Mining Claims Under the General Mining Laws; Surface Management

SUMMARY: The Bureau of Land Management (BLM) proposes to revise its

regulations governing mining operations involving metallic and some

other minerals on public lands administered by BLM. BLM is revising the

regulations to improve their clarity and organization, address

technical advances in mining, incorporate policies developed after the

previous regulations were promulgated, and better protect natural

resources and our Nation's natural heritage lands from the adverse

impacts of mining. The regulations are intended to prevent unnecessary

or undue degradation of BLM-administered lands by mining operations

authorized by the mining laws.

DATES: Comments. Send your comments to reach BLM on or before May 10,

1999.

Public Hearings. BLM plans to hold public hearings in conjunction

with this proposed rule. The dates and times of the hearings are in the

SUPPLEMENTARY INFORMATION section under Public Hearings.

ADDRESSES: Comments. You may mail comments to Bureau of Land

Management, Administrative Record, Nevada State Office, P.O. Box 12000;

Reno, Nevada 89520-0006. You may hand deliver comments to BLM at 850

Harvard Way, Reno, Nevada. Submit electronic comments and other data to

WOC[email protected]. For other information about filing comments

electronically, see the SUPPLEMENTARY INFORMATION section under

``Electronic access and filing address.''

Public Hearings. The locations of the public hearings that BLM is

holding in conjunction with this proposed rule are in the SUPPLEMENTARY

INFORMATION section under Public Hearings.

FOR FURTHER INFORMATION CONTACT: Robert M. Anderson, (202) 208-4201; or

Michael Schwartz, (202) 452-5198. Individuals who use a

telecommunications device for the deaf (TDD) may contact Mr. Anderson

or Mr. Schwartz by calling the Federal Information Relay Service at 1-

800-877-8339 between 8:00 a.m. and 4:00 p.m. Eastern time, Monday

through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

I. How Can I Comment on this Proposal?

II. What is the Background of this Rulemaking?

III. What are the Contents of the Proposal?

IV. How did BLM Meet its Procedural Obligations?

I. How Can I Comment on this Proposal?

Electronic Access and Filing Address

You may view an electronic version of this proposed rule at BLM's

Internet home page: www.blm.gov. You may also comment via the Internet

to: WOC[email protected]. Please also include ``Attention: RIN 1004-

AD22'' and your name and return address in your Internet message. If

you do not receive a confirmation from the system that we have received

your Internet message, contact us directly at (202) 452-5030. BLM is

working to set up a system that would allow commenters to send comments

via the Internet and to view already submitted comments. When this

system is available, we will publish a notice in the Federal Register.

Written Comments

Your written comments on the proposed rule should be specific,

confined to issues pertinent to the proposed rule, and should explain

the reason for any recommended change. Where possible, you should

reference the specific section or paragraph of the proposal that you

are addressing. BLM may not necessarily consider or include in the

Administrative Record for the final rule comments that BLM receives

after the close of the comment period (see DATES) or comments delivered

to an address other than those listed above (see ADDRESSES).

BLM will make comments, including names, street addresses, and

other contact information of respondents, available for public review

at this address during regular business hours (8:00 a.m. to 4:00 p.m.),

Monday through Friday, except Federal holidays. BLM will also post all

comments on its Internet home page (www.blm.gov) at the end of the

comment period. Individual respondents may request confidentiality. If

you wish to request that BLM consider withholding your name, street

address, and other contact information (such as: Internet address, FAX

or phone number) from public review or from disclosure under the

Freedom of Information Act, you must state this prominently at the

beginning of your comment. BLM will honor requests for confidentiality

on a case-by-case basis to the extent allowed by law. BLM will make

available for public inspection in their entirety all submissions from

organizations or businesses, and from individuals identifying

themselves as representatives or officials of organizations or

businesses.

Public Hearings

BLM will hold public hearings at the following locations on the

dates and local times specified.

Alaska

Fairbanks--March 30, 1999--Carlson Center, 2010 Second Avenue; 1:00

p.m. and 7:00 p.m.

Arizona

Phoenix--March 30, 1999--Sheraton Hotel, 2620 Dunlap Avenue; 1:00

p.m. and 6:00 p.m.

California

San Francisco--April 20, 1999--Holiday Inn Civic Center, 50 Eighth

Street; 1:00 p.m. and 6:00 p.m.

Ontario--April 21, 1999--Doubletree Hotel; times to be determined.

Sacramento--April 22, 1999--Red Lion Inn, 1401 Arden Way; 1:00 p.m.

and 6:00 p.m.

Colorado

Lakewood--March 30, 1999--Sheraton Denver West Hotel and Conference

Center, 360 Union Blvd., Golden Room; 1:00 p.m. and 7:00 p.m.

Washington, D.C.

April 14, 1999--Washington Plaza Hotel, 10 Thomas Circle, NW,

Monroe Room; 12:30 p.m.

Idaho

Boise--April 27, 1999--BLM State Office, 1387 S. Vinnell Way,

Sagebrush-Ponderosa Conference Room; 6:00 p.m.

Montana

Helena--April 14, 1999--Colonial Inn, 2301 Colonial Drive; 1:30

p.m. and 7:00 p.m.

New Mexico

Socorro--March 31, 1999--Macey Center, 801 Leroy, Galina Room; 3:00

p.m.

Nevada

Reno--March 23, 1999--Silver Legacy Hotel; 2:00 p.m. and 7:00 p.m.

Elko--March 24, 1999--Convention Center; 1:00 p.m. and 6:00 p.m.

Oregon

Eugene--April 22, 1999--BLM District Office, 2890 Chad Street,

Conference Room; times to be determined.

Utah

Salt Lake City--April 7, 1999--Department of Natural Resources,

1594 West North Temple, Rooms 1040/50, 1:00 p.m. and 6:00 p.m.

Washington

[[Page 6423]]

Spokane--April 20, 1999--Doubletree Inn; times to be determined.

Wyoming

Casper--March 31, 1999--Casper Parkway Plaza Inn, 123 West E

Street; 2:00 p.m. and 7:00 p.m.

In order to assist the transcriber and to ensure an accurate

record, BLM requests that persons who testify at a hearing give the

transcriber a copy of their testimony. The meeting sites are accessible

to individuals with disabilities. An individual with a disability who

will need an auxiliary aid or service to participate in the hearing,

such as interpreting service, assistive listening device, or materials

in an alternate format, must notify the person listed under FOR FURTHER

INFORMATION CONTACT two weeks before the scheduled hearing date.

Although BLM will attempt to meet a request received after that date,

the requested auxiliary aid or service may not be available because of

insufficient time to arrange it.

II. What is the Background of this Rulemaking?

Under the Constitution, Congress has the authority and

responsibility to manage public land. See U.S. Const. art. IV, Sec. 3,

cl. 2. Through statute, Congress has delegated this authority to

agencies such as the Bureau of Land Management (BLM). The Federal Land

Policy and Management Act of 1976 (FLPMA) directs the Secretary of the

Interior, by regulation or otherwise, to take any action necessary to

prevent unnecessary or undue degradation of the public lands. See 43

U.S.C. 1732(b). FLPMA also directs the Secretary of the Interior, with

respect to public lands, to promulgate rules and regulations to carry

out the purposes of FLPMA and of other laws applicable to the public

lands. See 43 U.S.C. 1740. ``Public lands'' are defined in FLPMA (in

pertinent part) as ``any land and interest in land owned by the United

States . . . and administered by the Secretary of the Interior through

the Bureau of Land Management. . . .'' See 43 U.S.C. 1702. The law

gives the Secretary of Agriculture responsibility for promulgating

rules and regulations applicable to lands within the National Forest

System. For this reason, none of the regulatory changes discussed in

this proposal would apply to the National Forests. See 36 CFR part 228

for regulations governing mining operations on National Forests. These

proposed regulations are also authorized by 30 U.S.C. 22, the portion

of the mining laws that opens public lands to exploration and purchase

``under regulations prescribed by law.''

Under this statutory authority, BLM issued regulations in 1980 to

ensure that public lands are protected from unnecessary or undue

degradation and that areas disturbed during the search for and

extraction of mineral resources are reclaimed. See 45 FR 78902-78915,

November 26, 1980. These regulations were BLM's first specific

regulations to govern surface-disturbing activities on public lands

resulting from operations under the mining laws. The basic framework

established by the 1980 regulations separates mining activities into

three distinct categories based on increasing levels of disturbance,

casual use, notice-level operations, and plan-level operations--each

with a correspondingly increasing level of BLM involvement.

In recognition of the fact that the 1980 regulations were a first

attempt at regulating mining activities on public lands, BLM

acknowledged that implementation of the regulations would involve

monitoring and a cooperative effort by BLM, the States, the mining

industry, and the public. BLM pledged to reassess the regulations and

amend them at the end of two years, as necessary to ensure that they

protect public lands from unnecessary or undue degradation (45 FR

78903).

Subsequently, a series of developments occurred that collectively

had the effect of focusing increased attention on Federal minerals

management under the mining laws and on mining law reform in general.

One of the most important developments was the widespread use of

cyanide leaching technology to extract gold from relatively low-grade

ores. According to the U.S. Geological Survey, in 1980 about two-thirds

of the 960,000 troy ounces of gold mined in the U.S. was produced using

cyanide technology. In 1997, virtually all the 10 million troy ounces

of U.S. gold production came through the use of cyanide technology. See

Minerals Information--Gold, U.S.G.S. (various years) and Minerals

Commodities Summaries--Gold, U.S.G.S. (Jan. 1988). The mining

operations using this technology process relatively large quantities of

ore and often disturb large areas, create large pits, require large

spoil and waste rock depositories, and utilize a significant amount of

water. At the same time, there was concern over migratory birds and

other wildlife being killed through contact with cyanide-containing

solutions in ponds and impoundments. There was also public concern

about the possible effects on human health of the use of cyanide by

mining operations. The General Accounting Office issues a series of

reports highlighting, among other things, abuses from hardrock mining,

the need for bonding of mining operations, and the need for better

reclamation. See GAO/RCED 86-48, GAO/RCED 87-157, GAO/RCED 88-21, and

GAO/RCED 88-123BR. As a result, in January 1989, the Director of BLM

established a task force to recommend ways to address the issues that

had been raised. See also GAO/RCED 91-145.

In late 1989, the task force recommended that BLM (1) expand its

bonding policy for exploration and mining, (2) develop a cyanide

management program, (3) review current reclamation practices, and (4)

address pre-1981 mining operations that have been abandoned. BLM took a

number of steps to implement these recommendations, including

development of a cyanide policy (BLM Instruction Memorandum 90-566,

August 6, 1990, amended November 1, 1990); issuance of a proposed rule

to revise the bonding regulations (56 FR 31602, July 11, 1991); and

completion of the Solid Minerals Reclamation Handbook (BLM Manual

Handbook H-3042-1, February 7, 1992, as amended). However, BLM had not

yet conducted a comprehensive review of the 1980 regulations, and the

Director decided in July 1991 that the time had come.

Thus, on October 23, 1991, BLM published a notice of intent to

propose rulemaking. See 56 FR 54815-54816. The notice solicited

comments on a number of issues, including--

Whether the five-acre threshold for notices should be

modified or eliminated,

Whether the definition of ``unnecessary or undue

degradation'' should be revised,

Whether the regulations should specify prohibited acts

subject to civil and criminal enforcement,

Whether time frames for review of plans and processing of

notices should be specified,

Whether additional environmental and reclamation

requirements should be added to the regulations,

Whether the regulations should clarify or elaborate the

activities authorized under casual use, and

Whether the regulations should provide for improved

coordination and cooperation with States.

As a part of the review, BLM conducted four public workshops in

December 1991, in Anchorage, Alaska; Spokane, Washington; Denver,

Colorado; and Reno, Nevada. BLM received about 140 written comments,

along with petitions containing about 250 signatures. About 250 people

attended the four workshops. Following the close of the comment period

on

[[Page 6424]]

January 3, 1992, a task force of BLM employees began work on proposed

revisions to the 1980 regulations. The task force completed its work

and presented its recommendations to the Director of BLM in April 1992.

The recommendations included changing the five-acre threshold to give

BLM greater management control over special areas, sensitive resource

values, processing operations, and reclamation and adding enforcement

provisions to the regulations.

However, BLM put the initiative on hold due to the legislative

proposals for mining law reform then under consideration by the

Congress. The legislative changes would have superseded any changes to

the 1980 regulations. Ultimately, neither the 103rd (1993/1994) nor the

104th (1995/1996) Congress produced legislative changes. In the

meantime, BLM moved forward to complete and implement other proposals

that stemmed from initiatives begun earlier, including:

An acid mine drainage policy to ensure uniform

consideration of this issue in plans of operations (BLM Instruction

Memorandum 96-79, April 2, 1996);

A final rule tightening standards and strengthening

enforcement against improper use and occupancy of mining claims (61 FR

37116, July 16, 1996); and

A final rule to strengthen bonding requirements (62 FR

9093, February 28, 1997).

On January 6, 1997, the Secretary of the Interior, expressing the

view that, ``It is plainly no longer in the public interest to wait for

Congress to enact legislation that corrects the remaining shortcomings

of the 3809 regulations,'' directed BLM to restart the rulemaking

process. The Secretary identified several regulatory revisions that

should be proposed for public comment, including:

Rewriting the definition of ``unnecessary or undue

degradation;''

Developing performance standards for the conduct of mining

and reclamation;

Proposing alternative ways of addressing the issue of

notice-level operations; and

Coordinating with State regulatory programs to minimize

duplication and promote cooperation.

On April 4, 1997, BLM issued a notice informing the public of the

agency's intent to prepare an environmental impact statement (EIS) for

the revision of the 3809 regulations and requesting comments on the

scope of the EIS. See 62 FR 16177. To collect a wide range of comments,

BLM held public meetings at 11 locations throughout the Western United

States. BLM also held a public meeting in Washington, D.C. Over 1,000

people attended the public meetings. In addition to the verbal comments

collected at the public meetings, BLM also received more than 1,800

comment letters from individuals and representatives of State and local

governments, the mining industry, and citizens' groups.

As highlighted earlier in this discussion, BLM revised the

financial guarantee requirements of the 1980 regulations in a final

rule issued on February 28, 1997. See 62 FR 9093. The changes included

requiring financial guarantees for all plan-level operations, requiring

certification of the existence of financial guarantee for all notice-

level operations, requiring third-party certification of reclamation

cost estimates, setting minimum per-acre financial guarantee amounts,

and expanding the kinds of financial instruments that can be used as

financial guarantees. The 1997 financial guarantee changes were

challenged by an industry association. On May 13, 1998, a Federal Court

remanded the revised regulations on procedural grounds. See Northwest

Mining Association v. Babbitt, No. 97-1013 (D.D.C. May 13, 1998). This

action reinstated the regulations that were in place prior to the 1997

final rule. A significant aspect of this rulemaking is to respond to

the remand by re-promulgating strengthened financial guarantee

provisions. See the discussion of the proposed financial guarantee

regulations in the section-by-section description of the proposed

regulations later in this preamble.

Despite the foregoing history and developments related to subpart

3809 which would justify a rulemaking to update subpart 3809, it has

been asserted that BLM has not demonstrated a need to revise subpart

3809 in light of improvements in State regulation of locatable minerals

mining since 1980. BLM disagrees. Both the authority and the need exist

for this rulemaking. This rulemaking is based upon BLM's non-delegable

and independent responsibility under FLPMA to manage the public lands

to prevent unnecessary or undue degradation of the public lands, and a

recognition that BLM's current rules may not be adequate to assure this

result. In enacting FLPMA, Congress intended that the Secretary of the

Interior determine what constitutes unnecessary or undue degradation

and not that the States would do so on a State-by-State basis. Sections

302(b), 303(a), and 310 of FLPMA reflect this responsibility. This

rulemaking, therefore, reflects the Secretary's judgment of the

regulations required to prevent unnecessary or undue degradation.

BLM recognizes that many of the States have upgraded their

regulation of locatable minerals mining since 1980. It is clear,

however, the Federal rules need upgrading, regardless of State law.

Areas where the existing rules require upgrading include financial

guarantees (to require financial guarantees for all operations greater

than casual use, thereby ensuring the availability of resources for the

completion of reclamation); enforcement (to implement section 302(c) of

FLPMA and provide administrative enforcement tools and penalties);

threshold for notice operations (to require plans of operations for

operations more likely to pollute the land and those in sensitive

areas); withdrawn areas (to require validity exams before allowing

plans of operations to be approved in such areas); casual use (to

clarify which activities do or do not constitute casual use);

performance standards and the definition of unnecessary or undue

degradation (to establish objective standards to reflect current mining

technology); and others. As mentioned earlier in this preamble, many of

these shortcomings have been pointed out since 1986 in a series of

Congressional hearings, General Accounting Office reports, and

Departmental Inspector General reports. See the Secretary's January 6,

1997 memorandum.

To the extent an overlap with State regulations would exist, BLM is

proposing a general set of standards that is intended to set a national

floor, but in a manner that will accommodate most State standards.

Thus, for the most part, these proposed rules would not mandate

specific designs or contain numeric standards. This has been done

intentionally so as not to unnecessarily interfere with the current

regulation of mining operations in situations where it is working

successfully. Also, BLM is proposing a procedure under which BLM would

be able to defer in large part to State regulation of locatable

minerals mining.

In the development of this proposed rule, BLM engaged in a

comprehensive consultation process with the States. BLM recognizes that

the States are its primary partners in regulating mining activities on

public lands. Throughout the process, BLM has solicited the States'

views, both collectively and individually, on how best to avoid

duplication and encourage cooperation. BLM met with the representatives

of State agencies under the auspices of the Western Governors

Association in April

[[Page 6425]]

1997, February 1998, and September 1998.

BLM also met with representatives of the Environmental Protection

Agency and the Small Business Administration. We also posted two

successive drafts of regulatory provisions on the Internet for public

information purposes in February and August 1998. We received and

considered many comments from a variety of interested parties,

including States, as a result of those Internet postings. We also had a

series of meetings to receive comments from constituent groups, such as

industry representatives and citizens and environmental groups. BLM

made many revisions in response to the consultations with States and

the informal comments received from constituents. In this preamble, we

do not respond to every comment we received. To do so would result in

an unnecessarily long and complicated document. In the preamble to the

final rule, BLM will respond only to substantive comments received

during the comment period on this proposed rule.

III. What are the Contents of the Proposal?

Organization and Format

Using the principles of plain language, BLM is proposing to

reorganize and rewrite the surface management regulations to make

information easier to find and, once found, easier to understand. From

an organizational standpoint, we have arranged the information in the

proposed subpart in sequence from the general to the specific and from

the less complex to the more complex. Thus, the subpart would first

provide general information, including the definitions of terms

(proposed Sec. 3809.5) and the circumstances under which an operator

must submit either a notice or a plan of operations (proposed

Sec. 3809.11). Following that, there are four ``200'' series sections

(proposed Secs. 3809.201 through 3809.204) that would address

agreements between BLM and the States concerning regulation of mining.

In the ``300'' series of sections (proposed Secs. 3809.300 through

3809.336), the subpart would address operations conducted under

notices. The proposed regulations governing notice-level operations are

arranged sequentially so that a person interested in conducting a

notice-level operation would first encounter information related to

initiating operations, followed by information related to conducting,

modifying, and closing operations.

The ``400'' series of sections of the proposed rule addresses

operations conducted under a plan of operations and is divided into two

parts. The first part (proposed Secs. 3809.400 to 3809.424) would

sequentially cover topics related to initiating, conducting, and

closing plan-level operations. The second part (proposed Secs. 3809.430

to 435) would cover topics related to modifying a plan of operations.

The ``500'' series (proposed Secs. 3809.500 through 3809.599) covers

financial guarantees and is arranged sequentially from the various

kinds of acceptable financial guarantees and how to obtain them through

modifying, releasing, and forfeiting a financial guarantee. Finally, in

the ``600,'' ``700,'' and ``800'' series, we have placed provisions

that would govern inspection and enforcement, penalties, and appeals

respectively.

Underneath the series described above, we propose to divide the

information into smaller ``bites.'' The reader will notice that the

proposal contains many more sections than the existing regulations. The

purpose of this is to make the table of contents and the section

headings themselves more informative so that the reader will be able to

more easily locate specific information without having to read a great

deal of non-pertinent text.

Another aspect of the proposal that readers will quickly notice is

that the section headings are phrased as questions that readers might

ask themselves, complete with first-person personal pronouns. For

example, the heading of proposed Sec. 3809.430 is ``May I modify my

plan of operations?'' The text of each section contains the answer to

the question posed in the heading. Frequently, the answer is stated in

terms of what ``you'' (the reader) must do. For example, the answer to

``May I modify my plan of operations?'' is, ``Yes. You may request a

modification of the plan at any time during operations under an

approved plan of operations.'' We propose to use this format because we

believe that the regulations are more effective when they speak

directly to the reader. Within the text of each section, we are

proposing to favor clear and simple language at the expense of jargon

and to use active voice in preference to passive voice, among other

things, all of which we believe will make the regulations easier to

understand. We specifically invite your comments on the organization

and format of the proposed rule.

As a result of the reorganization of the subpart, we are proposing

to move many of the provisions of the existing regulations. To assist

the reader to understand the changes we are proposing, we have prepared

the following table that shows the proposed counterpart to each

existing provision down to the paragraph level.

----------------------------------------------------------------------------------------------------------------

Existing regulations Proposed regulations

----------------------------------------------------------------------------------------------------------------

Sec. 3809.0-1............... Sec. 3809.1.

Sec. 3809.0-2............... Sec. 3809.1.

Sec. 3809.0-3............... Authority citation.

Sec. 3809.0-5............... Sec. 3809.5.

Sec. 3809.0-6............... Sec. 3809.1.

Sec. 3809.1-1............... Secs. 3809.11(a) and 3809.415.

Sec. 3809.1-2............... Sec. 3809.11(a).

Sec. 3809.1-3(a)............ Secs. 3809.11(b) and 3809.301(a).

Sec. 3809.1-3(b)............ Secs. 3809.312 and 3809.313(c).

Sec. 3809.1-3(c)............ Secs. 3809.301(b) and 3809.313(c).

Sec. 3809.1-3(d)............ Secs. 3809.320 and 3809.420.

Sec. 3809.1-3(e)............ Sec. 3809.600(a).

Sec. 3809.1-3(f)............ Sec. 3809.601(a).

Sec. 3809.1-4(a)............ Sec. 3809.11(c).

Sec. 3809.1-4(b) and (c).... Sec. 3809.11(d) and (k).

Sec. 3809.1-5............... Sec. 3809.401.

Sec. 3809.1-6(a), (b), and Sec. 3809.411(a).

(c).

Sec. 3809.1-6(d)............ Sec. 3809.411(b).

Sec. 3809.1-6(e)............ Sec. 3809.593.

Sec. 3809.1-7(a)............ Secs. 3809.430 and 3809.431(a).

Sec. 3809.1-7(b) and (c).... Sec. 3809.432.

[[Page 6426]]

Sec. 3809.1-8............... Secs. 3809.300 and 3809.400.

Sec. 3809.1-9(a)............ Sec. 3809.500(a).

Sec. 3809.1-9(b)............ Secs. 3809.500(b), 3809.551(a) and (c), Sec. 3809.552(a), and Sec. 3809.570.

Sec. 3809.1-9(c)............ Sec. 3809.555.

Sec. 3809.1-9(d)............ Secs. 3809.551(b) and 3809.560.

Sec. 3809.1-9(e)............ Sec. 3809.580.

Sec. 3809.1-9(f)............ Sec. 3809.590.

Sec. 3809.1-9(g)............ Sec. 3809.594.

Sec. 3809.2-1............... None.

Sec. 3809.2-2(a)............ Sec. 3809.420(b)(1).

Sec. 3809.2-2(b)............ Sec. 3809.420(b)(2).

Sec. 3809.2-2(c)............ Sec. 3809.420(c)(8).

Sec. 3809.2-2(d)............ Sec. 3809.420(b)(6).

Sec. 3809.2-2(e)............ Sec. 3809.420(b)(7).

Sec. 3809.2-2(f)............ Sec. 3809.420(c)(11).

Sec. 3809.3-1(a)............ Sec. 3809.3.

Sec. 3809.3-1(b)............ None.

Sec. 3809.3-1(c)............ Sec. 3809.201.

Sec. 3809.3-2............... Secs. 3809.601, 3809.603, and 3809.604.

Sec. 3809.3-3(a)............ None.

Sec. 3809.3-3(b)............ Secs. 3809.301(b)(2), 3809.401(b)(2), and 3809.420(c)(1).

Sec. 3809.3-4............... Sec. 3809.420(c)(9).

Sec. 3809.3-5............... Sec. 3809.420(c)(10).

Sec. 3809.3-6............... Sec. 3809.600.

Sec. 3809.3-7............... Secs. 3809.334 and 3809.424.

Sec. 3809.4................. Sec. 3809.800.

Sec. 3809.5................. Sec. 3809.111.

Sec. 3809.6................. Sec. 3809.2.

----------------------------------------------------------------------------------------------------------------

Readers should note that the above table does not include

provisions we promulgated in 1997 that were remanded on procedural

grounds. Also, the proposal contains many new provisions that are not

present in the existing regulations. The following section of the

preamble describes both the new provisions and changes to existing

regulations. We use the terms ``BLM'' and ``we'' interchangeably in

this preamble to refer to the Bureau of Land Management.

General Information

This portion of the proposed rule (Secs. 3809.1 through 3809.116)

would provide the reader with general information, including what

activities the regulations apply to, how to handle conflicts with State

laws, definitions of certain terms, and when you must submit a notice

or plan of operations. Consistent with the Secretary of the Interior's

January 6, 1997, memorandum, the proposed rule offers two alternatives

for regulating mining operations on BLM lands. See the two sections

numbered 3809.11. The first alternative preserves BLM's existing scheme

of classifying operations according to the scale of their impacts as

casual use, notice-level, or requiring a plan of operations. The second

alternative incorporates the approach used by the Forest Service to

regulate mining operations on National Forests and other lands it

manages. Both alternatives are described more fully below. This portion

of the proposal also includes two new sections that would address

mining operations on segregated or withdrawn lands (proposed

Sec. 3809.100) and situations where it is not clear whether the

minerals sought are locatable or common variety (proposed

Sec. 3809.101).

Section 3809.1 What Are the Purposes of This Subpart?

This proposed section combines language from existing Secs. 3809.0-

1, 3809.0-2, and 3809.0-6. We have edited the wording for brevity and

clarity. The purposes of the subpart would continue to be to prevent

unnecessary or undue degradation of the public lands and to coordinate

with responsible State agencies to avoid duplication of efforts.

We considered, but decided not to propose an idea that was

suggested by many commenters in the development of this proposal: The

regulations should prevent or preclude mining where it would conflict

with other uses or resources. The mining laws, which consist of the

1872 Mining Law, as amended and interpreted (30 U.S.C. 22 et seq.),

provide (in part) that all valuable mineral deposits in lands belonging

to the United States shall be free and open to exploration and

purchase, unless otherwise provided. BLM does not have the authority to

issue a regulation that would nullify or modify the mining laws. For

that reason, the proposed regulations focus on managing the impacts of

mining operations. The regulations would not address the question of

whether a particular area or class of areas is considered, as a zoning

matter, to be suitable or unsuitable for hardrock mining. That is a

matter that can be addressed through other means, such as withdrawal

and the BLM land-use planning process.

We also considered whether to carry over from existing Sec. 3809.0-

6 the expression of Departmental policy to encourage development of

Federal mineral resources and reclamation of disturbed lands. For the

purposes of simplicity and clarity, we decided not to include this

policy statement in this proposal. We are limiting proposed subpart

3809 to operational regulatory provisions.

Section 3809.2 What is the Scope of This Subpart?

This proposed section combines language from the existing

definition of ``Federal lands'' at Sec. 3809.0-5 and existing

Sec. 3809.6. Proposed paragraph (a) would apply this subpart to all

operations under the mining laws on public lands, including Stock

Raising Homestead Lands, as provided in Sec. 3809.11(i), where the

mineral interest is reserved to the United States. This provision would

allow BLM to approve the use or occupancy, without a millsite, of non-

mineral land for milling,

[[Page 6427]]

processing, beneficiation, or other operations in support of mining.

BLM would approve the use or occupancy of such areas through a plan of

operations and only to the extent the activities would support

operations on public lands. The mining laws and section 302(b) of

FLPMA, 43 U.S.C. 1732(b), allow this type of authorization. We mention

it because of a recent legal opinion by the Department of the Interior

Solicitor ( Limitations on Patenting Millsites under the Mining Law of

1872, M-36988, Nov. 7, 1997) interpreting limits in the millsite

provision of the mining laws, 30 U.S.C. 42. BLM's existing policy

guidance on this issue may be found in BLM's Instruction Memorandum No.

98-154, dated Aug. 17, 1998, which is posted on BLM's Internet website

at www.blm.gov/nhp/efoia/wo/fy98/im98-154.html.

One substantive change we are proposing is to apply the subpart to

all operations under the mining laws on Stock Raising Homestead Act

lands where the mineral interest is reserved to the United States,

subject to proposed Sec. 3809.11(i), discussed below. On these lands,

the surface is privately owned, and the minerals are owned by the

United States. Applying this subpart to those lands would enable BLM,

in cases where surface owner consent is not obtained, to manage surface

impacts. This would be in accord with recent amendments to the Stock

Raising Homestead Act (Pub. L. 103-23). See 43 U.S.C. 299.

Proposed paragraph (c) would incorporate existing Sec. 3809.6,

which applies the surface management regulations to operations on all

patents issued on mining claims located in the California Desert

Conservation Area (CDCA) after the enactment of FLPMA. We are proposing

to modify this existing provision by incorporating the concept of valid

existing rights from section 601(f) of FLPMA (43 U.S.C. 1781(f)). That

is, this subpart would not apply to operations on any patent issued

after October 21, 1976, for which a right to the patent vested before

that date.

Despite the urging of certain commenters, BLM is not proposing

additional regulations to implement the ``undue impairment'' standard

of section 601(f) of FLPMA. BLM has tentatively concluded that the

standards of proposed subpart 3809, plus the specific reference in the

definition of ``unnecessary or undue degradation'' to the stated level

of protection for the CDCA, would provide BLM sufficient authority and

flexibility to achieve the statutory level of protection.

Proposed paragraph (d) would inform the general reader about the

kinds of minerals that are regulated under this subpart. The subpart

would apply to minerals that can be ``located'' under the mining laws.

These ``locatable'' minerals are sometimes referred to as ``hardrock''

minerals. This section would direct the reader to other parts of BLM's

regulations for ``leasable'' and ``salable'' minerals. This is an

informational section that has no regulatory content, but simply helps

the reader understand the scope of the subpart.

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

This Subpart?

This proposed section corresponds to existing Sec. 3809.3-1(a),

which provides that this subpart shall not be construed to effect a

pre-emption of State laws or regulations relating to the conduct of

mining operations. BLM recognizes that States may apply their laws to

operations on public lands. This proposed section addresses situations

where State and Federal law conflict. In the proposal, we are changing

the wording to clarify that if State laws or regulations conflict with

this subpart, an operator would have to follow the requirements of this

subpart. If State laws or regulations require a higher standard of

protection for public lands than this subpart provides, then there

would be no conflict. The proposed language is in accord with the

preamble to the existing regulations, where BLM stated that, ``It has

been the view of the Department of the Interior that under section 3 of

the 1872 Mining Law (30 U.S.C. 26), the States may assert jurisdiction

over mining activities on Federal lands in connection with their own

State laws. This may be done as long as the laws of the State are not

in conflict or inconsistent with Federal law.'' (45 FR 78908, November

26, 1980)

In developing the proposed language, we have been guided by the

Supreme Court's pre-emption analysis, as expressed in the Granite Rock

case, which provides that State law can be pre-empted in either of two

general ways. If Congress evidences an intent to occupy a given field,

any State law falling within that field is pre-empted. If Congress has

not entirely displaced State regulation over the matter in question

(such as in the case of the mining laws), State law is pre-empted to

the extent it actually conflicts with Federal law. A conflict occurs

when it is impossible to comply with both State and Federal law, or

where the State law stands as an obstacle to the accomplishment of the

full purposes and objectives of Congress. See California Coastal

Commission, et al. v. Granite Rock Co., 480 U.S. 572, 581 (1987). The

Supreme Court urged agencies to include their position regarding pre-

emption in their regulations. For that reason, BLM proposes to

incorporate the 1980 final rule preamble position into the text of

subpart 3809.

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

We propose to eliminate the following existing definitions:

``Authorized officer,'' ``Federal lands,'' and ``King Range

Conservation Area.'' We propose to change some existing definitions and

add the following new definitions, as discussed below: ``Minimize,''

``Mitigation,'' ``Most appropriate technology and practices,'' ``Public

lands,'' ``Riparian area,'' and ``Tribe.''

Casual use. This proposed definition is based on the existing

definition. To address situations that have arisen since the 1980

regulations came out, we propose to add examples of activities that are

generally considered ``casual use,'' including collection of mineral

specimens using hand tools, hand panning, and non-motorized sluicing.

We also propose to expand the list of examples of activities that are

not generally considered ``casual use'' by adding use of truck-mounted

drilling equipment, portable suction dredges, and chemicals;

``occupancy'' as defined in 43 CFR 3715.0-5; and hobby or recreational

mining in areas where the cumulative effects of the activities result

in more than negligible disturbance. These activities normally would

result in greater-than-negligible disturbance and should not be

considered ``casual use.''

Minimize. We are proposing to define the term ``minimize'' as it is

used in a number of the performance standards in proposed Sec. 3809.420

as reducing the adverse impact of an operation to the lowest practical

level. During BLM's review of proposed operations, either notice- or

plan-level, BLM may determine that ``minimize'' means to avoid or

eliminate specific impacts. BLM would determine the lowest practical

level of a particular impact (or whether it should be avoided or

eliminated) on a case-by-case basis.

Mitigation. We propose to incorporate with minor editing the

Council on Environmental Quality's (CEQ) government-wide definition of

``mitigation'' as it appears in 40 CFR 1508.20. An operator who must

``mitigate'' damage to wetlands or riparian areas (See proposed

Sec. 3809.420(b)(3).) or who must take

[[Page 6428]]

appropriate ``mitigation'' measures for a pit or other disturbance that

is not backfilled (See proposed Sec. 3809.420(c)(7).), would have to

take mitigation measures, which may include the measures listed in the

proposed definition. BLM does not intend any portion of this

definition, including ``avoiding the impact altogether by not taking a

certain action,'' to preclude or prevent mining. However, an operator

may have to avoid locating certain facilities in sensitive areas to

avoid unnecessary impacts. Under the CEQ definition, compensating for

an impact by replacing, or providing substitute, resources or

environments is an acceptable form of mitigation. We specifically

solicit comments on when compensation would be appropriate, how best to

evaluate the amount of compensation, and whether compensation should be

voluntary or mandatory.

Most appropriate technology and practices (MATP). We propose to

define MATP as equipment, devices, or methods that have demonstrable

feasibility, success, and practicality in meeting the standards of this

subpart. MATP would include the use of equipment and procedures that

are either proven or reasonably expected to be effective in a

particular region or location. MATP would not necessarily require the

use of the most expensive technology or practice. BLM would determine

whether the requirement to use MATP is met on a case-by-case basis

during its review of a notice or plan of operations. We developed this

concept in response to the Secretary of the Interior's direction that

the rules should more clearly require the use of ``best available

technology and practices'' or other similar technology-based standards

(January 7, 1997 memorandum). However, we received many comments during

public meetings asserting that BLM could not successfully apply a best

available technology standard on the national level to an industry that

is active in a variety of regions and uses a variety of mining

techniques. In response, we developed MATP, which would be applied on a

case-by-case basis.

Proposed Sec. 3809.420(a)(2) would require an operator to use MATP

to meet the standards of this subpart. We developed the concept of MATP

in an attempt to allow operators flexibility in deciding how to carry

out operations while assuring that the methods that operators employ

have reasonable probability of effectiveness and success. We do not

expect that the concept of MATP will adversely affect operators'

ability to meet the outcome-based performance standards of proposed

Sec. 3809.420.

Operator. This proposed definition is based on the existing

definition, but we propose to extend it to include a parent entity or

an affiliate who materially participates in the management, direction,

or conduct of operations at a project area. This is in accord with the

Supreme Court's recent decision explaining the term ``operator'' in the

Best Foods case (U.S. v. Best Foods et al., 118 S.Ct. 1876, 141 L.Ed.

2d 43). In discussing the concept of direct parental liability for a

facility, the court said that, ``The question is not whether the parent

operates the subsidiary, but rather whether it operates the facility,

and that operation is evidenced by participation in the activities of

the facility, not the subsidiary.''

Project area. We are proposing to revise the existing definition to

eliminate the idea that a ``project area'' is a single tract of land

upon which an operator conducts operations (Emphasis added.). Based on

comments from BLM field staff, we believe that limiting a project area

to a single tract of land creates an increase in the amount of notices

without any concomitant benefits to lands or resources.

Public lands. The proposed definition of ``public lands'' would

replace the existing definition of ``Federal lands.'' We are proposing

to use the definition of ``public lands'' found in FLPMA throughout

this subpart for the sake of consistency and clarity.

Reclamation. We are proposing to change the existing definition of

``reclamation'' to mean measures required by this subpart following

disturbance of public lands caused by operations to meet applicable

performance standards and achieve conditions at the conclusion of

operations required by BLM. The definition would also provide a list of

some of the components of reclamation. Finally, the proposed definition

would advise that a separate definition of ``reclamation'' exists for

operations conducted under the mining laws on Stock Raising Homestead

Act lands. This latter definition is part of another rulemaking that

BLM is currently working on.

Riparian area. We are proposing to add a definition of ``riparian

area'' to this subpart. The proposed definition would identify riparian

areas as a form of wetland transition between permanently saturated

wetlands and upland areas that exhibit vegetation or characteristics

reflective of permanent surface or subsurface water influence. The

proposed definition would give some examples of riparian areas and

would exclude ephemeral streams or washes that do not exhibit the

presence of vegetation dependent upon free water in the soil. Proposed

Sec. 3809.420(b)(3) would require an operator to avoid locating

operations in riparian areas, where possible; minimize unavoidable

impacts; and mitigate damage to riparian areas. It would also require

an operator to return riparian areas to proper functioning condition

and to take appropriate mitigation measures, if an operation causes

loss of riparian areas or diminishment of their proper functioning

condition. This definition is currently part of the BLM Manual (BLM

1737, Dec. 10, 1992), and we are proposing to include it in this

subpart for the convenience of the public.

Tribe. We are proposing to define ``tribe'' or ``tribal'' as

referring to a Federally recognized Indian tribe.

Unnecessary or undue degradation (UUD). We are proposing a revised

definition of UUD that eliminates the current reference to the

``prudent operator'' standard because we believe it is too vague and

subjective, and it may not be sufficient to prevent UUD, as required by

section 302(b) of FLPMA. Instead, the proposed definition would define

UUD in terms of failure to comply with the performance standards of

this subpart (proposed Sec. 3809.420), the terms and conditions of an

approved plan of operations, the operations described in a complete

notice, and other Federal and State laws related to environmental

protection and protection of cultural resources. UUD would also mean

activities that are not ``reasonably incident to prospecting, mining,

or processing operations as defined in existing 43 CFR 3715.0-5. We

believe the proposed definition is more straightforward and easily

measured than the ``prudent operator'' standard.

BLM wishes to emphasize one conceptual difference between the

existing and proposed definitions of UUD. The existing definition

assumes that a valid operation exists at a location, and the impacts

may not exceed those that would be caused by a prudent operator. The

proposed definition would recognize that FLPMA amended the mining laws,

subject to valid existing rights, by limiting the right to develop

locatable minerals to those operations that prevent UUD. Our inclusion

of the proposed performance standards in the proposed definition of UUD

means that in some situations, BLM could disapprove operations that

would fail to satisfy the performance standards. An operator does not

have an unfettered right under the mining laws

[[Page 6429]]

to develop locatable minerals regardless of the level of surface

disturbance.

One commenter on an early draft of this proposed rule that we made

publicly available on the Internet objected to the definition of UUD.

The commenter asserted that in using the term UUD in section 302(b) of

FLPMA, Congress was referring to surface disturbances caused by mining

and did not authorize BLM to regulate impacts of mining operations on

surface- or ground-water quality. The commenter cited section 603(c) of

FLPMA, which deals with lands recommended for designation as wilderness

areas, as supporting the assertion. Section 603(c) provides (in part)

that the Secretary may take any action to prevent [UUD] of the lands

and their resources or to afford environmental protection. (Emphasis

added.) The commenter interpreted this language to mean that Congress

was consciously not giving BLM environmental authority over mining

operations on public lands not recommended for designation as

wilderness areas. Since FLPMA was enacted, BLM has not ever agreed with

with the commenter's view, and does not agree with it now. Section

603(c) establishes a non-impairment standard for wilderness study

areas. This is a more environmentally protective standard than UUD. The

cited language relates to managing existing uses under the non-

impairment standard and providing additional protection to preserve

wilderness values. BLM agrees that a non-impairment standard for

preserving wilderness values is different from a UUD standard, but does

not agree that a UUD standard contains no elements of environmental

protection.

Section 3809.10 How Does BLM Classify Operations?

This is a new section that would simply inform the reader of BLM's

existing scheme for classifying operations in three categories: casual

use, notice-level, and plan-level. For casual use, an operator

generally need not notify BLM before initiating operations. For notice-

level, an operation must submit a notice to BLM before beginning

operations, except for certain suction-dredging operations covered by

proposed Sec. 3809.11(h). For plan-level, an operator must submit a

plan of operations and obtain BLM's approval before beginning

operations.

Section 3809.11 When Does BLM Require That I Submit a Notice or a Plan

of Operations?

Proposed Sec. 3809.11 is in the form of a table that would clarify

when an operator would need to submit a notice or a plan of operations

to BLM. The table also would provide informative references to other

applicable sections of BLM's regulations. We propose to use tables

throughout this subpart to reduce complexity and to make it easier for

the reader to understand proposed requirements. This proposed section

preserves BLM's three distinct levels of involvement dependent on the

level of mining activity the operator proposes to conduct: casual use,

notice-level, and plan-level.

Proposed Sec. 3809.11(b) would continue the existing five-acre

threshold for notice-level operations. See existing Sec. 3809.1-3(a).

We are proposing two changes that would clarify exactly how the five-

acre threshold would work. First, the threshold would be ``unreclaimed

surface disturbance of 5 acres or less of public lands.'' This would

clarify some diverse interpretations of the existing threshold wherein

some believe that any disturbance greater than five acres, even if it

is reclaimed, requires a plan of operations. Other BLM offices have

interpreted the existing threshold to mean that once a disturbance

within the 5 acres is properly reclaimed, the operator can ``roll

over'' that area and disturb an equivalent area without getting a new

notice. BLM believes that the latter interpretation is correct, as long

as any disturbance is reclaimed to the standards of this subpart,

including the appropriate period of time for establishment of

vegetation.

We are also proposing to change the amount of advance notice that

an operator planning to conduct notice-level operations must give BLM

from 15 ``calendar'' days to 15 ``business'' days before the operator

plans to start operations. We are proposing this change to allow BLM

field staff more time to review notices.

This proposed section also includes several new concepts as

follows.

Proposed Sec. 3809.11(e) would require the representative of a

recreational mining group to contact the local BLM office with

jurisdiction over the lands involved at least 15 business days before

initiating activities to find out if the group must submit a notice or

plan of operations. This would address situations where there are

concentrations of recreational mining activities on public lands with

resultant surface disturbances. Recreational mining tends to

concentrate surface disturbance in areas popular for gold panning and

other uses that, on an individual basis, are generally considered

casual use. However, BLM is concerned that sustained or aggregated use

in certain areas could cause cumulative impacts greater than casual

use. Therefore, the intent of 3809.11(e) is for recreational mining

groups to consult with BLM before conducting operations within a

project area to ensure that any necessary steps are taken to reclaim

impacts of the groups' activities. Under the proposal, the recreational

mining group would not have to consult with BLM if it submitted a

notice or plan of operations.

Proposed Sec. 3809.11(f) would require an operator to submit a plan

of operations for an operation involving any leaching or storage,

addition, or use of chemicals in milling, processing, beneficiation, or

concentrating activities, regardless of the amount of acreage that the

operation would disturb. This would not include chemicals used for fuel

or as lubricants for equipment. The potential impacts associated with

use of leaching processes and chemicals are greater than the impacts

that would be associated with operations that do not involve leaching

or chemical use. Some of the chemicals used in leaching and processing,

such as cyanide and mercury, are highly toxic. For this reason, BLM

believes that the greater scrutiny given to plans of operations is

warranted.

Proposed Sec. 3809.11(h) would not require an operator to submit a

notice or a plan of operations, if--

The operations involve use of a portable suction dredge

with an intake diameter of 4 inches or less,

The State in which the operations occur requires

authorization for its use, and

BLM and the State have an agreement under proposed

Sec. 3809.201 addressing suction dredging.

This provision would be an exception to the general rule that all

use of suction dredges requires either a notice or plan of operations,

whichever is applicable. See also the definition of ``casual use'' in

proposed Sec. 3809.5. The impacts of use of the smallest suction

dredges (under 4 inches intake diameter) under a State permit and

within the parameters of a BLM/State agreement under proposed

Sec. 3809.201 would be controlled to the extent that BLM need not also

regulate each operation. BLM believes that to also require a notice or

plan of operations would be unnecessarily duplicative of State

permitting requirements. We specifically request comments on the

adequacy of State permitting requirements for suction dredges.

Proposed Sec. 3809.11(i) would cross-reference regulations that BLM

plans to promulgate under 43 CFR part 3810, subpart 3814, for

operations proposed

[[Page 6430]]

on lands where the surface was patented under the Stock Raising

Homestead Act and the minerals were reserved to the United States.

Under FLPMA, such split-estate lands are ``public lands'' and are

subject to BLM management. If an operator does not have written surface

owner consent to conduct mineral activities, the operator would have to

submit a plan of operations to BLM. This proposed addition reflects the

requirements of the Stock Raising Homestead Amendments Act (Pub. L.

103-23, 43 U.S.C. 299, as amended) which became effective after the

effective date of the existing 3809 regulations.

Proposed Sec. 3809.11(j) corresponds to existing Sec. 3809.1-4 and

lists special status areas where BLM would require a plan of operations

for all operations greater than casual use. We are proposing the

following additions: areas specifically identified in BLM land-use or

activity plans where a plan of operations would be required to allow a

more detailed review of the effects of proposed operations on values

listed in the section (proposed Sec. 3809.11(j)(6)); National Monuments

and National Conservation Areas administered by BLM (proposed

Sec. 3809.11(j)(7)); and all lands segregated in anticipation of a

mineral withdrawal or withdrawn from operations under the mining laws

(proposed Sec. 3809.11(j)(8)). These areas have officially recognized

special values, such as wildlife habitat and cultural resources, where

BLM believes it is appropriate to take a closer look at the potential

effects of proposed operations in these areas and not to allow

operations to begin before BLM approval.

Section 3809.11 ``Forest Service'' alternative) When Does BLM Require

that I Submit a Notice or a Plan of Operations?

Proposed Sec. 3809.11 is an alternative to the one discussed

immediately above. Under this alternative, an operator would have to

submit to BLM a complete notice of intention to operate 15 days before

planned start-up if activities would be greater than those described in

paragraph (a) of the table. After reviewing the notice of intention to

operate, BLM would determine if proposed operations would be likely to

cause significant surface disturbance. If so, the operator would have

to submit a plan of operations and obtain BLM approval prior to

commencing operations. This alternative would closely align procedures

in subpart 3809 with Forest Service mining claim regulations, thereby

providing a more consistent regulatory frame work for the public in the

area of mining law surface management. See existing Forest Service

regulations in 36 CFR part 211.

We specifically request public comments on the pros and cons of

selecting this alternative in lieu of the first one. One advantage we

perceive is that adoption of the Forest Service alternative would make

BLM's and the Forest Service's mining regulations correspond more

closely and require an operator to be familiar with only one, rather

than two, sets of threshold regulations. It could also simplify a

situation where a mining claim overlaps the boundary between land

administered by BLM and a National Forest. One disadvantage we perceive

is that adoption of the Forest Service alternative could result in an

increase in BLM's workload. The increase could come from having to

review notices of intention for each proposed operation and possibly

from an increased number of plans of operations based on determinations

of significant disturbance.

Section 3809.100 What Special Provisions Apply to Operations on

Segregated or Withdrawn Lands?

We are proposing to add a new Sec. 3809.100 to govern proposed

operations on pre-existing claims on segregated or withdrawn lands.

Currently, BLM does not have any regulations to address this topic

directly. The proposal would enable BLM to deal with operations on

lands where additional protection has been deemed necessary through

segregations or withdrawals. We would suspend the time frames for BLM

approval of a plan of operations until we complete a validity

examination report. Segregations or withdrawals would close lands to

operation of the mining laws, subject to valid existing rights. The

purpose of this provision is to ensure that BLM approves only mining

operations based on valid claims in segregated or withdrawn areas. This

furthers the purpose of the segregation or withdrawal in closing the

land under the mining laws and prevents disturbance from occurring on

claims subsequently determined to be invalid. Preparation of a mineral

examination report would be discretionary for segregated lands because

some segregations, for example, those in advance of a realty action,

occur for purposes other than environmental protection.

If BLM has not completed the mineral examination report, if the

mineral examination report for proposed operations concludes that a

mining claim is invalid, or if there is a pending contest proceeding

for the mining claim, BLM would only approve a plan of operations for

the purpose of sampling to corroborate discovery points or to comply

with assessment work requirements. We considered an alternative

approach that would allow BLM the option to approve a plan of

operations pending the outcome of a validity determination. We decided

not to propose this option because of the potential for unnecessary

disturbance of segregated or withdrawn public lands.

Section 3809.101 What Special Provisions Apply to Minerals That May be

Common Variety Minerals, Such as Sand, Gravel, and Building Stone?

Proposed Sec. 3809.101 would address the long-standing issue of

proposed mining of ``common variety minerals'' as defined in 3711.1(b)

of this title, under the mining laws. Common variety minerals are not

locatable under the mining laws and are normally sold at fair market

value by BLM to an operator under 43 CFR part 3600. New language would

prohibit operations for minerals that may be common variety until BLM

has prepared a mineral examination report on the mining claims

involved. This new requirement for a mineral report before allowing

operations for minerals that may be common varieties would help ensure

the public interest and the Federal treasury are protected because it

would avoid giving away for free what the law on common varieties says

must be disposed of for fair market value. See 30 U.S.C. 601 and 611

and 43 CFR part 3600.

If the report were to conclude that the minerals are common

variety, the operator would either relinquish the mining claims, or BLM

would initiate contest proceedings. Until BLM prepares a mineral

examination report, interim operations could be authorized for

sampling, performing minimum necessary annual assessment work, or for

mining if an acceptable escrow account was established to cover the

fair market value of the common variety mineral. We are proposing that

BLM have the authority to dispose of common variety minerals from

unpatented mining claims with a written waiver from the mining

claimant. This proposal would require that 43 CFR 3601.1-1, concerning

mineral material sales on mining claims, be amended to allow disposal.

If we adopt this proposed provision, we will make conforming changes to

43 CFR part 3600.

[[Page 6431]]

Section 3809.116 As a Mining Claimant or Operator, What are my

Responsibilities Under This Subpart for my Project Area?

This is a new section that would set forth clearly the

responsibilities under subpart 3809 of mining claimants and operators

for their project areas. We are adding this section in response to

comments we received during development of this proposal that suggested

that there is confusion as to exactly what responsibility mining

claimants and operators have for their project areas under subpart

3809, particularly when a project area has been abandoned. Absent a

clear assignment of responsibility, society as a whole could have to

bear the cost of any problems associated with abandoned operations.

Proposed paragraph (a) would establish the principle that mining

claimants and operators have joint and several liability for

obligations under this subpart that accrued while they held their

interests. This means that all mining claimants and operators would be

responsible together and individually for obligations, such as

reclaiming the project area. In the event obligations are not met, BLM

would have the ability to take any action authorized under this subpart

against either the mining claimant(s) or the operator(s), or both.

We do not intend proposed Sec. 3809.116 to address or affect in any

way obligations established under laws other than FLPMA and the mining

laws.

Under proposed paragraphs (b) and (c), we discuss how

relinquishment, forfeiture, or abandonment of a mining claim or

transfer of a mining claim or operations would affect the liability set

forth in proposed paragraph (a). Relinquishment, forfeiture, or

abandonment would not relieve a mining claimant's or an operator's

responsibility for obligations or conditions created while the mining

claimant or operator was responsible for operations on a mining claim

or in a project area. Transfer of a mining claim or operation would

relieve responsibility if the transferee accepts responsibility and BLM

accepts adequate replacement financial guarantee. The parties to the

transfer would have to send to BLM documentation that the transferee

accepts responsibility. This documentation could take the form of a

copy of the transfer agreement.

Federal/State Agreements

This portion of the proposed rule (Secs. 3809.201 through 3809.204)

would set forth the types of agreements that BLM and a State may enter

to prevent administrative delay and avoid duplication of effort. It

would also establish the procedure for setting up an agreement under

which BLM would defer to State regulation of mining operations, the

limitations on that type of agreement, and the effect of this subpart

on existing agreements.

Section 3809.201 What Kinds of Agreements may BLM and a State Make

Under This Subpart?

This section would allow BLM and a State to make two kinds of

agreements, one for a joint Federal/State program and one under which

BLM would defer to State administration of the requirements of this

subpart, subject to the limitations in proposed Sec. 3809.203. This

section would incorporate existing Sec. 3809.3-1(c), which provides for

setting up joint Federal/State programs.

The authority for BLM to defer to State administration of their

surface management provisions relating to the regulation of operations

derives from section 303(d) of FLPMA, 43 U.S.C. 1733(d). Under that

section, BLM may allow States to assist in the ``administration and

regulation of use and occupancy of the public lands.'' In connection

with the administration and regulation of the use of the public lands,

Section 303(d) authorizes the Secretary to cooperate with States'

regulatory and law enforcement officials in the enforcement of State

law.

Under proposed Sec. 3809.202, States would provide the assistance

envisioned in FLPMA by regulating mining operations on public lands

under their laws and regulations in lieu of BLM administration of

subpart 3809. Despite such deferrals to States, BLM would not delegate

its public land management responsibility under FLPMA and would retain

certain responsibilities and authorities. These would include

concurrence on approval of each plan of operations, concurrence on the

approval and release of financial guarantees, and retention of

necessary enforcement authority. This cooperative approach would

provide meaningful responsibilities to the States, yet maintain both

case-by-case and, under proposed Sec. 3809.203(e), programmatic

oversight by BLM.

State officials have inquired as to the availability of Federal

funding for their activities if they were to enter into agreements

under proposed Sec. 3809.202. Although section 303(d) of FLPMA

authorizes the Secretary to reimburse States for expenditures incurred

by them in connection with activities which assist in the

administration and regulation of use and occupancy of the public lands,

no such reimbursement could occur without Congressional appropriation.

SECTION 3809.202 Under What Condition Will BLM Defer to State

Regulation of Operations?

This is a new section that sets forth the procedure for a State to

request and BLM to approve an agreement under which BLM would defer to

State regulation of operations. A State would request an agreement from

the BLM State Director. The State Director would provide an opportunity

for public comment and would review the request to determine if the

State's requirements are consistent with the requirements of this

subpart. In determining consistency, the State Director would look at

whether non-numerical State standards are functionally equivalent to

BLM's counterparts; and whether numerical State standards, such as the

five-acre threshold for plans of operations, are the same as

corresponding BLM standards, except that State review and approval time

frames do not have to be the same as the corresponding Federal time

frames. The State Director would consider a State environmental

protection standard that exceeds a corresponding Federal standard to be

consistent with the requirements of this subpart. The State Director

would make a written decision that could be appealed to the Assistant

Secretary for Land and Minerals Management, Department of the Interior.

Section 3809.203 What are the Limitations on BLM Deferral to State

Regulation of Operations?

This is a new section that would establish limitations on deferral

agreements. Even if BLM deferred to State regulation, BLM would have to

concur with each State decision approving a plan of operations. This

would enable BLM to fulfill its responsibility to assure compliance

with this subpart and the National Environmental Policy Act. In

comments on an earlier draft, States urged that, in an effort to reduce

duplication of effort, BLM base its concurrence on any written findings

the State may have prepared to support the State's decision approving a

plan of operations. We specifically solicit comments as to whether this

would be appropriate.

BLM would continue to be responsible for all land-use planning on

public lands and for implementing other Federal laws relating to the

public lands for which BLM is responsible. BLM would continue to have

the ability to

[[Page 6432]]

take any authorized action to enforce the requirements of this subpart

or any term, condition, or limitation of a notice or an approved plan

of operations. However, BLM would generally avoid subjecting an

operator to Federal enforcement action for a violation where a State

has already issued an enforcement action for the violation. The amount

of the financial guarantee would be calculated based on the completion

of both Federal and State reclamation requirements, but could be held

as one instrument. If the financial guarantee is held as one

instrument, it would have to be redeemable by both the Secretary and

the State. BLM would have to concur in the approval and release of a

financial guarantee for public lands. If BLM determined that a State

was not in compliance with all or part of its Federal/State agreement,

BLM would notify the State and provide a reasonable time for the State

to comply. If a State does not comply, BLM would take appropriate

action, which could include termination of all or part of the

agreement. BLM anticipates that it would not look at isolated incidents

in determining that a State is not in compliance with a Federal/State

agreement. We would consider patterns, trends and programmatic issues

more important indicators of State performance than isolated incidents.

A State could terminate an agreement by notifying BLM 60 days in

advance.

Section 3809.204 Does This Subpart Cancel an Existing Agreement Between

BLM and a State?

This is a new section that would allow existing joint program

agreements to continue while BLM and a State perform a review to

determine whether revisions are required under this subpart. The time

frame for completing the review and making any necessary revisions to

an agreement would be one year from the effective date of the final

rule. We specifically request comments on whether the time frame is too

long, too short, about right, or whether there should be a provision

for extension of the one-year period. We also request comments on

whether, and to what extent, there should be public participation in

the review of existing agreements.

Operations Conducted Under Notices

This portion of the proposal (proposed Secs. 3809.300 through

3809.336) would govern operations conducted under notices. It is based

primarily on existing Sec. 3809.1-3. We are proposing to use two

tables: One would cover applicability of this subpart to existing

notice-level operations (See proposed Sec. 3809.300.). This is a

transition section to address notices in existence when a final rule

becomes effective. The other table would govern when an operator may

begin operations after submitting a notice (See proposed

Sec. 3809.313.). For the sake of simplicity, we are not proposing a

separate set of performance standards applicable only to notices.

Instead, proposed Sec. 3809.320 simply references the plan-level

performance standards of proposed Sec. 3809.420, where applicable. In

many cases, some of the performance standards will not be applicable to

notice-level operations. See the discussion of the performance

standards of proposed Sec. 3809.420 later in this preamble. Notices

would have two-year expiration dates, unless extended. This would

significantly reduce the number of outstanding notices where operations

have either never occurred or where reclamation has been completed to

BLM's satisfaction, but the notice has not been formally closed by BLM.

Section 3809.300 Does This Subpart Apply to My Existing Notice-Level

Operations?

Proposed Sec. 3809.300 would allow operators identified in an

existing notice already on file with BLM to continue operations for two

years. After 2 years, the notice could be extended under proposed

Sec. 3809.333. New operators would have to conduct operations under

this subpart. If a notice has expired, the operator would have to

immediately reclaim the project area or promptly submit a new notice

under this subpart.

Section 3809.301 Where Do I File My Notice and What Information Must I

Include in It?

Proposed Sec. 3809.301 would replace the notice-content

requirements of existing Sec. 3809.1-3. If the required information

were not incorporated in the notice, BLM would not consider it to be

complete and operations could not commence (See also proposed

Sec. 3809.312.). Requirements for information about the operator would

clarify the need for one individual point of contact if a corporation

is named as the operator. The proposal would require a description of

proposed operations, schedule of activities, and a map, as are

generally found in existing section 3809.1-3. However, we are proposing

several new requirements. The operator would have to describe measures

to be taken to prevent unnecessary or undue degradation during

operations. In contrast, existing section 3809.1-3(c)(4) requires only

a statement that reclamation will be completed to the required

standards, and that reasonable measures will be taken to prevent

unnecessary or undue degradation during operations. The operator would

have to submit a reclamation plan, not as a separate plan, but as part

of the notice. The operator would have to describe how reclamation

would be completed to the standards outlined in proposed Sec. 3809.420,

as applicable. In addition, the operator would have to submit an

estimate of the cost to implement the reclamation as planned. Also, the

operator would have to notify BLM within 30 days of either a change of

operator, point of contact or mailing address. These requirements are

the minimum information needed by BLM to identify who will be

conducting operations on the site, what activities are planned, and how

reclamation will be accomplished.

Section 3809.311 What Action Does BLM Take When It Receives My Notice?

Proposed Sec. 3809.311 would outline actions BLM would take when it

receives a notice. BLM would have 15 ``business'' days from the time

that we receive a notice to review it, compared to the existing 15-

calendar day time frame (See existing Sec. 3809.1-3(a).). If BLM were

to determine that a submitted notice is incomplete, we would inform the

operator of what additional information would be needed to comply with

proposed Sec. 3809.301. A new 15-business day review period would

commence upon receipt of each re-submittal of a notice, although where

feasible, BLM would try to perform its review of the revised notice in

a shorter time frame.

Section 3809.312 When May I Begin Operations After My Notice is

Complete?

Proposed Sec. 3809.312 would specify that an operator would be able

to commence operations 15 business days after BLM receives a complete

notice from that operator, or earlier if BLM informs the operator that

it has completed its review, and after the operator provides a

financial guarantee that meets the requirements of this subpart. This

proposed would also alert the operator that operations may be subject

to approval under 43 CFR part 3710, subpart 3715, which governs

occupancy of public lands.

Section 3809.313 Under What Circumstances May I not Begin Operations 15

Business Days After Filing my Notice?

Proposed Sec. 3809.313 would outline, in table format, cases in

which BLM may extend the time to process a notice. Under proposed

paragraph (a), if BLM

[[Page 6433]]

needs additional time to complete it review of a notice, we would

notify the operator of the additional period, not to exceed 15 business

days, needed for completing our review. We are proposing to add this

provision allowing extension of the notice review period in recognition

of the fact that BLM occasionally has difficulty in performing its

review within the current 15-day review time period. These cases

typically have been due to the complexity of the proposed operations,

the proposed location, or the fact that BLM staff specialists needed

for the review were not available during the review period.

Under proposed paragraph (b), we would clarify that BLM may require

an operator to modify a notice before commencing operations if we

believe the operations would likely cause unnecessary or undue

degradation. We believe that an express reference to BLM's ability to

require changes in notices will avoid administrative processing delays.

Under proposed paragraph (d), BLM could notify an operator that

operations may not start until BLM visits the site, and agency concerns

about prevention of unnecessary or undue degradation arising from the

visit are satisfied. We make an attempt to visit the site of any notice

submitted for review to gather information and to consider whether any

site-specific factors are present that should be taken into account

during review of a notice. Sometimes, due to weather conditions that

limit access or scheduling problems, we are unable to conduct the site

visit within the 15-day review period. On the theory that an ounce of

prevention is worth a pound of cure, we believe that any costs

associated with delaying notice-level operations to conduct a site

visit would be offset by the benefits of identifying and dealing with

site-related problems before they occur.

Section 3809.320 Which Performance Standards Apply to My Notice-Level

Operations?

Proposed Sec. 3809.320 would require that notice-level operations

meet all applicable performance standards listed in proposed

Sec. 3809.420. See the discussion of performance standards later in

this preamble under proposed Sec. 3809.420.

Section 3809.330 May I Modify My Notice?

Proposed Sec. 3809.330 is a new provision that would clarify that

an operator may modify an existing notice to reflect proposed changes

in operations. BLM would review the modification under the same time

frames proposed in Secs. 3809.311 and 3809.313. This provision

addresses confusion over whether a notice may be modified. The existing

regulations are silent on this topic.

Section 3809.331 Under What Conditions Must I Modify My Notice?

Proposed Sec. 3809.331 would require that an operator modify a

notice if BLM requires such modification to prevent unnecessary or

undue degradation, or if the operator plans to make material changes in

the operations. We would interpret material changes to be changes that

would disturb areas not described in the existing notice, or result in

impacts of a different kind, degree or extent than those described in

the existing notice. Where an operator plans to make material changes,

the operator would have to submit the modification 15 business days

before making the changes. While BLM is reviewing the modification, the

operator could halt operations or continue operating under the existing

(unmodified) notice. However, BLM could require an operator to proceed

with modified operations before the 15-day period has elapsed to

prevent unnecessary or undue degradation.

Section 3809.332 How Long Does My Notice Remain in Effect?

Proposed Sec. 3809.332 would provide for an effective period of 2

years for a notice, unless extended under proposed section 3809.333 or

unless the operator were to complete reclamation beforehand to the

satisfaction of BLM, in which case BLM would notify an operator that

the notice is terminated. We are proposing this new provision to

address the situation where notices with no expiration dates remain

``active'' on BLM records even if no operations are being conducted. An

operator's obligation to meet all applicable performance standards,

including reclamation, would not terminate until the operator has in

fact satisfied the obligation.

Section 3809.333 May I Extend My Notice, and, if so, How?

Section 3809.333 would contain a new provision to allow notices to

be extended beyond the 2-year effective period outlined in proposed

section 3809.332. This provision would accommodate notice-level

operations that cannot be completed within 2 years. We are specifically

requesting comments on whether the 2-year period is too long, too

short, or about right.

Section 3809.334 What if I Temporarily Stop Conducting Operations Under

a Notice?

Proposed Sec. 3809.334 would expand existing Sec. 3809.3-7, which

addresses periods of non-operation. The proposal would clarify that

during such periods, the operator must take all steps necessary to

prevent unnecessary or undue degradation as well as maintain an

adequate financial guarantee. BLM would require in writing that the

operator take such steps if the agency determines that unnecessary or

undue degradation would be likely to occur.

Section 3809.335 What Happens When My Notice Expires?

Proposed Sec. 3809.335 is a new provision that tells what must

occur when a notice expires and is not extended. The operator would

have to cease operations, except reclamation, and promptly complete

reclamation as described in the notice. The operator's responsibility

to complete reclamation would continue beyond notice expiration, until

such responsibilities are satisfied. This provision would help address

the problem of abandoned operations by clearly establishing the

operator's responsibilities.

Section 3809.336 What if I Abandon My Notice-Level Operations?

Proposed Sec. 3809.336 is a new provision that would outline what

characteristics BLM would use to determine if it considers an operation

to be abandoned. The section would also specify that BLM may, upon a

determination that operations have been abandoned, initiate forfeiture

of an operator's financial guarantee. BLM could complete reclamation if

the financial guarantee were found to be inadequate, with the operator

and all other responsible persons liable for the cost of reclamation.

We intend that this provision will also address the problem of

abandoned operations by clarifying the steps BLM could take to reclaim

abandoned project areas.

Operations Conducted Under Plans of Operations

This portion of the proposed rule (Secs. 3809.400 through 3809.424)

contains regulations that would govern operations conducted under plans

of operations.

Section 3809.400 Does This Subpart Apply to My Existing or Pending Plan

of Operations?

In developing this proposed rule, BLM has been mindful of the

difficulty inherent in applying new rules to existing operations,

particularly the type

[[Page 6434]]

of long-term, large scale operations that make up a significant portion

of today's mining on public lands. Accordingly, in proposed

Sec. 3809.400 and other proposed sections discussed later in this

preamble, BLM would apply the performance standards and information

collection requirements of this subpart to new operations and

modifications and would limit the circumstances where they would apply

to pending applications for operations and modifications. The first of

these transition sections is in the form of a table that explains how

this subpart would affect plans of operations that (1) BLM approved

before this subpart becomes effective, or (2) are pending at the time

this subpart becomes effective. For plans of operations already

approved, these regulations would not change the applicable performance

standards. This approach would prevent operators from having to make

potentially costly changes in existing facilities and operations. The

remaining provisions of this proposed subpart, such as those related to

inspection and enforcement, would apply to existing operations.

Similar transition provisions applicable to modifications of plan

of operations would be set forth at proposed Secs. 3809.433-435. A

transition period for financial guarantees for existing operations

would be set forth at proposed Sec. 3809.505.

Where an operator has submitted a plan of operations for BLM

review, but BLM has not yet approved it when these regulations go into

effect, we are proposing a cutoff date under Sec. 3809.400 after which

the plan content requirements and performance standards of this subpart

would apply to the pending plan of operations. If BLM has already made

available to the public an environmental assessment (EA) or draft

environmental impact statement (EIS) by the effective date of the final

rule, a plan of operations would not be subject to the new content

requirements or performance standards since the operator and BLM would

have already committed considerable time and resources towards

developing the plan under the existing regulations. If BLM had not

processed a pending plan of operations to the point where it has made

an EA or draft EIS available by that date to the public, then the plan

would be subject to all provisions of the proposed regulations.

We considered proposing an 18-month cutoff for pending plans, that

is, if BLM had been reviewing a plan for 18 months or more when this

subpart becomes effective, the plan would not be subject to the plan

content requirements or performance standards of this subpart. However,

we believe that a process milestone (the EA or EIS publication date) is

less arbitrary than a fixed amount of time. A process milestone takes

into account the specific circumstances of each plan review in a way

that a fixed amount of time cannot.

Section 3809.401 Where do I File My Plan of Operations and What

Information Must I Include With it?

This section is the counterpart of existing Sec. 3809.1-5 and would

tell operators what to include in a plan of operations and what

supporting information BLM may also require to conduct its review of a

plan. Based on our experience since 1980, the existing regulations do

not require enough information about what an operator must submit. As a

result, operators frequently do not initially submit the information

BLM needs to review the anticipated impacts of a proposed operation,

and time and resources are wasted on both sides in an effort to obtain

the necessary information. Further, we believe that more specific

information requirements will help to ensure that the information

submitted in a proposed plan of operations is consistent from State to

State. The proposal would require operator information; a description

of proposed operations, including a map and a schedule of activities;

and a reclamation plan, as are generally found in existing section

3809.1-5. However, we are proposing several new requirements, discussed

below.

The introductory language of proposed paragraph (b) would require

an operator or mining claimant to demonstrate that the proposed

operations would not result in unnecessary or undue degradation of

public lands. We intend this provision to place the responsibility for

showing no unnecessary or undue degradation on those who are seeking to

conduct operations. This provision does not appear in the existing

regulations, and some have taken the position that BLM must approve a

plan unless BLM can prove the plan will cause unnecessary or undue

degradation. The proposal would clarify that the burden is on the

operator or mining claimant to make an acceptable demonstration. If the

operator or mining claimant fails to do so, BLM would require submittal

of additional information, submittal of a modified proposal, or would

disapprove the plan.

Proposed paragraph (b)(1) would add to the information that BLM

requires to identify an operator the requirement to submit the social

security number or corporate identification number of the operator(s),

the BLM serial numbers of any unpatented mining claim(s) where

disturbance would occur, and a corporate point of contact. This

information is necessary to identify the operator(s), identify and

locate the claim(s) involved, and enable contact with the operator.

This proposed paragraph would also require the operator to notify BLM

in writing within 30 days of any change in the operator, the corporate

point of contact, or their addresses. This requirement will allow BLM

to maintain an accurate list of contacts.

Proposed paragraph (b)(2) would specify the types of plans that an

operator must submit to adequately describe proposed operations,

including water management plans, rock handling plans, quality

assurance plans, and spill contingency plans, among other things. These

plans and the other items listed in this paragraph are necessary for

BLM to review and approve a plan of operations. We intend that the

information submitted in response to these requirements will be

sufficient to fully describe the proposed operations. At the same time,

we recognize that in the initial phase of developing a mining

operation, complete, detailed designs and plans are not always

available. If we adopt this proposal, we would encourage anyone

planning to submit a plan of operations for review to contact the local

BLM office beforehand to discuss the level of detail that would be

responsive to these information requirements.

Proposed paragraph (b)(3) incorporates and expands existing

Sec. 3809.1-5(c)(5), which requires measures to prevent unnecessary or

undue degradation and to reclaim disturbed areas. We are proposing to

add a list of items that the reclamation plan must address, where

applicable, including drill-hole plugging, regrading, mine reclamation,

riparian mitigation, and wildlife habitat rehabilitation, among other

things. This list is not all-inclusive. It is intended to be used as a

checklist by the operator to ensure that reclamation activities are

adequately described. Depending on the nature of the proposed

operations, the reclamation plan might also contain information related

to other topics.

Proposed paragraph (b)(4) would require an operator to submit a

plan for monitoring the effect of operations. Under this provision, BLM

could expressly require an operator to collect data to detect potential

adverse impacts before they cause extensive or irreversible damage.

Because the existing regulations do not specifically

[[Page 6435]]

and explicitly require a monitoring plan, some BLM offices have been

reluctant to ask for, and some operators have been reluctant to

provide, this type of information, thereby foregoing an important tool

for preventing unnecessary or undue degradation. This requirement

should benefit both the operator and the Nation as a whole since it is

far less costly to remedy a problem when it is detected early.

Proposed paragraph (c) would require an operator to submit certain

operational and baseline environmental information to enable BLM to

analyze potential environmental impacts as required by the National

Environmental Policy Act (NEPA). There is no counterpart to this

provision in the existing regulations. BLM must collect this

information to fulfill its NEPA responsibilities, as well as to analyze

a proposed plan of operations. For the most part, BLM currently

collects this information, but this proposed provision would clarify

BLM's authority. This proposed provision would also clarify BLM's

authority to collect information concerning impacts and activities on

non-public lands if BLM needs the information to analyze a plan of

operations. This provision is not included in the existing regulations

and would clarify the extent of BLM's authority with regard to non-

public lands. This provision is not intended to extend BLM's regulatory

authority to non-public lands. However, BLM may need information

concerning non-public lands that are adjacent to or near proposed

operations on public lands to analyze the impact of the operations and

the operations' potential for unnecessary or undue degradation of

public lands.

The existing financial guarantee regulations do not specify who

prepares the financial guarantee calculations, though in many cases the

operator has been providing the initial estimate. Proposed paragraph

(d) would address any confusion by clearly putting the burden of

preparing the initial reclamation cost estimate on the operator. The

estimate would be subject to BLM review and acceptance as provided in

proposed Sec. 3809.554(b). Because the reclamation cost estimate would

likely depend on mitigation measures developed in the NEPA compliance

process, the operator would not have to submit the estimate with the

initial plan of operations. BLM would tell the operator when to submit

the reclamation cost estimate.

Section 3809.411 What Action will BLM Take When it Receives My Plan of

Operations?

Proposed Sec. 3809.411 would outline the range of actions BLM could

take when it receives a proposed plan of operations. This section

corresponds to existing Sec. 3809.1-6, which has been reorganized and

edited for clarity. In summary, BLM would review the plan of operations

within 30 business days and could--

Approve the plan of operations as submitted;

Request additional information;

Approve the plan of operations subject to required

changes;

Delay approving the plan of operations until certain

additional steps are completed, for example, NEPA compliance and

Endangered Species Act consultation; or

Disapprove the plan of operations.

The existing regulations provide for approval of a plan of

operations within 30 (calendar) days. The proposed regulations would

require BLM to review a proposed plan of operations within 30

``business'' days and would remove the time frame by which BLM

previously had to approve plan of operations that required preparation

of an environmental impact statement. This is not so much a change in

procedures as a recognition of current practices. Due to workload

demands, staffing levels, NEPA compliance activities, and the

increasing need to consult with outside agencies or Tribal governments,

setting a review time limit on plans of operations is no longer

practical.

The existing regulations do not say under what circumstances BLM

will withhold approval or disapprove a plan of operations. As a result,

some BLM staff have assumed, and some prospective operators have

asserted, that BLM cannot deny a plan of operations. Proposed paragraph

(c) would clarify that BLM has the authority to withhold approval for,

or disapprove, a plan of operations under certain circumstances to

prevent unnecessary or undue degradation.

We considered a provision that would have required BLM to

disapprove a plan of operations if it would have predicted permanent

water treatment to meet water quality standards. We provided a draft

rule with this provision to State and Federal agencies and posted the

draft on the Internet on BLM's web page. This provision generated much

public interest; many commenters opposed inclusion of it.

We decided not to propose it for a number of reasons. It is often

difficult to determine in advance when permanent treatment will be

necessary. If an unanticipated need for permanent treatment becomes

apparent during the course of operations, it is too late to disapprove

the plan of operations. Precluding operations involving permanent

treatment could have the unintended effect of encouraging prospective

operators to claim that permanent treatment would not be necessary

when, in fact, it would. We concluded that it would make more sense to

discuss the nature of required treatment and assurances that it would

continue than to argue over whether treatment would be permanent. Under

a permanent treatment prohibition, if BLM approves the plan of

operations based on a finding that no permanent treatment would be

necessary, and it later becomes apparent that permanent treatment is

necessary, none of the treatment measures and infrastructure would be

in place. Where treatment is the only available technology that will

achieve compliance with the water quality standards, a trust fund or

other long-term funding mechanism effectively ensures permanent

treatment requirements are met. Thus, the proposed regulations would

emphasize use of source control methods over long-term or permanent

treatment and would allow permanent treatment only after source control

methods have been fully applied, or as a backup technology, and only

with an adequate long-term funding mechanism in place.

Proposed paragraph (d) would require that before BLM approves a

plan of operations, BLM will publish the reclamation financial

guarantee amount and an explanation of the basis for the amount in a

local newspaper of general circulation or in a NEPA document, and

accept comments for 30 days. A NEPA document could be an environmental

assessment or an environmental impact statement (EIS). This is a new

requirement that would increase the level of public participation in

the plan approval process by giving the public access to the cost

estimating sources and assumptions used to arrive at the reclamation

financial guarantee amount. We are proposing this provision because we

believe public participation will result in better informed decisions

by BLM in its role as manager of public lands. We specifically request

comments on--

Whether, and to what extent, obtaining public comments on

the financial guarantee amount should be integrated into the NEPA

process;

Whether, and to what extent, the public would be

interested in

[[Page 6436]]

commenting on proposed financial guarantee amounts;

Whether the 30-day comment period is too long or too

short;

Whether the opportunity for public comment should be

limited to operations for which an EIS is prepared; and

Whether there is any benefit to publication of financial

guarantee amounts for small exploration operations.

Section 3809.412 When May I Operate Under a Plan of Operations?

Proposed Sec. 3809.412 would specify that BLM must approve a plan

of operations, and the operator must provide the required financial

guarantee before the operator may begin conducting operations. This

provision would clarify the existing regulations, which, while

requiring a plan of operations and reclamation financial guarantee, do

not specifically prohibit conducting operations until these

requirements are met. A small number of operators have assumed they

could proceed with operations prior to plan approval or posting of the

financial guarantee.

Section 3809.415 How Do I Prevent Unnecessary or Undue Degradation

While Conducting Operations on Public Lands?

The existing regulations define the term, ``unnecessary or undue

degradation,'' but do not specify what the operator is expected to do

in order to prevent it. Proposed Sec. 3809.415 would provide specific

guidance to operators in understanding their obligations by tying all

of the components of the definition to an enforceable requirement. BLM

anticipates that the clarity of this provision, plus the enumeration of

performance standards in proposed Sec. 3809.420, will improve

compliance.

Section 3809.420 What Performance Standards Apply to My Notice or Plan

of Operations?

The existing regulations provide general performance standards in

areas such as performing reclamation and complying with all applicable

State and Federal environmental requirements. In reviewing the existing

regulations, BLM determined that additional detailed standards would

assist both operators and BLM in defining and preventing unnecessary or

undue degradation. We considered several alternative approaches for

developing standards. One alternative was to create standards that

would specify the design and operating requirements for exploration,

mining, and reclamation components. These requirements would then serve

as minimum national requirements that would apply to all operations,

specifying how operations had to be designed, constructed, and

operated. We rejected this approach as too inflexible and impractical

given the range of environmental settings on the public lands and the

wide variety of exploration and mining activities.

The approach generally chosen for the proposed regulations is to

focus on the outcome or accomplishment that the operator must achieve.

These ``outcome-based'' performance standards put minimum emphasis on

how the operator conducts the activity so long as the desired outcome

is met. This allows the operator maximum flexibility, encourages

innovation, and fosters the development of low-cost solutions. In

implementing the proposed regulations, BLM would review the notice or

proposed plan of operations to determine if it is reasonably likely to

meet each outcome-based performance standard, but we would not require

any specific design be used.

We are proposing to divide the performance standards in this

section of the proposed regulations into three groups:

General performance standards,

Environmental performance standards, and

Operational performance standards.

This would be done to distinguish the broad performance standards such

as concurrent reclamation and land use plan conformance from the

environmental performance standards that are specific to certain media

like air or water; or from the operational standards which describe

what operational components of a project must achieve.

General performance standards. Proposed paragraph (a) contains the

general performance standards, which would clarify how an operator must

conduct overall operations. Proposed paragraph (a)(1) would require an

operator to use most appropriate technology and practices (MATP) to

meet the standards of this subpart. Commenters on early drafts of this

subpart expressed confusion over the relationship between the

requirement to use MATP and the requirement to meet the performance

standards. We intend that all operations must fully achieve the

performance standards. As discussed earlier in this preamble, MATP

would be established on a case-by-case basis, which would allow

operators to demonstrate that their activities constitute MATP.

Proposed paragraph (a)(2) would require operators to avoid

unnecessary impacts by following a reasonable and customary mineral

exploration, development, mining, and reclamation sequence. This

provision would expand on the ``unnecessary'' part of the existing

definition of ``unnecessary or undue degradation.'' There have been

past instances where operators have created unnecessary impacts by not

following a reasonable and customary sequence. This requirement would

prevent activity from being conducted that was substantially out of

sequence with reasonable and customary mineral development practices,

resulting in unnecessary impacts. We intend that this performance

standard would be applied on a large scale as it relates to sequencing.

For example, we do not intend it to be used to regulate the precise

number of drill holes needed to define an ore deposit, or the size of a

leach pad or waste rock disposal area. We intend it to be applied in

those extreme cases where an operator intends to construct extensive

access, infrastructure systems, or initiate mining, without having

first done any exploration activity to determine whether a mineral

deposit is present.

Proposed paragraph (a)(3) would require an operator, consistent

with the mining laws, to comply with applicable BLM land-use plans and

activity plans and with coastal zone management plans, as appropriate,

where such plans have been prepared. Land-use plans, including

Management Framework Plans, Resource Management Plans and activity

plans, are BLM's main guidance documents for multiple use management of

the public lands. The existing regulations do not integrate activities

conducted under the authority of the mining laws with resource

management guidance developed through the land-use planning process.

The purpose of this proposed performance standard is to use the

resource information and management guidance developed during the

planning process to provide for appropriate consideration of other

resources.

Mining industry representatives have asserted that land-use

planning does not apply to operations under the mining laws because

section 302 of FLPMA states that, with certain exceptions (including

the UUD prohibition), FLPMA did not amend the mining laws. BLM

disagrees to the extent that BLM's land-use planning can be integrated

with the subpart 3809 surface management requirements without impairing

rights established under the mining laws. For instance, the management

guidance or prescriptions

[[Page 6437]]

included in land-use plans cannot be so stringent as to deny rights

obtained under the mining laws. Other processes, such as a withdrawal

action and/or mineral contest, must be used in areas where mining has

to be excluded, subject to valid existing rights, to protect other

resource values.

Some commentors on early drafts of this proposed subpart expressed

confusion about how the performance standards would mesh with BLM's

standards and guidelines for grazing administration (43 CFR part 4100,

subpart 4180). The rangeland health standards are expressions of

physical and biological conditions or degree of function required of

healthy sustainable lands. Operations under this subpart would have to

comply with the performance standards of proposed Sec. 3809.420. These

performance standards will ensure that rangeland health standards can

be met. To the extent that the standards and guidelines are

incorporated into BLM's land-use plans, they will be reflected in the

plans of operations that BLM approves under this subpart. BLM, in its

role as manager of the public lands over the long term, will assess

lands affected by operations for progress towards achieving rangeland

health after reclamation is completed.

Proposed paragraph (a)(4) would require an operator to take

mitigation measures specified by BLM to protect public lands. This

requirement is not found in the existing regulations, but would

recognize current practice. See also the definition of ``mitigation''

at proposed Sec. 3809.5. BLM would determine the required mitigation on

a case-by-case basis to minimize the impacts and environmental losses

from operations. The measures could be developed through the NEPA

process.

Environmental performance standards. Proposed paragraph (b)

contains environmental performance standards that would describe the

outcome an operation must achieve relative to each environmental

resource. Many of the proposed environmental performance standards

would incorporate a requirement to comply with other State and Federal

laws and regulations. The existing regulations currently use this

approach so that BLM does not become involved in setting standards in

areas where Congress has authorized other agencies to do so. A few

commenters on early drafts of this proposed subpart thought BLM was

trying to inappropriately extend its jurisdiction or responsibility. We

do not agree, and in certain respects, we are merely carrying over

existing language into the proposal. See, for example, existing

Sec. 3809.2-2(a), (b), and (c).

For some of the standards, the proposed regulations elaborate on

the desired approach to achieve the standard. This is consistent with

BLM's authority and responsibility as manager of public lands. In

accord with the proposed outcome-based regulatory scheme, however, we

generally do not require a particular approach. For example, one

standard would require an operator to give preference to the use of

pollution prevention technologies (source control) over pollution

treatment or remediation, but would not specify what source control

techniques the operator must use.

For proposed paragraph (b)(2), the water resources performance

standard, we considered an alternative approach that would have

established a numeric standard for groundwater affected by operations.

Currently, there is no Federal groundwater standard, and some States do

not have their own groundwater standards. We decided not to propose a

numeric standard because of the difficulty of designing a nationwide

numeric standard relevant to the range of groundwater conditions and

public-use levels near minesites. We believe the States are better

positioned to develop groundwater standards applicable within their

borders. Instead, the proposed regulations would adopt a pollution

prevention requirement, in preference to treatment or remediation, and

rely on applicable State standards for groundwater protection where

they are present.

The existing regulations do not have a performance standard for

wetlands or riparian areas. We recognize that dredge and fill

activities in ``jurisdictional wetlands'' are regulated by the U.S.

Army Corps of Engineers (COE). We are not proposing to duplicate the

existing COE regulatory scheme under section 404 of the Clean Water

Act. However, not all riparian areas contain vegetation dependent on

saturated soil that qualifies them as jurisdictional wetlands. The COE

regulates activities that occur in or that impact jurisdictional

wetlands. BLM, as a land management agency, manages wetlands and

riparian areas to maintain their proper functioning condition. This

role is different from and not duplicative of the COE responsibility

over jurisdictional wetlands.

This standard would govern wetlands and riparian areas that are not

considered ``jurisdictional wetlands.'' Wetland and riparian areas are

extremely valuable to the ecosystem, especially in the arid west.

Wetlands and riparian areas often occur in the topographically low

portions of the project area, which are also preferred by mine

operators as natural containment basins for waste rock placement or

construction of tailings impoundments or leaching facilities, and, of

course, placer operations almost exclusively operate in these areas.

Proposed paragraph (b)(3) would establish a hierarchy of (1) avoiding

locating in, (2) minimizing impacts to, and (3) mitigating damage to

wetland and riparian areas. This provision would minimize, to the

extent feasible, disturbance in these areas and promote restoration of

unavoidable disturbance. In applying this hierarchy, we intend that

activities directly involved with ore recovery would not be treated the

same as activities associated with access, processing, and waste

handling. That is, while ore recovery activities might have to be

located in a wetland due to their site-specific nature, we would expect

operators to avoid locating other activities, such as roads and waste

dumps, in wetlands.

Proposed paragraph (b)(5) would incorporate and expand upon the

revegetation requirement in the existing regulations. Since BLM issued

the existing regulations in 1980, there has been considerable

development in the science of revegetation and an increased awareness

as to the importance of achieving successful revegetation. The proposed

revegetation performance standard would incorporate the concepts of

adequate revegetation diversity and density, use of native species,

timeliness of reclamation, and the importance of controlling noxious

weed infestations into the reclamation requirements. At the same time,

the proposal would recognize that where revegetation is not possible,

other techniques must be used to prevent erosion and stabilize

disturbed areas.

Proposed paragraph (b)(6) would not materially change existing

Sec. 3809.2-2(d), the performance standard for fish and wildlife

protection. We considered requiring an operator to ``enhance'' wildlife

habitat during reclamation (and included the provision in a draft that

we made publicly available). We decided not to propose it because of

the subjectivity involved in determining what is an enhancement and

because it can be inequitable or impractical to require the operator to

improve habitat values above pre-disturbance conditions.

Proposed paragraph (b)(7) would make several changes to existing

Sec. 3809.2-2(e) regarding protection of cultural and paleontologic

resources. We are proposing to give the same level

[[Page 6438]]

of protection to cave resources as the existing regulations give to

cultural and paleontological resources. The terms ``cave'' and ``cave

resources'' are defined at 43 CFR 37.4. Caves may contain important

cultural, biological, and geological resources. These resources should

be identified before initiating operations so that mitigating measures

can be incorporated into proposed operations. We considered adding a

separate performance standard for cave resources, but decided to

combine this standard with the cultural and paleontological resources

standard due to the similarity in procedures used to consider cave

resources, and the overlap between the occurrence of cave resources and

cultural or paleontological resources.

Proposed paragraph (b)(7)(i) would clarify and make explicit BLM's

interpretation of existing Sec. 3809.2-2(e)(1). The existing paragraph

provides that operators shall not knowingly disturb, alter, injure, or

destroy any scientifically important paleontologic remains or any

historical or archaeological site, structure, building or object on

Federal lands. This has been construed to preclude such activities by

operators, unless such actions are approved in advance by BLM after

appropriate site investigation, and necessary actions to protect,

remove, or preserve the resource. This procedure would be codified in

the proposed rules.

Proposed paragraph (b)(7)(ii) would change the time frame for

action on cultural, paleontologic, and cave resources that are

discovered after initiating operations from a mandatory 10 working days

to 20 working days, unless otherwise agreed to by the operator and BLM,

or unless otherwise provided by law. The time frame at existing

Sec. 3809.2-2(e)(2) is not adequate to accomplish the site

investigation, data recovery, and consultation required with State and

Federal cultural resource agencies, or with interested parties. We

considered proposing an open-ended suspension of operations until

investigation and data recovery is complete. We decided not to propose

this alternative due to the possible adverse impacts an indefinite

suspension could have on an operator.

In proposed paragraph (b)(7)(iii), we would change the

responsibility for costs associated with investigation, recovery, and

preservation of resources discovered during operations from the

government to the operator. BLM believes that since the operator is

responsible for the disturbance and is generating revenue from the

extraction of publicly owned locatable minerals, the operator receives

a benefit from the investigation and recovery (the ability to continue

to operate) and, thus, generally should be responsible for the costs as

a cost of doing business on public lands. If BLM were to incur costs

from the investigation, recovery, and preservation of discovered

resources, the proposal would provide that BLM will recover the costs

as determined on a case-by-case basis after an evaluation of the

reasonableness of doing so under the factors set forth in section

304(b) of FLPMA, 43 U.S.C. 1734(b). BLM may decide to recover less than

all of the actual costs on a case-by-case basis depending upon the

nature of the discovery and the potential benefit to the general public

and the other factors specified in section 304(b) of FLPMA .

Operational performance standards. Proposed paragraph (c) contains

operational performance standards that describe the outcome that must

be achieved by the various project components or facilities associated

with mineral exploration and development. Proposed paragraph (c)(1)

would incorporate existing Sec. 3809.1-3(d) and a portion of existing

Sec. 3809.3-3(b). It would also require an operator to design,

construct, and maintain roads and structures to control or prevent

erosion, siltation, and air pollution and minimize impacts to

resources. Access roads frequently make up the majority of acreage

disturbed by exploration and smaller mining operations. For this

reason, it is important to control the impacts associated with roads.

Many of the operational performance standards are standard

operating practices currently used by the industry. For example,

proposed paragraph (c)(2) would require an operator to control drill

fluids and cuttings and correctly plug drill holes. This would be a new

requirement in the regulations, but one that is already being followed

by the majority of operators.

Proposed paragraphs (c)(3) and (4) consist of requirements from

BLM's existing acid mine drainage policy (BLM Instruction Memorandum

96-79, April 2, 1996) and cyanide management policy (BLM Instruction

Memorandum 90-566, August 6, 1990, amended November 1, 1990),

respectively. Incorporating these policies into the proposed

regulations will make them more readily available to operators and

provide for a more consistent application of the requirements.

While not requiring a specific design, the performance standard for

mine components that contain acid-forming, toxic, or other deleterious

materials (proposed Sec. 3809.420(c)(3)) requires an operator to make

source control and pollution prevention measures the priority

consideration in facility design and operations. It is in this one area

that the proposed performance standards go beyond a purely outcome-

based standard and require a certain technical approach be taken to

meet the applicable water quality standards. BLM believes this is

justified because of the long-term, and perhaps permanent, commitment

of resources that accompanies proposals for the post-reclamation

collection and treatment of acidic, toxic, or other deleterious

drainage. Several commenters on early drafts of this proposed rule

suggested we provide a definition of ``deleterious.'' We note that the

word is found in the existing regulations (Sec. 3809.1-3(d)(2)), which

have been in place for nearly two decades. In the interest of brevity,

we decided not to propose a definition at this time.

Proposed paragraph (c)(4), the performance standard for leaching

operations and impoundments, would include requirements from the

existing BLM cyanide management policy. The requirement for leaching

systems to contain precipitation from the local 100-year, 24-hour storm

event would be modified slightly from the policy to remove the

qualifier ``* * * unless otherwise specifically authorized for such

facilities under State or Federal law.'' BLM believes modification of

the policy requirement is appropriate and that the ability to contain

the precipitation of a 100-year, 24-hour storm event is the minimum

performance acceptable for use of leaching systems on public lands.

There were some early comments on drafts that we made publicly

available that because this performance standard contains a number, it

is really a design standard. We do not agree. The standard is the

ability to contain a certain excess amount of solution that enters the

process circuit as precipitation, thus preventing overflow and release

to the environment. The standard does not specify how containment is to

be accomplished or what design to use, only the performance that must

be achieved. The local 100-year, 24-hour storm event is a way to

describe the amount of precipitation that must be contained. The actual

size of this storm event varies from location to location.

Proposed paragraph (c)(5) would require an operator to locate,

design, construct, operate, and reclaim waste rock, tailings, and leach

pads to minimize infiltration and contamination of surface water and

ground water; achieve stability; and, to the extent feasible, blend

with pre-mining, natural topography. This proposed provision

[[Page 6439]]

expands upon existing Sec. 3809.1-3(d)(2), which requires prevention of

UUD and adherence to applicable laws in disposing tailings, dumps,

deleterious materials or substances, and other waste.

Proposed paragraph (c)(6) is the stability, grading, and erosion

control performance standard. Under proposed paragraph (c)(6)(1), an

operator would have to grade or otherwise engineer all disturbed areas

to a stable condition to minimize erosion and facilitate revegetation.

This provision is a restatement of existing Sec. 3809.1-3(d)(4)(iv).

Existing Sec. 3809.1-3(d)(3) allows disturbed areas to remain

unreclaimed to preserve evidence of mineralization. Proposed paragraph

(c)(6)(ii) would modify this provision by stating that disturbed areas

may ``temporarily'' remain unreclaimed to preserve evidence of

mineralization. We are proposing this change to ensure that disturbed

areas are not left unreclaimed indefinitely. There are legitimate

reasons that certain areas must remain open to show evidence of

mineralization (for example, patenting). However, the operator must

reclaim all areas for which the operator is responsible. BLM

anticipates that the operator will describe any areas left open to

establish mineralization in the reclamation plan, along with a time

frame for completion of final reclamation.

The existing regulations do not specify a performance standard for

mine pit reclamation, stating only the reclamation measures that must

be used ``where reasonably practicable.'' Proposed paragraph (c)(7)(i)

would require an operator to backfill mine pits unless the operator

demonstrates it is not feasible for economic, environmental, or safety

reasons. The proposal would change the assumption from generally

regarding backfilling as impractical, to one of assuming it is

practical unless demonstrated otherwise. BLM believes that the burden

of proof regarding the feasibility of pit backfilling should be on the

operator to say why backfilling is not practical. The proposal would

ensure that operators consider backfilling options for all operations.

We do not intend the economic feasibility determination anticipated

under the proposed pit backfilling requirement to be a detailed review

of the project economics, such as rate of return on investment. BLM

does not intend to determine what is a reasonable profit margin for

mine operators. The fact that an operator could conduct complete

backfilling and still show a profit does not automatically mean BLM

would require backfilling. Nor does it mean that an operation which

appears to be uneconomic, even without any backfilling, is exempt from

performing backfilling. When considering the economic feasibility of

pit backfilling, BLM would weigh the anticipated environmental benefits

in relation to operational economic factors such as: whether the

project is a single or multiple pit operation, the distance and grade

from mine site to waste rock storage versus backfill location, the

direct haul cost versus temporary storage and rehandling cost, and the

reclamation costs as a function of disturbance area size.

Proposed paragraph (c)(7)(ii) would require mitigation for pit

areas that are not backfilled. The type of mitigation anticipated is

not a dollar-for-dollar cost compensation (That is, for every dollar of

backfill cost saved, one dollar must be spent on mitigation.) or

necessarily an acre-for-acre compensation (For every acre of

unreclaimed pit, one acre must be provided as mitigation.). Instead,

the intent of the mitigation requirement is to insure that the impacts

associated with not backfilling pit areas are mitigated. For example,

if leaving a pit highwall creates a safety hazard, required mitigation

may include erecting perimeter fencing and posting hazard signs. If the

pit area is in critical wildlife habitat that cannot be restored unless

backfilled, then the mitigation may require providing replacement

habitat at another location.

Proposed paragraphs (c)(8), (9), (10), and (11) are the performance

standards for solid waste, fire prevention and control, maintenance and

public safety, and protection of survey monuments respectively. We have

carried them over from the existing regulations with minor editing. See

Secs. 3809.2-2(c), 3809.3-4, 3809.3-5, and 3809.2-2(f) respectively.

Section 3809.423 How Long Does My Plan of Operations Remain in Effect?

Proposed Sec. 3809.423 would provide that a plan of operations

remains in effect as long as the operator conducts operations, unless

BLM suspends or revokes the plan of operations for failure to comply

with this subpart. BLM's suspension and revocation provisions are found

in proposed Secs. 3809.601 and 3809.602, which are discussed later in

this preamble. There is no counterpart to this provision in the

existing regulations, which has the effect of allowing a plan of

operations to remain in effect indefinitely.

Section 3809.424 What Are My Obligations if I Stop Conducting

Operations?

Proposed Sec. 3809.424 would establish an operator's obligations if

the operator stops conducting operations. This section appears in table

format and would incorporate existing Sec. 3809.3-7 with the changes

and additions discussed below.

Proposed paragraph (a)(1) would add two requirements to the

existing requirement to maintain the site of operations in a safe and

clean condition during any non-operating periods. An operator would

also have to take all necessary action to prevent unnecessary or undue

degradation and would have to maintain an adequate financial guarantee.

Action to prevent unnecessary or undue degradation could include

providing adequate maintenance, monitoring, and security and

detoxifying process solutions, if any. BLM believes these are the

minimum measures necessary to stabilize the site and prevent

unnecessary or undue degradation. Proposed paragraph (a)(2)

incorporates existing Sec. 3809.3-7, with minor editing.

Proposed paragraph (a)(3) would provide that BLM will review an

operation after five consecutive years of inactivity to determine if we

should terminate the plan of operations and require final reclamation

and closure. We are proposing this provision in an effort to clear the

books of long-term, inactive plans of operations. These sites require

attention and resources that we believe we could more productively

direct at sites where operations are active. It is important to note

that if BLM terminated a plan based on inactivity, that action would

not affect the status of the mining claim, if any; nor would it prevent

the operator from submitting a new notice or proposed plan of

operations, as appropriate, for the same project area. Terminating a

plan of operations would limit an operator's operations to activities

designed to fulfill the operator's reclamation obligation, which

continues until satisfied. We specifically request comments on whether

the 5-consecutive-year period of inactivity, which would be a

prerequisite to BLM's review for possible termination, is too long, too

short, or about right.

Proposed paragraph (a)(4) describes the process BLM would follow if

we determine that an operator has abandoned an operation. Relying on

the indicators of abandonment set forth in proposed Sec. 3809.336(a),

BLM would take steps to collect any financial guarantee for the

operation. If the

[[Page 6440]]

collected financial guarantee were insufficient to pay for reclamation,

the operator and all other responsible parties would be held liable for

the costs of reclamation not covered by the forfeited amount.

Proposed paragraph (b) would establish the policy that an

operator's or mining claimant's reclamation and closure obligations

continue until satisfied. This provision is not explicitly stated in

the existing regulations, but is necessary to clear up confusion about

whether the operator or mining claimant has any residual obligations

after financial guarantee forfeiture. Some have argued that financial

guarantee forfeiture ends the obligation to reclaim, but in cases where

the financial guarantee does not cover the costs of reclamation, this

position effectively enables an operator to evade full responsibility

for reclamation and closure. BLM believes that operators and mining

claimants should not be able to pass the costs of reclamation resulting

form their activities to the Nation as a whole. We intend this

provision to ensure that they do not.

Modifications of Plans of Operations

This portion of the proposal (proposed Secs. 3809.430 through

3809.435) contains provisions governing modification of a plan of

operations. Most of these proposed sections are derived without

substantive change from existing Sec. 3809.1-7. We discuss changes and

new material below.

Section 3798,432 What Process Will BLM Follow in Reviewing a

Modification of My Plan of Operations?

Proposed Sec. 3809.432 is the counterpart of existing Sec. 3809.1-

7(b) and would set forth the processes BLM would use in reviewing a

proposed modification of a plan of operations. Under proposed paragraph

(a), BLM would review and approve a modification in the same manner as

we did for the initial plan, except that we would not solicit public

comment on the financial guarantee amount if the modification does not

change the financial guarantee amount, or only changes it minimally. We

specifically solicit comments on how we should interpret the term

``minimally,'' such as using a dollar threshold. We did not include in

this proposed rule the procedures contained in existing Sec. 3809.1-

7(c) relating to BLM State Director review of proposed required

modifications. These procedures are unnecessarily detailed and

cumbersome. The proposal would allow BLM field staff flexibility to

streamline the modification review process.

Under proposed paragraph (b), BLM would accept a modification

without formal approval if it does not constitute a substantive change

and does not require additional analysis under the National

Environmental Policy Act. We are proposing this procedure to expedite

processing of non-substantive modifications.

Section 3809.433 Does This Subpart Apply to a New Modification of My

Plan of Operations?

Proposed Sec. 3809.433 sets forth the guidelines that BLM would use

in applying this subpart to a new modification of a plan of operations.

This material is not included in the existing regulations, but BLM

believes it is necessary to give operators and the public a clear idea

of how and under what circumstances this subpart would apply to

modified operations. For the purposes of this section, a ``new''

modification is one that an operator submits to BLM after the effective

date of this subpart.

Under proposed paragraph (a), for a new modification that proposes

to add a discrete new facility to an existing operation, the plan

contents requirements (proposed Sec. 3809.401) and performance

standards (proposed Sec. 3809.420) of this subpart would apply to the

new facility. The facilities and areas already existing would continue

to operate under the existing plan of operations. We believe that it

would not be unduly burdensome to subject a new facility, such as a

waste rock repository, leach pad, impoundment, drill site, or road, to

any new requirements contained in this subpart. We specifically request

comments on whether we would be creating too much confusion by setting

up a situation where one set of regulations governs part of an

operation and another set governs another part.

Under proposed paragraph (b), for a new modification that proposes

to modify an existing facility, the plan contents requirements

(proposed Sec. 3809.401) and performance standards (proposed

Sec. 3809.420) of this subpart would apply to the modified facility.

However, the operator would have the option of demonstrating to BLM's

satisfaction that it is not feasible to apply the plan content

requirements and performance standards of this subpart for

environmental, safety, or technical reasons. If BLM agrees, then the

plan contents requirements and performance standards in effect

immediately before the effective date of this subpart would apply to

the plan of operations. We are proposing to give an operator this

option for a modification of existing facilities, such as expansion of

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

pit; or widening of a road, because in some cases, it may be burdensome

or unnecessarily complicated to apply two sets of regulations to a

single facility.

Section 3809.434 Does This Subpart Apply to My Pending Modification for

a New Facility?

Proposed Sec. 3809.434 sets forth the guidelines that BLM would use

in applying this subpart to a pending modification of a plan of

operations to add a new facility. This material is not included in the

existing regulations, but BLM believes it is necessary to give

operators and the public a clear idea of how and under what

circumstances this subpart would apply to modified operations. For the

purposes of this section, a pending modification is one that an

operator submitted to BLM before the effective date of this subpart,

and BLM had not made a final decision by that date.

Under proposed paragraph (a), if an operator submitted a proposed

modification of an existing plan of operations to construct a new

facility before the effective date of this subpart, and BLM made an

environmental assessment (EA) or environmental impact statement (EIS)

available to the public before that date, then the new facility would

not be subject to the plan content requirements and performance

standards of this subpart. In contrast, under proposed paragraph (b),

if BLM had not made the EA or EIS publicly available by that date, then

the plan content requirements and performance standards of this subpart

would apply to the new facility. This is the same cutoff that we

propose to apply to pending proposed plans of operations. See the

discussion of proposed Sec. 3809.400 earlier in this preamble. The

reason for choosing this cutoff date is that by the time an EA or EIS

is published, an operator and BLM would have already committed

considerable time and resources towards developing the modification

under the existing regulations.

Section 3809.435 Does This Subpart Apply to My Pending Modification For

an Existing Facility?

Proposed Sec. 3809.435 sets forth the guidelines that BLM would use

in applying this subpart to a pending modification of a plan of

operations to modify an existing facility. This material is not

included in the existing regulations, but BLM believes it is necessary

to give operators and the public a clear idea of how and under

[[Page 6441]]

what circumstances this subpart would apply to modified operations. For

the purposes of this section, a pending modification is one that an

operator submitted to BLM before the effective date of this subpart.

Under proposed paragraph (a), if an operator submitted a proposed

modification of an existing plan of operations to modify an existing

facility before the effective date of this subpart, and BLM made an

environmental assessment (EA) or environmental impact statement (EIS)

available to the public before that date, then the new facility, when

approved, would not be subject to the plan content requirements and

performance standards of this subpart. Under proposed paragraph (b), if

the EA or EIS had not been published, then the plan content

requirements and performance standards of this subpart would apply to

the modified facility, unless the operator demonstrates to BLM's

satisfaction that it is not feasible to apply it for environmental,

safety, or technical reasons.

Financial Guarantee Requirements--General

This proposed rule would establish mandatory provisions for

financial guarantees for all activities greater than casual use, expand

the types of financial guarantees available, and establish the

circumstances and procedures under which BLM would pursue forfeiture of

a guarantee. It would also require that financial guarantees be

redeemable by the Secretary while allowing BLM to accept financial

guarantees posted with the State in which operations take place,

provided the level of protection is compatible with this subpart. The

rule would also authorize BLM to require the establishment of a trust

fund in those circumstances where long term, post-mining water

treatment will be necessary. Included in the proposal is a description

of when current operations would have to comply with these rules.

On February 27, 1997, BLM published rules affecting financial

guarantees under this subpart (62 FR 9093). Those rules were challenged

in Northwest Mining Association v. Babbitt, 5 F. Supp. 2d 9 (D.D.C. May

13, 1998) and remanded on procedural grounds. The effect of the remand

is to reinstate the previous financial guarantee regulations. The

proposed rules are different from the invalidated rulemaking in several

substantial ways:

1. The proposed rule would not differentiate between notice- and

plan-level operations.

2. The proposed rule would require all financial guarantees be

actual guarantees, rather than certification that the guarantee exists.

3. The proposed rule would eliminate the requirement that a third

party professional engineer certify the amount of the financial

guarantee.

4. The proposed rule would require that financial guarantees be

posted for the actual amount of the estimated reclamation cost. Thus,

if the estimated cost is $500 per acre, the financial guarantee to be

posted must be $500 times the number of acres disturbed (rounded to the

next highest acre). This differs from the remanded requirement that

minimum financial guarantee amounts be posted.

5. The rule would also allow for additional types of financial

instruments to be used when posting a guarantee.

6. The rule would permit BLM to require the operator to establish a

long-term funding mechanism for water treatment and other post-mining

maintenance requirements.

7. The rule would establish time frames for existing operations to

comply with the financial guarantee requirements.

8. As discussed in the enforcement section of this preamble, BLM

would not require a second financial guarantee for operations in non-

compliance.

In the section-by-section analysis that follows, we compare the

proposal to the regulations in place prior to the remanded 1997

regulations. Readers should note that when we talk about the

``existing'' financial guarantee regulations in this preamble, we are

not referring to the financial guarantee regulations in the current

(1997) edition of the Code of Federal Regulations (CFR), which contains

the remanded rules (Sec. 3809.1-9(a)-(q)). Instead, we are referring to

the financial guarantee regulations in the 1996 edition of the CFR

(Sec. 3809.1-9(a)-(g)).

Section 3809.500 In General, What Are BLM's Financial Guarantee

Requirements?

Proposed Sec. 3809.500 would change existing Secs. 3809.1-9(a) and

3809.1-9(b) by requiring operators to provide financial guarantees in

advance for all operations other than casual use. The existing

regulations make the posting of a financial guarantee discretionary for

plans of operations and do not address financial guarantee for notice-

level operations. BLM believes that a requirement to provide a

financial guarantee for notice- and plan-level operations would ensure

that operators will reclaim project areas to the standards of this

subpart. We recognize that this requirement imposes a cost on those

conducting operations on public lands. (We have analyzed the cost of

this requirement in the course of complying with Executive Order 12866

and the Regulatory Flexibility Act. See part IV of this preamble which

discusses how BLM has met its procedural obligations.) We believe that

the cost of this requirement is greatly outweighed by the benefits that

it produces, namely avoiding the creation of new sources of land and

water pollution on public lands.

Section 3809.503 When Must I Provide a Financial Guarantee for My

Notice-Level Operations?

Proposed Sec. 3809.503 is a new section that governs when a notice-

level operator must provide a financial guarantee. It would not require

a current notice-level operator to provide a financial guarantee unless

the notice is modified or extended. This provision would minimize the

impact of the financial guarantee requirement on existing notice-level

operations as long as they are unchanged. It would also make clear that

persons filing notices after the effective date of a final rule must

provide the financial guarantee before beginning operations.

Section 3809.505 How Do the Financial Guarantee Requirements of This

Subpart Apply to My Existing Plan of Operations?

Proposed Sec. 3809.505 is a new section that would allow those

operating under an existing plan of operations 180 days from the

effective date of a final rule to comply with the financial guarantee

requirements of this rule if they have not already done so. We are

proposing the 180-day grace period to ensure an orderly transition to

the new requirements. We specifically request comments on whether the

180-day time frame is too long, too short, or about right.

Section 3809.551 What Are My Choices for Providing BLM With a Financial

Guarantee?

Proposed Sec. 3809.551 restates the requirements of existing

Sec. 3809.1-9(b) and (d) in the form of a table. It would allow an

operator to provide an individual financial guarantee for a single

notice or plan of operations, a blanket financial guarantee for State-

wide or nation-wide operations, or to provide evidence of an existing

financial guarantee under State law or regulations.

Individual Financial Guarantee

This portion of the proposed rule (Secs. 3809.552 through 3809.556)

contains

[[Page 6442]]

provisions applicable to financial guarantees that cover the

reclamation obligations associated with a single notice or plan of

operations.

Section 3809.552 What Must My Individual Financial Guarantee Cover?

Proposed Sec. 3809.552 would require that an individual financial

guarantee cover reclamation costs as if BLM were to contract for

reclamation with a third party. This clarifies current BLM policy under

existing Sec. 3809.1-9(b), which does not expressly address the cost of

contracting with a third party for reclamation. We are proposing this

clarification because the administrative cost of contracting, including

overhead, can be significant and may otherwise have to be subtracted

from the funds available for on-the-ground work. This might result in

on-the-ground reclamation work being incomplete or substandard. The

proposal would also clarify that the financial guarantee covers all

reclamation obligations arising from an operation, regardless of the

areal extent or depth of activities described in the notice or approved

plan of operations.

In light of our recent experience with operators who file for

bankruptcy protection, BLM intends that reclamation obligations

continue and that BLM could forfeit a financial guarantee and use it to

meet reclamation obligations in a bankruptcy situation unless

specifically precluded by court order. Likewise, in situations where an

operator experiences financial problems short of bankruptcy and is

unable to meet ongoing environmental protection obligations, BLM

intends that we could forfeit a portion of the financial guarantee to

satisfy such obligations. This would include, for instance, partial

forfeiture to keep pumps running and prevent overflow of ponds in the

event an operator ceases operations. In this context, BLM construes the

ongoing maintenance activity intended to prevent unnecessary or undue

degradation as a reclamation obligation subject to coverage by the

financial guarantee. We specifically request comments on whether BLM

should require additional funding mechanisms to meet operational or

environmental contingencies.

Proposed paragraph (b) of this section is a new provision that

would establish the goal of periodic BLM review of the adequacy of the

estimated reclamation cost and the long-term funding mechanism, if any,

and require increased coverage, if necessary. The purpose of this

review is to ensure that the estimated reclamation cost and amount of

financial guarantee remain sufficient throughout the life of the

operation. There are many variables inherent in mining operations that

can affect the reclamation cost, and we believe there should be a

mechanism to take this inherent variability into account and allow

appropriate adjustments. We do not want to create the incentive for an

operator to forfeit the financial guarantee and walk away from a

project area because the reclamation cost has become greater than the

financial guarantee amount. We are not proposing a specific frequency

for review of the estimated reclamation cost, and by using ``will''

instead of ``must,'' we do not intend to create an obligation for BLM

to conduct any particular review. Accomplishing the goal of

periodically reviewing reclamation cost estimates is subject to the

availability of resources.

Proposed paragraph (c) of this section would authorize BLM to

require an operator to establish a trust fund or other funding

mechanism to ensure the continuation of long-term water treatment to

achieve water quality standards or for other long-term, post-mining

maintenance requirements. The funding would have to be adequate to

provide for construction, long-term operation, maintenance, or

replacement of any treatment facilities and infrastructure, for as long

as the treatment and facilities are needed after mine closure. BLM

would identify the need for a trust fund or other funding mechanism

during plan review or later. This would be a new requirement designed

to deal with the situation where an otherwise fully reclaimed mining

operation will continue for the foreseeable future to discharge

pollutants, such as acid mine drainage, into surface waters. To avoid

unnecessary or undue degradation, we believe there must be some

mechanism to fund long-term treatment of the discharge. Under this

provision, the operator would have to set aside funds that would be

invested to produce income sufficient to pay for the ongoing cost of

whatever treatment is required to meet applicable water quality

standards for as long as the treatment is necessary. We anticipate that

any prediction that long-term treatment will be necessary would have to

be based on adequate sampling to determine the acid-generating

potential of the ore body and surrounding rock. Under this provision

and proposed Sec. 3809.401(c), BLM would have the authority to require

an operator to collect and analyze enough samples to ensure that any

prediction is based on a statistically adequate number of samples. We

are particularly interested in commenters' views on how well this

mechanism would work and on alternate approaches to address the problem

of post-mining acid mine drainage.

Section 3809.553 May I Post a Financial Guarantee for a Part of My

Operations?

Proposed Sec. 3809.553(a) would provide that financial guarantees

may be provided on an incremental basis to cover only those areas being

disturbed. This new provision is intended to address confusion about

whether an operator has to provide financial guarantee for the entire

area to be affected by operations all at once. We believe that where an

operation is large or is of long duration or will be developed in

phases, there is no need to require financial guarantee for areas that

will not be immediately disturbed. The purpose of the financial

guarantee requirement is to ensure reclamation of disturbed surface

areas. To the extent that the surface is not disturbed, no financial

guarantee is needed. However, at any one time, an operator would have

to maintain enough financial guarantee to cover all estimated

reclamation costs.

Proposed paragraph (b) of this section would establish BLM's goal

of reviewing the financial guarantee for each increment of an operation

at least annually. We do not consider this provision as creating an

obligation for BLM to review any particular increment annually. The

number of reviews we conduct annually is subject to available

resources.

Section 3809.554 How Do I Estimate the Cost To Reclaim My Operations?

Proposed Sec. 3809.554 would require an operator to estimate the

cost to reclaim an operation as if BLM were hiring a third-party

contractor to perform reclamation of the operation after the operator

had vacated the project area. The estimate would have to include BLM's

cost to administer the reclamation contract. An operator could contact

BLM to obtain the administrative cost information. The purpose of this

new provision is to ensure that the estimated cost of reclamation, on

which the financial guarantee amount is based, is sufficient to pay for

successful reclamation if the operator does not complete reclamation.

In that event, BLM would most likely have to contract for the

reclamation work and would incur administrative costs. If funding were

not available in the financial guarantee to pay the administrative

costs, the costs would have to come out of the funds available for the

on-the-ground reclamation. This

[[Page 6443]]

could result in incomplete or substandard reclamation.

Section 3809.555 What Forms of Individual Financial Guarantee Are

Acceptable to BLM?

Proposed Sec. 3809.555 would expand the kinds of instruments that

are acceptable as financial guarantees under existing Sec. 3809.1-9(c).

In addition to surety bonds, cash, and negotiable securities, which are

acceptable under the existing regulations, the expanded list of

acceptable instruments would include letters of credit, certificates of

deposit, State and municipal bonds, and investment-grade rated

securities. We believe that expanding the list of acceptable

instruments will make it easier for an operator to provide the required

financial guarantee. In proposed paragraph (a), we are proposing to

change the wording to specify that only non-cancelable surety bonds

would be acceptable. The intent of this change is to preclude

cancellation of a surety bond without the existence of a replacement

financial guarantee.

Section 3809.556 What Special Requirements Apply to Financial

Guarantees Described in Section 3809.555(e)?

Proposed Sec. 3809.556 is a new section that we intend to ensure

that market fluctuations do not erode the security provided by

financial guarantees and other instruments that fluctuate in value.

Proposed paragraph (a) would require an operator to provide BLM a

statement describing the market value of a financial guarantee which is

in the form of traded securities. The operator would have to provide

the statement before beginning operations and at the end of each

calendar year thereafter. Proposed paragraph (b) would require the

operator to review annually the value of the guarantee and to post an

additional financial guarantee if the value declines by more than 10

percent or if BLM determines that a greater guarantee is necessary.

Proposed paragraph (c) would allow the operator to ask BLM to authorize

the release of that portion of an account exceeding 110 percent of the

required financial guarantee. BLM would honor the request if the

operator is in compliance with the terms and conditions of the

operator's notice or approved plan of operations.

Blanket Financial Guarantee

This portion of the proposed rule contains one section (proposed

Sec. 3809.560) that addresses blanket financial guarantees. We are

proposing to continue the practice of accepting blanket financial

guarantees.

Section 3809.560 Under What Circumstances May I Provide a Blanket

Financial Guarantee?

Proposed Sec. 3809.560 is identical to existing Sec. 3809.1-9(d),

with minor editorial changes, and would permit the operator to provide

a blanket guarantee covering state-wide or nation-wide operations. BLM

will accept a blanket financial guarantee if we determine that its

terms and conditions are sufficient to comply with this subpart. The

amount of any blanket financial guarantee would have to be sufficient

to cover all of an operator's reclamation obligations.

State-Approved Financial Guarantee

This portion of the proposed rule contains four sections (proposed

Secs. 3809.570 through 3809.573) that address State-approved financial

guarantees. We are proposing to continue the practice of accepting

State-approved financial guarantees.

Section 3809.570 Under What Circumstances May I Provide a State-

Approved Financial Guarantee?

Proposed Sec. 3809.570 would deem acceptable a State-approved

financial guarantee that is redeemable by the Secretary, is held or

approved by a State agency for the same operations covered by a notice

or plan of operations, and provides at least the same amount of

financial guarantee as required by this subpart. We are proposing that

any State-approved financial guarantee be redeemable by the Secretary

so that, in case of failure to reclaim, we can initiate forfeiture of

the financial guarantee to ensure reclamation of public lands. The

redeemability requirement would not apply to State financial guarantee

pools. See proposed Sec. 3809.571.

Section 3809.571 What Forms of State-Approved Financial Guarantee Are

Acceptable to BLM?

Under proposed Sec. 3809.571, BLM would accept a State-approved

financial guarantee in any of the forms specified under proposed

Sec. 3809.555. BLM would also accept participation in a State financial

guarantee pool if the State agrees that, upon BLM's request, the State

will use part of the pool to meet reclamation obligations on public

lands, and the BLM State Director determines that the pool provides the

level of protection required by this subpart. BLM is also proposing to

accept a corporate guarantee if it is acceptable to the State, is

redeemable by or guaranteed to the Secretary, and the BLM State

Director determines that the corporate guarantee provides a level of

protection equal to the estimated cost of reclamation, considering the

operator's net income, net working capital and intangible net worth,

and total liabilities and assets. We specifically request comments or

suggestions on what would be an appropriate standard for an acceptable

corporate guarantee.

Section 3809.572 What Happens if BLM Rejects a Financial Instrument in

My State-Approved Financial Guarantee?

Under proposed Sec. 3809.572, BLM would notify an operator in

writing within 30 days of BLM's receipt of evidence of an operator's

State-approved financial guarantee whether the guarantee was

acceptable. If BLM rejected a financial instrument in an operator's

State-approved financial guarantee, the operator would have to provide

BLM with a financial guarantee equal to the amount of the financial

guarantee rejected.

Section 3809.573 What Happens if the State Makes a Demand Against My

Financial Guarantee?

Under proposed Sec. 3809.573, if the State makes a demand against

an operator's financial guarantee and reduces the available balance,

the operator would have to replace or augment the financial guarantee

to cover the remaining reclamation cost.

Modification or Replacement of a Financial Guarantee

This portion of the proposed rule (proposed Secs. 3809.580 through

3809.582) addresses modification or replacement of a financial

guarantee.

Section 3809.580 What Happens if I Modify My Notice or Approved Plan of

Operations?

Proposed Sec. 3809.580 incorporates existing Sec. 3809.1-9(e) and

would require an operator to increase the financial guarantee if the

operator modifies a plan or a notice and the estimated reclamation cost

increases. This section would not preclude an operator from requesting

BLM's approval for a decrease in the financial guarantee if the

estimated reclamation cost decreases as a result of a modification.

Section 3809.581 Will BLM Accept a Replacement Financial Instrument?

Proposed Sec. 3809.581 covers the procedure for review and approval

of a replacement financial instrument. This topic is not addressed in

the existing regulations. If an operator wants to replace a financial

instrument any time after BLM's approval of the initial

[[Page 6444]]

instrument, the operator would request BLM review of the replacement.

Within 30 days of the request, BLM would complete its review and, if we

reject the request, issue a decision in writing.

Section 3809.582 How Long Must I Maintain My Financial Guarantee?

Proposed Sec. 3809.582 would establish a requirement for

maintaining the financial guarantee. This topic is not addressed in the

existing regulations. An operator would have to maintain the financial

guarantee until the operator, or a new operator, replaces it, or until

BLM releases the requirement to maintain the financial guarantee after

completion of successful reclamation.

Release of Financial Guarantee

This portion of the proposed rule (Secs. 3809.590 through 594)

addresses when and how BLM releases a financial guarantee after

completion or transfer of operations. As noted below, the proposal

would incorporate several portions of the existing regulations. In

general, the process for release of financial guarantee described in

this portion of the proposal would apply to all operations once this

subpart becomes effective. However, for existing operations that are

not subject to the performance standards of this subpart (See proposed

Sec. 3809.400), the standards for release would be those included in

the existing plan of operations.

Section 3809.590 When Will BLM Release or Reduce the Financial

Guarantee for My Notice or Plan of Operations?

Proposed Sec. 3809.590 incorporates existing Sec. 3809.1-9(f) with

the substantive changes discussed below. When the operator completes

all or any portion of the reclamation of an operation according to the

notice or approved plan of operations, the operator would notify BLM

that the reclamation has occurred and request a reduction in the

financial guarantee or BLM approval of the adequacy of the reclamation,

or both. BLM will then promptly inspect the reclaimed area. Under the

proposal, BLM would encourage the operator to accompany the BLM

inspector. Under the existing regulations, BLM is required to inspect

the operation with the operator. This change would not preclude the

operator from accompanying the BLM inspector and would facilitate final

inspections where the operator is unable to be present. Subsequently,

BLM would notify the operator, in writing, whether the reclamation is

acceptable and whether the operator may reduce the financial guarantee

under Sec. 3809.591.

Under proposed paragraph (c), BLM would publish notice of final

release of financial guarantee in a local newspaper of general

circulation and accept comments

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