[Federal Register Volume 64, Number 206 (Tuesday, October 26, 1999)]
[Proposed Rules]
[Pages 57613-57619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27765]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3800
[WO-300-1990-00]
RIN 1004-AD22
Mining Claims Under the General Mining Laws; Surface Management
AGENCY: Bureau of Land Management, Interior.
ACTION: Supplemental proposed rule; reopening of comment period on
draft environmental impact statement.
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SUMMARY: The Bureau of Land Management (BLM) announces the reopening of
the comment period on our
[[Page 57614]]
surface management proposed rule (43 CFR part 3809) and the associated
draft environmental impact statement (EIS). We are taking this action
to carry out a provision of a recently enacted law requiring us to
reopen the comment period on the proposed rule. This action enables the
public and other interested parties to comment on the proposed rule and
the draft EIS following publication of a report by the National Academy
of Sciences (NAS) on hardrock mining on Federal lands. We are
supplementing the proposed rule with recommendations from the NAS study
and raising some related topics. And, we are responding to comments on
our estimate of burden hours associated with the proposed rule.
DATES: Send your comments to reach BLM by February 23, 2000.
ADDRESSES: You may mail comments to Bureau of Land Management,
Administrative Record, Nevada State Office, PO Box 12000, Reno, Nevada
89520-0006. You may hand-deliver comments to BLM at 1340 Financial
Boulevard, Reno, Nevada 89520. Submit electronic comments and other
data to WOComment@blm.gov. For other information about filing comments
electronically, see the SUPPLEMENTARY INFORMATION section under
``Electronic access and filing address.''
FOR FURTHER INFORMATION CONTACT: Robert M. Anderson, 202/208-4201; or
Michael Schwartz, 202/452-5198. Individuals who use a
telecommunications device for the deaf (TDD) may contact us through the
Federal Information Relay Service at 1-800/877-8339.
SUPPLEMENTARY INFORMATION:
I. How Can I Comment on the Proposed Rule and draft EIS?
II. Why is BLM Reopening the Comment Period?
III. How Can I Obtain a Copy of the National Academy of Sciences
Report?
IV. Which NAS Recommendations Identify Regulatory Gaps?
V. How Would BLM Regulate the Use of Suction Dredges?
VI. How Does BLM Define Certain Terms Used in this Subpart?
VII. Under What Circumstances May an Operator Not Begin
Operations 15 Business Days After Filing a Notice?
VIII. How Would BLM Pay for Interim Site Care and Maintenance
Until We Issue a Reclamation Contract?
IX. Would BLM Allow State Director Review of Decisions?
X. How Did BLM Meet its Procedural Obligations?
I. How Can I Comment on the Proposed Rule and Draft EIS?
Electronic Access and Filing Address
You may view an electronic version of this supplemental proposed
rule; the February 9, 1999, proposed rule; and the draft EIS on BLM's
Internet home page: www.blm.gov. You may also comment via the Internet
to: WOComment@blm.gov. 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, call us directly at 202/452-5030.
Written Comments
Your written comments on the proposed rule or draft EIS should be
specific and confined to issues pertinent to the proposed rule, and
explain the reason for any recommended change. Where possible, you
should reference the specific section or paragraph of the proposed rule
or draft EIS that you are addressing. Refer to the February 9, 1999,
proposed rule (64 FR 6422) or the February 17, 1999 notice of
availability of the draft EIS (64 FR 7905) for detailed information.
You need not re-submit comments that you sent us previously. We
will consider comments submitted during the previous comment period, as
well as comments submitted during this new comment period, when we
prepare the final rule and final EIS.
We are not required to consider, or include in the Administrative
Record for the final rule, comments that we receive 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 our Nevada State Office (See ADDRESSES) during regular business
hours (8 a.m. to 4 p.m.), Monday through Friday, except Federal
holidays. We will also make comments available at our Washington, DC
office, 1620 L Street, NW, Room 401, during regular business hours (8
a.m. to 4:30 p.m.), Monday through Friday, except Federal holidays.
Requests for Confidentiality
Individuals who send us comments on the proposed rule 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. We will honor requests
for confidentiality on a case-by-case basis to the extent allowed by
law. We 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.
II. Why is BLM Re-Opening the Comment Period?
On February 9, 1999, we published in the Federal Register a
proposed rule to revise the regulations governing mining operations
involving metallic and some other minerals on public lands administered
by BLM. See 64 FR 6422. We call these regulations the surface
management regulations. They are located in subpart 3809 of part 3800
of Title 43 of the Code of Federal Regulations (43 CFR Part 3800,
subpart 3809). For this reason, they are also called the ``3809''
regulations. The comment period opened on February 9, 1999, and closed
on May 10, 1999. We issued the notice of availability for the draft
environmental impact statement (EIS) that analyzes the potential
impacts of the 3809 regulations on February 17, 1999 (64 FR 7905). The
comment period on the draft EIS also closed on May 10, 1999.
In the 1998 Omnibus Consolidated and Emergency Supplemental
Appropriations Act (Pub. L. 105-277, sec. 120(a)), Congress directed
BLM to pay for a study by the National Academy of Sciences (NAS) Board
on Earth Sciences and Resources. The study was to examine the
environmental and reclamation requirements relating to mining of
locatable minerals on Federal lands and the adequacy of those
requirements to prevent unnecessary or undue degradation of Federal
lands in each State in which such mining occurs. The law directed NAS
to complete the study by July 31, 1999.
In the 1999 Emergency Supplemental Appropriations Act (Pub. L. 106-
31, sec. 3002), Congress prohibited the Department of the Interior from
completing its work on the February 9, 1999, proposed rule and issuing
a final rule until we provide at least 120 days for public comment on
the proposed rule after July 31, 1999. The NAS has now completed and
published its study, entitled, ``Hardrock Mining on Federal Lands.''
Accordingly, we are reopening the comment period on the proposed rule
for 120 days. This action will allow the public to comment on the
proposed
[[Page 57615]]
rule in the context of the NAS report. In addition, we are reopening
the comment period on the associated draft EIS for the same period.
III. How Can I Obtain a Copy of the National Academy of Sciences
Report?
The National Academy of Sciences has posted the report on its
Internet site. The address is www.nap.edu/catalog/9682.html. You can
request a paper copy of the report by contacting NAS at National
Academy of Sciences, Board on Earth Sciences and Resources, 2101
Constitution Avenue, NW, Washington, DC 20418; telephone: 202/334-2744.
If you gave BLM an address with your comment on the proposed rule,
draft EIS, or during the scoping process for the EIS, BLM has already
arranged for NAS to mail you a copy of the study; you need not request
another copy.
IV. Which NAS Recommendations Identify Regulatory Gaps?
The NAS study contains a number of recommendations for the
coordination of Federal and State regulations to ensure environmental
protection, increase efficiency, avoid duplication and delay, and
identify the most cost-effective manner for implementation. Some of the
recommendations are directed at BLM's regulatory framework. Others are
aimed at the Forest Service, at changes in laws, or at areas that are
not regulatory in nature, such as the recommendation to create a
management information system.
BLM is carefully considering all of the NAS recommendations and
seeks public comment on their validity and relevance to the proposed
rule. Because the baseline for the study was the existing regulatory
framework rather than the revisions to that framework that we proposed
on February 9, 1999 (64 FR 6422), some of the NAS recommendations that
are directed at BLM's regulatory framework overlap with the 3809
proposed rule.
In the interest of full and informed public comment on the proposed
rule, we are including in this supplemental proposed rule those NAS
recommendations that identify gaps in the existing regulations. This
notice contains the verbatim text of the 3809-related NAS
recommendations that identify regulatory gaps, along with explanatory
material that highlights areas where we are particularly interested in
receiving public comment. By doing so, we don't prejudge the validity
of the NAS recommendations, and we reserve the right to adopt, modify,
or decline to adopt any NAS recommendation. Under the Administrative
Procedure Act, we must provide the public with adequate notice and an
opportunity to comment on proposed regulatory changes (5 U.S.C. 553).
Therefore, we are notifying you that we are considering one or more of
the NAS recommendations and asking you for comments.
NAS Recommendation: ``Financial assurance should be required for
reclamation of disturbances to the environment caused by all mining
activities beyond those classified as casual use, even if the area
disturbed is less than five acres.''
Request for Comments: Our 3809 proposed rule would require a
financial guarantee for any operation greater than casual use. See
proposed Sec. 3809.552(a). BLM and the NAS study agree that lack of
financial guarantee for notice-level operations constitutes a gap in
the current rules.
However, the NAS study and the 3809 proposed rule differ concerning
how financial guarantee amounts should be established. The NAS study
recommends that we establish ``standard bond amounts'' for certain
types of activities in specific kinds of terrain, especially for the
activities of prospectors, small exploration companies, and small
miners. According to the NAS study, BLM should use these standard bond
amounts, which would be in the form of a certain number of dollars per
acre of land disturbed, instead of detailed calculations of bond
amounts based on the engineering design of a mine or mill. The 3809
proposed rule would base financial guarantee amounts on the estimated
reclamation cost as if BLM were to contract with a third party to
reclaim an operation following the requirements of the reclamation
plan. See proposed Sec. 3809.552(a).
We specifically request comments on whether standard bond amounts
would be preferable to actual-cost financial guarantees. We are
particularly interested in comments on how the standard amounts should
be set; that is, should we base them on standard industry cost
estimating manuals, recent actual cost experience, certified estimates
from third-party professional engineers, or on something else. The BLM
regulation that was remanded by the Federal courts in May 1998 set
minimum standard bond amounts of $1,000 per acre (or fraction thereof)
for notices and $2,000 per acre (or fraction thereof) for plans of
operations. We would also like comments on whether and under what
circumstances departures from the standard bond amounts (up or down)
are appropriate.
NAS Recommendation: ``Plans of operations should be required for
mining and milling operations, other than those classified as casual
use or exploration activities, even if the area disturbed is less than
five acres.''
Request for Comments: This recommendation reflects the NAS
observation that unnecessary or undue degradation occurs on some
notice-level mining operations. Our 3809 proposal agrees that this is a
problem and contained two options for addressing it. Proposed
Sec. 3809.11 (Alternative 1) would limit use of notices by requiring a
plan of operations where, among other things, operations involve
leaching or use of chemicals (proposed Sec. 3809.11(f)) or are in
national monuments and national conservation areas administered by BLM
(proposed Sec. 3809.11(j)(7)). Proposed Sec. 3809.11 (``Forest
Service'' Alternative) would limit use of notices by requiring a plan
of operations whenever there is ``significant disturbance of surface
resources,'' regardless of the size of the disturbance.
The NAS recommendation, if adopted by BLM into the 3809
regulations, would have the effect of requiring a plan of operations
for all mining and milling operations regardless of the size of the
disturbance, thereby limiting notices to exploration activities. This
approach is somewhat different from the two options in our proposal. We
are asking the public specifically to comment on incorporating this NAS
recommendation into the 3809 regulations; that is, whether we should
limit the use of notices to exploration activities and require plans of
operations for all other mining and milling operations, regardless of
the size of the disturbance. We are particularly interested in comments
on what activities we should consider ``exploration'' and eligible for
a notice. For example, the NAS study specifically mentions ``bulk
sampling,'' which it identifies as extraction of 10 to 1,000 tons or
more of presumed ore, as a kind of advanced exploration activity that
should generally be authorized by a plan of operations, not a notice.
In addition to the two options in our proposal and the NAS
recommendation discussed above, BLM is also considering another option,
namely, to require an operator to file a plan of operations if BLM
determines that proposed notice-level operations may adversely affect
proposed or listed threatened or endangered species or their designated
critical habitat. This approach would not be as restrictive as the NAS
recommendation, but would limit the use of notices to a greater degree
than that allowed under Alternative 1 of the proposed rule. In
[[Page 57616]]
these circumstances, BLM could work to comply with the Endangered
Species Act through a programmatic agreement with the appropriate
agency, either the Fish and Wildlife Service or the National Marine
Fisheries Service. We specifically request comments on this issue.
NAS Recommendation: ``BLM and the Forest Service should revise
their regulations to provide more effective criteria for modifications
to plans of operations, where necessary, to protect the federal
lands.''
Request for Comments: NAS based this recommendation on comments it
received that expressed concern about the ability of BLM and the Forest
Service to require modifications of plans of operations in light of new
circumstances or information, such as acid drainage, problems with
water balance, adequacy of approved containment structures, mine
closure, or discovery of impacts on wells and springs. We agree with
this concern that the ability to require operators to make necessary
modifications is essential to prevent unnecessary or undue degradation,
and for this reason, we included provisions addressing this issue in
our 3809 proposal. See proposed Secs. 3809.430 to 3809.432.
The NAS study also raised the issue of whether our regulations
should require a periodic review or reopening of plans of operations as
a way of addressing changes in the operation or new information that
may arise. We specifically request comments from the public on whether
we should require this type of periodic review of plans of operations,
and if so, what the interval between reviews should be, that is, one
year, two years, five years, or longer.
NAS Recommendation: ``BLM and the Forest Service should adopt
consistent regulations that (a) define the conditions under which mines
will be considered to be temporarily closed; (b) require that interim
management plans be submitted for such periods; and (c) define the
conditions under which temporary closure becomes permanent and all
reclamation and closure requirements must be completed.''
Request for Comments: NAS based this recommendation on the fact
that temporary closures as a result of low mineral prices may cause
environmental problems if appropriate management measures are not
undertaken. The NAS study takes the position that land management
agencies need to have the authority to require an operator to close a
mine properly, rather than allowing it to remain in limbo if poor
market conditions persist.
We agree with this concern, and our proposal contains provisions
applicable to notices and plans of operations that would require an
operator who stops conducting operations for any period of time to
maintain public lands within the project area in a safe and clean
condition, prevent unnecessary or undue degradation, and maintain an
adequate financial guarantee. See proposed Secs. 3809.334 and 3809.424.
If the period of non-operation is likely to cause unnecessary or undue
degradation, these provisions allow BLM to require the operator to take
all steps necessary to prevent unnecessary or undue degradation and
require the operator to remove all structures, equipment, and other
facilities and reclaim the project area. In the case of plans of
operations, our 3809 proposed rule would allow BLM to review operations
that are inactive for 5 consecutive years to determine if we should
terminate the plan of operations and direct final reclamation and
closure. We also proposed a number of provisions to address abandonment
of operations and forfeiture of financial guarantee. See, for example,
proposed Secs. 3809.424(a)(4) and 3809.595 through 3809.599.
We are interested in receiving public comments on whether we should
define the conditions under which we will consider mines to be
temporarily closed, and if so, how. Proposed Secs. 3809. 334(b)(2) and
3809.424(a)(2) use the term ``extended period of non-operations for
other than seasonal operations.'' We intended that the field staff have
some flexibility in applying this concept. An alternative approach
would be to specify an appropriate period of time after which we would
consider an inactive operation to be temporarily closed, such as 90
days, 180 days, one year, or longer.
With regard to the NAS recommendation that we require an interim
management plan for periods of temporary closure, we would like public
comment on whether this requirement would be a significant burden and
on what should be included in the interim management plan, such as
security measures to protect the public and wildlife from danger,
erosion control measures, water treatment plans, waste disposal,
equipment removal, and the like.
We would also like public comments on the NAS recommendation that
we define the conditions under which temporary closure becomes
permanent and triggers final reclamation and closure. Under proposed
Sec. 3809.424(a)(3), we would review plans of operations (but not
notice-level operations) after five consecutive years of inactivity. We
do not view this proposed provision as precluding us from reviewing
operations after shorter periods of inactivity, if circumstances
warrant. Other approaches might include requiring periodic review or
reopening of plans of operations regardless of whether the operation is
inactive or not, as discussed above, or using indicators of potential
future site activity, such as the presence of equipment or maintenance
work on facilities and structures, to guide us in determining whether a
temporarily closed operation should be permanently closed.
NAS Recommendation: ``Federal land managers in BLM and the Forest
Service should have both (1) authority to issue administrative
penalties for violations of their regulatory requirements, subject to
appropriate due process, and (2) clear procedures for referring
activities to other federal and state agencies for enforcement.''
Request for Comments: The NAS bases this recommendation on the fact
that the existing 3809 regulations require BLM field staff to seek a
court injunction to compel an operator to respond to a notice of
noncompliance--an often slow and lengthy process. The NAS study takes
the position that administrative penalties are a credible and
expeditious means to secure compliance. We agree with the NAS concern,
and our proposal included provisions outlining enforcement actions and
administrative penalties. See Secs. 3809.600 through 3809.604 and
3809.700 through 3809.703. We included due process provisions in our
appeals section, proposed Sec. 3809.800. We also proposed to address
the issue of coordination of enforcement efforts with State agencies
through our Federal/State Agreements provisions. See, for example,
proposed Secs. 3809.201 and 3809.202.
We request public comments on whether, in light of the NAS
recommendation, we should have additional enforcement and penalty
provisions.
NAS Recommendation: ``BLM and the Forest Service should plan for
and assure the long-term post-closure management of mine sites on
federal lands.''
Request for Comments: The NAS study based this recommendation on
the view that current regulatory programs have only recently focused on
post-closure management needs of mine sites on Federal lands. According
to the NAS study, Federal land managers and those conducting operations
on Federal lands
[[Page 57617]]
should address the following management requirements for each site:
Measures needed to preserve future mineral access;
Residual public safety hazards and the need for fences,
signs, and other features that must be periodically checked and
maintained;
Measures needed to assure the integrity of closed waste
units, including the monitoring of tailings pond caps and waste rock
and leach pad covers and their possible repair because of erosion or
other failure, and the checking of adit plugs for continued
effectiveness;
Long-term environmental monitoring required to assure that
the site remains stable and does not become a source of off-site
contamination and the implementation of appropriate corrective
measures;
The operation and maintenance of any water treatment
facilities required to maintain water quality compliance of the site
over the long term; and
A financial assurance to ensure implementation of these
post-closure management requirements.
The NAS study also highlighted the importance of ensuring funding
for long-term or perpetual water treatment facilities.
We agree with this concern, and our proposed rule addresses this
issue in a number of ways. For example, we are proposing to require
operators to establish a trust fund or other funding mechanism, where
BLM identifies the need for it, to ensure continuing long-term
treatment to achieve water quality standards and for other long-term,
post-mining maintenance requirements. See proposed Sec. 3809.552(c).
The 3809 proposal would also put operators and mining claim holders on
notice that they are jointly and severally liable for obligations that
accrue while they held their interests, and that relinquishment,
forfeiture, or abandonment of a mining claim doesn't relieve them of
their responsibility. See proposed Sec. 3809.116. We also propose that
bond release wouldn't release mining claimants or operators from their
reclamation obligation. See proposed Sec. 3809.592. BLM believes that,
taken together, these proposed provisions would provide funding for,
and address the issue of responsibility for, long-term post-closure
management. As the NAS study points out, however, there may be a need
for additional measures. For this reason, we invite public comment on
whether the 3809 regulations should incorporate any of the specific
measures identified by the NAS study and listed above, and require, for
example, that an operator address them in a post-mine closure plan that
BLM would have to approve before release of the financial guarantee.
V. How Would BLM Regulate the Use of Suction Dredges?
This part of the supplemental proposed rule clarifies the intent
and meaning of the February 9, 1999 proposed rule and discusses two
additional options for regulating the use of suction dredges. Proposed
Sec. 3809.11(h) (Alternative 1) contains provisions that would regulate
the use of suction dredges. We believe, based on several comments we
received, that confusion may exist about the intent and meaning of
those proposed provisions. For this reason, we want to clarify that for
portable suction dredges with an intake diameter of more than 4 inches,
BLM proposed that an operator would have to submit to BLM a notice or
plan of operation, whichever is appropriate.
Under the proposal, if operations involve the use of a portable
suction dredge with an intake diameter of 4 inches or less, the
operator would not have to submit to BLM a notice or plan of operations
if two conditions were met. First, the State would have to give some
sort of authorization to use the dredge, such as a permit. Second, BLM
and the State would have to have a written agreement under which BLM
agrees that the State will authorize the use of dredges. Both
conditions would have to be met. In cases where a State does not
regulate suction dredges, an operator would have to submit to BLM a
notice or plan of operations, whichever is appropriate, regardless of
the size of the dredge.
The proposal would continue current policy that use of a portable
suction dredge is not casual use. The Interior Board of Land Appeals
has ruled that suction dredges fall within the definition of
``mechanized earth moving equipment'' at 43 CFR 3809.0-5, which are
specifically not considered casual use. See Pierre J. Ott, 125 IBLA
250, and Lloyd L. Jones, 125 IBLA 94. We hope this clarifies what we
meant in the February 9, 1999, proposal and encourage the public to
comment on it again.
Also in response to comments on the proposed rule, we want to
identify two options that we are considering and request public comment
on them. We are considering adopting provisions that would enable an
operator to use a portable suction dredge under a State authorization
regardless of the size of the dredge. That is, instead of deferring to
State regulation only when the dredge is under 4 inches, as originally
proposed, we would allow an operator to use any size dredge if it was
regulated by the State and the State and BLM have an agreement to this
effect. This option would constitute a relaxation of the original
proposal.
The other option we are considering is to require a plan of
operations for the use of a portable suction dredge, regardless of
intake diameter, when the dredge would be used in a waterway that
supports species of fish that are listed, or proposed to be listed, as
threatened or endangered under the Endangered Species Act. This option
is intended to prevent impacts to fish populations and their spawning
grounds or nests and represents an incremental tightening of the
original proposal. We request public comment on these two options. A
final rule could incorporate one or both of these options.
VI. How Does BLM Define Certain Terms Used in This Subpart?
In our proposed definition of ``casual use,'' we said that casual
use doesn't include use of motorized vehicles in areas designated as
``closed'' to off-road vehicles (proposed Sec. 3809.5). This means that
if an operator planned to use an off-road vehicle in a closed area, the
operator would have to file a notice or proposed plan of operations,
whichever is appropriate. We would like to clarify that this wouldn't
mean that use of off-road vehicles in areas designated as ``open'' or
``limited'' is totally unrestricted. Use of off-road vehicles is
regulated under BLM's existing regulations. See 43 CFR part 8340.
Generally, off-road vehicle use is permitted on those areas and trails
designated as open to off-road vehicle use; however, any person
operating an off-road vehicle on those areas and trails designated as
``limited'' must conform to all restrictions applicable to those areas
and trails. To make this clear, the final rule could include a cross-
reference to BLM's off-road vehicle regulations.
VII. Under What Circumstances May an Operator Not Begin Operations
15 Business Days After Filing a Notice?
Under proposed Sec. 3809.313, an operator couldn't begin operations
15 business days after filing a notice in certain circumstances,
including if BLM determines that an on-site visit is necessary
(proposed Sec. 3809.313(d)). We would like to clarify that if BLM
determined that a site visit is necessary to determine if a proposed or
listed threatened or endangered species is present or would be affected
by the planned operation, we would notify the operator not to begin
operations until
[[Page 57618]]
the site visit could take place and BLM could make its determination.
VIII. How Would BLM Pay for Interim Site Care and Maintenance Until
We Issue a Reclamation Contract?
Proposed Sec. 3809.552 addresses what an individual financial
guarantee must cover. Based on our experience with recent bond
forfeitures, we believe it is important to extend the provisions of
that section to cover situations where interim site care and
maintenance is necessary while BLM or a State regulator is developing
and executing third-party reclamation contracts. For example, when an
operator forfeits a financial guarantee, the site of operations is
rarely reclaimed. BLM or the State regulatory must arrange for a third-
party contractor to complete reclamation. This process takes time,
during which site conditions usually deteriorate. We need the ability
to quickly redeem a portion of the financial guarantee to fund interim
site care and maintenance until the reclamation contract takes effect
so as to prevent adverse environmental impacts. This is consistent with
concerns expressed in the NAS study about mine closures.
We are including in this reopening notice proposed revisions to
previously proposed Sec. 3809.552. The revisions would require the
financial guarantee to cover any interim stabilization and
infrastructure maintenance costs needed to maintain the area of
operations in compliance with applicable environmental requirements
while third-party reclamation contracts are being developed and
executed. We would also require that the portion of the financial
guarantee set aside for this purpose be immediately redeemable by BLM.
See the proposed regulatory language at the end of this notice.
In addition, recent events at at least one closed mine make it
advisable to clarify that our current policy is that a surety continues
to be responsible for obligations that accrue while the surety's bond
is in effect, unless a suitable replacement bond or other financial
guarantee would cover those obligations. Even if a surety wishes to
cancel the bond or other financial guarantee, the surety would remain
responsible following the cancellation for obligations that accrue
while the surety held the bond, unless a subsequent bond or other
financial guarantee covers those obligations.
IX. Would BLM Allow State Director Review of Decisions?
Section 3809.800(a) of the February 9, 1999, proposed rule would
allow any person adversely affected by a decision made under the 3809
regulations to appeal the decision to the Interior Board of Land
Appeals (IBLA). See 64 FR 6468. The proposal also stated that review of
a decision by the BLM State Director would take place if consistent
with part 1840 of Title 43, Code of Federal Regulations. Currently,
part 1840 does not authorize State Director review.
It may be in the best interest of operators and other affected
parties to have the opportunity to pursue a possibly shorter appeals
avenue than that provided by IBLA. We are proposing adding provisions
to subpart 3809 that would allow both operators and other adversely
affected parties the option of appealing first to the BLM State
Director. This would not be a mandatory step, and a party could proceed
directly to the IBLA if he or she so chooses. If an appeal is filed
with the BLM State Director, the State Director would have 7 business
days from receipt of the appeal to decide whether to consider it. If
so, the State Director would follow the procedures referenced in part
1840. If an affected party appeals to the State Director and another
affected party appeals to IBLA, then the State Director would defer to
IBLA. Affected parties would have the right to appeal the State
Director's decision to IBLA. We request comment from the general public
and the regulated industry on whether allowing the option of appealing
to the BLM State Director would be beneficial.
X. How Did BLM Meet Its Procedural Obligations?
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires a regulatory agency
to evaluate each proposed rule and consider alternatives that would
minimize the rule's impact on small entities (5 U.S.C. 601-612).
However, the RFA ``does not require that agencies necessarily minimize
a rule's impact on small entities if there are significant legal,
policy, factual, or other reasons for the rule's having such an
impact.'' (The Regulatory Flexibility Act: An Implementation Guide for
Federal Agencies, U.S. Small Business Administration, Office of
Advocacy, Washington, DC, 1998, p. 12).
The RFA permits the head of a federal agency to forego the
preparation of an initial regulatory flexibility analysis (IRFA) upon a
written certification that a rule will not have a ``significant
economic impact on a substantial number of small entities'' (SBA, p.
22). In addition, ``* * * if an agency is uncertain of the impact, it
is recommended that the agency err on the side of caution and perform
an IRFA with the available data and information, and solicit comments.
* * * Then if appropriate the agency can certify on the final rule''
(SBA, p. 23).
In our February 9, 1999, proposed rule, we determined under the RFA
that the proposed rule would not have a significant economic impact on
a substantial number of small entities (64 FR 6449). We reached this
initial conclusion on the basis of the initial regulatory flexibility
analysis (IRFA) we prepared for the proposed rule. Under the RFA, an
agency must publish and make available for public comment an IRFA,
unless the agency can certify based on a preliminary assessment or
threshold analysis that the proposed rule will not have a significant
economic impact on a substantial number of small entities. The IRFA
describes the impacts of the proposed alternatives on small entities
and describes any alternatives that would minimize the impact while
accomplishing the stated objectives. BLM released an IRFA with the
proposed rule on February 9, 1999. The comment period for this IRFA
ended May 10, 1999. We are reopening it for 120 days. BLM's analysis of
the public record developed in connection with the proposed rule will
help it determine whether or not the final version of the rule will
have a significant economic impact on a substantial number of small
entities. A final regulatory flexibility analysis will be prepared if
it is determined that the final rule will have a significant effect on
a substantial number of small entities.
Paperwork Reduction Act
Several commenters on the proposed rule expressed the view that,
based on their experience with the existing regulations, BLM
underestimated the paperwork burden associated with the proposed rule.
It appears from the comments that the commenters assumed that our
burden estimate included all paperwork burden, both existing and
proposed, as if no other State or Federal agencies imposed any
paperwork burden on mining operations.
We would like to point out that, in accordance with the Paperwork
Reduction Act and the Office of Management and Budget's instructions
for estimating paperwork burden, we are estimating only the increment
of paperwork imposed by the proposed regulations over and above the
paperwork burden imposed by the existing regulations. We also correctly
didn't include in our estimate any
[[Page 57619]]
paperwork requirements contained in the proposed rule that would merely
duplicate paperwork requirements imposed by other agencies, either
Federal or State. If an operator has to give certain information to a
State agency, the burden of also supplying that exact same information
to BLM is relatively small. (Indeed, many of the same commenters noted
that much of the proposed rule duplicated existing State requirements.)
Because of this possible misunderstanding, we are re-examining the
information collection burden that would be imposed by the proposed
rule. In the near future, we will release a revised paperwork burden
estimate for public comment.
Other
The proposals described in this notice fall within the scope of the
analyses prepared for the proposed rule. Please refer to the discussion
of how BLM is meeting its procedural obligations contained in the
proposed rule for further information (Feb. 9, 1999, 64 FR 6422, 6449).
List of Subjects in 43 CFR Part 3800
Administrative practice and procedure, Environmental protection,
Intergovernmental relations, Land Management Bureau, Mines, Public
lands-mineral resources, Reporting and recordkeeping requirements,
Surety bonds, Wilderness areas.
Dated: October 19, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
Accordingly, BLM proposes to amend its proposed rule published on
February 9, 1999 (64 FR 6422) as set forth below:
PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS
Subpart 3809--Surface Management
1. The authority citation for part 3800 continues to read as
follows:
Authority: 16 U.S.C. 1280; 30 U.S.C. 22; 30 U.S.C. 612; 43
U.S.C. 1201; and 43 U.S.C. 1732, 1733, 1740, 1781, and 1782.
2. In Sec. 3809.552 as proposed at 64 FR 6463, revise paragraph (a)
by adding a sentence at the end and add paragraph (d) to read as
follows:
Sec. 3809.552 What must my individual financial guarantee cover?
(a) * * * The financial guarantee must also cover any interim
stabilization and infrastructure maintenance costs needed to maintain
the area of operations in compliance with applicable environmental
requirements while third-party contracts are developed and executed.
* * * * *
(d) When BLM identifies a need for it, you must establish that
portion of the financial guarantee used to conduct site stabilization
and infrastructure maintenance in a funding mechanism that would be
immediately redeemable by BLM. BLM would use the funds to maintain the
area of operations in a safe and stable condition that complies with
applicable environmental requirements during the period needed for bond
forfeiture and reclamation contracting procedures.
[FR Doc. 99-27765 Filed 10-25-99; 8:45 am]
BILLING CODE 4310-84-P
