nominal fee, care in reviewing patent applications is warranted. BLM notes also that a patent is not required to mine a valuable mineral deposit found in Federal lands.

Commenters observed that BLM already had authority to write policies that made the existing regulations more effective and cited several examples. These commenters asserted that the development of policy was the proper way to address and solve problems rather than to undertake wholesale modification of the existing regulations. One commenter supported incorporation of the cyanide and acid drainage policies into the new regulations. Several commenters pointed to BLM's development of the use and occupancy “policy” as having resolved a “significant” problem.

BLM's authority to develop policies that extend and improve implementation of regulations is limited by the Administrative Procedure Act (APA). When policies go beyond simply explaining or otherwise implementing an existing set of regulatory standards, the APA requires that they be published as rules. BLM's amended bonding rules set aside by the court in
Northwest Mining Association
v.
Babbitt
(No. 97-1013, D.D.C. May 13, 1998) incorporated parts of earlier bonding and cyanide policies. These final regulations incorporate elements of the bonding, cyanide, and acid drainage policies. The use and occupancy “policies” (43 CFR 3715) originated out of a commitment in 1990 to initiate a separate rulemaking to provide field managers with a set of tools to manage legal occupancy and terminate illegal mining claim occupancy. As such, they predated the initiation of this rulemaking in 1991 and did not flow from that review, as claimed by one commenter.

BLM is fully aware that approvals of plans of operations on unclaimed lands are not based on property rights under the mining laws, and that approval of a

plan of operations under subpart 3809 does not create property rights where none previously existed. The purpose of the regulations is to prevent unnecessary or undue degradation, not to adjudicate or convey rights under the mining laws.

One commenter stated that subpart 3809 does not properly incorporate FLPMA's requirement of suitability analysis, which is the multiple-use mandate that governs BLM activities on the public land and regulatory activities. The commenter stated that FLPMA requires the BLM to balance competing resources to determine what is in the best interests of the American people. To do this, BLM needs to determine the benefits of a proposed activity and balance that against the impacts on other competing activities, including water quality, recreation, wildlife habitat, and so forth. Also, FLPMA has an eye toward preserving public land resources for future generations. The commenter asserted that this mandate alone suggests that the BLM should do everything it can to protect public land values for future generations, such as requiring the most up-to-date technology to not minimize, but prevent, undue degradation of the public land. Given the concessions that BLM appears to be making to the mining industry, according to the commenter, the agency should require the most up-to-date, best available technology to control all threats to public land values. That approach is underlined by FLPMA's attention to preserving land value for future generations.

BLM does not accept the commenter's suggestion. BLM uses the land-use planning process under section 202 of FLPMA to determine the long-term management of lands, balance competing resource concerns, and decide if any areas should be withdrawn (determined unsuitable) from operation of the mining laws to protect other resources. Once an area is identified for withdrawal from the mining laws, a withdrawal is processed under section 204 of FLPMA. The 3809 regulations are applied where the area is open to operation of the mining laws, or if closed, where there are valid existing rights. The regulations are not intended to be a vehicle for suitability determinations. BLM has added a requirement in the final regulations to the definition of unnecessary or undue degradation that protects certain significant resources from substantial irreparable harm that cannot be mitigated if identified during review of a specific proposal. However, this does not replace the need for comprehensive land-use planning or mineral withdrawals to make broad-based “multiple use” determinations about how to manage the public lands.

BLM also disagrees that FLPMA's multiple use mandate requires mining operations to apply the “best available technology.” Once it has been determined that an area will be used for mining operations, a certain level of mining-related impacts is inevitable, and the land will not necessarily be available for all other uses.

Section 3809.3 What Rules Must I Follow if State Law Conflicts With This Subpart?

BLM has adopted § 3809.3 as proposed. Final § 3809.3 clarifies situations where State and Federal laws or regulations relating to the conduct of mining operations may conflict. The final rule provides that if State laws or regulations conflict with subpart 3809 regarding operations on public lands, the operator must follow the requirements of subpart 3809. The rule also states that there is no conflict if the State law or regulation requires a higher standard of protection for public lands than this subpart. The final rule incorporates the Supreme Court's ruling in the
Granite Rock
case (
California Coastal Commission et al.
vs.
Granite Rock Co.
, 480 U.S. 572, 581 (1987)) and the 1980 final rule preamble position regarding preemption into the regulations (45 FR 78908, Nov. 26, 1980).

There were many general comments on State conflicts and preemption. Most of the comments on this provision were concerned about the revisions from the previous rule and the negative impacts on Federal/State relationships. Most of the commenters that expressed concern over the proposed regulations urged that BLM not change the previous regulations. Although there were no specific comments that expressly and specifically supported the proposal, there were general comments that expressed concern that State laws are not strict enough to protect public lands and BLM should not abdicate its stewardship responsibilities by deferring to State regulations. Many commenters expressed concern that this section would create confusion, especially at sites with mixed public and private lands.

Other commenters expressed concern that the effect of this section will be to diminish the States' roles as co-regulators on Federal lands within their borders. Another commenter stated that “this one-sided approach to the preemption issue would abdicate Congress's direction to BLM to “encourage development of federal resources.” State agencies expressed concern that this section would harm existing Federal/State relationships. Commenters noted that this provision and the provisions regarding Federal and State agreements would effectively cause the States to change State programs.

Another commenter added that “This provision coupled with the proposed provisions of the Federal/State relationship (§§ 3809.201 to 3809.204) and the proposed performance standards (§ 3809.420) will have a preemptive effect on State Laws. Preemption of State laws is not contemplated by FLPMA and will cause a host of problems.” Commenters from the State agencies requested that BLM specifically indicate in the regulations and the draft EIS where there is conflict with specific state laws. Commenters also disagreed that the new provision is consistent with the decision in the
Granite Rock
case. One commenter indicated that any State provision “that is so stringent that it effectively precludes mining or substantially interferes with mining on the public lands is preempted, because it would run afoul of the provisions of the Mining Law.”

One commenter asked whether BLM would enforce the newly enacted Montana constitutional amendment banning cyanide leach processes from new mining operations, noting that it far exceeds the BLM standards and the Alternative 4 in the draft EIS.

Commenters also asserted that the proposed rules' provisions regarding preemption and Federal/State conflict cannot be reconciled with the NRC Report recommendations and that the existing regulatory relationships work and need not be replaced by the BLM regulations. One commenter noted that the requirements of this section “would take over administration of the programs previously handled by the states.”

Final § 3809.3 provides that no conflict exists if the State regulation requires a higher level of environmental protection. BLM disagrees that this final rule will significantly affect Federal/State relationships or diminish State roles as co-regulators. Under the final rule, States may apply their laws to operations on public lands. It is expected that conflicts will not be common occurrences. In most cases, satisfying the State requirements will also satisfy BLM's requirements. Satisfying the BLM requirements will also satisfy the State requirements. BLM intends to coordinate with the appropriate State agencies to avoid duplication of efforts. A conflict occurs only when it is impossible to comply

with both Federal and State law at the same time. If a conflict were to occur, the operator would have to follow the requirements of subpart 3809 on public lands. In this case, the State law or regulation is preempted only to the extent that it specifically conflicts with Federal law.

BLM expects to avoid conflicts in part through cooperation with States using the agreements under final §§ 3809.200 through 3809.204. In some situations, a State may choose to strengthen its regulations to be consistent or functionally equivalent to this subpart.

BLM disagrees with the comments that the preemptive effect of the rule violates FLPMA. One purpose of subpart 3809 is to establish a minimum level of protection for public lands. This is within the BLM's authority under FLPMA. States may continue to assert jurisdiction over mining operations on the public lands. As final § 3809.3 provides, it is only where a conflict with these rules exists that State law will be preempted. This is consistent with the U.S. Constitution and Federal law. As the United States Supreme Court stated:

“Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause [of the Constitution]. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause [of the Constitution].” We agree * * * that the Property Clause gives Congress plenary power to legislate the use of the federal land on which Granite Rock holds its unpatented mining claim. The question in this case, however, is whether Congress has enacted legislation respecting this federal land that would preempt any requirement that Granite Rock obtain a California Coastal Commission permit. To answer this question, we follow the pre-emption analysis by which the Court has been guided on numerous occasions: “[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. * * * If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, * * *, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”

California Coastal Commission
v.
Granite Rock Co.,
480 U.S. 572, 580-581 (quoting other cases, and omitting citations). Final § 3809.3 and the other rules cited by the commenter implement the principle enunciated by the Supreme Court for situations, such as FLPMA, involving areas where Congress has not entirely displaced State regulation. A further analysis of the preemptive effect of these rules appears in the preamble to the February 9, 1999 proposed rule at 64 FR 6427.

Although most of subpart 3809 should not conflict with State laws or regulations, one possible specific case where the regulations may conflict with State requirements is final § 3809.415(d), which requires avoiding substantial irreparable harm to significant scientific, cultural, and environmental resource values that cannot be mitigated. For instance, this requirement could address an issue which is related to the Secretary's trust responsibility for impacts to adjoining or nearby Native American lands. Some States may not have similar requirements. Even such a conflict is expected to be rare as historically most resource conflicts have traditionally been mitigated on the public lands.

There are also certain situations where the State law or regulations may provide a higher standard of protection than subpart 3809, such as the restriction on cyanide leaching-based operations approved by voters in Montana. In this situation, the State law or regulation will operate on public lands. BLM believes that this is consistent with FLPMA, the mining laws, and the decision in the
Granite Rock
case.

Final § 3809.3 is not inconsistent with the recommendations of the NRC Report, none of which expressly addresses preemption of State law. The report recognized that the overall regulatory structure “reflects the unique and overlapping Federal and state responsibilities” (p. 90) and also addressed the mechanism for protecting valuable resources and sensitive areas (p. 68). BLM believes that this represents an acknowledgment of the Department of the Interior's responsibilities in regard to FLPMA where the States may not have analogous coverage.

Section 3809.5 How Does BLM Define Certain Terms Used in This Subpart?

In developing the final rule, BLM has streamlined and clarified language in final §§ 3809.5 (definitions) and 3809.420 (performance standards) to address concerns raised by commenters about circular definitions and clarity of regulatory language. Definitions of several terms have been modified based on public comment. The concept of appropriate technology has been retained in final § 3809.420, but the term “most appropriate technology and practice” has been dropped from final §§ 3809.5 and 3809.420 to reduce confusion. The BLM has made no attempt to define terms used in the National Research Council Report unless specifically related to terms in the 3809 regulations and pertinent to this regulatory effort.

FLPMA authorizes the Secretary of the Interior to “prevent unnecessary or undue degradation of the public lands.” BLM believes that this broad authority provides for performance standards and related definitions. Many definitions included in the final rule are derived directly from FLPMA, CEQ regulations, or long-standing and publicly available Bureau policy. As such, the BLM believes the definitions to be consistent with Federal law and regulation, and not inconsistent with the recommendations of the NRC Report.

There were numerous requests to define terms such as “feasible,” “significant,” “necessary,” and “substantial.” BLM has chosen to rely on established definitions of these words in order to ensure greatest understanding of the terms rather than to introduce a specific regulatory definition. In addition, changes have been made in the language of the performance standards and elsewhere in the regulations to make these terms more clearly understood in the regulatory context.

“Casual Use”

This final rule defines “casual use” as activities ordinarily resulting in no or negligible disturbance of the public lands or resources. In paragraph (1) of the final definition, we give examples of things that we generally consider to fall within the definition of “casual use,” and in paragraph (2), we give examples of things that we don't consider to be “casual use.” Changes to the proposed rule in response to comments include adding a number of examples of what is “casual use” and eliminating the terms “hobby or recreational mining” and “portable suction dredges.” We also made a clarifying change related to when the use of motorized vehicles is not “casual use.” These changes are discussed below.

A commenter felt that the BLM should focus more on mining operations of less than five acres in size instead of on numerous changes in the definition of “casual use.” One commenter indicated that BLM needs to revise the definition of “casual use” to be consistent with NRC Report Recommendations 1, 2, and 3. A few commenters said that BLM should assure that the definition of “casual use” is similar to the Forest Service definition.

Many commenters felt that BLM should develop a detailed list of what “casual use” is to ensure that there is no confusion in anyone's mind about when an activity is considered casual use and when it falls under a notice. Other commenters indicated the current definition needed to be strengthened to ensure protection of public lands and resources, particularly riparian areas. One suggested that the amount of area to be disturbed should be specifically defined.

Many commenters stated that the current definition of “casual use” had worked well for nearly 20 years and did not need to be changed. One commenter indicated that the NRC Report supported BLM retaining the definition of “casual use.” Other commenters stated that the existing definition of casual use provides adequately for prospecting and recreational mining according to BLM's own data. Some commenters objected to the expansion of items not be to considered “casual use.”

The final rule definition of casual use is based on the existing definition. We have modified it to address situations that have arisen since the 1980 regulations were published. We have included examples of activities that are generally considered casual use, and examples of activities that are not considered casual use. For instance, the term “occupancy,” as defined in 43 CFR 3715.0-5, is not considered “casual use.” Similarly, the final rule clarifies that surface disturbance from operations in areas where the cumulative effects of the activities result in more than negligible disturbance is not casual use.

Some commenters stated the proposed definition was too restrictive and recommended that “casual use” should include not only hand tools, but also other equipment used by recreational miners. Several commenters felt that some mechanized equipment should be allowed under casual use. Several commenters stated that casual use has always included the use of mechanized equipment. Several commenters felt that the changes in the definition of casual use could be interpreted by some offices in a way that would result in elimination of prospecting and recreational mining on public lands. Others raised a concern that the revised definition of casual use will preclude geochemical sampling and will adversely affect mineral exploration.

Others expressed a general concern about the proposed provision that would have required hobby and recreational miners to file a notice, instead of operating under casual use, where the cumulative effect of their operations results in more than negligible disturbance. Some commenters expressed the view that active prospecting is virtually excluded without the ability to conduct these activities as casual use.

It is not the intention of the BLM to unduly restrict mineral prospecting and exploration on the public lands. Revisions in the final rule are intended in part to address concerns on the part of some members of the public about cumulative impacts to the environment resulting from multiple operations in a single area. The requirement for operations above the “casual use” level to file a notice or plan of operations and obtain a financial guarantee is intended to provide an increased measure of environmental protection for public land and resources. On the other hand, exploration techniques involving negligible surface disturbance will not require a notice or financial guarantee. See also the preamble discussion of final § 3809.31(a).

Based on the number and substance of comments about the description of activities that cause negligible surface disturbance, the definition of casual use was expanded in this final rule to include geology-based sampling and non-motorized prospecting activities.

The public comments on suction dredging and its impacts covered a broad range. One commenter stated that the proposed regulations are contrary to the NRC finding that States adequately regulate suction dredging under their own permitting. Another commenter stated that BLM does not acknowledge the NRC finding that BLM appropriately regulates small suction dredge operations under current regulations. The same commenter, as well as others, felt that BLM should allow at least some suction dredge activities under casual use. Other commenters stated that suction dredging should be regulated by State fish and game departments.

Some members of the public indicated that suction dredging should not be handled as a casual use because of associated environmental impacts. Some commenters did not view the damage caused by suction dredging to be a major environmental concern. Another commenter indicated that the major impacts (in California) from suction dredging were associated with abandoned junk, long-term camping, sewage and waste management, and interference with other public land users.

Several commenters felt that the BLM should give more credence to a U.S. Geological Survey study on the Forty Mile River in Alaska that found no adverse impacts to water quality from suction dredges with an intake diameter of 10 inches. Many commenters, from different states, indicated that 4″, 5″, and 6″ (intake diameter) on suction dredges have essentially the same impacts, and in the view of these commenters are not environmentally damaging.

In response to the comments, and to be consistent with the NRC Report discussion, the final definition of “casual use” allows small portable suction dredges to qualify on a case-by-case basis as “casual use.” BLM believes that this approach is also consistent with IBLA case law because the cases holding that suction dredging is not “casual use” were dependent upon the specific facts and circumstances at issue in those cases.

Some commenters feel the complete exclusion of chemicals from casual use operations is unrealistic and too far-reaching. They recommend that only “hazardous” chemicals to land or water be prohibited. Other commenters expressed the concern that the definition of casual use should not include small miners because they might not have the expertise to use chemicals properly.

BLM's intent in defining “casual use” as not including the use of chemicals does not apply to the use of small amounts of gasoline, oil, or similar products in connection with small operations, but is intended to address concerns about the use of cyanide and other leachates. We did not create an exception to this provision for small miners (some of whom the commenter alleged might not have the expertise to use chemicals properly) because the issue here is the impact of harmful chemicals on the environment, not the size of the operation or the sophistication of the operator.

Many commenters supported the use of truck-mounted drilling equipment under casual use when no new road construction or surface disturbance would be required.

BLM recognizes the desire of those conducting mineral exploration using truck-mounted drilling equipment to maximize their access to drill sites on public lands with minimum regulation. However, the BLM believes that drilling activities should be conducted under a notice or a plan to increase consideration of potential impacts to the environment, including, but not limited to riparian areas, cultural resource sites, and wildlife habitat. Therefore, BLM has not included truck mounted drilling activities under casual use.

Several members of the public commented that there is no provision in

the mining laws for recreational mining, and that it should not be regulated under subpart 3809. Others recommended that the term “recreational mining,” if used at all, should be defined in BLM's recreation management regulations (43 CFR 3840). Several commenters indicated that recreational prospecting is generally allowed in most States, and should not be constrained on BLM-administered lands.

Many commenters indicated that recreational or weekend miners will not be able to prospect and extract minerals if they are required to operate under the notice rather than the casual use provisions. Several suggested that they would not be able to afford the cost of filing a notice and obtaining a bond. Another view, expressed by one commenter, identified a concern that small miners might lack the expertise to properly use chemicals or afford a bond.

The public provided a range of perspectives relative to the impacts of “hobby or recreational mining.” Many commenters expressed concern about recreational mining being included in the category of casual use because it allowed for uncontrolled use of public lands with associated impacts.

Another commenter stated that if there are inappropriate impacts to the land by weekend recreational miners, stiffer fines are a more appropriate response than a broad-scale restriction of land use. One commenter prefers designations or constraints to be included in the regulations rather than in the land-use plans. Another felt that BLM should identify areas in land-use plans where hobby or recreational mining could occur. Some commenters felt that all recreation and hobby mining should be casual use.

The BLM recognizes that some weekend prospectors and recreational miners may now be required to obtain a notice rather than operate under the casual use provision. However, it is BLM's intent that all operations which cause more than negligible surface disturbance should be conducted under a notice or a plan to ensure appropriate review of environmental concerns and development of appropriate mitigation.

Numerous members of the public stated that the term, “recreational mining,” should be more clearly defined or deleted. Some commenters felt that the lack of definition of recreational mining will lead to inconsistent interpretation of what it includes.

Many commenters recommended changing the definition to include some version of the following: “The term casual use should include the following activities: use of metal detectors, gold spears, and other battery-operated devices for sensing the presence of minerals, battery-operated and motorized high bankers, hand, battery operated, and motorized drywashers, and motorized gold concentrating wheels.”

One individual commented that the definition of “casual use” should be modified to state “Nonprofit organizations or societies, hobbyists, and recreational miners are classified as casual use as long as they do not use motorized tools.” Many commenters expressed concern that the new definition of casual use could eliminate rock hounding. Others made general statements that the definition is too restrictive. Numerous members of the public felt there should be a provision for collection of mineral specimens with hand tools, hand panning and motorized sluices. Others commented that the definition of casual use should include sampling of rocks and soils.

The BLM concurs with the recommendations made by the public to include various types of sampling, and various types of prospecting activities and equipment in the definition of casual use to clarify its intent that these types of activities are acceptable under the definition of casual use as long as they create no or negligible surface disturbance. The definition has been modified to address this concern. The BLM did not however, elect to include high bankers and other similar equipment in this definition in order to address concerns about the surface disturbing impacts of this type of equipment.

A proposed paragraph (2) of the “casual use” definition would have indicated that use of motorized vehicles in areas designated as closed to “off-road vehicles” (ORV), as defined in 43 CFR 8340.0-5 is not “casual use.” Under BLM's existing ORV regulations, ORV use may be completely prohibited (a “closed area”) or restricted at certain times, in certain areas, or to certain vehicular use (a “limited area”). We are concerned that the language of the proposal may be interpreted to mean that only motorized vehicle use in “closed areas” exceeds the “casual use” threshold. In reality, we intended the language to also mean that motorized-vehicle use that conflicts with the use restrictions in a “limited area” exceeds the “casual use” threshold. Therefore, we have made a clarifying change to the final rule to indicate that use of motorized vehicles in areas when designated as closed (either permanently or temporarily) is not “casual use.”

“Exploration”

Although not explicitly requested by the public in comments, the BLM has added a new term, “exploration,” to the definitions. The final rule embraces the concept that exploration activities will be covered under a notice, unless they exceed five acres unreclaimed surface disturbance in a calendar year, and any mining activities will be covered by a plan of operations. The definition of “exploration” was included to help differentiate when an operator should file a notice and when an operator should file a plan of operations and is necessary to implement the NRC Report recommendations.

Military Lands

A few commenters said that BLM needs to define the term, “military lands,” and clarify to what extent subpart 3809 applies to minerals on military lands that are also under the jurisdiction of BLM.

Public Law 106-65 extended the withdrawals for Fort Greely, Alaska; the Yukon Range of Fort Wainwright, Alaska; Nellis Air Force range, Nevada; Naval Air Station Fallon Range, Nevada; McGregor Range of Fort Bliss, New Mexico; and Barry M. Goldwater Range, Arizona. The mining language in the prior Public Law 99-606 withdrawal for these ranges was carried forward into Public Law 106-65.

Public Law 99-606 provided for land-use planning on these military ranges. The BLM has completed land-use plans on all lands addressed by Public Law 99-606 except for Bravo-20 Range at the Naval Air Station at Fallon, Nevada. No lands were found suitable to open to entry under the mining or mineral leasing laws, except at McGregor Range, in New Mexico. Public Law 106-66 calls for the update of these land-use plans. No implementing regulations for these public laws have been promulgated to date. The responsibilities of the BLM would be outlined at such time as these regulations are developed.

“Minimize”

According to one commenter, the proposed definitions of “minimize” is fundamentally at odds with the NRC Report because NRC assumes mining will change the landscape. Other commenters thought this definition should be deleted because it is confusing and is defined differently than the commonly understood meaning of the word “minimize.” Several commenters stated that “minimize” is not synonymous with “eliminate” or “avoid.” The precise meaning of some

terms within the definition—“most” and “practical level”—were unclear to some commenters. Several commenters raised the concern that the second sentence in the proposed regulations has significantly reduced the BLM's flexibility from the current 3809 rules.

BLM is in agreement with the NRC that mining changes the landscape. However, it is the view of the BLM that the NRC Report recommendations do not preclude appropriate attempts to reduce or avoid impacts to public land and resources. BLM has modified the second sentence of the proposed definition of “minimize” to reduce confusion and increase flexibility of the authorized officer in evaluating proposed mining operations. Rather than stating that “minimize” “means” to avoid or eliminate, the final rule clarifies that in certain instances “it is practical” to avoid or eliminate particular impacts. In this context, “practical” is not based on what a particular company can afford, but rather on technologies and practices reasonably considered to be cost-effective.

By changing the final rule in this manner, BLM will still define the term “minimize” as it is used in a number of the performance standards in final § 3809.420 as reducing the adverse impact of an operation to the lowest practical level. During BLM's review of proposed operations, either notice or plan-level, BLM might determine that avoiding or eliminating specific impacts can be achieved practically. BLM would determine the lowest practical level of a particular impact on a case-by-case basis.

“Mining Claim”

The final definition is unchanged from the proposal. A commenter suggested that the definition of “mining claimant” should be included in this subpart, rather than including just a cross reference to existing 43 CFR 3833.0-5. The definition should include any citizen or entity in the United States. The definition should be similar to the current definition.

BLM has referenced the definition in 43 CFR 3833.0-5 to promote consistency in definition of terms across Title 43 of the Code of Federal Regulations. The definition provides for citizens of the United States to hold mining claims.

“Mitigation”

The final definition is unchanged from the proposal. A commenter asserted that the term should be deleted from the regulation unless BLM can show specific statutory authority for mitigation. In the commenter's opinion, BLM has no authority to require compensatory mitigation. Several commenters raised the question of when compensation is appropriate and whether BLM has the statutory authority to require it. Some commenters indicated that the definition of “mitigation,” which comes from the Council on Environmental Quality definition, should be eliminated because in that context it was used for analytical purposes rather than regulatory purposes, as in this case. Some commenters felt that the revised definition, included in the draft rule, gives the BLM too much latitude without a standard for comparison.

Section 302(b) and 303(a) of FLPMA, 43 U.S.C. 1732(b) and 1733(a), and the mining laws, 30 U.S.C. 22, provide BLM the authority for requiring mitigation. Mitigation measures fall squarely within the actions the Secretary can direct to prevent undue or unnecessary degradation of the public lands. An impact that can be mitigated, but is not, is unnecessary. Section 303(a) of FLPMA directs the Secretary to issue regulations with respect to the “management, use, and protection of the public lands * * *” In addition 30 U.S.C. 22, allows the location of mining claims subject to regulation. Taken together, these statutes clearly authorize the regulation of environmental impacts of mining through measures such as mitigation. The final rule does not require compensatory mitigation. However, many companies are currently voluntarily completing compensatory mitigation, and it is clearly an available form of mitigation.

BLM believes it is appropriate to retain the Council on Environmental Quality's government-wide definition of “mitigation” as it appears in 40 CFR 1508.20. An operator who must “mitigate” damage to wetlands or riparian areas under final § 3809.420(b)(3), or who must take appropriate mitigation measures for a pit or other disturbance, would have to take mitigation measures, which includes the measures listed in the definition. BLM will approach mitigation on a mandatory basis where it can be performed on site, and on a voluntary basis, where mitigation (including compensation) can be performed off site. For example, if, because of the location of the ore body, a riparian area must be disturbed, mitigation can be required on the public lands within the area of mining operations. If a suitable site for riparian mitigation can't be found on site, the operator, with BLM's concurrence, may voluntarily choose to mitigate the impacts to the riparian area off site.

“Most Appropriate Technology and Practices” (MATP)

The final rule does not contain a definition of MATP. A commenter stated that the only statement in the proposed definition of MATP or in the explanation of the proposed rule regarding cost is that “MATP would not necessarily require the use of the most expensive technology or practice.” The commenter asserted that this statement not only fails to address how BLM would consider cost, but suggests that BLM could require the use of the most expensive technology or practice for a mine regardless of whether the mine meets performance standards by using a less expensive technology. The commenter asserted that if BLM claims authority to require use of a particular technology under such circumstances, the proposed rules would clearly violate FLPMA, the general mining laws, and the Mineral Development Act. The commenter stated that requiring the use of a costly technology that may make mining impossible or uneconomical in order to achieve minimal or no environmental benefits would ignore FLPMA's limit on BLM's authority only to prevent “unnecessary” and “undue” degradation of public lands, would impair the rights of locators and claims located under the general mining laws in violation of 43 U.S.C. 1732(b), and would contravene Congress' policy and intent for BLM to manage public lands in a manner that recognizes the Nation's need for domestic sources of minerals and to implement the Mining and Minerals Policy Act of 1970, as set forth in 43 U.S.C. 1701(a)(12). The commenter also stated that the proposed rules provide no explanation of how BLM will reconcile its proposed authority to impose technology-based requirements with its legal authority and obligations under FLPMA.

BLM disagrees that a statement included to assure operators they would not have to use the most expensive technology could be interpreted to mean they would be required to use the most expensive technology or practice regardless of whether the mine meets performance standards. The term “MATP” has been deleted from the final regulations because BLM concluded it was confusing and circular, and did not add to the protection provided by the performance standards. In its place, we added a requirement to the performance standards that requires operators to use equipment, devices and practices that will meet the performance standards. The purpose of this requirement is not

for BLM to specify that an operator use any particular technology, but instead to assure that the methods an operator proposes to employ are technically feasible for meeting the performance standards.

Some commenters stated that the NRC Report indicated that existing State and Federal laws are okay with respect to technology. Others indicated that there was no specific statutory authority for requiring most appropriate technology and practices. Still others felt the BLM should abandon the concept of MATP in favor of best available technology (BAT). There was considerable agreement from numerous commenters that the definition proposed in the draft regulations was unclear, confused, difficult to enforce, ambiguous, and circular. Even commenters who liked the concept of MATP over BAT were critical of the BLM's definition. A few commenters raised a concern about whether this definition would be in conflict with State law or technical standards.

BLM agrees with concerns raised about the term “most appropriate technology and practices.” The term has been deleted from the definitions in the final rule. Final § 3809.420(a)(1) incorporates the requirement to use equipment, devices, and practices that will meet the performance standards of subpart 3809.

“Operations”

Several members of the public stated that the definition of “operations” needs to clarify that FLPMA only gives the BLM authority to regulate activities on Federal public lands. Another commenter indicated that the definition needs to include any facility that is used for the beneficiation of ore. One commenter expressed a concern that including “reclamation” in the definition of “operations” might cause confusion. Another commenter asserted that the definition of “operations” should be defined to include geologic-based or hobby activities such as rock hounding, hobby mining, fossil collecting, caving, and other similar activities.

In the final rule, BLM did not modify the definition except to add a reference to exploration. The definition is intended to be broad in scope to address “cradle to grave” activities authorized under the mining laws on the public lands. Therefore, reclamation is included in the definition of operations. The definition clearly states that it applies to activities on public lands. The BLM may request information about activities on adjacent or near by private lands because a proposed operation may occur on mixed ownership, or environmental analysis requirements under the National Environmental Policy Act may require that BLM have a complete picture of the proposed operation. The definition adopted today covers all activities under the mining laws which occur on public lands as casual use or under a notice or a plan or operations, including the hobby activities mentioned by the commenter.

Several commenters opposed applying subpart 3809 to unclaimed land, asserting that the proposal improperly treats such lands as having valid claims and would codify the industry position. The commenters stated that a decision to allow mining on such lands is discretionary and not based on property rights and that BLM should make decisions regarding mining operations on unclaimed lands based on FLPMA's multiple-use mandate rather than treating operations on such lands as equivalent to operations on lands where operators have property rights under the mining laws. Thus, the commenters concluded that 43 CFR subpart 2920 should apply, not subpart 3809. Subpart 2920 does not authorize the exclusive and permanent use of public lands. Commenters stated that increased costs associated with subpart 2920 might result in lower grade ores not being mined. Commenters inquired whether BLM's interim directive would be extended when it expired in September 1999?

BLM has carefully considered the relationship between FLPMA and rights under the mining laws. In these regulations, BLM has decided that it will approve plans of operations on unclaimed land open under the mining laws if the requirements of subpart 3809 are satisfied, and the other considerations that attach to a Federal decision, such as Executive Order 13007 on Indian Sacred Sites, are also met. This continues the scheme that existed under the previous rules and recognizes that in certain situations acreage authorized under the mining laws may be insufficient to conduct large-scale operations.

Other commenters noted the inclusion of unclaimed land within the reach of regulation. They perceived this as a proposed expansion of the ambit of the mining laws and were opposed to any such expansion.

BLM disagrees with the commenters' interpretation of the mining laws. Lands are open to the right to prospecting and if successful, location of mining claims. The sequence of activity set out in the text of the law itself (exploration, then discovery, followed by claim location) presupposes that activities will be carried out on unclaimed land. The same goes for land that has been improperly claimed, for example, with millsites in excess of applicable limits. The inclusion of unclaimed land within an area of operations subject to these regulations is carried over from the original November 26, 1980 rulemaking. That rulemaking, at 45 FR 78903, addressed similar comments received on that rulemaking's definition of “mining operations” and noted, “One does not need a mining claim to prospect for or even mine on unappropriated Federal lands.” BLM is simply carrying forward the older definition with only minor modifications. Nothing about the law or the regulations has changed, and the right to use unappropriated Federal lands to engage in reasonably incident uses remains unaffected.

“Operator”

Several commenters stated that it was beyond BLM's authority to include in the definition of “operator” all persons who own a mining claim or otherwise have an interest in a claim. A commenter felt the definition of “operator,” when combined with the new provisions for joint and several liability are contrary to NRC Report Recommendation 7, which concerns promoting clean up of abandoned mine sites adjacent to new mine areas without causing mine operators to incur additional environmental liabilities. According to one commenter, the proposed definition of “operator” is similar to the approach taken under the Surface Mining Control and Reclamation Act (30 U.S.C. 1201
et seq.
), but there is no authority for this approach in FLPMA.

We evaluated the proposed definition in the context of public comments but did not change it. The definition of “operator” adopted today incorporates a “material participation” test for determining whether a parent entity or an affiliate is an “operator” under this subpart. As discussed in the preamble to the proposed rule (64 FR 6428), this test is in accord with reasoning contained in the Supreme Court decision in the
Best Foods
case. See
U.S.
v.
Best Foods et al.,
118 S. Ct. 1876. The authority for the definition derives from FLPMA, and BLM bases the definition on participation, not affiliation. BLM disagrees that the definition of “operator” is inconsistent with NRC Report Recommendation 7 because subpart 3809 applies to active operations, not to cleaning up previously abandoned mines.

“Project Area”

The final definition is unchanged from the proposal. Numerous commenters stated that there is no legal basis for the definition as proposed in the draft rule. According to many commenters, the proposed definition suggests that BLM is attempting to manage private land and State land. Others said that this term needs to be unambiguously defined to show how it will apply to all mineral ownerships. Commenters felt this to be especially important because they believe enforcement provisions say the mineral owner is financially liable for the actions taken by the operator. Several commenters said the definition should apply only to Federal public land. Clarification is needed, according to more than twenty commenters, on how BLM intends to deal with adjacent private lands.

Several commenters who had concerns about the intent of BLM with regard to private land within a project area tied their concerns to the relationship of joint and several liability to the project area and the definition of “operator.”

At least one State has raised a concern about the relationship of a project area as defined by the BLM, for regulatory purposes, and an area defined by a state for similar purposes, but defined differently. Others raised concerns that mines should not be able to expand mine waste dumps by using surrounding public land.

In the final rule, BLM has clarified its intentions relative to the definition of “project area” in final § 3809.2(d). It is BLM's intent to regulate operations on public lands managed by the Secretary of the Interior through the BLM. However, BLM may collect and evaluate information from private lands for the purpose of analysis under the National Environmental Policy Act.

The “project area” concept is used to facilitate defining an area of operations for the purpose of analysis and decision-making. This will not preclude an individual State from using its own means of defining a project area. Differences between BLM and a State can be worked out through cooperative agreement or other means. Since the location and management of mine waste is part of the plan of operations and associated environmental analysis, these should be considered during the processing of the plan of operations or the notice and should be within the established project area for a given mine.

“Public Lands”

Many commenters indicated that the draft rule definition of “public lands” caused considerable confusion and consternation about BLM's intent with regard to private land and State land. Several commenters raised concerns about the applicability of the regulations to the Stock Raising Homestead Act lands where the surface is private and the mineral estate is Federal.

Others questioned BLM's authority to regulate activities on Stock Raising Homestead Act lands without the consent of the land owner. O

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A00-29472. Public record. Not legal advice.