1. Comment: Proposed §3809.11(a) requires casual use disturbance to be "reclaimed." Which reclamation standards apply?

Response: We changed the requirement in final §3809.10(a) to include the word "reclamation," which is defined under §3809.5, rather than continue to use the phrase "you must reclaim" that appeared under proposed §3809.11(a). The definition of "reclamation" should clarify the standards that are to be met. Wording was added to final §3809.10(a) to clarify that if operations do not qualify as casual use, a Notice or Plan of Operations is required, whichever applies.

1. Comment: With no notification requirements, it is not clear how BLM will monitor casual use operations.

Response: We intend to monitor casual use operations in the course of our normal duties, but we agree with the comment and deleted the statement from proposed §3809.11(a).

1. Comment: Revise the table in proposed §3809.11 to avoid duplicating or summarizing the definitions in 3809.5 and to eliminate ambiguity. The table is difficult to follow.

Response: The table in proposed §3809.11 has been eliminated from the final rule. The information formerly in that table has been reorganized and edited and now appears under final §3809.11, §3809.21 and §3809.31.

1. Comment: Mining disturbance greater than casual use should require a Plan of Operations to be consistent with the National Research Council (NRC) report.

Response: This change was adopted into the final rule to comply with NRC (1999) report Recommendation 2.

1. Comment: The current casual use/notice/plan threshold is adequate and should be retained. The threshold protects the environment and reduces costs of exploration for operators.

Response: Retaining the above-described threshold would be inconsistent with NRC report Recommendation 2. Therefore, we did not adopt the comment.

1. Comment: Mining or milling operations, which will cause a significant impact, even if related to 5 acres or less, should be required to submit a plan of operations for approval.

Response: BLM has incorporated NRC (1999) report Recommendation 2 in our proposed final regulations to require Plans of Operations for all mining and milling.

1. Comment: The NRC report did not evaluate the adverse impact of Recommendation 2 on the vast majority of miners who have complied with existing regulations.

Response: We have incorporated NRC report Recommendation 2 into the proposed final regulations and have evaluated its impact in the final EIS.

1. Comment: NRC Recommendation 2 should not be supported because it would automatically exclude from Notices some operations that would not significantly affect the environment.

Response: Your comment is noted, but we have incorporated NRC's Recommendation 2 into the proposed final regulations

1. Comment: BLM should adopt the NRC Committee's recommendations that exploration be allowed under Notices, whereas mining would require Plans of Operations, but should leave further details to agency guidance. The criteria for distinguishing between "exploration" and "mining," may vary from state to state.

Response: We have incorporated NRC's Recommendation 2 into the proposed final regulations. Guidance on implementing the regulations will follow when the regulations become final.

1. Comment: BLM should not require all mining operations to be conducted under Plans of Operations, but should retain Notices for placer and lode mines that do not use toxic chemicals or create acid rock drainage.

Response: We note your comment but have incorporated NRC's Recommendation 2 into the proposed final regulations.

1. Comment: It is unnecessary to require Plans of Operations for mining in light of the proposed financial assurance requirements for Notices.

Response: We note your comment but have incorporated NRC's Recommendation 2 into the proposed final regulations.

1. Comment: Any activity requiring construction equipment or engineering design should need a Plan of Operations in light of the NRC report. Mechanized drilling equipment, off-highway vehicles, and bulldozers should also require a Plan of Operations.

Response: We note your comment but have incorporated NRC's Recommendation 2 into the proposed final regulations.

1. Comment: Lowering the threshold for Notices or Plans of Operations seems to conflict with the 1970 Mining and Mineral Policy Act and the 1980 National Materials and Minerals Policy Research and Development Acts.

Response: We and the public operate under many conflicting laws. We believe we have balanced the mandate of FLPMA to prevent unnecessary or undue degradation of the public lands with the above-mentioned mineral policy acts that promote development of the Nation's mineral resources.

1. Comment: Some bulk sampling may cross the line from exploration to mining. Bulk sampling to remove less than 100 tons of material cannot be compared to bulk sampling that requires 10,000 tons for testing, which is the known range in size of such activities. While a bulk sample proposal under a Notice deserves scrutiny, the final determinations should be made on a case-by-case basis.

Response: BLM recognizes that bulk sampling is not easy to define. Bulk samples vary in many ways, including size and weight, as acknowledged in the NRC (1999) report. We have chosen a threshold at the upper limit of the NRC discussion on bulk sampling: 1,000 tons or more would trigger the requirement for a Plan of Operations. (See final §3809.11(b)). We believe that this limit implements NRC report Recommendation 2 in a way that does not unduly constrain exploration (see NRC report Recommendation 3) yet provides a clear cutoff that can be verified by BLM field people.

1. Comment: BLM should use caution in deciding whether to exclude bulk sampling from Notice-level operations. The NRC report (page 96) refers to activity that involves the "excavation of considerable amounts of overburden and waste rock" to get to layers where the bulk samples will be taken. Sampling of that nature gets to be so extensive as to require a Plan of Operations. Other activities that might nominally qualify as bulk sampling, such as ones that do not first remove large amounts of overburden, can properly be treated as exploration subject to the Notice-level program. Such sampling involves far less disturbance than the activities listed by NRC, and, in any event, the land from which the bulk samples are taken must still be reclaimed. For these reasons, in case of bulk sampling, BLM should focus not on the amount of earth sampled, but rather the sampling method.

Response: BLM recognizes that bulk sampling is not easy to define. Bulk samples vary in many ways, including size and weight, as the NRC (1999) report acknowledged. The report discussion on sampling clearly states that NRC believes not all sampling programs would require a Plan of Operations, but that Plans of Operations would generally be required. In considering the NRC discussion, BLM does not believe that drilling should be considered a bulk sampling method because NRC characterized bulk samples as excavations from shallow open pits or small underground openings. We have chosen a threshold at the upper limit of the NRC discussion on bulk sampling, that is, bulk samples of 1,000 tons or more will trigger the requirement for a Plan of Operations. (See final §3809.11(b)). We believe this limit implements NRC report Recommendation 2 in a way that does not unduly constrain exploration (see NRC report Recommendation 3) yet provides a clear "cutoff" that can be verified by BLM field personnel.

1. Comment: BLM should revise the language that now appears in final §3809.11(c)(3) to state that an area of critical environmental concern (ACEC) triggers this provision only when the establishing of the ACEC considered and evaluated existing mineral rights and mineral potential.

Response: ACECs are designated through BLM's land use planning process and are subject to public comment before designation. This process allows the public to comment and BLM to consider and evaluate mineral potential and valid existing rights. The requirement for a Plan of Operations in ACECs would result in a more formal review and approval of mining or exploration, which would help assure better planning and protection of the resources for which the ACEC was established.

1. Comment: Most mining claims held by small miners are either within areas closed to off-road vehicles or within areas proposed to be closed to off-road vehicles. As such, almost all small miners will be required to prepare Plans of Operations for any level operation on their claims.

Response: The requirement is restricted to areas designated as "closed" to off-road vehicle use. It does not apply to proposed closures. This requirement remains unchanged from previous §3809 regulations in effect since 1981.

1. Comment: BLM should include riparian areas under proposed 3809.11(j), as in the Northwest Forest Plan.

Response: Using the new performance standards, including the protection of riparian areas and wetlands found in final §3809.420(b)(3), we believe that riparian areas will be adequately protected.

1. Comment: We oppose requiring a Plan of Operations for operations affecting proposed threatened and endangered species or designated critical habitat because of the uncertainty and delays to the permitting process and the additional workload required.

Response: We believe that the requirement to submit a Plan of Operations for surface disturbance greater than casual use on any known lands or waters known to contain federally listed threatened and endangered species or their proposed or designated habitat is the best way to protect these species. Under §3809.11(c)(6) BLM can develop land use plans or endangered species recovery plans which might then allow Notices to be filed.

1. Comment: Delete the phrase "unique, irreplaceable, or outstanding historical, cultural, recreational, or natural resource values" from proposed §3809.11(j)(6), since this phrase may be too subjective and any public lands could meet these criteria. Some commenters believe that defining "special status areas" by those criteria would establish ad hoc designations of ACECs as to mining without following the procedures of 43 CFR 1610.7-2. Delete the term "activity plans."

Response: We have deleted these phrases from the final rule for several reasons. First, we modified the definition of unnecessary or undue degradation in final §3809.5 to include conditions, activities, or practices that result in substantial irreparable and unmitigatable harm to significant scientific, cultural, or environmental resources of the public lands. Second, we retained language specific to threatened or endangered species in recognition of the consultation requirements of the Endangered Species Act. We believe that these modifications have the same net effect as the language in proposed §3809.11(j)(6).

1. Comment: The term "special status areas" (used in final §3809.11(c)) is very broad, and would effectively remove many areas from exploration. The term expands BLM authority to create such areas.

Response: The term is not meant to impart any distinctive meaning on its own; it is simply a general reference to the types of lands listed in that section. The listed lands have already been established under separate laws and are not affected by the regulations.

1. Comment: Proposed 3809.11(j)(6) is too narrow an approach under BLM's responsibility to prevent unnecessary or undue degradation, and to protect affected resources BLM must retain authority to require Plans of Operations.

Response: We have deleted §3809.11(j)(6) from the final rule for several reasons. (See §3809.11 for what would require a Plan of Operations.) First, we modified the definition of unnecessary or undue degradation in final §3809.5 to include conditions, activities, or practices that result in substantial irreparable and unmitigatable harm to significant scientific, cultural, or environmental resources of the public lands that cannot be effectively mitigated. Second, we retained language specific to threatened or endangered species in recognition of the consultation requirements of the Endangered Species Act. We believe that these modifications have the same net effect as the language in proposed §3809.11(j)(6).

1. Comment: Proposed §3809.11(e) is too vague on when a Notice or Plan of Operations would be required for group recreational mining. Recreational and mineral collecting groups should not be singled out and have to submit a Notice or a Plan of Operations. It is an unreasonable requirement and, in some cases, mineral-collecting groups could not afford the financial guarantees, which they feel are unnecessary for those who use only hand tools. BLM should not recognize such activities under the mining laws.

Response: We have deleted §3809.11(e) from the final rule. Provisions for when a Notice or Plan of Operations would need to be submitted that would affect recreational and mineral collecting groups can be found in the final rule, §3809.31(a). The changes in §3809.31(a) provide more clarification as to when a Notice or Plan of Operations would be required.

1. Comment: Proposed §3809.11(f) will eliminate flexibility when requiring Plans of Operations for uses described in that section.

Response: We deleted proposed §3809.11(f) but in order not to be inconsistent with NRC Recommendation 2, we retained in the final rules the provision requiring a Plan of Operations for mining and milling operations.

1. Comment: BLM received a variety of comments on the Forest Service alternative in the proposed regulation. They are as follows: The Forest Service alternative would provide a consistent approach to federal agency administration of the Mining Law. The surface resources on BLM public lands deserve the same level of protection as do the national forest lands. Adoption of the Forest Service alternative would be less confusing in those mineralized areas that occur on both BLM lands and in national forests. The Forest Service alternative compares favorably to proposed §3809.11 (Alternative 1) because of a perception that the Forest Service alternative would provide greater protection to non-special status areas, that is, those areas not listed in proposed §3809.11(j). BLM did not provide a meaningful basis for reasoned comment on this issue. The Forest Service alternative has an advantage because it places the burden of deciding whether a Notice or Plan is needed on the government as opposed to the operator. The significant disturbance standard of the Forest Service alternative would be too vague, too open to varying interpretations, create uncertainty as to which operations it would apply, and create significant potential for disagreement between the operator and BLM over whether a planned operation would create significant disturbance. The significant disturbance standard of the Forest Service alternative goes beyond FLPMA's statutory directive to prevent unnecessary or undue degradation. Adoption of the Forest Service alternative would eliminate the use of Notices for small exploration operations. If so, business would be adversely affected. Eliminating Notices for placer mining in Alaska would create a hardship for small miners, who couldn't meet the requirements for filing a proposed Plan of Operations. The Forest Service alternative would consume more of BLM's already thinly spread resources, potentially causing administrative delays and increase costs due to NEPA compliance requirements.

Response: Congress has required BLM not be inconsistent with the NRC (1999) report. This report recommends that exploration disturbing less than 5 acres be allowed under Notice-level activity.

1. Comment: Small operators count on the 5-acre exclusion for rapid yet responsible evaluation of many projects to make its discovery. Such operators may not have the finances for lengthy permit procedures and time delays, as do major mining companies. Without the 5 acre threshold, future exploration would be conducted almost exclusively by the largest of the mining companies.

Response: The 5-acre threshold for submitting a Notice has been retained for exploration activities of 5 acres or less.

1. Comment: Define "unreclaimed" as used in proposed §3809.11(b) and proposed §3809.11(c). BLM should not regard the Notice threshold as "unreclaimed surface disturbance of 5 acres or less."

Response: We have changed the term "unreclaimed surface disturbance of 5 acres or less" in §3809.21(a)(1) to clarify the requirement. By specifying "public lands on which reclamation has not been completed," we expressly intend to use the term "reclamation" as defined in final §3809.5. This means that reclamation must meet performance standards in final §3809.420, and BLM must accept such reclamation before releasing a financial guarantee. Once reclamation has been completed to these standards, we believe that such lands may be treated as if never disturbed when considered in a Notice submittal.

1. Comment: Clarify under proposed §3809.11(b) how an operator is responsible to reclaim the previous disturbance by another operator.

Response: As with proposed §3809.11(b) and (c), and the final rule, the operator is liable for prior reclamation obligations in a project area if conditions described under final § 3809.116 are met. Operators who believe that BLM should not hold them responsible for past reclamation obligations should contact BLM before causing more surface disturbance. BLM could then advise them as to whether it is taking any action against previous operators or mining claimants at the disturbed site.

1. Comment: Revise proposed §3809.11(b) to retain the existing requirement for BLM to act within 15 calendar days. Extending the review period to 15 business days would delay exploration. Operators need flexibility and speed for Notice-level exploration projects, and that timing of exploration activities is often critical. Streamline the processing of Notices as much as possible and avoid delays. Streamlining the process would be consistent with the NRC report.

Response: We changed the final rule to use calendar days rather than business days in response to public comments and the NRC (1999) report recommendations to minimize impacts on exploration and small operators.

1. Comment: Clarify what is meant by "business days" since government business days do not coincide with industry business days.

Response: We changed the final rule to use calendar days rather than business days in response to public comments and the NRC report recommendations to minimize impacts on exploration and small operators.

1. Comment: In the proposed rule the 15-business-day review period given BLM to review Notices is too short to ensure adequate investigation by the agency. We suggest 30 days.

Response: We did not implement this suggestion. Instead, we changed the final rule to use calendar days rather than business days in response to public comments and the NRC report recommendations to minimize impacts on exploration and small operators.

1. Comment: Suction dredges with intake diameter of 8 to 4 inches or less should be considered casual use and not require a Notice or a Plan of Operations. It is not clear how BLM determined the 4" intake threshold. BLM should adopt state requirements, including intake size and not be more stringent than the State. It appears that the proposed rule requires a Notice or Plan of Operations for any dredging activity, regardless of how insignificant. Replace the 4" nozzle threshold with language that identifies surface-disturbing activities as the threshold for Notice level use. High-value fish and wildlife habitats could be harmed by a 4" suction dredge intake. Require standards for suction dredging concerning cumulative impacts and stream status. BLM should consider a broader range of values that could be affected when assessing whether to regulate portable suction dredges under 4 inches in diameter. Suction dredge operators should, at a minimum, be required to obtain an individual National Pollution Discharge Elimination System (NPDES) permit. Avoid the contradiction that small suction dredges are not considered casual use yet do not follow requirements for Notices or Plans of Operations. BLM should define small dredges as recreational or casual use and not require bonding or Notices unless the operators have a record of causing problems or noncompliance. The National Research Council does not wish small-scale dredging operations, those that use a nozzle size of 8 inches or less, to be categorized as a mining operation. Very small industrial mineral mines or placer operations (other than the small dredges discussed above) that use only simple sorting methods should not automatically be required to submit Plans of Operations. Such determinations should be made on a case-by-case basis. The language in proposed §3809.11(h) would conflict with Recommendation 2 of the NRC report. Suction-dredging is properly managed under state or local authority. If the proposed rule is finalized, the proposed alternative that would allow an operator to use any suction dredge if it was regulated by the state and the state and BLM have an agreement to that effect should be adopted as the least burdensome alternative.

Response: We deleted the reference in proposed §3809.11(h) to an "intake diameter of 4 inches or less." We retained language that relies on state regulation. When the state requires an authorization for the use of suction dredges and BLM and the state have an agreement under final §3809.200 addressing suction dredging, we will not require a Notice or Plan of Operations unless otherwise required by this section. In addition, we added clarifying language and cross-references under final §3809.31(b)(1) and §3809.31(b)(2). Given the NRC report discussion that endorses the way BLM regulates suction dredging, we believe that the NRC did not intend in its Recommendation 2 to require Plans of Operations for suction dredging. The rule will allow most suction dredging to be regulated by state regulatory agencies as long as they have a permitting program that is the subject of an agreement with BLM under final §3809.200. Therefore, we find that final §3809.31(b) is not inconsistent with Recommendation 2 of the NRC report.

1. Comment: Since suction dredging takes place in rivers and streams and not on the land, it should be under state authority and regulation, not BLM regulation.

Response: We generally agree that it is appropriate for states to regulate activities within navigable waters. Even in such cases, BLM believes it has the authority to protect the public lands above high water mark where there may be adjacent, related operations. But in many cases, there has been no such determination of navigability for rivers and streams on public lands. In these instances, BLM has clear authority to regulate the operations. We believe we have provided for proper state regulation of suction dredging in final §3809.31(b).

1. Comment: Clarify in §3809.300(a) that all Notices will expire after 2 years and then the final rules will apply.

Response: The final rule has been modified to clarify the intent of the section.

1. Comment: Use a tax identification number instead of a social security number in the operator information required under proposed §3809.301(b)(1).

Response: We agree and have made that change in the proposed final regulations, as well as under final §3809.401(b)(1).

1. Comment: Notice content requirements should not include the dates that operations will begin and when reclamation will be completed, since these are never exactly known.

Response: We agree and have changed final §3809.301(b)(2)(iv) accordingly by asking for the expected dates that operations will begin and reclamation will be completed. We have also specified "calendar" days under final §3809.301(d) for clarity.

1. Comment: Add a requirement to §3809.301(b), §3809.312, and §3809.313 for an operator to advertise planned operations in a local newspaper, not beginning operations until 30 days after publication. This time would allow the public to file written objections.

Response: We did not adopt this comment since we believe that this suggestion would conflict with NRC report Recommendation 3 dealing with expeditious handling of exploration.

1. Comment: Add to §3809.311 language that allows any person with an adversely affected interest to file written objections to a Notice within 30 days of advertising planned operations.

Response: We did not adopt this suggestion because we believe that it would conflict with NRC report Recommendation 3 on expeditious handling of exploration .

1. Comment: Operators should not have to provide a reclamation cost estimate under proposed 3809.301(b)(4) because BLM would review and modify a reclamation plan in most cases.

Response: We do not agree with this comment and have not adopted the suggested change. The burden should be on operators, who are the proponent of the activities requiring reclamation, to give their best estimate of reclamation costs.

1. Comment: BLM should review Notices for completeness in time frames ranging from 5 calendar days to 20 business days.

Response: We have rejected this suggestion because we believe the 15 calendar day review period should include a completeness review. If BLM staff determines that a Notice is incomplete in less time, we will notify the operator as soon as possible.

1. Comment: Clarify the standards BLM will use to see if a Notice is complete under 3809.311(a).

Response: The standards for completeness are listed in final §3809.301.

1. Comment: The State Game and Fish Department would like to review proposals, regardless of acreage, where there is concern about fish and wildlife resources, or limited, high-value wildlife habitats such as riparian zones and wetland habitats.

Response: During the Notice-review process BLM will make every effort to coordinate with state regulators. This coordination will likely happen through state/federal agreements, such as described under final §3809.200.

1. Comment: BLM should be required to inform the operator when a Notice is complete and operations can begin.

Response: This comment has not been incorporated in the final rule. The Notice system is designed to allow an operator to begin operating if not notified by BLM of its concerns about compliance with this rule.

1. Comment: New §3809.312(e) should be added that would notify operators that they may be subject to more requirements imposed by state regulation and that operators must be in compliance with such requirements before beginning operations.

Response: The comment was not adopted. This requirement is already covered under §3809.5, under the definition of unnecessary or undue degradation. See also final §3809.3. In addition, state law applies by its own terms.

1. Comment: The 15-business-day time frame proposed for Notice review would not be realistic since an operator would be required to provide a financial guarantee before beginning operations.

Response: In practice, an operator would need to obtain a financial guarantee before or soon after filing a complete Notice in order to begin operations 15 days later.

1. Comment: Notice-level operations should not be required to furnish financial guarantees, as required under proposed 3809.312(c), if no cyanide or leaching is proposed.

Response: The requirement for a financial assurance beyond casual use has been left in the final rules so as not to be inconsistent with NRC report Recommendation 1.

1. Comment: BLM would be able to extend the 15-business-day review period for a Notice indefinitely under proposed 3809.313 due to the ambiguous, proposed language of that section.

Response: Under §3809.313(a), the final rule allows BLM to extend the review period by 15 more calendar days. Specific time frames were not included in §3809.313(b), (c), and (d), because it could take longer to resolve BLM concerns.

1. Comment: Proposed § 3809.330 does not define how an incomplete Notice modification affects the existing Notice.

Response: Final §3809.330(b) states that modified Notices will be handled under the procedures of final §3809.311, which addresses incomplete Notices. You may not proceed with the modified Notice until it is complete and BLM has reviewed it.

1. Comment: It is unclear how §3809.331(a)(1) would apply to private lands.

Response: §3809.331(a)(1) applies to modifications of Notices involving public lands. It has nothing to do with private lands.

1. Comment: 24000.50: It is unclear how much time BLM would give an operator to comply with §3809.331(a)(1) if BLM requires modification of a Notice.

Response: The length of time that BLM requires to modify a Notice will depend on site-specific conditions. The time requirements will be spelled out in an appealable decision letter sent to the operator from the BLM.

1. Comment: BLM should revise proposed 3809.331(a)(1) to require documentation of unnecessary or undue degradation that BLM had found.

Response: Normal case processing in BLM includes documenting our findings in case files. This documentation ensures a good written record upon which the local BLM manager can base decisions and findings. These findings and decisions on unnecessary or undue degradation would be included in an appealable decision letter sent by BLM to the operator and requiring modification of the Notice.

1. Comment: Two years is a reasonable period for a Notice to be effective, but the responsibility for operators to reclaim operations should be independent of the validity of the affected mining claims.

Response: The 2-year period addressed in final rule §3809.332 makes no mention of the validity of the affected mining claims. Operators continue to be responsible for reclamation of their disturbances after expiration of a Notice or abandonment of a mining claim.

1. Comment: Notices should expire in 4 to 5 years.

Response: Operators may file extensions under final §3809.333 to keep their Notices and our records current. Additional extensions are allowed.

1. Comment: BLM has not shown that an inability to clear expired Notice records has resulted in unnecessary or undue degradation and that it would be inappropriate to clear records since reclamation may not be completed for a considerable time in the future at a project area.

Response: This provision remains in the final rule because it will help BLM clear its records of Notices where no activity has occurred or Notices that have remained inactive for long periods since operations began. Reclamation obligations will continue for the operator until completed, regardless of the disposition of the Notice.

1. Comment: Clarify that Notices would be extended only if there is an acceptable financial guarantee as provided under §3809.503.

Response: We have incorporated a reference to §3809.503 to this subsection of the final rule.

1. Comment: The 2-year time frame for Notice extension is adequate. The 2-year time frame for Notice extension is too short. Notice extensions should not be required if operations do not change.

Response: Operators may file extensions under final §3809.333 to keep their Notices and our records current. Additional extensions are allowed..

1. Comment: Clarify that the only reason a Notice extension might not ensue is in the instance of noncompliance, and in such a case BLM would notify the operator.

Response: We anticipate that only operators in good standing with the regulations will be able to extend Notices. BLM will inform operators of the reasons for the noncompliance and steps needed to correct it.

1. Comment: Add language to §3809.330(a) and to §3809.333 to require public notification for Notice modifications and extensions.

Response: We believe that adding such public notification requirements would be inconsistent with NRC report Recommendation 3.

1. Comment: BLM should provide written documentation of any finding under proposed 3809.334(b) that temporary cessation of operations will likely cause unnecessary or undue degradation.

Response: BLM's findings, on a case-by-case basis, will be spelled out in an appealable decision letter sent to the operator from BLM.

1. Comment: §3809.334 inadequately addresses unnecessary or undue degradation caused by improper storage and containment of hazardous materials and remediation of contaminated soils.

Response: We believe that the performance standards applicable under §3809.320 as well as the continued requirement to prevent unnecessary or undue degradation adequately address these concerns.

1. Comment: Define "period of time" as used in §3809.334(a) and "extended period of non-operation" as used in §3809.334(b)(2).

Response: Regardless of the "period of time" that passes, at all times an operator must meet the requirements of §3809.334(a). BLM will take actions needed to ensure the prevention of unnecessary or undue degradation. BLM will determine the term of an "extended period of non-operation" on a case-by-case basis after considering the sensitivity of the resources in the project area.

1. Comment: A third option should be added to §3809.335(a) to allow an operator to give written Notice to BLM of the intent to extend the Notice per §3809.333. If an operator misses the extension deadline but intends to operate, he/she should not be forced to reclaim.

Response: Operators who face this situation would not be in compliance with §3809.333, which requires they notify BLM in writing on or before the expiration date of their desire to conduct operations for 2 additional years. We wrote §3809.333 in this way in order to avoid long periods of time after a Notice expires for reclamation to be completed, and to prevent unnecessary or undue degradation from occurring. If a Notice expires, §3809.335(a) ensures that reclamation is promptly completed. If an operator inadvertently misses a Notice-extension deadline, he/she must immediately submit a new Notice and provide adequate financial guarantee as required under §3809.301, then follow §3809.312. Quick submittal of a new Notice will ensure the prevention of unnecessary or undue degradation and continuity of operations.

1. Comment: Since exploration is typically intermittent, Notice-level operations may appear to be "abandoned" at some time during the 2-year Notice term.

Response: We have included in §3809.336 criteria to inform the public of indicators of abandonment. BLM will strive to contact operators where it is not clear whether operations have been abandoned. Our major concerns are the prevention of unnecessary or undue degradation and that operators maintain public lands within the project area, including structures, in a safe and clean condition.

1. Comment: Revise §3809.336(a) to require BLM to provide an appealable determination that the project area has been abandoned.

Response: Any written decision that BLM sends to an operator may be appealed as outlined under §3809.800.

1. Comment: 3809.400(b) "BLM made an EA...available to the public...": Does this include EAs that are on file at a BLM office and therefore "available" as public information, or are the regs referring to public notification in a more formal sense (i.e. interested parties receiving notification by mail or internet)? Also, does the EA need to be FONSI'd, final or preliminary? These issues should be clarified so that the new regs can be implemented more consistently. The proposed rule should delete the unfair NEPA document publication requirement trigger to grandfather proposed Plan of Operations.

Response: §3809.400(b) was attempting to clarify the dates when the final rules would become effective where Plans are pending awaiting the completion of an environmental assessment (EA) or EIS. The final §3809.400(b) has been revised and no longer refers to pending EAs or EISs in determining effective dates of the final rules on pending plans. If the Plan of Operations were submitted before the effective date of the final regulations, then it falls under the old plan content and performance standard requirements.

1. Comment: All existing Notices or Plans of Operations should be grandfathered if they put the new regulations in place unless the mining materially changes from what was proposed and approved in the Notice or Plan.

Response: The final rules provide that all existing approved Plans of Operations, and Plans of Operations pending on the effective date, would be grandfathered from the Plan content requirements and the performance standards. All other portions of the regulations such as bonding and enforcement would still apply. Material changes (modifications) would be subject to the new regulations where practical as described in §3809.433.

1. Comment: 3809.400. Please define what you consider to be a modification This should be listed in the definitions. No cut-off date should exist since the operator is committing capital. Under set assumptions, it's defined by the performance standards, and this would deter anyone in this project, or the new rules could force his financial position into a riskier state. In other words, he could not be able to fill it.

Response: A modification, as used in section 3809.432, is a change in a Plan of Operations that requires some level of review by BLM because it exceeds what was described in the approved Plan of Operations. We have added this definition to the Glossary of the final EIS.

1. Comment: For this rulemaking, the regulations in effect when a Plan of Operations is submitted must govern. If BLM proceeds with this rulemaking, the final rule must clarify that the new rules do not apply to any pending Plan of Operations and that the date of submission of the Plan determines which rules will apply. The agency can, however, draw some line, in a final rule, on the completeness or competence of the Plan pending at the time of the final rule in order to prevent BLM from being required to exempt from the new rules incomplete or obviously inadequate Plan s submitted solely for the purpose of preventing application of the rule changes. At the same time, a fully developed Plan (that covers all necessary facilities and addresses the major permitting statutes and issues) is itself a significant investment of technical expertise, time and money. It is not prepared and submitted to beat a deadline; it is submitted in a good faith effort to comply with existing regulations. The operator may expect that there will be changes in the Plan between submission and approval, based on agency review, public comment, or the actions of other environmental permitting entities. At the same time, however, BLM cannot reasonably expect the operator to design the initial Plan , or Plan modification, to meet the conditions of rules that are not yet in effect, or in the alternative, completely reconstruct a proposed Plan because new rules have been subsequently finalized.

Response: The final regulations provide for the effective date of the final regulations to determine which performance standards and Plan content requirements apply to a Plan of Operations. But BLM would require for a Plan to be grandfathered, that it be substantially complete before the effective date of the regulations. This means that the Plan if grandfathered under the old regulations must have reasonably met the content requirements of the old regulations by the date the new regulations go into effect.

1. Comment: Section 3809.400(b) must be amended to state clearly that if an operator files a Plan of Operations before the effective date of the new regulations, then none of the new regulations apply. Making filing the cutoff point for applications is appropriate. First, a Plan of Operations typically entails the expenditure of substantial sums of money, time and effort. Requiring a new Plan of Operations to be developed under any promulgated new regulatory regime merely because BLM has not approved the Plan of Operations is an inappropriate and unnecessary burden on the claimant. Second, it is only fair to the operator that the Plan of Operations be reviewed, evaluated and implemented under the rules in place at the time of the filing, rather than requiring the operator to refile the Plan . Third, this test is easier for BLM to administer because it requires BLM to look no further than the filing date to determine what criteria apply as opposed to the proposed rule, which has different levels of applicability depending on whether BLM has made an environmental assessment or draft environmental impact statement available to the public before the effective date of the regulations. If a particular District Office has the adequate staff to push a project through the schedule and publish an EA or EIS before implementation of the revised rules. BLM's proposal is arbitrary in that an entity issued an EA or Draft EIS the day before the regulations are effective would be able to operate under its proposal whereas a similar project which missed the deadline by a few days would be required to conform to the new requirements. An operator should not be penalized due to delays largely or solely within BLM's control, whether warranted or not. The grandfather or exemption threshold should respect the claimant-operator's "considerable time and resources towards developing the Plan ".

Response: BLM has changed the final rules to provide for a substantially complete Plan to be processed under the regulations that were in effect when it was submitted to BLM. BLM agrees this would be more fair to the operator and easier to administer. But existing or pending Plans of Operations would still be subject to the administrative provisions of the new regulations such as financial assurance for reclamation, or enforcement.

1. Comment: The approach of not grandfathering pending Plans filed before the effective filing date is inconsistent with Section 3809.332, which uses the effective date of the final rule as the date upon which an existing Notice will begin its 2-year term under the proposed final regulations.

Response: The reason for this difference in the proposed final regulations is that Notices are typically for activities of smaller scale and shorter duration than are Plans of Operations. Therefore, the consequences of grandfathering existing Notices is not as great as it is for Plans. With the changes to the proposed final regulations, pending Plans of Operations would also be grandfathered in addition to notices.

1. Comment: Unless the Department of the Interior has a request from the mining industry, .400(d) should be deleted. It is unlikely that an owner/operator would voluntarily submit to the more costly and more time-consuming provisions of the proposed revisions of the existing 3809 regulations.

Response: Section 3809.400(d) is a voluntary provision and has been retained. An operator may want certification that their operations are in compliance with the new regulations, even where not required, for insurance or marketing purposes.

1. Comment: 400(a) This entire section is not consistent with the NRC study findings and Recommendations, especially Recommendations 9,11,15 and 16.

Response: BLM does not see any inconsistency in the final regulations with the NRC study. NRC did not even address how existing or pending Plans of Operations should transition with any changes in the regulations. But the final rules do provide for exemption from the new performance standards and Plan content requirements for existing and pending Plans of Operations. This is certainly consistent with the NRC comments at various places in the report that procedures be fair and reasonable to operators and protect the interests of the mining company in continuing to conduct operations.

1. Comment: Under this proposal, an environmental assessment or draft EIS could be substantially complete based on the current content requirements, at significant expenditure of time and money, and without public review, would need to be completely redone to reflect the new content requirements and performance standards.

Response: The extent to which individual Plans would have to be redone under the proposed final regulations is highly site specific. BLM has changed the proposed final regulations to grandfather existing and pending Plans of Operations submitted to BLM before the effective date of the final regulations from the performance standards and Plan content requirements. This change would prevent the situation of having to redo significant expenditures on an EA or draft EIS.

1. Comment: Proposed 3809.400(a) provides that all of the proposed final regulations, except the performance standards in proposed 3809.420, would apply to Plans of Operations approved before the effective date of the regulations. Operations under such approved Plans of Operations should continue pursuant to the current regulations. Otherwise, for example, such operations would be subject to whatever new definitions of "unnecessary or undue degradation" that may be adopted (see Proposed 3809.1).

Response: Part of the "terms and conditions" in the final regulations under which approved Plans of Operations would continue to operate, include the definition of unnecessary or undue degradation that was in effect when the Plan of Operations was approved. Plans of Operations that are grandfathered from the new performance standards would not be subject to the new definition of unnecessary or undue degradation.

1. Comment: Under the proposed rule 3809.400(b) , a proposed Plan of Operations or proposed modification to a facility submitted before the final rule takes effect would be subject to the revised 3809 program requirements unless BLM had released an environmental assessment (EA) or draft EIS on the proposed Plan before the rule's effective date. This approach is simply unfair given BLM's usual Plan approval process. Operators typically wait between eighteen months and two years for BLM to make public a draft EIS or EA. If an operator has expended significant funds determining whether a planned operation (or modification) is feasible under the current rules and preparing a Plan accordingly, it should not be compelled to go back to the drawing board two years later simply because BLM has taken an inordinate amount of time to review the Plan . Indeed, even if a revised Plan were later put together and resubmitted to BLM, the operator would have to wait another three to five years for BLM approval. There can be no doubt that operators spend considerable sums preparing Plans of Operations, including Plans to modify facilities. As we explained in our comments on BLM's Paperwork Reduction Act submission to the Office of Management and Budget, under the existing regulations it takes an average of 2,748 person hours to prepare a Plan of Operations. Those hours involve the services of scores of professionals and thus require enormous expenditures. For example, Newmont Gold typically spends between $150,000 and $200,000 preparing a medium-sized Plan of Operations under the existing regulations. There is simply no justification for making operators restart the process and reincur such large expenses.

Response: BLM has been persuaded by these and other arguments on the cutoff date for exempting pending operations from portions of the regulations. The final regulations provide for operations that have submitted a proposed Plan of Operations to BLM by the effective date of the new regulations to operate under the Plan content and performance standards of the old regulations.

1. Comment: Keeping in mind BLM's preference for a process-based test, Newmont Gold suggests that BLM grandfather all proposed Plans of Operations and proposed modifications pending with BLM on the date the rule becomes final. This will not amount to very many Plans. According to the draft EIS, about 200 Plans of Operations are submitted each year. Assuming BLM's conclusion of 18 months from Plan submittal to a final EIS, a draft EIS should take at most 12 months. Thus, if BLM lives up to assertions, at most 200 Plans without draft EISs might be pending when the rule is finalized. This amount compares with about 1000 Plan-level operations now on the public lands. Grandfathering these 200 Plans would not, we submit, result in any undue impacts to the public lands-particularly since there has never been any showing by BLM that the current regulations are inadequate to protect the public lands. And to ensure that operators do not take unfair advantage of such a rule, BLM could specify that applications that are incomplete on their face would not be grandfathered.

Response: BLM has been persuaded by these and other arguments about the cutoff date for exempting pending operations from portions of the regulations. The final regulations allow operations that have submitted a substantially complete proposed Plan of Operations to BLM by the effective date of the new regulations to operate under the Plan content and performance standards of the old regulations.

1. Comment: Section 3809.400. Proposed rules should not apply to existing or pending Plans of Operations or modifications to such Plans. The proposed rules should not apply to existing or pending Plans of Operations or modifications to such Plans. Mining companies object to any retroactive application of the proposed rules. If it proceeds to finalize the proposed rulemaking despite the extensive opposition, BLM must clearly specify that where an operator has filed a Plan of Operations before the effective date of the regulations, the operation and Plan are subject to the existing subpart 3809 rules. This is particularly important where BLM already has pending Plans of Operations on file for approval. BLM's delay in processing such Plans or accompanying NEPA documentation should not penalize the operator.

Response: BLM has changed the proposed rule as suggested to specify that where a Plan of Operations or modification is pending on the effective date of the final regulations, that Plan would fall under the old Plan content requirements and performance standards, including the old definition of unnecessary or undue degradation. But BLM believes it is necessary that the new regulations on other administrative provisions such as bonding and enforcement apply to all existing and future operations and that future modifications incorporate the new performance standards to the degree practical as described in the proposed final regulations 3809.433.

1. Comment: The fundamental changes being proposed by BLM could trigger significant added investment so that the Plan of Operations would conform to the revisions. The revisions may prompt fundamental project design changes and the need to submit substantially more information. Since the burden of the added requirements ultimately rests on the operator, not BLM; the operator should be able to face the prospects of those requirements with some degree of certainty.

Response: The proposed final regulations do not require operators with pending Plans of Operations to submit more information to conform to the rules if they had submitted their Plan of Operations to BLM before the effective date of the final regulations.

1. Comment: The rules must state clearly that the substitution of owners/operators in connection with a Plan of Operations, no matter where in the process the Plan is (whether pending, approved subject to pending modification, or fully approved), does not bring into play the transition rules. It is a nonevent for purposes of grandfathering and transition. The only issues relevant to the change of operator when mines are sold or operators are changed is the determination that the new owner or operator is covered by the same or a substituted financial assurance.

Response: BLM agrees with the comment that substitution of owners and/or operators in connection with a Plan of Operations, no matter where in the process the Plan is (whether pending, approved subject to pending modification, or fully approved), does not bring into play the transition rules for Plans of Operations. BLM does not believe the regulations need to specify all conditions under which they do not apply, just those under which they would apply.

1. Comment: Under existing Nevada laws and regulations, operators collect all the information required by proposed 3809.401. As mentioned, such information is available to BLM for review during the NEPA process. Thus, the most that most of the proposed new application requirements would accomplish is to compel operators to expend significant sums gathering such materials earlier than they do today, and then later having to amend and repackage the materials as the NEPA process moves forward. BLM could save resources for other activities by eliminating its proposal to increase the amount of information operators must submit with plans of operation.

Response: While the regulations are more specific on the information BLM requires, it is not much different from information many offices have been requiring under the existing regulations. BLM needs this information for evaluating the Plan of Operations to determine whether operations would cause unnecessary or undue degradation, and to conduct the environmental analysis required by NEPA. Since the information is not required in any particular format, applications prepared to meet state requirements could be submitted to BLM to satisfy the pertinent information requirements in section 3809.401. The timing of the submission of this material could be worked out on a case-by-case basis, but the material would have to be provided early enough to support the Plan review and NEPA analysis processes.

1. Comment: There is no compelling need for BLM to obtain this volume and detail of information at the beginning of its review process. Detailed engineering, management, and monitoring plans are not essential to the NEPA analysis, particularly during its initial scoping stages. Indeed, until BLM is fairly far along in the NEPA process, it cannot even accurately gauge whether such detailed plans are in fact adequate. The final test of what is or is not required and the level of detail can be finalized only after scoping has been completed. In short, front loading the process will at best produce preliminary information that would be of little value to BLM. In contrast, by submitting such information later, operators need to make extensive and costly changes to Plan s in light of knowledge gained during the NEPA process.

Response: The purpose of the information requirements is to obtain a Plan of Operations that describes what the operator proposes to do in enough detail for BLM to evaluate impacts and determine if the Plan will prevent unnecessary or undue degradation. The required level of detail will vary greatly by both type of activity proposed and environmental resources in the project area. On large EIS-level projects scoping may actually start before a Plan of Operations is submitted through discussions with BLM staff on the issues and level of detail expected. A certain level of detail is required to begin public scoping. In the initial Plan submission the operator must determine what level of detail to include in the Plan. BLM will then advise the operator if more detail is required, concurrent with conducting the NEPA scoping process. By conducting the NEPA issue identification process (scoping) concurrent with the Plan completeness review, both BLM and the operator can determine the proper level of detail for the Plan of Operations.

1. Comment: Plans of Operations 3809.401(b) require operators or mining claimants to "demonstrate that the proposed operations would not result in unnecessary or undue degradation of public lands." This required demonstration should be eliminated because it shifts a burden to the operator to establish a negative. Coupled with the circular definition of unnecessary or undue degradation in 3809.5, the burden is impossible to carry. The proposed regulations conflict with FLPMA, 43 USC 1732(b). Under the current regime, the "prudent operator" standard is an objective test that reconciles the right to mine under the mining laws with the requirement to avoid unnecessary or undue degradation under FLPMA.. This assertion of a burden to be placed on operators, along with BLM's assertion earlier that it has discretion to deny Plans that do not prevent unnecessary or undue degradation, is inconsistent with the statutory rights granted under the Mining Law. The proposed rules abandon that objective standard in favor of a very subjective, even arbitrary standard. The new standard is simply the requirement of every operator to comply with whatever BLM imposes under these proposed regulations. This language will allow any reviewing official to stonewall an operation until the claimant is forced to give up. Small operations cannot afford to hire environmental analysts or other professionals to soothe every concern that a reviewing official can come up with.

Response: This section merely articulates the current requirements. It has always been incumbent upon the operator to produce a Plan that prevents unnecessary or undue degradation. The Mining Law never provided for degradation beyond that necessary for mining purposes. The operator does not have to prove a negative, but rather produce a Plan of Operations that BLM believes would be successful in preventing unnecessary or undue degradation of the public lands. This sentence has been moved in the proposed final rule to section 3809.401(a) to describe the overall standard of review BLM will require a Plan to meet in order to be approved.

1. Comment: 3809.401 (b). Under what criteria should the operator be required to establish the practices? The operator should be allowed to use standard engineering practices. The operator and BLM should use only proven technology, that technology that's engineered and proven under unnecessary or undue degradation (UUD) abilities. Pilot programs or phase-in practices with a potential for preventing UUD should be allowed as the project develops.

Response: BLM intends that the operator use equipment, devices, or practices that will meet performance standards and prevent unnecessary or undue degradation, including applying standard engineering practices and using proven technology. BLM also intends that operations be allowed to test and develop new methods or techniques for pollution prevention and reclamation. Where such test methods are applied, they would be conducted at a smaller scale and be backed up with proven technology in the event of failure.

1. Comment: 3809.401 (b) (1). Requirement for SS# is not reasonably related to the purposes of the proposed rule. How is a person's social security number reasonably related to the purposes of the proposed rule? How will BLM use it? Federal statute that created the Social Security system specifically prohibits the use of the social security numbers for identification purposes outside of the authorizing statute. Social security numbers should not be included in the requirements. A tax I.D., yes, but not a social security number. What is BLM's authority for making this information a requirement of the Notice or Plan? Will a Notice or Plan be rejected if this information is not given? For a corporation, operators and thus I.D. numbers are constantly changed. This becomes a reporting nightmare for a corporation and BLM in receiving, acknowledging, and filing constant changes. A more reasonable requirement would be to require the corporate operator to wear a corporate badge.

Response: The purpose of the requirement is for BLM to be able to determine the operator responsible for both the operation and site reclamation. The term has been changed to require a taxpayer identification number as suggested. A Notice or Plan would not be considered complete without enough information to identify the responsible operator. If a corporation is the operator, it should provide the corporate identification number. Persons working for a corporation do not have to provide individual identification or wear badges.

1. Comment: These proposals have the potential to increase the time required to get a permit by years. The process is now bogged down so that approval of Plans can take forever. Adding this layer of proposals will further delay time and increase costs as well as create a tremendous workload for BLM.

Response: The requirements for Plans of Operations essentially put into regulation the process that most BLM field offices are implementing. By describing these requirements in the regulations BLM intends to improve consistency among field offices and give operators more precise information on what is expected from them. The time it takes to process a Plan under these regulations is related more to the amount of other workloads and staffing expertise than to a change in the Plan content requirements.

1. Comment: The Carlota Final EIS largely ignored the historic record in extensive sections presenting mitigation and design schemes, etc., thereby not addressing the proven effectiveness of the proposals. Such situations should be avoided. Your EIS, for example, in the discussion of pit lakes, addresses the track record objectively. BLM should require all Plans of Operations, EISs, etc. to include an effectiveness assessment that shows how well proposals have worked, where, under what conditions, and for how long. If proposals are untested or experimental, they should be so labeled.

Response: Guidance on topics BLM should include in its environmental analysis of a Plan of Operations is more suitable for agency policy documents or handbooks, and is not detailed in these regulations.

1. Comment: This and the next section are the most important sections of the reformed regulations. The description of operations requires only "preliminary designs,..." ((2)(I)). Preliminary implies the Plans are not final. Does BLM propose to approve Plans that are not final?

Response: Many Plans of Operations present preliminary or conceptual designs for mine facilities that must eventually be highly engineered before construction. During its review, BLM typically requests information about such facilities to ascertain location, size, general construction, operation, environmental safeguards, and reclamation. The level of detail required is highly variable and site specific, but must be great enough so that the agency can evaluate whether the facility is going to result in unnecessary or undue degradation. An approved Plan of Operations allows the facility to be built within the parameters outlined in such preliminary designs. Since operators may be uncertain as to BLM's decision, they may wait until BLM issues its approval before committing the resources for preparing detailed final engineering drawings and specifications. For example, an operator may propose a tailing impoundment of a certain size and location, but the environmental analysis is evaluating several alternative locations or disposal methods. In this case, there is no point in the operator's preparing final designs for an impoundment that may never be built. Once the preferred alternative is selected, the Plan of Operations approval decision could then require the operator to submit final approved engineering designs (and later "as-built" reports) to verify that the Plan of Operations, as approved, would be followed. Section 411(d)(2) had been added to clarify this process.

1. Comment: 3809.401(b)(2) is overly detailed, requiring extensive description of operations while still in the planning process. The current process is to try to avoid continual amendments to the Plan of Operations. But under these proposed regulations any changes (and many could be needed) to the description of operations would require plan modifications. BLM does not need this level of information at this juncture to carry out its surface management responsibilities. BLM should require only information sufficient to allow evaluation of impacts from the proposed operation. Extensive descriptions of the mining of multiple sites within one major mining operation due to variation of grade content or industrial material needs become vary complex, redundant, and of minimum administrative benefit, especially when they all constitute similar mining activities.

Response: Operations that are still in the "planning process" may not be ready to submit a Plan of Operations to BLM. For BLM to properly review a Plan of Operations, operators must give BLM a description of what they are proposing. This description must contain enough detail so that BLM can conduct the analysis required under NEPA, ascertain whether the Plan of Operations would prevent unnecessary or undue degradation, and develop any mitigation that may be needed to prevent unnecessary or undue degradation.

1. Comment: Some level of information is needed, but it is not necessary to require the same scope and level of detail for small operations as for large operations.

Response: BLM agrees. The level of detail will be based on the site-specific operation proposed and the geographic location. The performance standards under the Proposed Action are standards by which the operation will be measured. BLM will not dictate the methods and operational activities carried out by industry. Only the results of the methods will be evaluated by the standards. Therefore, the level of detail needed to complete the permitting process and meet the standards will depend on the natural resources at the mining site. BLM does not intend to require extensive resource data unless the data is needed to make a reasoned decision and to measure the operations by the standards outlined. The level of detail will be based on the operation proposed and the potential natural resources affected. But if a small operation potentially affects a significant resource, the level of detail could be substantial.

1. Comment: If obtaining the detailed information in Section 3809.401(b)(2) requires more exploration work, many exploration targets may never be explored because of the time and expense of detailed exploration work, especially considering the proposed new requirements that will impose more costs and add considerable approval time to exploration projects on federal lands.

Response: The information required for a Plan of Operations would not substantially change over current practices under the existing regulations. The exploration work mentioned should be occurring, independent of any BLM requirements, to make sound technical and financial decisions on whether an economic deposit is present and to evaluate how it might be developed.

1. Comment: These sections of the proposed regulations should be revised to make it clear that the requirements of 3809.401 apply to a final Plan and to acknowledge that all elements will not be completed until after the NEPA and permitting processes are complete. BLM officials in the field should be given clear authority to adjust the level of detail required in the proposed Plan to reflect the timing and circumstances of each operation. The regulations should also allow conditional approval of the Plan (as is common now) pending completion of certain requirements. For example, a Plan might be approved contingent on submission of a final monitoring plan with a NPDES permit or a mitigation plan in connection with a 404 permit.

Response: The requirements of 3809.401(b) apply to proposed Plans of Operations. If the requirements apply and the Plan submission has addressed each element, then the Plan is deemed complete, meaning BLM has a complete description of the proposed action, and the NEPA process can continue. After completion of the NEPA process, BLM may issue a decision approving the Plan of Operations subject to any changes or conditions needed to prevent unnecessary or undue degradation. Section 401(d)(2) has been added to clarify where BLM might issue a conditional approval subject to inclusion of other agency permits into your Plan of Operations.

1. Comment: Plans of Operations BLM's proposed regulations require that an operator deliver a complete Plan of Operations as a finished product before BLM will begin its review of the proposal. Proposed 43 CFR 3809.411(a). With respect to timing, the proposed regulations create significant confusion as to when a Plan must be deemed "complete," and fail to reflect current practice, which is working effectively. Proposed 3809.401 describes the information needed for a complete Plan. Proposed 3809.411(a) provides that BLM will review the Plan and may notify the operator that the submittal does not contain a complete description of the Plan under 3809.401. These two proposed rules can be read to impose a requirement that a Plan of Operations meet all of the content requirements of 3809.401 before BLM will begin processing the Plan. The proposed rule appears to be failing to distinguish between the requirements for an application for a Plan of Operations and a completed Plan of Operations.

Response: BLM starts the NEPA process as soon as a Plan of Operations is submitted, sometimes even sooner if operators wish to consult with BLM as they are preparing their Plans. The regulations describe the contents of a proposed Plan of Operations for it to be considered "complete." A complete Plan constitutes the proposed action of the NEPA document. The final, or approved, Plan is what results when the NEPA analysis is complete and BLM issues an approval decision.

1. Comment: 401(b)(2) Description of Operations: We question what BLM envisions in engineering design, water management, and quality assurance plans. Does BLM have staff members who can review this type of information.

Response: The level of detail for these specific plans will vary depending upon the type of operation being proposed, the local environmental setting, and the issues of concern. Often what you provide for an analogous state requirement would be adequate. BLM encourages you to consult with your local BLM office to determine how best to satisfy these requirements. BLM does employ mining engineers, geologists, hydrologists, and other natural resource staff that can evaluate this information. BLM also coordinates its reviews with other state or federal agencies who have expertise in these areas.

1. Comment: 3809.401(b)(2) What types of plans are being referred to? What is considered rock? What is considered rock handling? BLM requirements for characterizing rock should be clearly stated. What rock should the operator characterize? What is quality assurance? The state typically requires quality assurance plans for some parts of large mining operations. We do not require them for everything, nor do we require them for any operation at most smaller mines. We do not know what is being requested here. Is it quality assurance plans for construction of building, liners, dams, ore assays, or water quality sampling?

Response: Definitions for common terms such as "rock" are found in many standard and geological dictionaries. As used in the regulations, "rock" refers to materials such as overburden or waste rock and ore that would be excavated. "Rock handling" refers to plans for how this material will be characterized and handled or placed in order to mitigate its potential to generate acid rock drainage (ARD) or other leachate. What is required for rock characterization and material handling plans is highly site specific, depending upon the risk of ARD generation and the other resources in the area of operations that are potentially affected. Since material characterization can be both time consuming and costly, consultation between BLM, the state, and the operator on the needed level of characterization is recommended early in the Plan review process. "Quality assurance plans" are plans or programs for monitoring and testing mining and reclamation components during construction. They are needed where performance highly depends on proper construction or installation as specified in the approved plans. Examples include earthen compaction for tailing dams or soil liners, synthetic liner installation, and placing specified thicknesses of growth medium for revegetation. Specific quality control plans are of developed under overall quality assurance programs.

1. Comment: BLM proposes to substantially revise both the requirements for filing and the content of proposed Plans of Operations. Proposed 3809.401. The proposed requirements do not differ materially from the typical contents of a final Plan of Operations for a large, modern mining project. We have three important concerns about the proposed requirements, however. The first is that the regulations are written for very large, complex mining operations, but will applied to all activities conducted under a Plan, even exploration. In the context of a smaller operation or an exploration project, some of the proposed requirements just do not make sense (e.g. water management plans, rock characterization, and handling plans). But BLM must require them or determine that the requirements do not apply. The second major concern relates to timing. The proposed regulations do not clearly specify when a Plan of Operations needs to be complete. The third major problem flows from the requirement in proposed 3809.411(c)(1) that BLM disapprove a Plan that does not meet the content requirements.

Response: BLM does not have to make a specific determination that each element of Section 3809.401(b) applies. Rather, BLM simply has to determine that the Plan describes the proposed activity in enough detail for BLM to analyze the Plan's potential impacts and give the operator a written list of items that are missing or incomplete. The sequence described in 3809.411 is that the Plan of Operations has to be complete before BLM completes the environmental review required by NEPA and any other consultations required by other laws or regulations. This means that the Plan must be complete before BLM can produce an environmental assessment or a draft EIS for public comment. This does not mean BLM will not start the NEPA process before receiving a complete Plan. In fact, conducting NEPA scoping concurrent with review of the initial Plan of Operations submission helps BLM and the operator focus the completeness review on issues of concern. But BLM obviously cannot approve a Plan if the Plan lacks enough detail for BLM to evaluate its impacts. An incomplete Plan is one example where BLM would withhold approval until it has received and evaluated the information.

1. Comment: Section 3809.401(b)(2)(viii) requires the operator to describe fully in the Plan of Operations plans for all access roads, water supply pipelines, and power and utility services. This requirement is too prescriptive. Supplying preliminary site layout drawings (rather than detailed layouts) gives BLM the information to assess unnecessary or undue degradation and gives the operator the flexibility and latitude to complete the final design.

Response: The level of detail required is highly site specific. Section 3809.401(b) has been revised to state that the level of detail must be sufficient for BLM to determine if the Plan of Operations would result in unnecessary or undue degradation.

1. Comment: Plans of Operations Water Management Plans. Within Alaska, discharges into surface and ground water are regulated by the EPA and Alaska Department of Environmental Conservation (DEC). EPA regulates storm water management. We are unclear what is asked of the operator under the water management requirement listed in this section. If it is only to provide information already required by EPA and DEC, then that should be clear. If this is a different and new requirement, we understand neither what is being required, how BLM would regulate it, or how it will be coordinated with EPA and DEC.

Response: Water management plans are plans for managing storm water, mine drainage, or processing solutions. Such information may already be required by other federal or state agencies. Review of water management plans would be coordinated between BLM and these other agencies according to local practice and interagency agreements such as memorandums of understanding.

1. Comment: Plans of Operations EPA has delegated the regulation of surface water under the Clean Water Act and ground water is regulated under state law. In Nevada, a Monitoring Plan is part of the Water Pollution Control Permit. This requirement is redundant and unnecessary.

Response: BLM does not intend to regulate water quality in duplication with state or other federal agencies. Rather BLM must consider how mining and reclamation affect water quality and how certain operating or reclamation practices may be conducted to reduce or eliminate potential impacts to water resources on its lands. The monitoring of water quality or quantity is one way to evaluate the performance of mining operations and the success of reclamation measures.

1. Comment: Plans of Operations, Section 3809.401(b)(2). BLM specifies several types of plans that must be submitted with Plan of Operations, such as water management plans, waste rock management plans, and spill contingency plans. These plans are usually developed with the states while the Plan of Operations is being reviewed and approved. EPA has delegated authority for these programs to the states. It may not be possible to include these plans with Plans of Operations; nor would BLM have the approval authority under federal regulations.

Response: Being able to consider these plans is critical in determining whether the proposed Plan of Operations would prevent unnecessary or undue degradation. Furthermore, such plans may of themselves call for building certain facilities on BLM lands, such as monitoring wells, capture ponds, access roads, or storm water diversions, and therefore must be given to BLM as part of the overall Plan of Operations in order to get such facilities approved.

1. Comment: Plans of Operations Spill Contingency Plans. The state and EPA require spill contingency plans. We do not know what is requested here other than to meet the existing requirements of those agencies. If that is requested, it should be so stated and coordinated with the other agencies. If BLM is proposing something different from those requirements, we are concerned about duplicative agency jurisdiction. This is an excessive requirement that would fall under NEPA anyway, and the operator would not get an operating plan without it.

Response: NEPA compliance is a procedural requirement and does not require spill contingency plans. BLM can also require spill contingency plans to protect public land. Spill contingency plans provided to meet state or other federal requirements would also likely be adequate for BLM purposes. BLM would review such plans as part of the overall Plan of Operations review in coordination with other agencies.

1. Comment: Insofar as BLM has determined that is lacks adequate information on any relevant aspect of a Plan of Operations, BLM not only can require the filing of supplemental information, it is obligated to do so. We emphatically reject any suggestion that BLM must limit its consideration of any aspect of a Plan of Operations to the information or data that a claimant chooses to provide.

Response: BLM requires enough information to evaluate the performance of a Plan of Operations for preventing unnecessary or undue degradation. The information requirements listed under proposed 3809.401(b) are not exhaustive. Proposed section 3809.401(c)(1) requires information for completing the NEPA process, and proposed section 3809.401(c)(2) gives BLM the option of deciding that more information is required than is listed in the previous sections.

1. Comment: Plans of Operations 3809.401 (b) Required Information The implication of this section is that BLM may require that an EIS be prepared for a mineral exploration program. I'm sure that such a requirement is not contemplated in the intent of the Federal Land Policy and Management Act (FLPMA). As with the previous section, this section must be modified to acknowledge the distinction between different stages and scales of operations in accordance with FLPMA.

Response: The level of analysis (EA or EIS) is determined by the potential for the Plan of Operations to cause significant impacts and not necessarily by whether the activity proposed is exploration or mining. This determination is guided by the regulations for implementing the National Environmental Policy Act (NEPA) found at 40 CFR 1500, et.seq. BLM approval of a Plan of Operations under the 43 CFR 3809 regulations is a federal action. As such it is subject to the NEPA regulations. These regulations require the preparing of an EIS for actions causing significant impacts. Environmental assessments (EAs) can be prepared for approval of actions that do not cause significant impacts. While most exploration does not present the potential for significant impacts, a particular exploration project could still cause significant impacts. In that case an EIS would have to be prepared.

1. Comment: Plans of Operations Section 3809.401 (b) 2. There must be some sort of minimal documentation for a beginning operation. My claim has not been surveyed. We have not taken core samples. We do not know the scope of the deposit. The minimal documentation level must be in the regulations and not left to the opinion of the local reviewer.

Response: The amount of information required in a Plan of Operations depends upon what you propose to do. The drilling and reclaiming of a single exploration hole could be presented on one or two pages, whereas large-scale mining may require thousands of pages of information to describe completely. Call you local BLM office for guidance on the level of detail it believes is needed for your particular project.

1. Comment: Plans of Operations The exact timing of each of the plans may vary by the type of operation, the location (both state and BLM district), interests of other federal agencies, and issues raised in the NEPA process. A reclamation plan may follow a similar path. An operator may first propose facilities with a particular layout. BLM (through the NEPA process or otherwise) may consider alternative locations. The operator or other agencies may suggest alternative locations. Reclamation techniques are likely to be considered for each facility at each location, but at a relatively general level of detail. It makes no sense to require a reclamation plan with a "detailed description of the equipment, devices, or practices" to be used until the final location of the facilities is determined. Similarly, of course, it makes no sense to require a detailed reclamation cost estimate until the final reclamation plan is set.

Response: Operators must present reclamation plans that they believe will meet the requirements of the regulations. The reclamation plan, as part of the Plan of Operations, is then analyzed in the NEPA process to determine its effectiveness. To analyze the plan a certain level of detail is needed up front. Final approval of the Plan of Operations may require the reclamation plan to be conditioned or modified as needed to prevent unnecessary or undue degradation. Section 3809.401(d) is worded so as not to require the reclamation cost estimate until later in the process when there is more certainty about what will be the final approved reclamation plan.

1. Comment: Plans of Operations 3809.401(b)(3) require a suitable level of detail for reclamation plans. The proposed language should be amended to read: "Reclamation Plan. A plan for reclamation must meet the standards in section 3809.420." The other language in 3809.401(b)(3) should be deleted because it is not needed and creates potential conflicts between provisions. If the performance standards are met, a detailed description of reclamation equipment, devices, and practices are not needed, especially this early in the planning stage.

Response: The word "detailed" has been removed from the first section of this sentence. But the requirement is still to provide enough of a description on "how" the performance standards will be met that BLM can evaluate whether the reclamation plan is feasible and will achieve the desired outcome.

1. Comment: Plans of Operations 401(b)(3) Reclamation Plan: The term "riparian restoration" has a meaning different from reclamation. We do not understand the term "deleterious material" because it is not defined.

Response: The term "riparian restoration" is not used in 3809.401(b)(3). The term used is "riparian mitigation," which refers to plans for meeting the performance standard under proposed 3809.420(b)(3)(ii) for returning disturbed riparian areas to proper functioning conditions. "Deleterious material" is material with the potential to cause deleterious effects if not properly handled. Deleterious material could include material that generates contaminated leachate, is toxic to vegetation, or threatens wildlife or human health. The term is more inclusive than material with the potential to produce acid rock drainage.

1. Comment: Plans of Operations 3809.401(b)(3) The list in this section is too vague, especially in the "among other things." BLM requires the plan to be complete but how can an operator provide a complete plan if there is not a complete list of requirements.

Response: The exact details of what must be in a reclamation plan is highly project specific and site specific. If the Plan of Operations does not involve drilling then a reclamation plan for drillhole plugging is not needed. If the Plan of Operations does not involve disturbance in a riparian area then obviously a riparian mitigation plan is not needed. The operator must consider what activity they want to conduct and where, and then propose a reclamation plan for that activity that will meet the performance standards.

1. Comment: Plans of Operations What standards are being applied and how does the operator plug a drill hole? Define regrading and under what situations regrading would be required. Will BLM consider a project's unnecessary or undue degradation plan if the plan proves that the riparian areas are improved after the project? This would meet the requirement for no net loss. Referring to: "...the reclamation plan might also contain information related to other topics." What data collection is needed? Please specify in detail the types of data. It appears that an operator will need to have a Plan of Operations for a baseline study.

Response: Plugging requirements for drill holes vary by hole depth, aquifers encountered, water inflow, and artesian pressures. Regrading is moving excavated material to create a surface suitable for further reclamation. Plans that improve riparian areas would meet the performance standard in proposed section 3809.420. The quote on other information is not in the section on reclamation plans, but the list is not exhaustive, and other topics may have to be addressed by a reclamation plan if relevant. On large or complex projects it is not unusual for the operator to present a plan for collection of baseline information to BLM for review and comment.

1. Comment: The proposed rule also goes much further in the amount of reclamation planning required before the NEPA process begins. Operators submitting proposed Plans of Operations now must simply describe measures they will take to reclaim disturbed lands. The proposed regulations, in contrast, require an operator to submit a detailed reclamation plan that must include plans for the following: (1) drill-hole plugging; (2) regrading and reshaping; (3) mine reclamation; (4) riparian mitigation; (5) wildlife habitat rehabilitation; (6) topsoil handling; (7) revegetation; (8) isolation and control of acid, toxic or deleterious materials; (9) facilities removal; and (10) post-closure management.

Response: This is no change from what operators currently should be doing. Measures to reclaim disturbed lands under the current regulations should include all applicable elements of the proposed regulations you have listed. One reason new regulations are needed is to clarify what operators are currently expected to provide.

1. Comment: Plans of Operations. Revise .401(b) by deleting (3)(iv) and merge with (3)(v) because riparian in only one habitat type found on federal land. This special identification is unsuitable when BLM has presented no authority to require "mitigation" for nonjurisdictional wetlands or riparian habitat unless the project area is in a congressionally designated unit or non-congressionally designated unit where nonjurisdictional wetlands and riparian habitat are expressly listed and perhaps where BLM has a completed land use plan that shows the area for the proposed mining operation to be within an area of critical environmental concern (ACEC) that clearly names the resources to be protected and the mineral values lost on the same scientific basis.

Response: Under FLPMA, BLM has the authority to require mitigation of impacts to resources on the lands it manages. The authority for requiring mitigation of impacts to riparian areas is no different than that for any other type of habitat. But riparian habitat generally has greater biological diversity and hence higher resource values, making it suitable for individual consideration in the regulations.

1. Comment: Plans of Operations Revise .401(b)(3)(v) to assure that it includes all wildlife habitat to explain what is meant by the term "rehabilitation." Or better yet, reference a definition in 3809.5. Assure that BLM and the Forest Service are using the same definitions and standards.

Response: Rehabilitation means to create usable and functioning wildlife habitat from a disturbed area, including all types of wildlife habitat. Although it may not be practical to recreate the same type of wildlife habitat that was disturbed, the area itself has to be suitable wildlife habitat. BLM cannot change the Forest Service surface management regulations. The scope of this rulemaking is limited to BLM regulations.

1. Comment: Plans of Operations. Revise .401(b)(3)(v) to accept as a proper identification of wildlife habitat that has been described in the approved BLM or Forest Service (FS) land use plan for the project area. The existing wildlife habitat described in the approved BLM or FS land use plan also becomes the baseline datum for considering the extent to which the proposed project will or will not modify wildlife habitat and whether the modification will benefit or harm the existing wildlife habitat.

Response: BLM encourages the use of land use planning information to help operators in the baseline characterization of wildlife habitat or other resources and to help develop mitigation plans. But information in land use plans is often collected at a broad scale and may not give enough detail about the project area's resources. Supplemental studies are often needed to support mining-level project approvals.

1. Comment: Plans of Operations. Revise .401(c)(3)(v) by modifying wildlife habitat to be only those expressly identified as an ACEC where existing and reasonably projected future mineral values have been professionally evaluated or in a congressionally designated special management area for a particular individual or group of wildlife species.

Response: Significant wildlife habitat values exist on BLM-managed public lands both within and outside special management areas. Limiting rehabilitation of wildlife habitat to those special areas is not in the public interest because it would create significant impacts to wildlife on other lands and these impacts can be readily mitigated by most operations.

1. Comment: Plans of Operations It is not practical or useful for an operator to design and submit a detailed water quality monitoring plan before discharge permit outfall locations have been selected and approved by state water quality permitting authorities. Similarly, plans for riparian mitigation, wildlife habitat rehabilitation, and facilities removal serve no purpose at this stage of review of the Plan of Operations. Certain elements of the Plan of Operations must remain fluid during the review and permitting process and can be finalized only after BLM has competed that review. Proposed 3809.401(b)(4) describes in great detail the content of a monitoring plan. Typically, a monitoring plan is not finalized until after the Plan of Operations has been through the NEPA process and key state environmental permits have been obtained. In fact, air, and water quality monitoring points are typically determined through the state permitting processes and named in the permits. Those permits are issued with specific monitoring requirements, and then those monitoring requirements are incorporated into the Plan of Operations. Other components of Plans of Operations, including water management plans, rock characterization and handling plans, quality assurance plans, spill contingency plans and reclamation plans, are also developed and refined as the permitting process moves forward. The exact timing of each of the plans may vary by the type of operation, location (both state and BLM district), interest of other federal agencies, and issues raised in the NEPA process.

Response: The comment is correct in that certain portions of the Plan of Operations are expected to change as a result of the NEPA process. But BLM requires information on all aspects of the Plan, including monitoring programs, to determine if they will prevent unnecessary or undue degradation. This means basic information is required up front on what resources will be monitored, where and how, and what corrective measures would be triggered. The purpose of the NEPA process is to find shortcomings in such plans and develop corrective measure (mitigation) in those plans. BLM does not agree that development of monitoring programs should be deferred until after the Plan of Operations has been through NEPA analysis. A monitoring program, tied to corrective action triggers, can serve to mitigate many environmental impact concerns and should be developed simultaneously with the EIS alternatives and the Plan of Operations.

1. Comment: Plans of Operations. 3809.401(b)(4) governing monitoring plans is also too detailed, requiring very specific items that must be included, rather than encouraging the tailoring of the monitoring plan to site-specific conditions. The wildlife mortality provision should be limited to mortality resulting directly from operations and to specific species of concern (e.g. specified threatened or endangered species, migratory birds), and BLM should defer to monitoring plans developed for and approved by other agencies under federal and state programs (e.g., water quality or wildlife).

Response: The monitoring plan requirement described in proposed 3809.401(b)(4) uses terms like "where applicable," "may be necessary," and "monitoring the effect on your operation." Such language reflects that BLM expects monitoring plans to be tailored to site-specific conditions. If an operation even warrants monitoring for wildlife mortality in the first place, the monitoring plan would be developed around the specific wildlife concern. For example, the issue at one operation may be wildlife mortality from vehicles. At another operation the issue may be waterfowl mortality on a tailings impoundment. Each operations monitoring plan would target the mine facilities and wildlife of concern. BLM encourages operators to incorporate monitoring plans developed to meet other federal or state agencies requirements in order to eliminated duplication, and expects that these plans would most likely satisfy BLM requirements. But BLM would not automatically defer to such plans unless interagency agreements were in place.

1. Comment: Plans of Operations. Monitoring plans should include provisions to expand the monitoring as impacts are observed. Mining often occupies geologically complex regions. The monitoring plan must provide for changes if conditions warrant. BLM must be able to expand the area and density of monitoring systems. For example, aquifer systems often have many fracture layers. It is essential to adequately monitor each layer. It may not be possible to determine the location and depth of each system in advance of writing the monitoring plan for the Plan of Operations. The regulations should reflect BLM's need to require expanded monitoring. Cost should not be a concern.

Response: Expanded or extended monitoring is one of the standard responses to adverse monitoring results and would, therefore, be part of most operations' monitoring plans. Furthermore, BLM could require expanded monitoring under proposed sections 3809.431(b) and 3809.601(a).

1. Comment: Plans of Operations. 401(b)(4) Monitoring Plan: Requiring a detailed monitoring plan duplicates this state's requirements and attempts to give BLM authority to regulate water and air quality. BLM simply does not have the delegated authority to regulate water and air quality under the Clean Water Act and Clean Air Act.

Response: A monitoring plan provided to meet state requirements would most likely meet BLM requirements, depending on the resource to be monitored. Proposed section 3809.401(b)(4) has been revised to encourage operators to incorporate other monitoring program requirements. States regulate water quality and air quality by monitoring discharge levels and comparing them to a state standard to determine compliance. BLM does not regulate water or air quality but mining that might affect these resources. To evaluate the performance of mining waste units and the effectiveness of mitigation, it is important to have the feedback that monitoring gives. Requiring monitoring plans does not give BLM any more authority than it already has under FLPMA to prevent unnecessary or undue degradation.

1. Comment: Plans of Operations. The discussion of monitoring plans should recognize explicitly that such plans may be required under other federal and state environmental programs and provide that BLM will adopt and incorporate those plans by reference without a duplicative review.

Response: Proposed section 3809.401(b)(4) has been revised to encourage operators to incorporate other monitoring program requirements. But it is not necessarily a given that such programs would cover the entire range of BLM's concerns and need for monitoring. Unless specific memorandums of understanding (MOUs) are in place deferring to other state or federal agency monitoring requirements, BLM reserves the right to require more or supplemental monitoring as needed to prevent unnecessary or undue degradation.

1. Comment: Plans of Operations. 3809.401 (401) Monitoring plan-requires that the operator specify a monitoring plan; this has historically been BLM's responsibility and BLM's abdication thereof places an onerous burden on the operator.

Response: Though the operator first proposes a monitoring program, it is BLM's responsibility to review and approve the monitoring programs as adequate. BLM must also review data collected by monitoring programs and make determinations on operator compliance with the Notice or approved Plan of Operations, in cooperation with the states. BLM does not feel that it is an unfair burden to require operators to collect monitoring data on their operations. Nor is this a change from current practices.

1. Comment: Environmental monitoring can be a good thing if there have been complaints or if there is the possibility of environmental hazard. To require environmental monitoring on all operations on the Notice and Plan level would create a mountain of paperwork and backlog of samples that show nothing and would be expensive to acquire. The percentage of mining operations that have any pollution problems, especially at the Notice level, must be extremely small. Small operations cannot economially be expected to collect this kind of data. We are not trained in this field.

Response: The detail and complexity of monitoring programs depend on the type of operation and the environmental resources potentially affected. Small operations would require small monitoring programs. Exploration programs may not need monitoring programs beyond visual inspection.

1. Comment: Plans of Operations Monitoring - In many situations monitoring is a requirement under NEPA. Monitoring in and of itself is not mitigation. Monitoring with action levels defined and followup described is necessary. (for example if monitoring of ground water exceeds Safe Drinking Water Act standards, a plan for treatment and/or stopping further degradation is required. Same for air issues.

Response: You are correct. Monitoring by itself is not mitigation. That is why the monitoring plans required under 3809.401(b)(4) must include a description of the response actions that would be triggered by adverse monitoring results.

1. Comment: I come under a Plan of Operations. I've recently done some reclamation, but I notice that you want a monitoring plan now. This monitoring plan would require air quality monitoring, noise levels, and wildlife mortality. I don't know why BLM is requiring all this except as harassment. I don't think any of it is needed. In the mine area you're going to alter the environment. That's all there is to it. Until you reclaim afterwards and the area goes through its natural stages of ecological succession, nothing is going to happen. You are going to change the wildlife there, and I don't know why you're monitoring.

Response: One of the purposes of monitoring is to watch for offsite impacts that may constitute unnecessary or undue degradation.

1. Comment: Plans of Operations. 3809.401(c)(1) addresses BLM's ability to request information on nonpublic lands. This provision should be deleted because it gives the mistaken impression that BLM has, outside the NEPA process, the authority to require such information. This provision does not provide any guidance on the purposes for which BLM could need such information to "analyze""a Plan of Operations, and suggests that BLM may intend to regulate "nonpublic lands" under this provision.

Response: The provision is tied to the NEPA process as stated in 3809.401(c)(1). Guidance on how information is used in the NEPA process is available in the CEQ regulations for implementing NEPA (40 CFR 1500, et. seq.) and in agency handbooks. BLM has no regulatory authority over private lands. Section 3809.2(d) has been added to make this clear. But the scope of environmental analysis required by NEPA is to describe the environmental effects on all lands, even though BLM is only issuing an approval action for the public lands portion of a project.

1. Comment: Plans of Operations. 3809.401(c) The all-encompassing nature of data requirements under NEPA is being cited as a component of 3809. By referencing NEPA requirements in 3809, BLM is attempting to use NEPA authority to regulate mining. NEPA is intended to be an analysis and disclosure process, not a regulatory device.

Response: You are correct. NEPA compliance is a procedural requirement and does not set substantive requirements that operators must achieve. But the NEPA regulations do require BLM to describe impacts to all resources, including those over which BLM may not have regulatory authority or where BLM shares regulatory authority with other agencies.

1. Comment: Plans of Operations. The proposed rule authorizes BLM to require operators to submit operational and baseline environmental information. BLM may also require "static and kinetic testing to characterize the potential for...operations to produce acid drainage," as well as the submission of any other materials needed to ensure that operations comply with the regulations. These proposed requirements would impose substantial additional burdens on operators. The added burdens are especially troubling given the lack of any demonstrable need for new application requirements. Operators already provide the information that would be collected under BLM's proposed rule to states and other federal agencies. After a proposed Plan is given to BLM, BLM still has ample time to incorporate the information into its decision making process. In fact, gathering and submitting the information later in the plan approval process results in substantial cost savings to the operator without any prejudice to BLM.

Response: As the commenter correctly points out, the information requested by the proposed rule is already being collected to meet state and federal requirements. It is therefore unclear how the proposed rule would constitute a "substantial additional burdens on operators." The regulations merely lists the types of information BLM has been requiring from operators under the existing regulations to provide for a more standardized approach and inform operators in advance of the information requirements.

1. Comment: What is the need for baseline environmental data for a moderate to large exploration project?

Response: Any Plan of Operations approval requires the preparing of an environmental analysis under NEPA. Depending upon the specifics of the exploration project and its location, baseline data may be needed for the NEPA analysis.

1. Comment: BLM has no authority to adopt a requirement with the all-inclusive language of 3809.401(c)(2) allowing BLM to request any other information it desires to comply with the subpart. It seems that BLM could define what information it requires in the Plan of Operations to prevent unnecessary or undue degradation. As such, this information should be included in the proposed regulations as a clear and concise checklist. BLM should not have the authority to make unlimited requests for any information it feels would be supportive of a Plan of Operations.

Response: Due to the wide variety of environmental settings where mining occurs, the range of mineral commodities of interest, and the variations in mining and reclamation technologies, BLM cannot list all potential information needs. Operators who feel that a specific BLM information request is not warranted can question the request or, as a last resort, use the appeal process in proposed 3809.800.

1. Comment: The proposed language of section 401(c) is inconsistent with NRC (1999) study Recommendations 14 and 15.

Response: NRC Recommendation 14 discusses planning to assure proper postclosure management of mine sites. Recommendation 15 discusses guidance manual preparation on BLM's authority to protect resources not protected by other environmental laws. Requiring baseline operation and resource information under proposed 3809 401(c) presents no conflict with these recommendations a