[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Rules and Regulations]
[Pages 53218-53220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25430]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3800
[WO-660-4120-02-24 1A]
RIN: 1004-AD36
Mining Claims Under the General Mining Laws; Surface Management
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Land Management (BLM) is publishing this final
regulation on bonding requirements for mining claims to comply with a
Federal District Court order. This final rule is needed to remove
regulatory provisions that were invalidated by the court and to restore
the previously existing provisions that are currently in effect as a
result of the court order. This rule does not affect a pending proposed
rule regarding changes to Subpart 3809.
EFFECTIVE DATE: October 1, 1999.
ADDRESSES: Inquiries or suggestions should be sent to the Solid
Minerals Group at Director (320), Bureau of Land Management, Room 501
LS, 1849 C Street, N.W., Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Richard Deery, (202) 452-0350, or Ted
Hudson, (202) 452-5042.
SUPPLEMENTARY INFORMATION:
I. Background
On February 28, 1997 (62 FR 9093), BLM published a final rule
amending 43 CFR subpart 3809. This final rule amended the bonding
requirements for unpatented mining claims under the Mining Law of 1872,
as amended (30 U.S.C. 22 et seq.), and codified the penalties imposed
by the Sentencing Reform Act of 1989 (18 U.S.C. 3571 et seq.).
The Northwest Mining Association (NMA) sued the BLM alleging
violations of the Administrative Procedure Act, 5 U.S.C. 551 et seq.,
and the Regulatory Flexibility Act, as amended, 5 U.S.C. 601 et seq.
(Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9 (D.D.C. 1998))
On May 13, 1998, the court ruled in favor of the NMA, granted its
motion for summary judgment, and remanded the final rule to the
Department of the Interior for appropriate action consistent with the
court's opinion.
The Department of the Interior did not appeal the decision of the
District Court. On August 21, 1998, BLM issued an instruction
memorandum to its field offices instructing them to act under the
regulations that had been in place until March 31, 1997, the effective
date of the remanded rule.
While the litigation was pending, the challenged rule was published
in Title 43 of the Code of Federal Regulations (CFR), and the old rules
were removed from the published volumes. The purpose of this final rule
is to remove from the CFR the judicially invalidated regulatory
provisions that were promulgated on February 28, 1997, and to restore
verbatim to the CFR the previous regulatory provisions that were
removed and/or replaced by that rule, and that now are back in effect
as a result of the court invalidating the new rulemaking. Absent this
action, the CFR would contain regulations that are no longer valid,
potentially confusing those subject to these regulations as to the
requirements for bonding of hardrock mining operations.
Under 5 U.S.C. 553(b), the Department of the Interior finds good
cause to issue this final rule without notice and opportunity for
public comment. Removing the invalid rule and restoring the previously
existing rule is required by a final judicial determination. Therefore,
notice and public comment is unnecessary. Under 5 U.S.C. 553(d), the
Department also finds good cause, to waive the 30-day period between
publication of a final rule and its effective date for the same reason.
This rule has no effect on the proposed rule published on February
9, 1999 (64 FR 6422), which would comprehensively amend the hardrock
mining regulations in 43 CFR Subpart 3809. However, that proposed rule
could make changes to the reinstated bonding regulations, if a final
rule is issued.
II. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
This final rule is not a significant regulatory action and is not
subject to review by the Office of Management and Budget under
Executive Order 12866. The rule will not have an effect of $100 million
or more on the economy. It will not adversely affect in a material way
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This rule will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
The rule does not alter the budgetary effects of entitlements, grants,
user fees, or loan programs or the right or obligations of their
recipients; nor does it raise novel legal or policy issues.
Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are simple and easy to understand. However, because this final
rule merely restores to the CFR regulations that were in effect before
March 31, 1997, and proposed regulations are pending that, if adopted,
will affect this whole subpart, which will be rewritten in plain
language, we have not rewritten this regulation into plain language.
National Environmental Policy Act
BLM has determined that this final rule is an administrative
action. It merely restores regulatory language that was changed or
removed by a previous final rule that was invalidated by the District
Court. Therefore, it is categorically excluded from environmental
review under section 102(2)(C) of the National Environmental Policy
Act, pursuant to 516 Departmental Manual (DM), Chapter 2, Appendix 1.
In addition, the proposed rule does not meet any of the 10 criteria for
exceptions to categorical exclusions listed in 516 DM, Chapter 2,
Appendix 2. Pursuant to Council on Environmental Quality regulations
(40 CFR 1508.4) and the environmental policies and procedures of the
Department of the Interior, the term ``categorical exclusions'' means a
category of actions which do not individually or cumulatively have a
significant effect on the human environment and that have been found to
have no such effect in procedures adopted by a Federal agency and for
which neither an environmental assessment nor an environmental impact
statement is required.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act of 1980, as
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory flexibility analysis if a rule would have a
significant economic impact on a substantial number of small entities.
Although small entities are bound by the regulations being restored by
this final rule, BLM has determined under the RFA that this rule would
not have a significant economic impact on a substantial number of small
entities. The rule is an administrative action restoring to the CFR
regulations that BLM and industry are currently following. The rule
makes no changes in
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the procedures that any small entity must follow.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This final rule is not a ``major rule'' as defined at 5 U.S.C.
804(2) for the reasons stated in the previous two sections.
Unfunded Mandates Reform Act
This final rule does not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year; nor does this rule have a significant or unique
effect on State, local, or tribal governments or the private sector.
The rule is an administrative action restoring to the CFR regulatory
text that was removed or changed by a previous final rule invalidated
by the District Court. This rule makes no changes in the restored text.
Therefore, BLM does not need to prepare a statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.)
Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights (Takings)
The final rule does not represent a government action capable of
interfering with constitutionally protected property rights. It is an
administrative action restoring text removed or changed by a previous
final rule that was invalidated by a Federal court. Therefore, the
Department of the Interior has determined that the rule would not cause
a taking of private property or require further discussion of takings
implications under this Executive Order.
Executive Order 12612, Federalism
In accordance with Executive Order 12612, BLM finds that the rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment. This rule does not change the
role or responsibilities between Federal, State, and local governmental
entities, nor does it relate to the structure and role of States or
have direct, substantive, or significant effects on States.
Executive Order 12988, Civil Justice Reform
Under Executive Order 12988, the Department has determined that
this rule would not unduly burden the judicial system and that it meets
the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
The Office of Management and Budget has approved the information
collection requirements in Subpart 3809 under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501 et seq., and has assigned clearance number
1004-0176. This rule does not impose any additional information
collection requirements.
Author: The principal author of this rule is Ted Hudson of the
Regulatory Affairs Group, Washington Office, Bureau of Land Management.
List of Subjects in 43 CFR Part 3800
Administrative practice and procedure, Environmental protection,
Intergovernmental affairs, Mines, Public lands-mineral resources,
Reporting and recordkeeping requirements, Surety bonds, Wilderness
areas
For the reasons stated in the preamble, and under the authorities
cited below, Part 3800, Subchapter C, Chapter II, Title 43 of the Code
of Federal Regulations is amended as set forth below.
PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAW
1. The authority citation for part 3800 continues to read as
follows:
Authority: 16 U.S.C. 351; 16 U.S.C. 460y-4; 30 U.S.C. 22; 31
U.S.C. 9701; 43 U.S.C. 154; 43 U.S.C. 299; 43 U.S.C. 1201; 43 U.S.C.
1740; 30 U.S.C. 28k.
Subpart 3809--Surface Management
2. Section 3809.1-8 is added to read as follows:
Sec. 3809.1-8 Existing operations.
(a) Persons conducting operations on January 1, 1981, who would be
required to submit a notice under Sec. 3809.1-3 or a plan of operations
under Sec. 3809.1-4 of this title may continue operations but shall,
within:
(1) 30 days submit a notice with required information outlined in
Sec. 3809.1-3 of this title for operations where 5 acres or less will
be disturbed during a calendar year; or
(2) 120 days submit a plan in those areas identified in
Sec. 3809.1-4 of this title. Upon a showing of good cause, the
authorized officer may grant an extension of time, not to exceed an
additional 180 days, to submit a plan.
(b) Operations may continue according to the submitted plan during
its review. If the authorized officer determines that operations are
causing unnecessary or undue degradation of the Federal lands involved,
the authorized officer shall advise the operator of those reasonable
measures needed to avoid such degradation, and the operator shall take
all necessary steps to implement those measures within a reasonable
time recommended by the authorized officer. During the period of an
appeal, if any, operations may continue without change, subject to
other applicable Federal and State laws.
(c) Upon approval of a plan by the authorized officer, operations
shall be conducted in accordance with the approval plan.
3. Section 3809.1-9 is revised to read as follows:
Sec. 3809.1-9 Bonding requirements.
(a) No bond shall be required for operations that constitute casual
use (Sec. 3809.1-2) or that are conducted under a notice (Sec. 3809.1-3
of this title).
(b) Any operator who conducts operations under an approved plan of
operations as described in Sec. 3809.1-5 of this title may, at the
discretion of the authorized officer, be required to furnish a bond in
an amount specified by the authorized officer. The authorized officer
may determine not to require a bond in circumstances where operations
would cause only minimal disturbance to the land. In determining the
amount of the bond, the authorized officer shall consider the estimated
cost of reasonable stabilization and reclamation of areas disturbed. In
lieu of the submission of a separate bond, the authorized officer may
accept evidence of an existing bond pursuant to State law or
regulations for the same area covered by the plan of operations, upon a
determination that the coverage would be equivalent to that provided in
this section.
(c) In lieu of a bond, the operator may deposit and maintain in a
Federal depository account of the United States Treasury, as directed
by the authorized officer, cash in an amount equal to the required
dollar amount of the bond or negotiable securities of the United States
having a market value at the time of deposit of not less than the
required dollar amount of the bond.
(d) In place of the individual bond on each separate operation, a
blanket bond covering statewide or nationwide operations may be
furnished at the option of the operator, if the terms and conditions,
as determined by the authorized officer, are sufficient to comply with
these regulations.
(e) In the event that an approved plan is modified in accordance
with Sec. 3809.1-7 of this title, the authorized officer shall review
the initial bond for adequacy and, if necessary, adjust the amount of
the bond to conform to the plan as modified.
(f) When all or any portion of the reclamation has been completed
in
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accordance with the approved plan, the operator may notify the
authorized officer that such reclamation has occurred and that she/he
seeks a reduction in bond or Bureau approval of the adequacy of the
reclamation, or both. Upon any such notification, the authorized
officer shall promptly inspect the reclaimed area with the operator.
The authorized officer shall then notify the operator, in writing,
whether the reclamation is acceptable. When the authorized officer has
accepted as completed any portion of the reclamation, the authorized
officer shall authorize that the bond be reduced proportionally to
cover the remaining reclamation to be accomplished.
(g) When a mining claim is patented, the authorized officer shall
release the operator from that portion of the performance bond which
applies to operations within the boundaries of the patented land. The
authorized officer shall release the operator from the remainder of the
performance bond, including the portion covering approved means of
access outside the boundaries of the mining claim, when the operator
has completed acceptable reclamation. However, existing access to
patented mining claims, if across Federal lands shall continue to be
regulated under the approved plan. The provisions of this subsection do
not apply to patents issued on mining claims within the boundaries of
the California Desert Conservation Area (see Sec. 3809.6 of this
title).
4. Section 3809.3-1 is amended by revising paragraph (b) to read as
follows:
Sec. 3809.3-1 Applicability of State law.
* * * * *
(b) After November 26, 1980, the Director, Bureau of Land
Management, shall conduct a review of State laws and regulations in
effect or due to come into effect, relating to unnecessary or undue
degradation of lands disturbed by exploration for, or mining of,
minerals locatable under the mining laws.
5. Section 3809.3-2 is amended by removing paragraph (f) and
revising paragraph (e) to read as follows:
Sec. 3809.3-2 Noncompliance.
* * * * *
(e) Failure of an operator to take necessary actions on a notice of
non-compliance, may constitute justification for requiring the
submission of a plan of operations under Sec. 3809.1-5 of this title,
and mandatory bonding for subsequent operations which would otherwise
be conducted pursuant to a notice under Sec. 3809.1-3 of this title.
Dated: September 24, 1999.
* * * * *
Sylvia V. Baca,
Acting Assistant Secretary of the Interior.
[FR Doc. 99-25430 Filed 9-30-99; 8:45 am]
BILLING CODE 4310-84-P
