Predecisional - for internal discussion purposes only

 

BLM's August 11, 1998 Draft Revisions to its Surface Management Regulations (43 CFR 3809)

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

1. BLM is amending part 3800 by revising subpart 3809 to read as follows:

Subpart 3809--Surface Management

Sec.GENERAL INFORMATION
3809.001  What are the purposes of this subpart?
3809.002  What is the scope of this subpart?
3809.003  What rules must I follow if State law conflicts with this subpart?
3809.005  How does BLM define certain terms used in this subpart?
3809.010  How does BLM classify operations?
3809.011  When does BLM require that I submit a notice or a plan of operations?
3809.011  When does BLM require that I submit a notice of intention to operate or a plan of operations? (Forest Service Alternative)
3809.100  What special provisions apply to operations on segregated or withdrawn lands?
3809.101  What special provisions apply to minerals that may be common variety minerals, such as sand, gravel, and building stone?
3809.111  Public availability of information.
3809.115  Information collection.
3809.116  As a mining claimant or operator, what are my responsibilities for my project area?
FEDERAL/STATE AGREEMENTS
3809.201  What kinds of agreements may BLM and a State make under this subpart?
3809.202  Under what conditions will BLM defer to State regulation of mining operations?
3809.203  What are the limitations on BLM deferral to State regulation of mining operations?
3809.204  Does this subpart cancel an existing agreement between BLM and a State?
OPERATIONS CONDUCTED UNDER NOTICES
3809.300  Does this subpart apply to my existing notice-level operations?
3809.301  Where do I file my notice and what information must I include in it?
3809.311  What action does BLM take when it receives my notice?
3809.312  When may I begin operations after my notice is complete?
3809.313  Under what circumstances may I not begin operations 15 business days after filing my notice?
3809.320  Which performance standards apply to my notice-level operations?
3809.330  May I modify my notice?
3809.331  Under what conditions must I modify my notice?
3809.332  How long does my notice remain in effect?
3809.333  May I extend my notice, and, if so, how?
3809.334  What if I temporarily stop conducting operations under a notice?
3809.335  What happens when my notice expires?
3809.336  What if I abandon my notice-level operations?
OPERATIONS CONDUCTED UNDER PLANS OF OPERATIONS
3809.400  Does this subpart apply to my existing or pending plan of operations?
3809.401  Where do I file my plan of operations and what information must I include in it?
3809.411  What action will BLM take when it receives my plan of operations?
3809.412  When may I operate under a plan of operations?
3809.415  How do I prevent unnecessary or undue degradation while conducting operations on public lands?
3809.420  What performance standards apply to my notice or plan of operations?
3809.423  How long does my plan of operations remain in effect?
3809.424  What are my obligations if I stop conducting operations?
MODIFICATIONS OF PLANS OF OPERATIONS
3809.430  May I modify my plan of operations?
3809.431  When must I modify my plan of operations?
3809.432  What process will BLM follow in reviewing a modification of my plan of operations?
3809.433  Does this subpart apply to a new modification of my plan of operations?
3809.434  Does this subpart apply to my pending modification for a new facility?
3809.435  Does this subpart apply to my pending modification for an existing facility?
FINANCIAL GUARANTEE REQUIREMENTS--GENERAL
3809.500  In general, what are BLM's financial guarantee requirements?
3809.503  When must I post a financial guarantee for my notice-level operations?
3809.505  How do the financial guarantee requirements of this subpart apply to my existing plan of operations?
3809.551  What are my choices for providing BLM with a financial guarantee?
INDIVIDUAL FINANCIAL GUARANTEE
3809.552  What must my individual financial guarantee cover?
3809.553  May I post a financial guarantee for a part of my operations?
3809.554  How do I estimate the cost to reclaim my operations?
3809.555  What forms of individual financial guarantee are acceptable to BLM?
3809.556  What special requirements apply to financial guarantees described in §3809.555(e)?
BLANKET FINANCIAL GUARANTEE
3809.560  Under what circumstances may I provide a blanket financial guarantee?
STATE-APPROVED FINANCIAL GUARANTEE
3809.570  Under what circumstances may I provide a State-approved financial guarantee?
3809.571  What forms of State-approved financial guarantee are acceptable to BLM?
3809.572  What happens if BLM rejects a financial instrument in my State-approved financial guarantee?
3809.573  What happens if the State makes a demand against my financial guarantee?
MODIFICATION OR REPLACEMENT OF A FINANCIAL GUARANTEE
3809.580  What happens if I modify my notice or approved plan of operations?
3809.581  Will BLM accept a replacement financial instrument?
3809.582  How long must I maintain my financial guarantee?
RELEASE OF FINANCIAL GUARANTEE
3809.590  When will BLM release or reduce the financial guarantee for my notice or plan of operations?
3809.591  What are the limitations on the amount by which BLM may reduce my financial guarantee?
3809.592  Does release of my financial guarantee relieve me of all responsibility for my project area?
3809.593  What happens to my financial guarantee if I transfer my operations?
3809.594  What happens to my financial guarantee when my mining claim is patented?
FORFEITURE OF FINANCIAL GUARANTEE
3809.595  When will BLM initiate forfeiture of my financial guarantee?
3809.596  How does BLM initiate forfeiture of my financial guarantee?
3809.597  What if I do not comply with BLM's forfeiture notice?
3809.598  What if the amount forfeited will not cover the cost of reclamation?
3809.599  What if the amount forfeited exceeds the cost of reclamation?
INSPECTION AND ENFORCEMENT
3809.600   With what frequency will BLM inspect my operations?
3809.601  What type of enforcement action may BLM take if I do not meet the requirements of this subpart?
3809.602  Can BLM revoke my plan of operations or nullify my notice?
3809.603  How does BLM serve me with an enforcement action?
3809.604  What happens if I do not comply with a BLM order?
PENALTIES
3809.700  What criminal penalties apply to violations of this subpart?
3809.701  What happens if I make false statements to BLM?
3809.702  What civil penalties apply to violations of this subpart?
3809.703  Can BLM settle a proposed civil penalty?
APPEALS
3809.800  What appeal rights do I have?


Subpart 3809--Surface Management

AUTHORITY: 16 U.S.C. 1280; 30 U.S.C. 22; 30 U.S.C. 612; 43 U.S.C. 1201; and 43 U.S.C. 1732, 1733, 1740, 1781, and 1782.

GENERAL INFORMATION

§3809.001 What are the purposes of this subpart?

The purposes of this subpart are to:

   (a) Prevent unnecessary or undue degradation of public lands by operations authorized by the mining laws. Anyone intending to develop mineral resources on the public lands must prevent unnecessary or undue degradation of the land and reclaim disturbed areas. This subpart establishes procedures and standards to ensure that operators and mining claimants meet this responsibility; and

   (b) Provide for maximum possible coordination with appropriate State agencies to avoid duplication and to ensure that operators prevent unnecessary or undue degradation of public lands.

§3809.002 What is the scope of this subpart?

   (a) This subpart applies to all operations under the mining laws on public lands, including Stock Raising Homestead Lands, as provided in §3809.011(i), and Taylor Grazing Act lands, as provided in §3809.011(j), where the mineral interest is reserved to the United States.

   (b) This subpart does not apply to lands in the National Park System, National Forest System, and the National Wildlife Refuge System; acquired lands; lands leased or patented under the Recreation and Public Purposes Act; lands patented under the Small Tract Act; or lands administered by BLM that are under wilderness review, which are subject to subpart 3802 of this part.

   (c) This subpart applies to all patents issued after October 21, 1976 for mining claims in the California Desert Conservation Area, except for any patent for which a right to the patent vested before that date.

   (d) This subpart applies to operations that involve metallic minerals; some industrial minerals, such as gypsum; and a number of other non-metallic minerals that have a unique property which gives the deposit a distinct and special value. This subpart does not apply to leasable and salable minerals. Leasable minerals, such as coal, phosphate, sodium, and potassium; and salable minerals, such as common varieties of sand, gravel, stone, and pumice, are not subject to location under the mining laws. Parts 3400, 3500 and 3600 of this title govern mining operations for leasable and salable minerals.

§3809.003 What rules must I follow if State law conflicts with this subpart?

If State laws or regulations conflict with this subpart regarding operations on public lands, you must follow the requirements of this subpart. However, there is no conflict if the State law or regulation requires a higher standard of protection for public lands than this subpart.

§3809.005 How does BLM define certain terms used in this subpart?

As used in this subpart, the term:

Casual use means activities ordinarily resulting in no or negligible disturbance of the public land and resources. For example--

       (1) Casual use generally includes the collection of mineral specimens using hand tools, hand panning, and non-motorized sluicing.

       (2) Casual use does not include use of mechanized earth-moving equipment, truck-mounted drilling equipment, portable suction dredges, motorized vehicles in areas designated as closed to "off-road vehicles" as defined in §8340.0-5 of this title, chemicals, or explosives; "occupancy" as defined in §3715.0-5 of this title; or hobby or recreational mining in areas where the cumulative effects of the activities result in more than negligible disturbance.

Mining claim means any unpatented mining claim, millsite, or tunnel site located under the mining laws. The term also applies to those mining claims and millsites located in the California Desert Conservation Area that were patented after the enactment of the Federal Land Policy and Management Act of October 21, 1976. Mining "claimant" is defined in §3833.0-5 of this title.

Mining laws means the Lode Law of July 26, 1866, as amended (14 Stat. 251); the Placer Law of July 9, 1870, as amended (16 Stat. 217); and the Mining Law of May 10, 1872, as amended (17 Stat. 91); as well as all laws supplementing and amending those laws, including the Building Stone Act of August 4, 1892, as amended (27 Stat. 348); the Saline Placer Act of January 31, 1901 (31 Stat. 745); the Surface Resources Act of 1955 (30 U.S.C. 611-614); and the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).

Minimize means to reduce the adverse impact of an operation to the lowest practicable level. Where technically and economically feasible, "minimize" means that you must prevent the impact from occurring.

Mitigation, as defined in 40 CFR 1508.20, may include one or more of the following:

       (1) Avoiding the impact altogether by not taking a certain action or parts of an action;

       (2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation;

       (3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

       (4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and

       (5) Compensating for the impact by replacing, or providing substitute, resources or environments.

Most appropriate technology and practices (MATP) means equipment, devices, or methods that have demonstrable feasibility, success, and practicality in meeting the standards of this subpart. BLM determines whether the requirement to use MATP is met on a case-by-case basis during its review of a notice or plan of operations. MATP includes the use of equipment and procedures that are either proven or reasonably expected to be effective in a particular region or location. MATP does not require the use of the most expensive technology or practice if a less expensive technology or practice can meet the performance standards of §3809.420.

Operations means all functions, work, facilities, and activities on public lands in connection with prospecting, discovery and assessment work, development, extraction, and processing of mineral deposits locatable under the mining laws; reclamation of disturbed areas; and all other reasonably incident uses, whether on a mining claim or not, including the construction of roads, transmission lines, pipelines, and other means of access across public land for support facilities.

Operator means any person who manages, directs, or conducts operations at a project area under this subpart, including a parent entity or an affiliate who materially participates in such management, direction, or conduct. An operator on a particular mining claim may also be the mining claimant.

Person means any individual, firm, corporation, association, partnership, trust, consortium, joint venture, or any other entity conducting operations on public land.

Project area means the area of land upon which the operator conducts operations, including the area required for construction or maintenance of roads, transmission lines, pipelines, or other means of access by the operator.

Public lands, as defined in 43 U.S.C. 1702, means any land and interest in land owned by the United States within the several States and administered by the Secretary of the Interior through the BLM, without regard to how the United States acquired ownership, except--

       (1) Lands located on the Outer Continental Shelf; and

       (2) Lands held for the benefit of Indians, Aleuts, and Eskimos.

Reclamation means taking measures required by this subpart following disturbance of public land caused by operations to meet applicable performance standards and achieve post-mining conditions consistent with the land-use plan. Components of reclamation include:

       (1) Isolation, control, or removal of acid-forming, toxic, or deleterious substances;

       (2) Regrading and reshaping to conform with adjacent landforms, facilitate revegetation, control drainage, and minimize erosion;

       (3) Restoration of fisheries or wildlife habitat;

       (4) Placement of growth medium and establishment of self-sustaining revegetation;

       (5) Removal or stabilization of buildings, structures, or other support facilities;

       (6) Plugging of drill holes and closure of underground workings; and

       (7) Providing for post-mining monitoring, maintenance, or treatment.

For a definition of "reclamation" applicable to operations conducted under the mining laws on Stock Raising Homestead Act lands, see part 3810, subpart 3814 of this title.

Riparian area is a form of wetland transition between permanently saturated wetlands and upland areas. These areas exhibit vegetation or physical characteristics reflective of permanent surface or subsurface water influence. Typical riparian areas include lands along, adjacent to, or contiguous with perennially and intermittently flowing rivers and streams, glacial potholes, and the shores of lakes and reservoirs with stable water levels. Excluded are sites such as ephemeral streams or washes that do not exhibit the presence of vegetation dependent upon free water in the soil.

Tribe means, and Tribal refers to, a Federally recognized Indian tribe.

Unnecessary or undue degradation means conditions, activities, or practices that:

       (1) Fail to comply with one or more of the following: §3809.420 of this subpart, the terms and conditions of an approved plan of operations, operations described in a complete notice, and other Federal and State laws related to environmental protection and protection of cultural resources;

       (2) Are not "reasonably incident" to prospecting, mining, or processing operations as defined in §3715.0-5 of this title; or

       (3) Fail to attain a stated level of protection or reclamation required by specific laws in areas such as the California Desert Conservation Area, Wild and Scenic Rivers, BLM-administered portions of the National Wilderness System, and BLM-administered National Monuments and National Conservation Areas.

§3809.010 How does BLM classify operations?

BLM classifies operations as--

   (a) Casual use, for which an operator generally need not notify BLM;

   (b) Notice-level operations, for which an operator must submit a notice; and

   (c) Plan-level operations, for which an operator must submit a plan of operations and obtain BLM's approval.

§3809.011 When does BLM require that I submit a notice or a plan of operations?

To see when you must submit a notice or a plan of operations, follow this table:

If your operations . . . Then . . .

   (a) Consist of casual use, You do not need to notify BLM or seek permission to conduct operations. You must reclaim casual use operations. BLM may monitor your operations to ensure that unnecessary or undue degradation does not occur.

   (b) Consist of unreclaimed surface disturbance of 5 acres or less of public lands, You must give BLM a complete notice of your planned activities 15 business days before you plan to start operations. You have the option to file a plan of operations. You must not segment a project area by filing a series of notices solely to avoid filing a plan of operations. See §§3809.300 to 3809.336.

   (c) Consist of unreclaimed surface disturbance of more than 5 acres of public lands, You must submit a plan of operations and obtain BLM's approval before beginning operations. See §§3809.400 to 3809.435.

   (d) Cause any surface disturbance greater than casual use in the special status areas described in paragraph (k) of this section, You must submit a plan of operations and obtain BLM's approval. See §§3809.400 to 3809.435.

   (e) Involve any recreational mining activities by a group, such as a mining club, The group's representative must contact BLM 15 business days before initiating activities to find out if BLM will require the group to file a notice or a plan of operations.

   (f) Involve any leaching or storage, addition, or direct use of chemicals in milling, processing, beneficiation, or concentrating activities, You must submit a plan of operations and obtain BLM's approval. See §§3809.400 to 3809.435.

   (g) Require you to occupy or use a site for activities "reasonably incident" to mining, as defined in § 3715.0-5 of this title, Whether you are operating under a notice or a plan, you must also comply with part 3710, subpart 3715, of this title.

   (h) Involve the use of a portable suction dredge with an intake diameter of 4 inches or less, the State requires an authorization for its use, and BLM and the State have an agreement under §3809.201 addressing suction dredging, You need not submit a notice or plan of operations unless otherwise required by this section. For all other use of a suction dredge, you must submit to BLM either a notice or a plan of operations, whichever is applicable under this section.

   (i) Are located on lands patented under the Stock Raising Homestead Act and you do not have the written consent of the surface owner, You must submit a plan of operations and obtain BLM's approval. See part 3810, subpart 3814, of this title.

   (j) Are located on lands patented under the Taylor Grazing Act and you do not have the written consent of the surface owner, You must submit a plan of operations and obtain BLM's approval. See §§3809.400 to 3809.435.

   (k) The special status areas where BLM requires a plan of operations for all uses greater than casual use include:

       (1) Lands in the California Desert Conservation Area (CDCA) designated by the CDCA plan as "controlled" or "limited" use areas;

       (2) Areas in the National Wild and Scenic Rivers System, and areas designated for potential addition to the system;

       (3) Designated Areas of Critical Environmental Concern;

       (4) Areas designated as part of the National Wilderness Preservation System and administered by BLM;

       (5) Areas designated as "closed" to off-road vehicle use, as defined in §8340.0-5 of this title;

       (6) Any areas specifically identified in BLM land-use or activity plans where BLM has determined that a plan of operations is required to provide detailed review of project effects on unique, irreplaceable, or outstanding historical, cultural, recreational, or natural resource values, such as threatened or endangered species or their critical habitat;

       (7) National Monuments and National Conservation Areas administered by BLM; and

       (8) All areas segregated as part of a mineral withdrawal and all withdrawn areas, except for areas withdrawn under the Alaska Native Claims Settlement Act, the Alaska National Interest Lands Conservation Act, and the Alaska Statehood Act.

   (l) If your operations do not qualify as casual use, you must submit a notice or plan of operations, whichever is applicable.


"Forest Service" Alternative

§3809.011 When does BLM require that I submit a notice of intention to operate or a plan of operations?

To see when you must submit a notice of intention to operate or a plan of operations, follow this table:

If . . . Then . . .

   (a) Your proposed operations--

       (1) Are limited to the use of vehicles on existing public roads or roads used and maintained for BLM purposes;

       (2) Involve individuals desiring to search for and occasionally remove small mineral samples or specimens;

       (3) Consist of prospecting and sampling that will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study;

       (4) Are limited to marking and monumenting a mining claim;

       (5) Involve subsurface operations that will not cause significant surface resource disturbance; or

       (6) Do not involve the use of mechanized earthmoving equipment, such as a bulldozer or a backhoe, and will not involve the cutting of trees; You do not need to notify BLM or seek permission to conduct your operations. You must reclaim your operations, and BLM may monitor them to ensure that unnecessary or undue degradation does not occur.

   (b) You propose to conduct operations that--

       (1) Are not described in paragraph (a) of this section; and

       (2) Might cause disturbance of surface resources, You must file with BLM a complete notice of intention to operate 15 business days before you plan to start operations. See §§3809.300 to 3809.336.

   (c) After reviewing your notice of intention to operate, BLM determines that your operations are likely to cause significant disturbance of surface resources, You must submit a plan of operations and obtain BLM's approval. See §§3809.400 to 3809.435.

   (d) You always have the option to submit a plan of operations in lieu of the notice of intention to operate required under paragraph (b) of this section.

[End of alternative]


§3809.100 What special provisions apply to operations on segregated or withdrawn lands?

   (a) Mineral examination report. After the date on which the lands are segregated or withdrawn from appropriation under the mining laws, BLM will not approve a plan of operations until BLM has prepared a mineral examination report to determine whether the claim was valid before the segregation or withdrawal, and whether it remains valid. If the report concludes that the claim is invalid, BLM will not approve operations on the claim. BLM will also promptly initiate contest proceedings.

   (b) Allowable operations. If a mineral examination report for proposed operations on segregated or withdrawn lands concludes that a claim is invalid, or if there is a pending contest proceeding, BLM will--

       (1) Approve a plan of operations for the disputed claim proposing operations that are limited to taking samples to confirm or corroborate mineral exposures that are physically disclosed and existing on the mining claim before the segregation or withdrawal date, whichever is earlier. BLM also will approve a plan of operations for the operator to perform the minimum necessary annual assessment work under §3851.1 of this title; and

       (2) Allow operations under a notice when it is the minimum necessary to remove mineral samples to confirm and corroborate pre-existing exposures of a valuable mineral deposit discovered prior to the segregation or withdrawal date, whichever is earlier.

   (c) Time limits. While BLM prepares a mineral examination report under paragraph (a) of this section, it may suspend the time limit for responding to a notice or acting on a plan of operations. See §§3809.311 and 3809.411, respectively.

   (d) Final decision. If a final departmental decision declares a mining claim to be null and void, the operator must cease all operations, except required reclamation.

§3809.101 What special provisions apply to minerals that may be common variety minerals, such as sand, gravel, and building stone?

   (a) Mineral examination report. On mining claims located on or after July 23, 1955, you must not initiate operations for minerals that may be "common variety" minerals, as defined in §3711.1(b) of this title, until BLM has prepared a mineral examination report, except as provided in paragraph (b) of this section.

   (b) Interim authorization. Until the mineral examination report described in paragraph (a) of this section is prepared, BLM will allow notice-level operations or approve a plan of operations for the disputed claim for--

       (1) Operations limited to taking samples to confirm or corroborate mineral exposures that are physically disclosed and existing on the mining claim;

       (2) Performance of the minimum necessary annual assessment work under §3851.1 of this title; or

       (3) Operations to remove possible common variety minerals if you establish an escrow account in a form acceptable to BLM. You must make regular payments to the escrow account for the appraised value of possible common variety minerals removed under a payment schedule approved by BLM. The funds in the escrow account must not be disbursed to the operator or to the U.S. Treasury until a final determination of whether the mineral is a common variety and therefore salable under part 3600 of this title.

   (c) Determination of common variety. If the mineral examination report under paragraph (a) of this section concludes that the minerals are common variety minerals, you may either relinquish your mining claim(s) or BLM will initiate contest proceedings. Upon relinquishment or final departmental determination that the claim(s) is null and void, you must promptly close and reclaim your operations unless you are authorized to proceed under parts 3600 and 3610 of this title.

   (d) Disposal. BLM may dispose of common variety minerals from an unpatented mining claim with a written waiver from the mining claimant.

§3809.111 Public availability of information.

Part 2 of this title applies to all information and data you submit under this subpart. If you submit information or data under this subpart that you believe is exempt from disclosure, you must mark each page clearly "CONFIDENTIAL INFORMATION." You must also separate it from other materials you submit to BLM. BLM will keep confidential information or data marked in this manner to the extent required by part 2 of this title. If you do not mark the information as confidential, BLM, without notifying you, may disclose the information to the public to the full extent allowed under part 2 of this title.

§3809.115 Information collection.

   (a) The Office of Management and Budget has approved the collections of information contained in subpart 3809 under 44 U.S.C. 3501 et seq. and assigned clearance number 1004-____. BLM will use this information to regulate and monitor mining and exploration operations on public lands. Response to requests for information is mandatory in accordance with 43 U.S.C. 1701 et seq. The information collection approval expires _____________.

   (b) BLM estimates that the public reporting burden for this information averages __ hours per response for notices and __ hours per response for plans of operations. This includes reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer (783), Bureau of Land Management, Washington, D.C. 20240, and the Office of Management and Budget, Attention Desk Officer for the Interior Department, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, referring to information collection clearance number 1004-____.

§3809.116 As a mining claimant or operator, what are my responsibilities for my project area?

   (a) Mining claimants and operators (if other than the claimant) are jointly and severally liable for obligations under this subpart that accrued while they held their interests. Joint and several liability, in this context, means that the mining claimant and operator are responsible together and individually for obligations, such as reclaiming the project area. In the event obligations are not met, BLM may take action against either the mining claimant or the operator, or both.

   (b) Relinquishment of a mining claim does not relieve a mining claimant's or operator's responsibility under this subpart for obligations or conditions created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area.

   (c) Transfer of a mining claim or operation does not relieve a mining claimant's or operator's responsibility under this subpart for obligations or conditions created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area until--

       (1) BLM receives documentation that a transferee accepts responsibility, and

       (2) BLM accepts an adequate replacement financial guarantee.

FEDERAL/STATE AGREEMENTS

§3809.201 What kinds of agreements may BLM and a State make under this subpart?

To prevent unnecessary administrative delay and to avoid duplication of administration and enforcement, BLM and a State may make the following kinds of agreements:

   (a) An agreement to provide for a joint Federal/State program; and

   (b) An agreement under §3809.202 which provides that, in place of BLM administration, BLM defers to State administration of some or all of the requirements of this subpart.

§3809.202 Under what conditions will BLM defer to State regulation of mining operations?

   (a) State request. A State may request BLM enter into an agreement for State regulation of mining operations on public lands in place of BLM administration of some or all of the requirements of this subpart. The State must send the request to the BLM State Director with jurisdiction over public lands in the State.

   (b) BLM review. (1) When the State Director receives the State's request, he/she will notify the public and provide an opportunity for comment. The State Director will then review the request and determine whether the State's requirements are consistent with the requirements of this subpart, and whether the State has necessary legal authorities, resources, and funding for an agreement. The State requirements may be contained in laws, regulations, guidelines, policy manuals, and demonstrated permitting practices.

       (2) For the purposes of this subpart, BLM will determine consistency with the requirements of this subpart by comparing Federal and State standards on a provision-by-provision basis to determine--

           (i) Whether non-numerical State standards are functionally equivalent to Federal counterparts; and

           (ii) Whether numerical State standards, such as the 5-acre threshold for plans of operations, are the same as corresponding Federal standards, except that State review and approval time frames do not have to be the same as the corresponding Federal time frames.

       (3) A State environmental protection standard that exceeds a corresponding Federal standard is consistent with the requirements of this subpart.

   (c) State Director decision. The BLM State Director will notify the State in writing of his/her decision regarding the State's request. The State Director will address whether the State requirements are consistent with the requirements of this subpart, and whether the State has necessary legal authorities, resources, and funding to implement any agreement. If BLM determines that the State's requirements are consistent with the requirements of this subpart and the State has the necessary legal authorities, resources, and funding, BLM must enter into an agreement with the State so that the State will regulate some or all of the mining operations on public lands, as described in the State request.

   (d) Appeal of State Director decision. The BLM State Director's decision will be a final decision of BLM and may be appealed to the Assistant Secretary for Land and Minerals Management, but not to the Department of the Interior Office of Hearings and Appeals. See §3809.800(c) for the items you should include in the appeal.

§3809.203 What are the limitations on BLM deferral to State regulation of mining operations?

Any agreement between BLM and a State in which BLM defers to State regulation of some or all mining operations on public lands is subject to the following limitations:

   (a) Plans of Operations. BLM must concur independently with each State decision approving a plan of operations to assure compliance with this subpart, and BLM retains responsibility for compliance with the National Environmental Policy Act (NEPA). The State and BLM may decide who will be the lead agency in the plan review process, including preparation of NEPA documents.

   (b) Federal land-use planning and other Federal laws. BLM will continue to be responsible for all land-use planning on public lands and for implementing other Federal laws relating to the public lands for which BLM is responsible.

   (c) Federal enforcement. BLM may take any authorized action to enforce the requirements of this subpart or any term, condition, or limitation of a notice or an approved plan of operations. BLM may take this action regardless of the nature of its agreement with a State, or actions taken by a State.

   (d) Financial guarantee. The amount of the financial guarantee must be calculated based on the completion of both Federal and State reclamation requirements, but may be held as one instrument. If the financial guarantee is held as one instrument, it must be redeemable by both the Secretary and the State. BLM must concur in the approval and release of a financial guarantee for public lands.

   (e) State performance. If BLM determines that a State is not in compliance with all or part of its Federal/State agreement, BLM will notify the State and provide a reasonable time for the State to comply. If a State does not comply, BLM will take appropriate action, which may include termination of all or part of the agreement. Either BLM or a State may terminate an agreement by notifying the other 60 days in advance.

§3809.204 Does this subpart cancel an existing agreement between BLM and a State?

No. A Federal/State agreement or memorandum of understanding in effect on (Insert effective date of the final rule.) will continue while BLM and the State perform a review to determine whether revisions are required under this subpart. BLM and the State must complete the review and make necessary revisions no later than one year from (Insert effective date of the final rule.)

OPERATIONS CONDUCTED UNDER NOTICES

§3809.300 Does this subpart apply to my existing notice-level operations?

To see how this subpart applies to your operations conducted under a notice and existing on (Insert effective date of the final rule.), follow this table:

If you are conducting operations under a notice filed before (Insert effective date of the final rule.) and . . . Then . . .

   (a) You are the operator identified in the notice on file with BLM on (Insert effective date of the final rule.), You may conduct operations under the terms of your existing notice and within your existing project area for 2 years after (Insert effective date of the final rule.), or longer if your notice is extended under §3809.333.

   (b) You are a new operator, that is, you were not the operator identified in the notice on file with BLM on (Insert effective date of the final rule.), You must conduct operations under the provisions of this subpart, including §3809.320 for 2 years after (Insert effective date of the final rule.), unless extended under §3809.333.

   (c) Your notice has expired, You may not conduct operations under an expired notice. You must reclaim your project area immediately or promptly submit a new notice under §3809.301.

§3809.301 Where do I file my notice and what information must I include in it?

   (a) If you qualify under §3809.011, you must file your notice with the local BLM office with jurisdiction over the lands involved. BLM does not require that the notice be on a particular form.

   (b) To be complete, your notice must include the following information:

       (1) Operator Information. The name, mailing address, phone number, social security number or corporate identification number of the operator(s), and the BLM serial number(s) of any unpatented mining claim(s) where the disturbance would occur. If the operator is a corporation, you must identify one individual as the point of contact;

       (2) Activity Description, Map, and Schedule of Activities. A description of the proposed activity with a level of detail appropriate to the type, size, and location of the activity. The description must include the following:

           (i) The measures that you will take to prevent unnecessary or undue degradation during operations;

           (ii) A map showing the location of your project area in sufficient detail for BLM to be able to find it and the location of access routes you intend to use, improve, or construct;

           (iii) A description of the type of equipment you intend to use; and

           (iv) A schedule of activities, including the date when you will begin operations and the date by which you will complete reclamation;

       (3) Reclamation Plan. A description of how you will complete reclamation to the standards described in §3809.420; and

       (4) Reclamation cost estimate. An estimate of the cost to fully reclaim your operations as required by §3809.552; and

   (c) BLM may require you to provide additional information, if necessary to ensure that your operations will comply with this subpart.

   (d) You must notify BLM in writing within 30 days of any change of operator or corporate point of contact, or of the mailing address of the operator or corporate point of contact.

§3809.311 What action does BLM take when it receives my notice?

   (a) Upon receipt of your notice, BLM will review it within 15 business days to see if it is complete under §3809.301.

   (b) If your notice is incomplete, BLM will inform you in writing of the additional information you must submit. BLM may also take the actions described in §3809.313.

   (c) BLM will review your additional information within 15 business days to ensure it is complete. BLM will repeat this process until your notice is complete.

§3809.312 When may I begin operations after my notice is complete?

You may begin operations 15 business days after your notice to BLM is complete, or earlier if BLM notifies you, except as provided in §3809.313. This subpart does not require BLM to approve your notice. Your operations may be subject to BLM approval under part 3710, subpart 3715, of this title relating to use or occupancy of unpatented mining claims.

§3809.313 Under what circumstances may I not begin operations 15 business days after filing my notice?

To see when you may not begin operations 15 business days after filing your notice, follow this table:

If BLM reviews your notice and, within 15 business days, . . . Then . . .

   (a) Notifies you that BLM needs additional time, not to exceed 15 business days, to complete its review, You must not begin operations until the additional review time period ends.

   (b) Notifies you that if you do not modify your notice, your operations will likely cause unnecessary or undue degradation, You must not begin operations until you modify your notice to ensure that your operations prevent unnecessary or undue degradation.

   (c) Requires you to consult with BLM about the location of existing or proposed access routes, You must not begin operations until you consult with BLM and satisfy BLM's concerns about access.

   (d) Determines that an on-site visit is necessary, You must not begin operations until BLM visits the site, and you satisfy any concerns arising from the visit.

   (e) BLM determines you don't qualify under §3809.011 as a notice-level operation, You must file a plan of operations before beginning operations. See §§3809.400 through 3809.420.

§3809.320 Which performance standards apply to my notice-level operations?

Your notice-level operations must meet all applicable performance standards of §3809.420.

§3809.330 May I modify my notice?

   (a) Yes, you may submit a notice modification at any time during operations under a notice.

   (b) BLM will review your notice modification the same way it reviewed your initial notice under §§3809.311 and 3809.313.

§3809.331 Under what conditions must I modify my notice?

   (a) You must modify your notice--

       (1) If BLM requires you to do so to prevent unnecessary or undue degradation; or

       (2) If you plan to make material changes to your operations. Material changes include the addition of lands up to the threshold described in §3809.011, undertaking new drilling or trenching activities, or changing reclamation.

   (b) You must submit your notice modification 15 business days before making any material changes. If BLM determines your notice modification is complete before the 15-day period has elapsed, BLM may notify you to proceed. When BLM requires you to modify your notice, it may also notify you to proceed before the 15-day period has elapsed to prevent unnecessary or undue degradation.

§3809.332 How long does my notice remain in effect?

If you filed your notice on or after (Insert effective date of the final rule.), it remains in effect for 2 years, unless extended under §3809.333, or unless you notify BLM beforehand that operations have ceased and reclamation is complete. BLM will conduct an inspection to verify whether you have met your obligations, will notify you promptly in writing, and terminate your notice, if appropriate.

§3809.333 May I extend my notice, and, if so, how?

Yes. If you wish to conduct operations for 2 additional years after the expiration date of your notice, you must notify BLM in writing on or before the expiration date. You may extend your notice more than once.

§3809.334 What if I temporarily stop conducting operations under a notice?

   (a) If you stop conducting operations for any period of time, you must--

       (1) Maintain public lands within the project area, including structures, in a safe and clean condition;

       (2) Take all steps necessary to prevent unnecessary or undue degradation; and

       (3) Maintain an adequate financial guarantee.

   (b) If the period of non-operation is likely to cause unnecessary or undue degradation, BLM will--

       (1) Require you to take all steps necessary to prevent unnecessary or undue degradation; and

       (2) Require you, after an extended period of non-operation for other than seasonal operations, to remove all structures, equipment, and other facilities and reclaim the project area.

§3809.335 What happens when my notice expires?

   (a) When your notice expires, you must--

       (1) Cease operations, except reclamation; and

       (2) Complete reclamation promptly according to your notice.

   (b) Your reclamation obligations continue beyond the expiration or any termination of your notice until you satisfy them.

§3809.336 What if I abandon my notice-level operations?

   (a) BLM may consider your operations to be abandoned if, for example, you leave inoperable or non-mining related equipment in the project area, remove equipment and facilities from the project area other than for purposes of completing reclamation according to your reclamation plan, do not maintain the project area, discharge local workers, or there is no sign of activity in the project area over time.

   (b) If BLM determines that you abandoned your operations without completing reclamation, BLM may, in accord with any applicable State memorandum of understanding, initiate forfeiture under §3809.595. If the amount of the financial guarantee is inadequate to cover the cost of reclamation, BLM may complete the reclamation, and the operator and all other responsible persons are liable for the cost of reclamation.

§3809.400 Does this subpart apply to my existing or pending plan of operations?

To see how this subpart applies to your existing or pending plan of operations, follow this table:

If you submitted your plan of operations to BLM before (Insert effective date of final rule.), and . . . Then . . .

   (a) BLM approved your plan of operations before that date, The performance standards of this subpart (§3809.420) do not apply to your existing plan of operations. The performance standards in effect at the time BLM approved your plan of operations continue to apply. All other provisions of this subpart apply to your plan of operations. See §3809.505 for applicability of financial guarantee requirements.

   (b) BLM made an environmental assessment or a draft environmental impact statement available to the public before that date, The plan content requirements (43 CFR 3809.1-5) and performance standards (43 CFR 3809.1-3(d) and 3809.2-2) that were in effect immediately before (Insert effective date of final rule.) apply to your plan of operations. All provisions of this subpart, except §§3809.401 and 3809.420, apply to your plan of operations.

   (c) BLM has not yet made an environmental assessment or a draft environmental impact statement available to the public, All provisions of this subpart apply to your plan of operations.

   (d) If you want this subpart to apply to any existing plan of operations, where not otherwise required, you may choose to have this subpart apply.

§3809.401 Where do I file my plan of operations and what information must I include in it?

   (a) If you are required to file a plan of operations under §3809.011, you must file it with the local BLM field office with jurisdiction over the lands involved. BLM does not require that the plan be on a particular form.

   (b) Operators or mining claimants must demonstrate that the proposed operations would not result in unnecessary or undue degradation of public lands. Your plan of operations must describe fully the proposed activity and contain the following information with a level of detail appropriate to the type, size, and location of the planned activity:

       (1) Operator Information. The name, mailing address, phone number, social security number or corporate identification number of the operator(s), and the BLM serial number(s) of any unpatented mining claim(s) where disturbance would occur. If the operator is a corporation, you must identify one individual as the point of contact;

       (2) Description of Operations. A detailed description of the equipment, devices, or practices you propose to use during operations including, where applicable--

           (i) maps and cross-sections of the project area at an appropriate scale showing the location of exploration activities, drill sites, structures or buildings, and access routes;

           (ii) location, design, and operating plans for mine facilities and processing facilities;

           (iii) water management plans;

           (iv) waste characterization and handling plans;

(v) quality assurance plans;

           (vi) spill contingency plans;

           (vii) a general schedule of operations from start through closure; and

           (viii) plans for all access roads and power or utility services;

       (3) Reclamation Plan. A plan for reclamation to meet the standards in §3809.420, with a detailed description of the equipment, devices, or practices you propose to use including, where applicable, plans for--

           (i) drill-hole plugging;

           (ii) regrading and reshaping;

           (iii) mine reclamation;

           (iv) riparian mitigation;

(v) wildlife habitat rehabilitation;

           (vi) topsoil handling;

           (vii) revegetation;

           (viii) isolation and control of acid, toxic or deleterious materials;

           (ix) facilities removal; and

           (x) post-closure management;

       (4) Monitoring Plan. A plan for monitoring the effect of your operations. You must design monitoring plans to meet the following objectives: to demonstrate compliance with the approved plan of operations and other Federal or State environmental laws and regulations, to provide early detection of potential problems, and to supply information that will assist in directing corrective actions should they become necessary. Where applicable, you must include in monitoring plans details on type and location of monitoring devices, sampling parameters and frequency, analytical methods, reporting procedures, and procedures to respond to adverse monitoring results. Examples of monitoring programs which may be necessary include surface- and ground-water quality and quantity, air quality, revegetation, stability, noise levels, and wildlife mortality;

       (5) Reclamation cost estimate. An estimate of the cost to fully reclaim your operations as required by §3809.552; and

       (6) Information concerning non-public lands. Information concerning activities and impacts on non-public lands if BLM needs the information to analyze your plan of operations.

   (c) In addition to the requirements of paragraph (b) of this section, BLM may require you to supply operational and baseline environmental information for BLM to analyze potential environmental impacts as required by the National Environmental Policy Act. BLM will also use this information to determine if your plan of operations will prevent unnecessary or undue degradation. This could include information needed to characterize the geology, hydrology, soils, vegetation, wildlife, air quality, cultural resources, and socioeconomic conditions in and around the project area. This may also include requiring static and kinetic testing to characterize the potential for your operations to produce acid drainage or other leachate. BLM can advise you on the exact type of information and level of detail needed to meet these requirements.

   (d) BLM may require you to provide additional information, if necessary to ensure that your operations will comply with this subpart.

   (e) You must notify BLM in writing within 30 days of any change of operator or corporate point of contact or in the mailing address of the operator or corporate point of contact.

§3809.411 What action will BLM take when it receives my plan of operations?

   (a) BLM will review your plan of operations within 30 business days and will notify you that--

       (1) BLM approves your plan of operations as submitted (See part 3810, subpart 3814, of this title for specific plan-related requirements applicable to operations on Stock Raising Homestead Act lands.);

       (2) Your plan does not contain a complete description of the proposed operations under §3809.401. BLM will identify deficiencies that you must address before BLM can continue processing your plan of operations. If necessary, BLM may repeat this process until your plan of operations is complete;

       (3) BLM approves your plan subject to changes or conditions that are necessary to meet the performance standards of §3809.420;

       (4) The description of the proposed operations is complete, but BLM cannot approve the plan until certain additional steps are completed, including one or more of the following:

           (i) You complete collection of adequate baseline data;

           (ii) BLM completes the environmental review, required under the National Environmental Policy Act;

           (iii) BLM completes the consultation required under the National Historic Preservation Act or Endangered Species Act;

           (iv) BLM or the Department of the Interior completes other Federal responsibilities, such as Native American consultation;

(v) BLM conducts an on-site visit;

           (vi) BLM completes review of public comments on the amount of the financial guarantee;

           (vii) For public lands where BLM does not have responsibility for managing the surface, BLM consults with the surface-managing agency; and

           (viii) In cases where the surface is owned by a non-Federal entity, BLM consults with the surface owner; or

       (5) BLM disapproves your plan of operations under paragraph (c) of this section.

   (b) Pending final approval of your plan of operations, BLM may approve any operations that may be necessary for timely compliance with requirements of Federal and State laws, subject to any terms and conditions that may be needed to prevent unnecessary or undue degradation.

   (c) BLM must disapprove, or withhold approval of, a plan of operations if it--

       (1) Does not meet the content requirements of §3809.401;

       (2) Proposes operations that are in an area segregated or withdrawn from the operation of the mining laws, unless the requirements of §3809.100 are met; or

       (3) Proposes operations that would result in unnecessary or undue degradation of public lands.

   (d) Before BLM approves your plan of operations, it will publish in a local newspaper of general circulation and accept comments for 30 days on the amount of financial guarantee required and an explanation of the basis for the amount. Detailed calculations will remain part of the record, subject to public inspection.

§3809.412 When may I operate under a plan of operations?

You must not begin operations until BLM approves your plan of operations and you provide the financial guarantee required under §3809.552.

§3809.415 How do I prevent unnecessary or undue degradation while conducting operations on public lands?

You prevent unnecessary or undue degradation while conducting operations on public lands by--

   (a) Complying with §3809.420, as applicable; the terms and conditions of your approved plan of operations; the operations described in your notice; and other Federal and State laws related to environmental protection and protection of cultural resources;

   (b) Assuring that your operations are "reasonably incident," as defined in §3715.0-5 of this title; and

   (c) Attaining the stated level of protection or reclamation required by specific laws in areas such as the California Desert Conservation Area, Wild and Scenic Rivers, BLM-administered portions of the National Wilderness System, and BLM-administered National Monuments and National Conservation Areas.

§3809.420 What performance standards apply to my notice or plan of operations?

The following performance standards apply to your notice or plan of operations:

   (a) General performance standards.

       (1) Technology and practices. You must use MATP to meet the standards of this subpart.

       (2) Sequence of operations. You must avoid unnecessary impacts by following a reasonable and customary mineral exploration, development, mining and reclamation sequence.

       (3) Land-use plans. Consistent with the mining laws, your operations and post-mining land use must comply with the applicable BLM land-use plans and activity plans, and with coastal zone management plans under 16 U.S.C. 1451, as appropriate.

       (4) Mitigation. You must take mitigation measures specified by BLM to protect the public lands.

       (5) Concurrent reclamation. You must initiate and complete reclamation at the earliest feasible time on those portions of the disturbed area that you will not disturb further.

   (b) Environmental performance standards.

       (1) Air quality. Your operations must comply with applicable Federal, Tribal, and State laws and requirements.

       (2) Water. You must conduct operations to minimize water pollution (source control) in preference to water treatment. You must conduct operations to minimize changes in water quantity in preference to water supply replacement. Your operations must comply with State water law with respect to water use and water quality.

           (i) Surface water. (A) Releases to surface waters must comply with applicable Federal, Tribal, and State laws and requirements.

   (b) You must handle earth materials and water in a manner that minimizes the formation of acidic, toxic, or other deleterious pollutants of surface water systems.

   (c) You must manage excavations and other disturbances to prevent or control the discharge of pollutants into surface waters.

           (ii) Ground water. (A) Ground water affected by your operations must comply with State standards and other applicable requirements.

   (b) You must handle earth materials and water in a manner that minimizes the formation of acidic, toxic, or other deleterious infiltration to ground water systems and manage excavations and other disturbances to minimize the discharge of pollutants into ground water.

   (c) You must conduct operations affecting ground water, such as dewatering, pumping, and injecting, to minimize impacts on surface and other natural resources, such as wetlands, riparian areas, aquatic habitat, and other features that are dependent on ground water.

       (3) Wetlands and riparian areas.            (i) You must avoid locating operations in wetlands and riparian areas where possible, minimize impacts on wetlands and riparian areas that your operations cannot avoid, and mitigate damage to wetlands and riparian areas that your operations impact.

           (ii) Where feasible, you must return disturbed wetlands and riparian areas to a properly functioning condition. Wetlands and riparian areas are functioning properly when adequate vegetation, land form, or large woody debris is present to dissipate stream energy associated with high water flows, thereby reducing erosion and improving water quality; filter sediment, capture bedload, and aid floodplain development; improve floodwater retention and ground-water recharge; develop root masses that stabilize streambanks against cutting action; develop diverse ponding and channel characteristics to provide the habitat and water depth, duration, and temperature necessary for fish production, waterfowl breeding, and other uses, and support greater biodiversity.

           (iii) You must take appropriate mitigation measures, such as restoration or replacement, if your operations cause the loss of wetland or riparian areas or the diminishment of their proper functioning condition.

           (iv) Impacts to wetlands under the jurisdiction of the U.S. Army Corps of Engineers (COE) and other waters of the United States must be mitigated in accordance with COE requirements.

       (4) Soil and growth material.            (i) You must remove, segregate, and preserve topsoil, or where more feasible other suitable growth material, to minimize erosion and sustain revegetation when reclamation begins.

           (ii) To preserve soil viability and promote concurrent reclamation, you must directly transport topsoil from its original location to the point of reclamation without intermediate stockpiling, where feasible.

       (5) Revegetation. You must--

           (i) Revegetate disturbed lands by establishing a stable and long-lasting vegetative cover that is self-sustaining and, considering successional stages, will result in cover that is--

   (a) Comparable in both diversity and density to pre-existing natural vegetation of the surrounding area; or

   (b) Compatible with the approved BLM land-use plan or activity plan;

           (ii) Take all reasonable steps to prevent the introduction of noxious weeds and to limit or reduce any existing infestations;

           (iii) Use native species to the extent feasible;

           (iv) Achieve success over the time frame approved by BLM; and

(v) Where you demonstrate revegetation is not achievable under this paragraph, you must use other techniques to prevent erosion and stabilize the project area, subject to BLM approval.

       (6) Fish and wildlife.            (i) You must minimize disturbances and adverse impacts on fish, wildlife, and related environmental values.

           (ii) You must take any necessary action to comply with the Endangered Species Act with respect to threatened or endangered species and their habitat that may be affected by your operations.

           (iii) You must take any necessary action to minimize the adverse effects of your operations, including access, on BLM-defined special status species.

           (iv) You must rehabilitate fisheries and wildlife habitat affected by your operations.

       (7) Cultural, paleontologic, and cave-related resources.            (i) You may knowingly disturb, alter, injure, or destroy any scientifically important paleontologic remains or any historic, archaeologic, or speleologic (cave-related) site, structure, building, resource, or object only if --

   (a) You identify the resource in your notice or plan of operations;

   (b) You propose action to protect, remove or preserve the resource; and

   (c) BLM specifically authorizes such action in your plan of operations, or does not prohibit such action under your notice.

           (ii) You must immediately bring to BLM's attention any historic, archaeologic, speleologic, or scientifically important paleontologic resources that might be altered or destroyed by your operations. You must leave the discovery intact until BLM authorizes you to proceed. BLM will evaluate the discovery and take action to protect, remove, or preserve the resource within 20 business days after you notify BLM of the discovery, unless otherwise agreed to by the operator and BLM, or unless otherwise provided by law.

           (iii) BLM has the responsibility for determining who bears the cost of the investigation, recovery, and preservation of discovered historic, archaeologic, speleologic, and paleontologic resources, or of any human remains and associated funerary objects. The operator must bear the cost of the investigation and recovery, unless BLM determines otherwise.

   (c) Operational performance standards.

       (1) Roads and structures.            (i) You must design, construct, and maintain roads and structures to control or prevent erosion, siltation, and air pollution and minimize impacts to resources.

           (ii) You must minimize surface disturbance, using existing access where feasible, while maintaining safe design, following natural contour where feasible, and minimizing cut and fill.

           (iii) When commercial hauling on an existing BLM road is involved, BLM may require you to make appropriate arrangements for use, maintenance, and safety.

           (iv) You must remove and reclaim roads and structures according to BLM land-use plans and activity plans, unless retention is approved by BLM.

       (2) Drill holes.            (i) You must not allow drilling fluids and cuttings to flow off the drill site.

           (ii) You must plug all exploration drill holes to prevent mixing of waters from aquifers, impacts to beneficial uses, downward water loss, or upward water loss from artesian conditions.

           (iii) You must conduct surface plugging to prevent direct inflow of surface water into the drill hole and to eliminate the open hole as a hazard.

       (3) Acid-forming, toxic, or other deleterious materials. You must incorporate identification, handling, and placement of potentially acid-forming, toxic or other deleterious materials into your operations, facility design, reclamation, and environmental monitoring programs to minimize the formation and impacts of acidic, alkaline, metal-bearing, or other deleterious leachate, including the following:

           (i) You must handle, place, or treat potentially acid-forming, toxic, or other deleterious materials in a manner that minimizes the likelihood of acid formation and toxic and other deleterious leachate generation (source control);

           (ii) If you cannot prevent the formation of acid, toxic, or other deleterious drainage, you must minimize uncontrolled migration of leachate; and

           (iii) You must capture and treat acid drainage, or other undesirable effluent, to the applicable standard if source controls and migration controls do not prove effective. You are responsible for any costs associated with water treatment or facility maintenance after project closure. Long-term, or post-mining, effluent capture and treatment are not acceptable substitutes for source control, and you may rely on them only after all reasonable source control methods have been employed.

       (4) Leaching Operations and Impoundments.            (i) You must design, construct, and operate all leach pads, tailings impoundments, ponds, and solution-holding facilities according to standard engineering practices to achieve and maintain stability and facilitate reclamation.

           (ii) You must construct a low-permeability liner or containment system that will minimize the release of leaching solutions to the environment. You must monitor to detect potential releases of contaminants from heaps, process ponds, tailings impoundments, and other structures and remediate environmental impacts if leakage occurs.

           (iii) You must design, construct, and operate cyanide or other leaching facilities and impoundments to contain precipitation from the local 100-year, 24-hour storm event in addition to the maximum process solution inventory. You must also include allowances for snowmelt events and draindown from heaps during power outages in the design.

           (iv) You must construct a secondary containment system around vats, tanks, or recovery circuits adequate to prevent the release of toxic solutions to the environment in the event of primary containment failure.

           (v) You must exclude access by the public, wildlife, or livestock to solution containment and transfer structures that contain lethal levels of cyanide or other solutions.

           (vi) During closure and at final reclamation, you must detoxify leaching solutions and heaps and manage tailings or other process waste to minimize impacts to the environment from contact with toxic materials or leachate. Acceptable practices include natural degradation, rinsing, chemical treatment, or equally successful alternative methods to detoxify solutions and materials. Upon completion of reclamation, all materials and discharges must meet applicable standards.

           (vii) In cases of temporary or seasonal closure, you must provide adequate maintenance, monitoring, security, and financial guarantee, and BLM may require you to detoxify process solutions.

       (5) Waste rock, tailings, and leach pads. You must locate, design, construct, operate, and reclaim waste rock, tailings, and leach pads to minimize infiltration and contamination of surface water and ground water; achieve stability; and, to the extent feasible, blend with pre-mining, natural topography.

       (6) Stability, grading and erosion control.            (i) You must grade or otherwise engineer all disturbed areas to a stable condition to minimize erosion and facilitate revegetation.

           (ii) You must recontour all areas to blend with pre-mining, natural topography to the extent feasible. You may temporarily retain a highwall or other mine workings in a stable condition to preserve evidence of mineralization.

           (iii) You must minimize erosion during all phases of operations.

       (7) Pit reclamation.            (i) You must partially or fully backfill pits unless you demonstrate to BLM's satisfaction it is not feasible for economic, environmental, or safety reasons.

           (ii) You must take appropriate mitigation measures if you do not completely backfill a pit or other disturbance.

           (iii) Water quality in pits and other water impoundments must comply with applicable Federal, State, and Tribal standards. Where no standards exist, you must take measures to protect wildlife, domestic livestock, and public water supplies and users.

       (8) Solid waste.            (i) You must comply with applicable Federal and State standards for the disposal and treatment of solid waste, including regulations issued under the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.).

           (ii) To the extent feasible, you must remove from the project area, dispose of, or treat all garbage, refuse, or waste to minimize their impact.

       (9) Fire prevention and control. You must comply with all applicable Federal and State fire laws and regulations, and take all reasonable measures to prevent and suppress fires in the project area.

       (10) Maintenance and public safety. During all operations and after mining--

           (i) You must maintain structures, equipment, and other facilities in a safe and orderly manner;

           (ii) You must mark by signs or fences, or otherwise identify hazardous sites or conditions resulting from your operations to alert the public in accord with applicable Federal and State laws and regulations; and

           (iii) You must restrict unaccompanied public access to portions of your operations that present a hazard to the public, consistent with §3809.600 and §3712.1 of this title.

       (11) Protection of survey monuments.            (i) To the extent feasible, you must protect all survey monuments, witness corners, reference monuments, bearing trees, and line trees against damage or destruction.

           (ii) If you damage or destroy a monument, corner, or accessory, you must immediately report the matter to BLM. BLM will tell you in writing how to restore or re-establish a damaged or destroyed monument, corner, or accessory.

§3809.423 How long does my plan of operations remain in effect?

Your plan of operations remains in effect as long as you are conducting operations, unless BLM suspends or revokes your plan of operations for failure to comply with this subpart.

§3809.424 What are my obligations if I stop conducting operations?

   (a) To see what you must do if you stop conducting operations, follow this table:

If . . . Then . . .

       (1) You stop conducting operations for any period of time, You must--

           (i) Maintain the project area, including structures, in a safe and clean condition;

           (ii) Take all necessary actions to assure that unnecessary or undue degradation does not occur, including those specified at §3809.420(c)(4)(vii); and

           (iii) Maintain an adequate financial guarantee.

       (2) The period of non-operation is likely to cause unnecessary or undue degradation, BLM will require you to take all necessary actions to assure that unnecessary or undue degradation does not occur, including requiring you, after an extended period of non-operation for other than seasonal operations, to remove all structures, equipment, and other facilities and reclaim the project area.

       (3) Your operations are inactive for 5 consecutive years, BLM will review your operations and determine whether BLM should terminate your plan of operations and direct final reclamation and closure.

       (4) BLM determines that you abandoned your operations, BLM may, in accord with any applicable State memorandum of understanding, initiate forfeiture under §3809.595. If the amount of the financial guarantee is inadequate to cover the costs of reclamation, BLM may complete the reclamation, and the operator and all other responsible persons are liable for the costs of such reclamation. See §3809.336(a) for indicators of abandonment.

   (b) Your reclamation and closure obligations continue until satisfied.

MODIFICATIONS OF PLANS OF OPERATIONS

§3809.430 May I modify my plan of operations?

Yes. You may request a modification of the plan at any time during operations under an approved plan of operations.

§3809.431 When must I modify my plan of operations?

   (a) You must modify your plan of operations to reflect proposed operations not described in the approved plan; and

   (b) You must modify your plan of operations when required by BLM to prevent unnecessary or undue degradation.

§3809.432 What process will BLM follow in reviewing a modification of my plan of operations?

   (a) BLM will review and approve a modification of your plan of operations in the same manner as it reviewed and approved your initial plan under §§3809.401 through 3809.420; or

   (b) BLM will accept the modification without formal approval if it does not constitute a substantive change and does not require additional analysis under the National Environmental Policy Act.

§3809.433 Does this subpart apply to a new modification of my plan of operations?

To see how this subpart applies to a new modification of your plan of operations, see the following table. A "new" modification is one that you submit to BLM after this subpart becomes effective:

If you have an approved plan of operations on (Insert effective date of the final rule.) and . . .

Then . . .

   (a) New facility. You subsequently propose to modify your plan of operations by constructing a new facility, such as waste rock repository, leach pad, impoundment, drill site, or road, The plan contents requirements (§3809.401) and performance standards (§3809.420) of this subpart apply to the new facility. Those facilities and areas not included in the modification may continue to operate under the terms of your existing plan of operations.

   (b) Existing facility. You subsequently propose to modify your plan of operations by modifying an existing facility, such as expansion of a waste rock repository, leach pad, or impoundment; layback of a mine pit; or widening of a road, The plan contents requirements (§3809.401) and performance standards (§3809.420) of this subpart apply to the modified facility, unless you demonstrate to BLM's satisfaction it is not feasible to apply them for environmental, safety, or technical reasons. If you make the demonstration, the plan content requirements (43 CFR 3809.1-5) and performance standards (43 CFR 3809.1-3(d) and 3809.2-2) that were in effect immediately before (Insert effective date of final rule.) apply to your plan of operations. Those facilities and areas not included in the modification may continue to operate under the terms of your existing plan of operations.

§3809.434 Does this subpart apply to a pending modification for a new facility?

To see how this subpart applies to a pending modification for a new facility, see the following table. A "pending" modification is one that you submitted to BLM before this subpart became effective, and BLM has not yet approved it.

If you have an approved plan of operations on (Insert effective date of the final rule.) and before that date, you submitted to BLM a proposed modification to construct a new facility, such as waste rock repository, leach pad, impoundment, drill site, or road and . . . Then . . .

   (a) BLM made an environmental assessment or a draft environmental impact statement available to the public before that date, The plan content requirements (43 CFR 3809.1-5) and performance standards (43 CFR 3809.1-3(d) and 3809.2-2) that were in effect immediately before (Insert effective date of final rule.) apply to the new facility. Those facilities and areas not included in the modification may continue to operate under the terms of your existing plan of operations.

   (b) BLM has not yet made an environmental assessment or a draft environmental impact statement available to the public, All provisions of this subpart apply to the modified facility. Those facilities and areas not included in the modification may continue to operate under the terms of your existing plan of operations.

§3809.435 Does this subpart apply to my pending modification for an existing facility?

To see how this subpart applies to your pending modification for an existing facility, follow this table:

If you have an approved plan of operations on (Insert effective date of the final rule.) and before that date, you submitted to BLM a proposed modification of an existing facility, such as expansion of a waste rock repository, leach pad, or impoundment; layback of a mine pit; or widening of a road, and . . . Then . . .

   (a) BLM made an environmental assessment or a draft environmental impact statement available to the public before that date, The plan content requirements (43 CFR 3809.1-5) and performance standards (43 CFR 3809.1-3(d) and 3809.2-2) that were in effect immediately before (Insert effective date of final rule.) apply to the new facility. Those facilities and areas not included in the modification may continue to operate under the terms of your existing plan of operations.

   (b) BLM has not yet made an environmental assessment or a draft environmental impact statement available to the public, The plan contents requirements (§3809.401) and performance standards (§3809.420) of this subpart apply to the modified facility, unless you demonstrate to BLM's satisfaction it is not feasible to apply them for environmental, safety, or technical reasons. If you make the demonstration, the plan content requirements (43 CFR 3809.1-5) and performance standards (43 CFR 3809.1-3(d) and 3809.2-2) that were in effect immediately before (Insert effective date of final rule.) apply to your plan of operations. Those facilities and areas not included in the modification may continue to operate under the terms of your existing plan of operations.

FINANCIAL GUARANTEE REQUIREMENTS--GENERAL

§3809.500 In general, what are BLM's financial guarantee requirements?

To see generally what BLM's financial guarantee requirements are, follow this table:

If . . . Then . . .

   (a) Your operations constitute casual use, You do not have to provide any financial guarantee.

   (b) You conduct operations under a notice or a plan of operations, You must provide BLM, or the State under an approved agreement, the appropriate financial guarantee before starting operations. For more information, see §§3809.551 to 3809.573.

§3809.503 When must I post a financial guarantee for my notice-level operations?

To see how this subpart applies to your notice, follow this table :

If . . . Then . . .

   (a) Your notice was on file with BLM on (Insert effective date of final rule.), You do not need to post a financial guarantee unless you modify the notice or extend the notice under §3809.333.

   (b) Your notice was on file with BLM before (Insert effective date of final rule.) and you choose to modify your notice as required by this subpart on or after that date, You must post a financial guarantee before you can begin operations under the modified notice.

   (c) You file a new notice on or after (Insert effective date of final rule.), You must post a financial guarantee before you can begin operations under the notice.

§3809.505 How do the financial guarantee requirements of this subpart apply to my existing plan of operations?

For each plan of operations approved before (Insert effective date of final rule.), you must post a financial guarantee according to the requirements of this subpart no later than (Insert date 180 days after effective date of final rule.) at the local BLM office with jurisdiction over the lands involved.

§3809.551 What are my choices for providing BLM with a financial guarantee?

If . . . Then . . .

   (a) You have only one notice or plan of operations, or wish to provide a financial guarantee for a single notice or plan of operations, You may provide an individual financial guarantee that covers only the cost of reclaiming areas disturbed under the single notice or plan of operations. See §§3809.552 to 3809.556 for more information.

   (b) You are currently operating under more than one notice or plan of operations, You may provide a blanket financial guarantee covering statewide or nationwide operations. See §3809.560 for more information.

   (c) You do not choose one of the options in paragraphs (a) and (b) of this section, You may provide evidence of an existing financial guarantee under State law or regulations. See §§3809.570 to 3809.573 for more information.

INDIVIDUAL FINANCIAL GUARANTEE

§3809.552 What must my individual financial guarantee cover?

   (a) If you conduct operations under a notice or a plan of operations and you provide an individual financial guarantee, it must cover the estimated cost as if BLM were to contract with a third party to reclaim your operations according to the reclamation plan, including construction and maintenance costs for any treatment facilities necessary to meet Federal and State environmental standards.

   (b) BLM will periodically review the estimated cost of reclamation and the adequacy of any funding mechanism established under paragraph (c) of this section and require increased coverage, if necessary.

   (c) When BLM identifies a need for it, you must establish a trust fund or other funding mechanism available to BLM to ensure the continuation of long-term treatment to achieve water quality standards and for other long term, post-mining maintenance requirements. The funding must be adequate to provide for construction, long-term operation, maintenance, or replacement of any treatment facilities and infrastructure, for as long as the treatment and facilities are needed after mine closure. BLM may identify the need for a trust fund or other funding mechanism during plan review or later.

§3809.553 May I post a financial guarantee for a part of my operations?

   (a) Yes, BLM may authorize you to post a financial guarantee covering a part of your operations if--

       (1) Your operations do not go beyond what is specifically covered by the partial financial guarantee; and

       (2) The partial financial guarantee covers all reclamation costs within the incremental area of operations.

   (b) BLM will review the amount and terms of the financial guarantee for each increment of your operations at least annually.

§3809.554 How do I estimate the cost to reclaim my operations?

   (a) You must estimate the cost to reclaim your operations as if BLM were hiring a third-party contractor to perform reclamation of your operations after you have vacated the project area. Your estimate must include BLM's cost to administer the reclamation contract. Contact BLM to obtain this administrative cost information.

   (b) Your estimate of the cost to reclaim your operations must be acceptable to BLM.

§3809.555 What forms of individual financial guarantee are acceptable to BLM?

You may use any of the following instruments for an individual financial guarantee, provided that the BLM State Director has determined that it is an acceptable financial instrument within the State where the operations are proposed:

   (a) Surety bonds, including surety bonds arranged or paid for by third parties;

   (b) Cash in an amount equal to the required dollar amount of the financial guarantee, to be deposited and maintained in a Federal depository account of the United States Treasury by BLM;

   (c) Irrevocable letters of credit from a bank or financial institution organized or authorized to transact business in the United States;

   (d) Certificates of deposit or savings accounts not in excess of the maximum insurable amount as set by the Federal Deposit Insurance Corporation; and

   (e) Either of the following instruments having a market value of not less than the required dollar amount of the financial guarantee and maintained in a Securities Investors Protection Corporation insured trust account by a licensed securities brokerage firm for the benefit of the Secretary of the Interior, acting by and through BLM:

       (1) Negotiable United States Government, State and Municipal securities or bonds; or

       (2) Investment-grade rated securities having a Standard and Poor's rating of AAA or AA or an equivalent rating from a nationally recognized securities rating service.

§3809.556 What special requirements apply to financial guarantees described in §3809.555(e)?

   (a) If you choose to use the instruments permitted under §3809.555(e) in satisfaction of financial guarantee requirements, you must provide BLM, before you begin operations and by the end of each calendar year thereafter, a certified statement describing the nature and market value of the instruments maintained in that account, and including any current statements or reports furnished by the brokerage firm to the operator or mining claimant concerning the asset value of the account.

   (b) You must review the market value of the account instruments by December 31 of each year to ensure that their market value continues to be not less than the required dollar amount of the financial guarantee. When the market value of the account instruments has declined by more than 10 percent of the required dollar amount of the financial guarantee, you must, within 10 days after its annual review or at any time upon the written request of BLM, provide additional instruments, as defined in §3809.555(e), to the trust account so that the total market value of all account instruments is not less than the required dollar amount of the financial guarantee. You must send a certified statement to BLM within 45 days thereafter describing your actions to raise the market value of its account instruments to the required dollar amount of the financial guarantee. You must include copies of any statements or reports furnished by the brokerage firm to you documenting such an increase.

   (c) If your review under paragraph (b) of this section demonstrates that the total market value of trust account instruments exceeds 110 percent of the required dollar amount of the financial guarantee, you may ask BLM to authorize a written release of that portion of the account that exceeds 110 percent of the required financial guarantee. BLM will approve your request only if you are in compliance with the terms and conditions of your notice or approved plan of operations.

BLANKET FINANCIAL GUARANTEE

§3809.560 Under what circumstances may I provide a blanket financial guarantee?

   (a) If you have more than one notice- or plan-level operation underway, you may provide a blanket financial guarantee covering statewide or nationwide operations instead of individual financial guarantees for each operation.

   (b) BLM will accept a blanket financial guarantee if we determine that its terms and conditions are sufficient to comply with the regulations of this subpart.

STATE-APPROVED FINANCIAL GUARANTEE

§3809.570 Under what circumstances may I provide a State-approved financial guarantee?

When you provide evidence of an existing financial guarantee under State law or regulations that covers your operations, you are not required to provide a separate financial guarantee under this subpart if--

   (a) The existing financial guarantee is redeemable by the Secretary, acting by and through BLM;

   (b) It is held or approved by a State agency for the same operations covered by your notice(s) or plan(s) of operations; and

   (c) It provides at least the same amount of financial guarantee as required by this subpart.

§3809.571 What forms of State-approved financial guarantee are acceptable to BLM?

You may provide a State-approved financial guarantee in any of the following forms, subject to the conditions in §3809.570:

   (a) The kinds of individual financial guarantees specified under §3809.555;

   (b) Participation in a State bond pool, if--

       (1) The State agrees that, upon BLM's request, the State will use part of the pool to meet reclamation obligations on public lands; and

       (2) The BLM State Director determines that the State bond pool provides the equivalent level of protection as that required by this subpart; and

   (c) A corporate guarantee if--

       (1) The corporate guarantee is acceptable to the State;

       (2) The corporate guarantee is redeemable by or guaranteed to the Secretary; and

       (3) The BLM State Director determines that the corporate guarantee provides a level of protection equal to the estimated cost of reclamation under §§3809.552 and 3809.554, considering the operator's net income, net working capital and intangible net worth, and total liabilities and assets.[BLM is still evaluating the appropriate standard for an acceptable corporate guarantee.]

§3809.572 What happens if BLM rejects a financial instrument in my State-approved financial guarantee?

If BLM rejects a submitted financial instrument in an existing State-approved financial guarantee, BLM will notify you in writing, with a complete explanation of the reasons for the rejection within 30 days of BLM's receipt of the evidence of State-approved financial guarantee. You must provide BLM with a financial guarantee acceptable under this subpart at least equal to the amount of the rejected financial instrument.

§3809.573 What happens if the State makes a demand against my financial guarantee?

When the State makes a demand against your financial guarantee, thereby reducing the available balance, you must replace or augment the financial guarantee if the available balance is insufficient to cover the remaining reclamation cost.

MODIFICATION OR REPLACEMENT OF A FINANCIAL GUARANTEE

§3809.580 What happens if I modify my notice or approved plan of operations?

In the event you modify a notice or an approved plan under §3809.331 or §3809.431 respectively and your estimated reclamation cost increases, your revised financial guarantee must comply with §3809.552. You must adjust the amount of the financial guarantee to cover the estimated additional cost of reclamation and long-term treatment, as modified.

§3809.581 Will BLM accept a replacement financial instrument?

Yes. If you or a new operator have an approved financial guarantee, you may request BLM to accept a replacement financial instrument at any time after the approval of an initial instrument. BLM will review the offered instrument for adequacy and may reject any offered instrument, but will do so by a decision in writing, with a complete explanation of the reasons for the rejection, within 30 days of the offering.

§3809.582 How long must I maintain my financial guarantee?

You must maintain your financial guarantee until you or a new operator replace it, with BLM's written concurrence, by another adequate financial guarantee, or until BLM releases the requirement to maintain your financial guarantee after you have completed reclamation of your operation according to the requirements of §3809.320 (for notices), including any measures identified as the result of consultation with BLM under §3809.313, or §3809.420 (for plans of operations).

RELEASE OF FINANCIAL GUARANTEE

§3809.590 When will BLM release or reduce the financial guarantee for my notice or plan of operations?

   (a) When you (the mining claimant or operator) have completed all or any portion of the reclamation of your operations in accordance with your notice or approved plan of operations, you may notify BLM that the reclamation has occurred and request a reduction in the financial guarantee or BLM approval of the adequacy of the reclamation, or both.

   (b) BLM will then promptly inspect the reclaimed area. We encourage you to accompany the BLM inspector. Subsequently, BLM will notify you, in writing, whether you may reduce the financial guarantee under §3809.591, or the reclamation is acceptable, or both.

§3809.591 What are the limitations on the amount by which BLM may reduce my financial guarantee?

   (a) This section applies to your financial guarantee, but not to any funding mechanism established under §3809.552(c) to pay for long-term treatment of effluent or site maintenance. Calculation of bond percentages in paragraphs (b) and (c) of this section does not include any funds held in that kind of funding mechanism.

   (b) BLM may release up to 60 percent of your financial guarantee for a portion of your project area when BLM determines that you have successfully completed backfilling; regrading; establishment of drainage control; and stabilization and detoxification of leaching solutions, heaps, tailings, and similar facilities on that portion of the project area.

   (c) BLM may release the remainder of your financial guarantee for the same portion of the project area when BLM determines that you have successfully completed reclamation, including revegetating the area disturbed by operations, and when--

       (1) Any effluent discharged from the area has met applicable effluent limitations and water quality standards for one year without needing additional treatment; or

       (2) If you have established a funding mechanism under §3809.552(c) to pay for long-term treatment, any effluent discharged from the area meets applicable effluent limitations and water quality standards water for one year with or without treatment.

§3809.592 Does release of my financial guarantee relieve me of all responsibility for my project area?

   (a) Release of your financial guarantee does not release you (the mining claimant or operator) from responsibility for reclamation of your operations should reclamation fail to meet the standards of this subpart.

   (b) Any release of your financial guarantee does not release or waive any claim BLM or other persons may have against any person under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq., or under any other applicable statutes or regulations.

§3809.593 What happens to my financial guarantee if I transfer my operations?

You remain responsible for obligations or conditions created while you conducted operations unless a transferee accepts responsibility under §3809.016. Therefore, your financial guarantee remains in effect until BLM determines that you are no longer responsible for all or part of the operation. BLM can release your financial guarantee on an incremental basis. The new operator must obtain a financial guarantee before BLM will allow the new operator to conduct operations.

§3809.594 What happens to my financial guarantee when my mining claim is patented?

   (a) When your mining claim is patented, BLM will release the portion of the financial guarantee that applies to operations within the boundaries of the patented land. This paragraph does not apply to patents issued on mining claims within the boundaries of the California Desert Conservation Area.

   (b) BLM will release the remainder of the financial guarantee, including the portion covering approved means of access outside the boundaries of the mining claim, when you have completed reclamation to the standards of this subpart.

   (c) BLM will continue to regulate under this subpart existing access for mining purposes across public land to patented mining claims, including the requirement to have an adequate financial guarantee.

FORFEITURE OF FINANCIAL GUARANTEE

§3809.595 When will BLM initiate forfeiture of my financial guarantee?

BLM will initiate forfeiture of all or part of your financial guarantee for any project area or portion of a project area if--

   (a) You (the operator or mining claimant) refuse or are unable to conduct reclamation as provided in the reclamation measures incorporated into your notice or approved plan of operations or the regulations in this subpart;

   (b) You fail to meet the terms of your notice or the decision approving your plan of operations; or

   (c) You default on any of the conditions under which you obtained the financial guarantee.

§3809.596 How does BLM initiate forfeiture of my financial guarantee?

   (a) When BLM decides to require the forfeiture of all or part of your financial guarantee, BLM will notify you (the operator or mining claimant) by certified mail, return receipt requested; the surety on the financial guarantee, if any; and the State agency holding the financial guarantee, if any, informing you and them of the following:

       (1) BLM's decision to require the forfeiture of all or part of the financial guarantee;

       (2) The reasons for the forfeiture;

       (3) The amount that you will forfeit based on the estimated total cost of achieving the reclamation plan requirements for the project area or portion of the project area affected, including BLM's administrative costs; and

       (4) How you may avoid forfeiture, including—

           (i) Providing a written agreement under which you or another person will perform reclamation operations in accordance with a compliance schedule which meets the conditions of your notice or the decision approving your plan of operations and the reclamation plan, and a demonstration that such other person has the ability to satisfy the conditions; and

           (ii) Obtaining written permission from BLM for a surety to complete the reclamation, or the portion of the reclamation applicable to the bonded phase or increment, if the surety can demonstrate an ability to complete the reclamation in accordance with the reclamation measures incorporated in your notice or approved plan of operations.

§3809.597 What if I do not comply with BLM's forfeiture notice?

If you fail to meet the requirements of BLM's forfeiture notice provided under §3809.596, if you fail to appeal the forfeiture notice under §3809.800, or if the decision appealed is confirmed, BLM will—

   (a) Immediately collect the forfeited amount as provided by applicable laws for the collection of defaulted bonds or other debts; and

   (b) Use funds collected from financial guarantee forfeiture to implement the reclamation plan, or portion thereof, on the area or portion of the area to which bond coverage applies.

§3809.598 What if the amount forfeited will not cover the cost of reclamation?

If the amount forfeited is insufficient to pay for the full cost of reclamation, the operator and mining claimant are jointly and severally liable for the remaining costs. BLM may complete or authorize completion of reclamation of the bonded area and may recover from you all costs of reclamation in excess of the amount forfeited.

§3809.599 What if the amount forfeited exceeds the cost of reclamation?

If the amount of financial guarantee forfeited is more than the amount necessary to complete reclamation, BLM will return the unused funds within a reasonable amount of time to the party from whom they were collected.

INSPECTION AND ENFORCEMENT

§3809.600 With what frequency will BLM inspect my operations?

   (a) At any time, BLM may inspect your operations, including all structures, equipment, workings, and uses located on the public lands. The inspection may include verification that your operations comply with this subpart. BLM may allow a member(s) of the public to accompany the inspector provided that the presence of the public does not materially interfere with the mining operations or with BLM's administration of this subpart, or create safety problems. See §3715.7 of this title for special provisions governing inspection of the inside of structures used solely for residential purposes.

   (b) At least 4 times each year, BLM will inspect your operations if you use cyanide or where there is significant potential for acid drainage.

§3809.601 What types of enforcement action may BLM take if I do not meet the requirements of this subpart?

BLM may issue various types of enforcement orders, including the following:

   (a) Noncompliance order. If your operations do not comply with any provision of your notice, plan of operations, or requirement of this subpart, BLM may issue you a noncompliance order; and

   (b) Suspension orders. (1) BLM may order a suspension of all or any part of your operations after--

           (i) You fail to timely comply with a noncompliance order for a significant violation issued under paragraph (a) of this section. A significant violation is one that causes or may result in environmental or other harm or danger or that substantially deviates from the complete notice or approved plan of operations;

           (ii) BLM notifies you of its intent to issue a suspension order; and

           (iii) BLM provides you an opportunity for an informal hearing before the BLM State Director to object to a suspension.

       (2) BLM may order an immediate, temporary suspension of all or any part of your operations without issuing a noncompliance order, notifying you in advance, or providing you an opportunity for an informal hearing if--

           (i) You do not comply with any provision of your notice, plan of operations, or this subpart; and

           (ii) An immediate, temporary suspension is necessary to protect health, safety, or the environment from imminent danger or harm. BLM may presume that an immediate suspension is necessary if you conduct plan-level operations without an approved plan of operations or conduct operations other than casual use without submitting a complete notice.

       (3) BLM will terminate a suspension order under paragraph (b)(1) or (b)(2) of this section no later than the date by which you correct the violation.

   (c) Contents of enforcement orders. Enforcement orders will specify--

       (1) How you are failing or have failed to comply with the requirements of this subpart;

       (2) The portions of your operations, if any, that you must cease or suspend;

       (3) The actions you must take to correct the noncompliance and the time, not exceed 30 days, within which you must start corrective action; and

       (4) The time within which you must complete corrective action.

§3809.602 Can BLM revoke my plan of operations or nullify my notice?

   (a) BLM may revoke your plan of operations or nullify your notice upon finding that--

       (1) A violation exists of any provision of your notice, plan of operation, or this subpart, and you have failed to correct the violation within the time specified in the enforcement order issued under §3809.601; or

       (2) a pattern of violations exists at your operations.

   (b) The finding is not effective until BLM notifies you of its intent to revoke your plan or nullify your notice, and BLM provides you an opportunity for an informal hearing before the BLM State Director.

   (c) If BLM nullifies your notice or revokes your plan of operations, you must not conduct operations on the public land in the project area, except for reclamation and other measures specified by BLM.

§3809.603 How does BLM serve me with an enforcement action?

   (a) BLM will serve a noncompliance order, a notification of intent to issue a suspension order, a suspension order, or other enforcement order on the person to whom it is directed or his or her designated agent, either by--

       (1) Offering a copy at the project area to the designated agent or to the individual who, based upon reasonable inquiry, appears to be in charge. If no such individual can be located at the project area, BLM may offer a copy to any individual at the project area who appears to be an employee or agent of the person to whom the notification or order is issued. Service is complete when the notice or order is offered and is not incomplete because of refusal to accept; or

       (2) Sending a copy of the notification or order by certified mail or by hand to the operator or his or her designated agent, or by any means consistent with the rules governing service of a summons and complaint under rule 4 of the Federal Rules of Civil Procedure. Service is complete upon offer of the notification or order or of the certified mail and is not incomplete because of refusal to accept.

   (b) BLM may serve a mining claimant in the same manner an operator is served under paragraph (a)(2) of this section.

   (c) The mining claimant or operator may designate an agent for service of notifications and orders. You must provide the designation in writing to the local BLM field office having jurisdiction over the lands involved.

§3809.604 What happens if I do not comply with a BLM order?

   (a) If you do not comply with a BLM order issued under §§3809.601 or 3809.602, the Department of the Interior may request the United States Attorney to institute a civil action in United States District Court for an injunction or order to enforce its order and to prevent you from conducting operations on the public lands in violation of this subpart. This relief may be in addition to the enforcement actions described in §§3809.601 and 3809.602 and the penalties described in §3809.700.

   (b) If you fail to timely comply with a noncompliance order issued under §3809.601(a), and remain in noncompliance, BLM may order you to submit plans of operations under §3809.401 for current and future notice-level operations.

PENALTIES

§3809.700 What criminal penalties apply to violations of this subpart?

The criminal penalties established by statute for individuals and organizations are as follows:

   (a) Individuals. If you knowingly and willfully violate the requirements of this subpart, you may be subject to arrest and trial under section 303(a) of FLPMA (43 U.S.C. 1733(a)). If you are convicted, you will be subject to a fine of not more than $100,000 or the alternative fine provided for in the applicable provisions of 18 U.S.C. 3571, or imprisonment not to exceed 12 months, or both, for each offense; and

   (b) Organizations. If an organization or corporation knowingly or willfully violates the requirements of this subpart, it is subject to trial and, if convicted, will be subject to a fine of not more than $200,000, or the alternative fine provided for in the applicable provisions of 18 U.S.C. 3571.

§3809.701 What happens if I make false statements to BLM?

Under statute (18 U.S.C. 1001), you are subject to arrest and trial before a United States District Court if, in any matter under this subpart, you knowingly and willfully falsify, conceal, or cover up by any trick, scheme, or device a material fact, or make any false, fictitious, or fraudulent statements or representations, or make or use any false writings or document knowing the same to contain any false, fictitious, or fraudulent statement or entry. If you are convicted, you will be fined not more than $250,000 or the alternative fine provided for in the applicable provisions of 18 U.S.C. 3571, or imprisoned not more than 5 years, or both.

§3809.702 What civil penalties apply to violations of this subpart?

   (a)(1) Following issuance of an order under §3809.601, BLM may assess a proposed civil penalty of up to $5,000 for each violation against you if you --

           (i) Violate any term or condition of a plan of operations or fail to conform with operations described in your notice;

           (ii) Violate any provision of this subpart; or

           (iii) Fail to comply with an order issued under §3809.601.

       (2) BLM may consider each day of continuing violation a separate violation for purposes of penalty assessments.

       (3) In determining the amount of the penalty, BLM must consider your history of previous violations at the particular mining operation; the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public; whether you were negligent; and your demonstrated good faith in attempting to achieve rapid compliance after notification of the violation.

       (4) If you are a small entity, BLM will, under appropriate circumstances including those described in paragraph (a)(3) of this section, consider reducing or waiving a civil penalty and may consider ability to pay in determining a penalty assessment.

   (b) A final administrative assessment of a civil penalty occurs only after BLM has notified you of the assessment and given you opportunity to request within 30 days a hearing by mOHA. OHA will issue a penalty assessment that is final.

   (c) If BLM issues you a proposed civil penalty and you fail to request a hearing as provided in paragraph (b), the proposed assessment becomes a final order of the Department, and the penalty assessed becomes due upon expiration of the time allowed to request a hearing.

§3809.703 Can BLM settle a proposed civil penalty?

Yes. BLM may negotiate a settlement of civil penalties, in which case BLM will prepare a settlement agreement. The BLM State Director or his or her designee must sign the agreement.

APPEALS

§3809.800 What appeal rights do I have?

   (a) Any person adversely affected by a decision made under this subpart may appeal the decision under parts 4 and 1840 of this title. Review of a decision by the BLM State Director will take place if consistent with part 1840 of this title.

   (b) In order for the Department of the Interior to consider your appeal of a decision, you must file a notice of appeal in writing with the BLM office where the decision was made within 30 days after the date you received the decision. All decisions under this subpart go into effect immediately and remain in effect while appeals are pending unless a stay is granted under §4.21(b) of this title.

   (c) Your written appeal must contain:

       (1) Your name and address; and

       (2) The BLM serial number of the notice or plan of operations that is the subject of the appeal.

   (d) You must submit a statement of your reasons for the appeal and any arguments you wish to present that would justify reversal or modification of the decision within the time frame specified in part 4 of this chapter (usually within 30 days after filing your appeal).