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Mining Claims Under the General Mining Laws; Surface Management
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: June 15, 2001 (Volume 66, Number 116)]
[Rules and Regulations]
[Page 32571-32575]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn01-17]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3800
[WO-320-1990-PB-24 1A]
RIN 1004-AD22
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 issuing this final rule
to amend at this time only one provision of its regulations for surface
management of mining operations conducted under the Mining Laws. This
final rule changes the date by which operators with plans of operation
approved by BLM before January 20, 2001, must provide a financial
guarantee--from July 19, 2001, to November 20, 2001, for operations
that already have financial guarantees, and to September 13, 2001 for
operations without any financial guarantee.
The amendment is necessary because BLM field offices and the State
governments with which we cooperate are not able to implement the
financial guarantee requirements in the existing regulations to enable
operators to comply by the deadline in those regulations. Changing the
deadline will better enable BLM and the States to implement fully the
financial guarantee requirements in the BLM surface management
regulations. BLM intends to retain the financial guarantee (sometimes
referred to as ``bonding'') provisions in these regulations that became
effective on January 20, 2001. BLM will issue a final rule addressing
other issues identified in its March 23, 2001, notice of proposed
rulemaking at a later date.
EFFECTIVE DATE: July 16, 2001.
ADDRESSES: You may send inquiries or suggestions to Director (320),
501LS, Bureau of Land Management, 1849 C St., NW, Washington, DC 20240.
[[Page 32572]]
FOR FURTHER INFORMATION CONTACT: Bob M. Anderson, Deputy Assistant
Director for Minerals, Realty, and Resource Protection, at (202) 208-
4201, or Michael H. Schwartz, Group Manager for Regulatory Affairs, at
(202) 452-5198. Persons who use a telecommunications device for the
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-
800-877-8339, 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
I. Background
II. Reasons for This Final Rule
III. Procedural Matters
I. Background
On November 21, 2000 (65 FR 69998), BLM published a final rule
completely revising 43 CFR subpart 3809 (the 2000 regulations). Among
its features, that final rule contained financial guarantee
requirements for operators whose plans of operations BLM approved
before the effective date of the rule, January 20, 2001. The rule
contained regulations requiring such operators to provide financial
guarantees that comply with the new regulations by July 19, 2001.
The 2000 regulations were issued following a complex procedural
history. In the 1998 Omnibus Consolidated and Emergency Supplemental
Appropriations Act (Pub. L. 105-277, sec. 120(a)), Congress directed
the National Academy of Sciences (``NAS'') to review the adequacy of
existing regulations of hardrock mining on Federal lands in each State
in which it occurs, without regard to BLM's proposed regulations. The
law directed the National Research Council (``NRC''), within the NAS,
to complete the study by July 31, 1999. In the 1999 Emergency
Supplemental Appropriations Act (Pub. L. 106-31, Sec. 3002, 113 Stat.
57, 89-90), Congress prohibited Interior from both completing its work
on the February 9, 1999, proposed rule and issuing a final rule until
Interior provided at least 120 days for public comment on the proposed
rule, subsequent to the publication of the NRC study. The NRC completed
and published its report, entitled Hardrock Mining on Federal Lands
(``NRC study''), in late September 1999.
In addition, Congress enacted a series of provisions in Interior
appropriations acts beginning in 1997 that pertain to the 3809 rules.
The last one, in the FY 2001 Interior Appropriations bill, provides as
follows:
None of the funds in this Act or any other Act shall be used by
the Secretary of the Interior to promulgate final rules to revise 43
CFR subpart 3809, except that the Secretary, following the public
comment period required by section 3002 of Public Law 106-31, may
issue final rules to amend 43 CFR Subpart 3809 which are not
inconsistent with the recommendations contained in the National
Research Council report entitled ``Hardrock Mining on Federal
Lands'' so long as these regulations are also not inconsistent with
existing statutory authorities. Nothing in this section shall be
construed to expand the existing statutory authority of the
Secretary.
FY 2001 Interior Appropriations Act, Pub. L. No. 106-291, Sec. 156, 114
Stat. 922, 962-63 (Oct. 11, 2000).
After the 2000 rules were issued, four lawsuits were filed
challenging those rules; three in the U.S. District Court for the
District of Columbia, and one in the U.S. District Court for the
District of Nevada. In one of those lawsuits, National Mining
Association v. Department of the Interior, No. 1:00CV02998 (D.D.C.,
filed December 15, 2000), the plaintiffs sought to enjoin the
effectiveness of all of the 2000 rules, except for the bonding
provisions. On January 19, 2001, the judge denied the plaintiff's
motion for a preliminary injunction. The litigation has been stayed
until September 4, 2001, pending a decision on the proposal described
in the next paragraph.
On March 23, 2001, BLM published a proposed rule, 66 FR 16162, to
suspend, in whole or in part, the 2000 regulations. As stated in the
proposal, the suspension would provide BLM the opportunity to review
some of the requirements of the new rule in light of issues the
plaintiffs raised in the legal challenges to the rules and concerns
expressed by others, including the Governor of Nevada. BLM proposed to
reinstate the previous rules (commonly referred to as the ``1980
regulations''). We also requested comment on whether we should retain
some combination of the 2000 regulations and the 1980 regulations. The
45-day comment period on the proposal closed on May 7, 2001. BLM has
received more than 25,000 comments. BLM is currently considering what
action to take next on the proposal, and intends to issue a final rule
in the next few months.
In advance of decisions involving the rest of the rulemaking, and
for the reasons explained below, BLM is issuing this final rule now to
address one issue--the timing of the financial guarantee requirements
for operations for which BLM approved a plan of operations before
January 20, 2001.
II. Reasons for This Final Rule
General Financial Guarantee Comments and BLM Position
The overwhelming majority of comments expressed support for the
financial guarantee provisions in the 2000 rules. Many comments filed
by individuals and environmental groups urged the retention of the 2000
regulations, including the financial guarantee provisions. There were,
however, some dissenting views. A number of comments, some of which
were filed by representatives of the mining industry and by states
which contain hardrock mining operations covered by 43 CFR subpart
3809, urged reinstatement of the 1980 regulations. Many of these latter
respondents recognized, however, that the BLM rules must comply with
recent congressional enactments and not be inconsistent with the
recommendations of the NRC study. Accordingly, most agreed that the
final rule could reflect the so-called ``NRC Alternative,'' which was
Alternative 5 in BLM's final environmental impact statement for the
2000 regulations. This alternative included provisions reflecting only
the NRC study's recommended regulatory changes.
A number of small miners expressed concern over their financial
ability to meet the requirements of the rule if they have to post a
financial guarantee for notice level activities. Comments also
suggested that, at least for notice level activities, BLM should
establish a standard bond amount as suggested by the NRC study. In
addition, the State of Alaska (see below) expressed concern about
effect of the rules on its bond pool. We received one industry comment
suggesting that BLM phase out existing corporate guarantees.
Addressing a regulatory gap, the NRC Study recommended that
``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
5 acres.'' (NRC Study, Recommendation 1, pp. 8, 93.) The principal
import of this recommendation was to require financial assurances for
``notice-level'' activities, that is, those operations disturbing less
than 5 acres of public lands on which reclamation has not been
completed, for which the previous rules did not authorize the posting
of financial assurances. The NRC study also included other discussions
to achieve its stated objective of guaranteeing financial assurance,
such as the establishment of standard bond amounts for certain types of
activities on specific kinds of terrain. (NRC study, pp. 94-95.)
As a general matter, BLM intends to follow the NRC study
recommendation, and has concluded that we should retain the financial
guarantee provisions of the 2000 regulations to ensure that
[[Page 32573]]
sound financial guarantees will exist. With respect to the comments
advocating that BLM eliminate the financial guarantee requirement for
notice level activities, we cannot do so. This would be inconsistent
with the NRC Study recommendation and therefore prohibited by the FY
2001 Interior and Related Agencies Appropriations Act.
BLM also continues to believe that the rules provide sufficient
flexibility to establish standard bond amounts for particular
activities on specific kinds of terrain. The preamble of the 2000 rule
(See 65 FR 70066, column 2) explains that the ``final rule is broad
enough to allow BLM field managers to establish and accept standard
financial guarantee amounts.'' However, even if BLM field managers do
this, financial guarantees must meet the likely cost of reclamation for
the specific activity. As to the use of bond pools, the preamble to the
2000 rule (See 65 FR 70073) clearly supports the use of State bond
pools if the BLM State Director determines the pool is sound. We
continue to adhere to this position.
Although under the 1980 regulations, the bonding provision for
plans of operations was discretionary with BLM, most operators having
plans of operation that were approved under the previous rules did post
financial guarantees with BLM or the state. Thus the 2000 regulations
codified an existing practice for most plan-level operations, and,
consistent with the NRC study, made the posting of a sufficient
financial guarantee compulsory for disturbances caused by all mining
activities beyond casual use.
Current Implementation Issue
The problem BLM currently faces is how to complete the transition
from the previous financial guarantee requirements to the ones in the
2000 regulations for operations under plans that BLM approved before
January 20, 2001. The 2000 rule at section 3809.505 establishes July
19, 2001, as the date by which mining operations with plans of
operations approved before January 20, 2001, must come into compliance
with the new financial assurance provisions of the 2000 regulations.
Implementation of the provision by that date has proven to be
difficult.
The reasons for the problem vary. In many states, BLM implements
bonding and financial guarantee requirements in cooperation with State
agencies. In some States, BLM accepts State-approved bonds to satisfy
these requirements. In at least 6 States, either BLM or the State or
both will be unable to implement the financial guarantee requirement by
the July 19, 2001, deadline. Reasons for this inability include an
unrealistic deadline to start with, uncertainty over the fate of the
2000 rules caused by the pending lawsuits, and a multiplicity of State
agencies with which BLM must coordinate. BLM cooperates with State
governments through memoranda of understanding (MOUs). Many of these
MOUs need updating to meet the requirements of the new regulations and,
in some cases, States will need to revise their laws. Thus, on July 19,
2001, for reasons beyond their control, a number of operators would not
be in compliance with the 2000 regulations unless BLM changes that
date.
For example, in Alaska, the State legislature authorized a State
bond pool covering bonds under the 1980 regulations. Most small scale
operators in Alaska are unable to get bonds from any source other than
the State bond pool. The MOU under which BLM accepts these State bond
pool bonds expires July 17, 2001. Although the MOU could be renewed in
its present form, it would not be in compliance with the 2000
regulations. The BLM Alaska State Office is not able to modify the MOU
to make it consistent with the 2000 regulations by July 17 or July 19,
2001. The consequences of failing to make this deadline would be that
miners in Alaska would be left without a source of bonds, potentially
resulting in a general shutdown in the middle of the placer mining
season.
In Arizona, there is no single State program with which BLM
coordinates. Rather, many agencies exist with different standards and
requirements. Further, no single acceptable State financial guarantee
exists that is intended to cover entire mining operations from
exploration to reclamation and termination. We need to review all
mining financial guarantees in the State for compliance with the 2000
regulations, and notify operators of deficiencies. BLM does not expect
to complete this review by July 19, 2001, despite its best efforts to
do so.
To remedy this implementation problem, this final rule extends the
effective date of the financial guarantee requirements in section
3809.505 of the 2000 regulations from July 19, 2001, to November 20,
2001, for operations with plans of operations that BLM approved before
January 20, 2001, that have a financial guarantee in place. BLM is also
extending the deadline for acquiring an initial financial guarantee.
Those operators with ongoing activities who had plans of operations
approved before January 20, 2001, but who did not have a financial
guarantee, must provide a financial guarantee by September 13, 2001.
This latter date establishes a shorter time period to comply with the
financial guarantee requirements in the 2000 rule than BLM is giving
those operators who already have an approved financial guarantee.
We are taking today's action separate and apart from the rest of
the rulemaking because we want to ensure that BLM properly implements
the transfer to the financial guarantee system contained in the 2000
rule. As stated above, unless further analysis of comments on our March
23, 2001, proposed rule discloses significant new information strongly
supporting a change in the approach to financial guarantees, it is our
intention to continue with the current framework for financial
guarantees. Once we complete review and analysis of the many comments
received in response to the March 23, 2001, proposal (66 FR 16162), we
expect to issue a final rule addressing other matters related to the
2000 regulations.
III. Procedural Matters
In its March 23, 2001, proposal, BLM stated that it intends to rely
on the support documents prepared for the 2000 regulations for its
final actions. We explain below how we have met the procedural
requirements related to this final rule, and the extent to which those
earlier documents support this final rule.
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget reviewed the 2000 regulations
under Executive Order 12866. The Federal Register preamble to the final
2000 regulations discussed the impacts of those regulations. The
incremental impact of today's action is minimal. Extending the deadline
for implementing the financial assurance requirements for existing
operations with plans approved before January 20, 2001, will not have
an effect on the economy in excess of $100 million. 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. The rule will not create a
serious inconsistency or otherwise interfere with an action taken or
planned by another agency. It 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.
[[Page 32574]]
Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are simple and easy to understand. We invite your comments on how
to make these regulations easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
regulations clearly stated? (2) Do the regulations contain technical
language or jargon that interferes with their clarity? (3) Is the
description of the regulations in the SUPPLEMENTARY INFORMATION section
of this preamble helpful in understanding the regulations? How could
this description be more helpful in making the regulations easier to
understand?
Please send any comments you have on the clarity of the regulations
to the address specified in the ADDRESSES section.
National Environmental Policy Act
This final rule amends regulations that constitute a major Federal
action significantly affecting the quality of the human environment
under section 102(2)(C) of the National Environmental Policy Act of
1969, 42 U.S.C. 4332(2)(C). BLM has prepared a final environmental
impact statement (EIS) for the 2000 regulations, which is on file and
available to the public in the BLM Administrative Record at the Nevada
State Office, P.O. Box 12000, Reno, Nevada 89520, and on BLM's home
page at www.blm.gov. The effect of this final rule is to postpone a
deadline in the regulations that cannot be met. The impacts of this
change are minimal and are covered by the final EIS for the 2000
regulations. Thus this final rule does not constitute a major Federal
action that would have a significant effect upon the quality of the
human environment.
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, either detrimental or beneficial, on a
substantial number of small entities. This final rule is covered by the
regulatory flexibility analysis of the 2000 regulations (see 65 FR
70103, and particularly the discussion of bonding beginning on page
70104). This rule merely extends the deadline for compliance, making
compliance easier for small entities.
Therefore, BLM has determined under the RFA that the incremental
effects of this final rule would not have a significant economic impact
on a substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This final rule is not a ``major rule'' as defined at 5 U.S.C.
804(2). The rule merely extends a deadline on a regulatory requirement
that was already established after completion of an analysis BLM did to
comply with SBREFA.
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 it have a significant or unique effect on
State, local, or tribal governments or the private sector. The rule
merely extends a deadline for operators with approved plans of
operations predating January 20, 2001. It imposes no requirements on
State, local, or tribal entities. Therefore, BLM is not required 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. The rule
merely extends a deadline on a regulatory requirement that is already
established. 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 13132, Federalism
As part of the process establishing the 2000 regulations, which
this final rule amends, BLM prepared a Federalism Assessment (see 65 FR
70109). The final rule will not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. It continues in effect the present
procedural arrangements between BLM and the various western States in
providing for financial guarantees for mining operations--the
memorandum of understanding process. It merely provides additional time
for both BLM and the States to prepare for implementation of new
regulatory requirements for financial guarantees for mining operations.
Therefore, in accordance with Executive Order 13132, BLM has determined
that this final rule does not have sufficient Federalism implications
to warrant preparation of a Federalism Assessment.
Executive Order 12988, Civil Justice Reform
Under Executive Order 12988, the Office of the Solicitor has
determined that this final 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.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have found that this
final rule does not include policies that have tribal implications.
Providing additional time for both BLM and the States to prepare for
implementation of new regulatory requirements for financial guarantees
for mining operations will not have an impact on Tribes.
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not a significant energy action. It will not have an
adverse effect on energy supplies. The rule applies only to the date by
which operators must comply with financial guarantee provisions of
these regulations.
Paperwork Reduction Act
These regulations do not contain information collection
requirements that the Office of Management and Budget must approve
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
Author
The principal author of this rule is Richard Deery, Solid Minerals
Group, assisted by Ted Hudson of the Regulatory Affairs Group,
Washington Office, Bureau of Land Management, and Joel Yudson, Office
of the Solicitor, Department of the Interior.
List of Subjects for 43 CFR part 3800
Administrative practice and procedure, Environmental protection,
Intergovernmental relations, Mines, Public lands-mineral resources,
Reporting and recordkeeping requirements, Surety bonds, Wilderness
areas.
[[Page 32575]]
Dated: June 1, 2001.
Piet deWitt,
Acting Assistant Secretary of the Interior.
For the reasons stated in the Preamble, and under the authorities
cited below, subpart 3809, part 3800, Subchapter C, Chapter II,
Subtitle B, Title 43 of the Code of Federal Regulations is amended as
set forth below:
PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS
Subpart 3809--Surface Management
1. The authority citation for subpart 3809 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. Revise Sec. 3809.505 to read as follows:
Sec. 3809.505 How do the financial guarantee requirements of this
subpart apply to my existing plan of operations?
For each plan of operations approved before January 20, 2001, for
which you or your predecessor in interest posted a financial guarantee
under the regulations in force before that date, you must post a
financial guarantee according to the requirements of this subpart no
later than November 20, 2001, at the local BLM office with jurisdiction
over the lands involved. You do not need to post a new financial
guarantee if your existing financial guarantee satisfies this subpart.
If you are conducting operations under a plan of operations approved
before January 20, 2001, but you have not provided a financial
guarantee, you must post a financial guarantee under Sec. 3809.551 by
September 13, 2001.
[FR Doc. 01-15136 Filed 6-14-01; 8:45 am]
BILLING CODE 4310-84-P