43CFR3809, Surface Management Options

[CP]

[Code of Federal Regulations]
[Title 43, Volume 2]
[Revised as of October 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR3800]

[Page 750-782]

TITLE 43--PUBLIC LANDS: INTERIOR

CHAPTER II--BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR

PART 3800_MINING CLAIMS UNDER THE GENERAL MINING LAWS--Table of Contents

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.

Source: 65 FR 70112, Nov. 21, 2000, unless otherwise noted.

General Information

Sec. 3809.1 What are the purposes of this subpart?

The purposes of this subpart are to:

[[Page 751]]

(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.

Sec. 3809.2 What is the scope of this subpart?

(a) This subpart applies to all operations authorized by the mining
laws on public lands where the mineral interest is reserved to the
United States, including Stock Raising Homestead lands as provided in
Sec. 3809.31(d) and (e). When public lands are sold or exchanged under
43 U.S.C. 682(b) (Small Tracts Act), 43 U.S.C. 869 (Recreation and
Public Purposes Act), 43 U.S.C. 1713 (sales) or 43 U.S.C. 1716
(exchanges), minerals reserved to the United States continue to be
removed from the operation of the mining laws unless a subsequent land-
use planning decision expressly restores the land to mineral entry, and
BLM publishes a notice to inform the public.
(b) This subpart does not apply to lands in the National Park
System, National Forest System, and the National Wildlife Refuge System;
acquired lands; or lands administered by BLM that are under wilderness
review, which are subject to subpart 3802 of this part.
© 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 does not apply to private land except as provided
in paragraphs (a) and © of this section. For purposes of analysis
under the National Environmental Policy Act of 1969, BLM may collect
information about private land that is near to, or may be affected by,
operations authorized under this subpart.
(e) This subpart applies to operations that involve locatable
minerals, including 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.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 54860, Oct. 30, 2001]

Sec. 3809.3 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.

Sec. 3809.5 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 lands or resources. For example--
(1) Casual use generally includes the collection of geochemical,
rock, soil, or mineral specimens using hand tools; hand panning; or non-
motorized sluicing. It may include use of small portable suction
dredges. It also generally includes use of metal detectors, gold spears
and other battery-operated devices for sensing the presence of minerals,
and hand and battery-operated drywashers. Operators may use motorized
vehicles for casual use activities provided the use is consistent with
the regulations governing such use (part 8340 of this title), off-road
vehicle use designations contained in BLM land-use plans, and the terms
of temporary closures ordered by BLM.

[[Page 752]]

(2) Casual use does not include use of mechanized earth-moving
equipment, truck-mounted drilling equipment, motorized vehicles in areas
when designated as closed to ``off-road vehicles'' as defined in Sec.
8340.0-5 of this title, chemicals, or explosives. It also does not
include ``occupancy'' as defined in Sec. 3715.0-5 of this title or
operations in areas where the cumulative effects of the activities
result in more than negligible disturbance.
Exploration means creating surface disturbance greater than casual
use that includes sampling, drilling, or developing surface or
underground workings to evaluate the type, extent, quantity, or quality
of mineral values present. Exploration does not include activities where
material is extracted for commercial use or sale.
Minimize means to reduce the adverse impact of an operation to the
lowest practical level. During review of operations, BLM may determine
that it is practical to avoid or eliminate particular impacts.
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 Sec. 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.).
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.
Operations means all functions, work, facilities, and activities on
public lands in connection with prospecting, exploration, 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 lands for support
facilities.
Operator means a person conducting or proposing to conduct
operations.
Person means any individual, firm, corporation, association,
partnership, trust, consortium, joint venture, or any other entity
conducting operations on public lands.
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 lands caused by operations to meet applicable
performance standards and achieve conditions required by BLM at the
conclusion of

[[Page 753]]

operations. 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. Components of reclamation
include, where applicable:
(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) Rehabilitation 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.
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 areas 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: the
performance standards in Sec. 3809.420, 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 Sec. 3715. 0-5 of this chapter; 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.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 54860, Oct. 30, 2001]

Sec. 3809.10 How does BLM classify operations?

BLM classifies operations as--
(a) Casual use, for which an operator need not notify BLM. (You must
reclaim any casual-use disturbance that you create. If your operations
do not qualify as casual use, you must submit a notice or plan of
operations, whichever is applicable. See Sec. Sec. 3809.11 and
3809.21.);
(b) Notice-level operations, for which an operator must submit a
notice (except for certain suction-dredging operations covered by Sec.
3809.31(b)); and
© Plan-level operations, for which an operator must submit a plan
of operations and obtain BLM's approval.

Sec. 3809.11 When do I have to submit a plan of operations?

(a) You must submit a plan of operations and obtain BLM's approval
before beginning operations greater than casual use, except as described
in Sec. 3809.21. Also see Sec. Sec. 3809.31 and 3809.400 through
3809.434.
(b) You must submit a plan of operations for any bulk sampling in
which you will remove 1,000 tons or more of presumed ore for testing.
© You must submit a plan of operations for any operations causing
surface disturbance greater than casual use in the following special
status areas where Sec. 3809.21 does not apply:
(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;

[[Page 754]]

(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 Sec. 8340.0-5 of this title;
(6) Any lands or waters known to contain Federally proposed or
listed threatened or endangered species or their proposed or designated
critical habitat, unless BLM allows for other action under a formal
land-use plan or threatened or endangered species recovery plan; and
(7) National Monuments and National Conservation Areas administered
by BLM.

Sec. 3809.21 When do I have to submit a notice?

(a) You must submit a complete notice of your operations 15 calendar
days before you commence exploration causing surface disturbance of 5
acres or less of public lands on which reclamation has not been
completed. See Sec. 3809.301 for information on what you must include
in your notice.
(b) You must not segment a project area by filing a series of
notices for the purpose of avoiding filing a plan of operations. See
Sec. Sec. 3809.300 through 3809.336 for regulations applicable to
notice-level operations.

Sec. 3809.31 Are there any special situations that affect what
submittals I must make before I conduct operations?

(a) Where the cumulative effects of casual use by individuals or
groups have resulted in, or are reasonably expected to result in, more
than negligible disturbance, the State Director may establish specific
areas as he/she deems necessary where any individual or group intending
to conduct activities under the mining laws must contact BLM 15 calendar
days before beginning activities to determine whether the individual or
group must submit a notice or plan of operations. (See Sec. 3809.300
through 3809.336 and Sec. 3809.400 through 3809.434.) BLM will notify
the public via publication in the Federal Register of the boundaries of
such specific areas, as well as through posting in each local BLM office
having jurisdiction over the lands.
(b) Suction dredges. (1) If your operations involve the use of a
suction dredge, the State requires an authorization for its use, and BLM
and the State have an agreement under Sec. 3809.200 addressing suction
dredging, then you need not submit to BLM a notice or plan of
operations, unless otherwise provided in the agreement between BLM and
the State.
(2) For all uses of a suction dredge not covered by paragraph (b)(1)
of this section, you must contact BLM before beginning such use to
determine whether you need to submit a notice or a plan to BLM, or
whether your activities constitute casual use. If your proposed suction
dredging is located within any lands or waters known to contain
Federally proposed or listed threatened or endangered species or their
proposed or designated critical habitat, regardless of the level of
disturbance, you must not begin operations until BLM completes
consultation the Endangered Species Act requires.
© If your operations require you to occupy or use a site for
activities ``reasonably incident'' to mining, as defined in Sec.
3715.0-5 of this title, whether you are operating under a notice or a
plan of operations, you must also comply with part 3710, subpart 3715,
of this title.
(d) If your operations are located on lands patented under the Stock
Raising Homestead Act and you do not have the written consent of the
surface owner, then you must submit a plan of operations and obtain
BLM's approval. Where you have surface-owner consent, you do not need a
notice or a plan of operations under this subpart. See part 3810,
subpart 3814, of this title.
(e) For other than Stock Raising Homestead Act lands, if your
proposed operations are located on lands conveyed by the United States
which contain minerals reserved to the United States, then you must
submit a plan of operations under Sec. 3809.11 and obtain BLM's
approval or a notice under Sec. 3809.21.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 54860, Oct. 30, 2001]

[[Page 755]]

Sec. 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 withdrawn from appropriation under the mining laws, BLM will not
approve a plan of operations or allow notice-level operations to proceed
until BLM has prepared a mineral examination report to determine whether
the mining claim was valid before the withdrawal, and whether it remains
valid. BLM may require preparation of a mineral examination report
before approving a plan of operations or allowing notice-level
operations to proceed on segregated lands. If the report concludes that
the mining claim is invalid, BLM will not approve operations or allow
notice-level operations on the mining claim. BLM will also promptly
initiate contest proceedings.
(b) Allowable operations. If BLM has not completed the mineral
examination report under paragraph (a) of this section, if the mineral
examination report for proposed operations concludes that a mining claim
is invalid, or if there is a pending contest proceeding for the mining
claim,
(1) BLM may--
(i) Approve a plan of operations for the disputed mining 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; and
(ii) Approve a plan of operations for the operator to perform the
minimum necessary annual assessment work under Sec. 3851.1 of this
title; or
(2) A person may only conduct exploration under a notice that is
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.
© 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 Sec. Sec.
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.

Sec. 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 Sec. 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
mining 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 Sec. 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.
© 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 mining claim(s) is null and
void, you must promptly close and reclaim your operations unless you

[[Page 756]]

are authorized to proceed under parts 3600 and 3610 of this title.
(d) Disposal. BLM may dispose of common variety minerals from
unpatented mining claims in accordance with the provisions of Sec.
3601.14 of this chapter.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 58910, Nov. 23, 2001]

Sec. 3809.111 Will BLM disclose to the public the information I submit
under this subpart?

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.

Sec. 3809.115 Can BLM collect information under this subpart?

Yes, the Office of Management and Budget has approved the
collections of information contained in this subpart under 44 U.S.C.
3501 et seq. and assigned clearance number 1004-0194. BLM will use this
information to regulate and monitor mining and exploration operations on
public lands.

Sec. 3809.116 As a mining claimant or operator, what are my
responsibilities under this subpart for my project area?

(a) Mining claimants and operators (if other than the mining
claimant) are liable for obligations under this subpart that accrue
while they hold their interests.
(b) Relinquishment, forfeiture, or abandonment of a mining claim
does not relieve a mining claimant's or operator's responsibility under
this subpart for obligations that accrued or conditions that were
created while the mining claimant or operator was responsible for
operations conducted on that mining claim or in the project area.
© Transfer of a mining claim or operation does not relieve a
mining claimant's or operator's responsibility under this subpart for
obligations that accrued or conditions that were 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 for the transferor's previously accrued obligations, and
(2) BLM accepts an adequate replacement financial guarantee adequate
to cover such previously accrued obligations and the transferee's new
obligations.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 54860, Oct. 30, 2001]

Federal/State Agreements

Sec. 3809.200 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 Sec. 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 subject to the limitations in Sec.
3809.203.

Sec. 3809.201 What should these agreements address?

(a) The agreements should provide for maximum possible coordination
with the State to avoid duplication and to ensure that operators prevent
unnecessary or undue degradation of public lands. Agreements should
cover any or all sections of this subpart and should consider, at a
minimum, common approaches to review of plans of operations, including
effective cooperation regarding the National Environmental Policy Act;
performance standards; interim management of temporary closure;
financial guarantees; inspections; and enforcement actions,

[[Page 757]]

including referrals to enforcement authorities. BLM and the State should
also include provisions for the regular review or audit of these
agreements.
(b) To satisfy the requirements of Sec. 3809.31(b), if BLM and the
State elect to address suction dredge activities in the agreement, the
agreement must require a State to notify BLM of each application to
conduct suction dredge activities within 15 calendar days of receipt of
the application by the State. BLM will inform the State whether
Federally proposed or listed threatened or endangered species or their
proposed or designated critical habitat may be affected by the proposed
activities and any necessary mitigating measures. Operations must not
begin until BLM completes consultation or conferencing under the
Endangered Species Act.

Sec. 3809.202 Under what conditions will BLM defer to State regulation
of operations?

(a) State request. A State may request BLM enter into an agreement
for State regulation of 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 this subpart and
State standards on a provision-by-provision basis to determine--
(i) Whether non-numerical State standards are functionally
equivalent to BLM counterparts; and
(ii) Whether numerical State standards are the same as corresponding
numerical BLM 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.
© 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 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. The items you
should include in the appeal are the same as the items you must include
under Sec. 3809.802.

[65 FR 70112, Nov. 21, 2000, as amended at 68 FR 32656, June 2, 2003]

Sec. 3809.203 What are the limitations on BLM deferral to State
regulation of operations?

Any agreement between BLM and a State in which BLM defers to State
regulation of some or all operations on public lands is subject to the
following limitations:
(a) Plans of Operations. BLM must concur 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

[[Page 758]]

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.
© 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,
release, or forfeiture 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.
(f) Termination. (1) If a State does not comply after being notified
under paragraph (e) of this section, BLM will take appropriate action,
which may include termination of all or part of the agreement.
(2) A State may terminate its agreement by notifying BLM 60 calendar
days in advance.

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

(a) No, this subpart doesn't cancel a Federal/State agreement or
memorandum of understanding in effect on January 20, 2001. A Federal/
State agreement or memorandum of understanding 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 January 20,
2001.
(b) The BLM State Director may extend the review period described in
paragraph (a) of this section for one more year upon the written request
of the Governor of the State or the delegated representative of the
Governor, and if necessary, for a third year upon another written
request. The existing agreement or memorandum of understanding
terminates no later than one year after January 20, 2001 if this review
and any necessary revision does not occur, unless extended under this
paragraph.
© This subpart applies during the review period described in
paragraphs (a) and (b) of this section. Where a portion of a Federal/
State agreement or memorandum of understanding existing on January 20,
2001 is inconsistent with this subpart, that portion continues in effect
until the agreement or memorandum of understanding is revised under this
subpart or terminated.

Operations Conducted Under Notices



Sec. 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 January 20, 2001, follow this table:

[[Page 759]]



------------------------------------------------------------------------
If BLM has received your complete
notice before January 20, 2001-- Then--
------------------------------------------------------------------------
(a) You are the operator identified You may conduct operations for 2
in the notice on file with BLM on years after January 20, 2001 under
January 20, 2001. the terms of your existing notice
and the regulations in effect
immediately before that date. (See
43 CFR parts 1000-end, revised as
of Oct. 1, 1999.) After 2 years,
you may extend your notice under
Sec. 3809.333. BLM may require a
modification under Sec.
3809.331(a)(1). See Sec.
3809.503 for financial guarantee
requirements applicable to
notices.
------------------------------------
(b) You are a new operator, that The provisions of this subpart,
is, you were not the operator including Sec. 3809.320, govern
identified in the notice on file your operations for 2 years after
with BLM on January 20, 2001. January 20, 2001, unless you
extend your notice under Sec.
3809.333.
------------------------------------
© You later modify your notice... (1) You may conduct operations on
the original acreage for 2 years
after January 20, 2001 under the
terms of your existing notice and
the regulations in effect
immediately before that date (See
43 CFR parts 1000-end, revised as
of Oct. 1, 2000.) After 2 years,
you may extend your notice under
Sec. 3809.333. BLM may require a
modification under Sec.
3809.331(a)(1). See Sec.
3809.503(b) for financial
guarantee requirements applicable
to notices.
(2) Your operations on any
additional acreage come under the
provisions of this subpart,
including Sec. Sec. 3809.11 and
3809.21, and may require approval
of a plan of operations before the
additional surface disturbance
may.
------------------------------------
(d) Your notice has expired........ You may not conduct operations
under an expired notice. You must
promptly submit either a new
notice under Sec. 3809.301 or a
plan of operations under Sec.
3809.401, whichever is applicable,
or immediately begin to reclaim
your project area. See Sec. Sec.
3809.11 and 3809.21.
------------------------------------------------------------------------

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

(a) If you qualify under Sec. 3809.21, 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,
taxpayer identification number of the operator(s), and the BLM serial
number(s) of any unpatented mining claim(s) where the disturbance would

[[Page 760]]

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 expect to
begin operations and the date you expect to complete reclamation;
(3) Reclamation Plan. A description of how you will complete
reclamation to the standards described in Sec. 3809.420; and
(4) Reclamation cost estimate. An estimate of the cost to fully
reclaim your operations as required by Sec. 3809.552.
© 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 calendar days of any
change of operator or corporate point of contact, or of the mailing
address of the operator or corporate point of contact.

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

(a) Upon receipt of your notice, BLM will review it within 15
calendar days to see if it is complete under Sec. 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 Sec. 3809.313.
© BLM will review your additional information within 15 calendar
days to ensure it is complete. BLM will repeat this process until your
notice is complete, or until we determine that you may not conduct
operations because of your inability to prevent unnecessary or undue
degradation.

Sec. 3809.312 When may I begin operations after filing a complete
notice?

(a) If BLM does not take any of the actions described in Sec.
3908.313, you may begin operations no sooner than 15 calendar days after
the appropriate BLM office receives your complete notice. BLM may send
you an acknowledgement that indicates the date we received your notice.
If you don't receive an acknowledgement or have any doubt about the date
we received your notice, contact the office to which you sent the
notice. This subpart does not require BLM to approve your notice or
inform you that your notice is complete.
(b) If BLM completes our review sooner than 15 calendar days after
receiving your complete notice, we may notify you that you may begin
operations.
© You must provide to BLM a financial guarantee that meets the
requirements of this subpart before beginning operations.
(d) 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.



Sec. 3809.313 Under what circumstances may I not begin operations 15 calendar days after filing my notice?

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

------------------------------------------------------------------------
If BLM reviews your notice and,
within 15 calendar days-- Then--
------------------------------------------------------------------------
(a) Notifies you that BLM needs You must not begin operations until
additional time, not to exceed 15 the additional review time period
calendar days, to complete its ends.
review.
------------------------------------

[[Page 761]]


(b) Notifies you that you must You must not begin operations until
modify your notice to prevent you modify your notice to ensure
unnecessary or undue degradation. that your operations prevent
unnecessary or undue degradation.
------------------------------------
© Requires you to consult with You must not begin operations until
BLM about the location of existing you consult with BLM and satisfy
or proposed access routes. BLM's concerns about access.
------------------------------------
(d) Determines that an on-site You must not begin operations until
visit is necessary. BLM visits the site, and you
satisfy any concerns arising from
the visit. BLM will notify you if
we will not conduct the site visit
within 15 calendar days of
determining that a visit is
necessary, including the reason(s)
for the delay.
------------------------------------
(e) BLM determines you don't You must file a plan of operations
qualify under Sec. 3809.11 as a before beginning operations. See
notice-level operation. Sec. Sec. 3809.400 through
3809.420.
------------------------------------------------------------------------

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

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

Sec. 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 Sec. Sec. 3809.311 and 3809.313.

Sec. 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 are changes that disturb areas not described in the
existing notice; change your reclamation plan; or result in impacts of a
different kind, degree, or extent than those described in the existing
notice.
(b) You must submit your notice modification 15 calendar 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, we may also notify
you to proceed before the 15-day period has elapsed to prevent
unnecessary or undue degradation.

Sec. 3809.332 How long does my notice remain in effect?

If you filed your complete notice on or after January 20, 2001, it
remains in effect for 2 years, unless extended under Sec. 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.

Sec. 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 and meet the financial guarantee requirements
of

[[Page 762]]

Sec. 3809.503. You may extend your notice more than once.

Sec. 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, in writing, 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.

Sec. 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.

Sec. 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 initiate forfeiture under Sec.
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.

Operations Conducted Under Plans of Operations

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

(a) You may continue to operate under the terms and conditions of a
plan of operations that BLM approved before January 20, 2001. All
provisions of this subpart except plan content (Sec. 3809.401) and
performance standards (Sec. Sec. 3809.415 and 3809.420) apply to such
plan of operations. See Sec. 3809.505 for the applicability of
financial guarantee requirements.
(b) If your unapproved plan of operations is pending on January 20,
2001, then the plan content requirements and performance standards that
were in effect immediately before that date apply to your pending plan
of operations. (See 43 CFR parts 1000-end, revised as of Oct. 1, 1999.)
All other provisions of this subpart apply.
© If you want this subpart to apply to any existing or pending
plan of operations, where not otherwise required, you may choose to have
this subpart apply.

Sec. 3809.401 Where do I file my plan of operations and what
information must I include with it?

(a) If you are required to file a plan of operations under Sec.
3809.11, 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. Your plan of operations must demonstrate that
the proposed operations would not result in unnecessary or undue
degradation of public lands.
(b) Your plan of operations must contain the following information
and describe the proposed operations at a level of detail sufficient for
BLM to determine that the plan of operations prevents unnecessary or
undue degradation:

[[Page 763]]

(1) Operator Information. The name, mailing address, phone number,
taxpayer 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. You must notify BLM in writing
within 30 calendar days of any change of operator or corporate point of
contact or in the mailing address of the operator or corporate point of
contact;
(2) Description of Operations. A description of the equipment,
devices, or practices you propose to use during operations including,
where applicable--
(i) Maps of the project area at an appropriate scale showing the
location of exploration activities, drill sites, mining activities,
processing facilities, waste rock and tailing disposal areas, support
facilities, structures, buildings, and access routes;
(ii) Preliminary or conceptual designs, cross sections, and
operating plans for mining areas, processing facilities, and waste rock
and tailing disposal facilities;
(iii) Water management plans;
(iv) Rock 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, water supply pipelines, and power
or utility services;
(3) Reclamation Plan. A plan for reclamation to meet the standards
in Sec. 3809.420, with a 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, including information on the feasibility of
pit backfilling that details economic, environmental, and safety
factors;
(iv) Riparian mitigation;
(v) Wildlife habitat rehabilitation;
(vi) Topsoil handling;
(vii) Revegetation;
(viii) Isolation and control of acid-forming, toxic, or deleterious
materials;
(ix) Removal or stabilization of buildings, structures and support
facilities; and
(x) Post-closure management;
(4) Monitoring Plan. A proposed 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.
Monitoring plans may incorporate existing State or other Federal
monitoring requirements to avoid duplication. 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; and
(5) Interim management plan. A plan to manage the project area
during periods of temporary closure (including periods of seasonal
closure) to prevent unnecessary or undue degradation. The interim
management plan must include, where applicable, the following:
(i) Measures to stabilize excavations and workings;
(ii) Measures to isolate or control toxic or deleterious materials
(See also the requirements in Sec. 3809.420©(12)(vii).);
(iii) Provisions for the storage or removal of equipment, supplies
and structures;
(iv) Measures to maintain the project area in a safe and clean
condition;
(v) Plans for monitoring site conditions during periods of non-
operation; and
(vi) A schedule of anticipated periods of temporary closure during
which you would implement the interim management plan, including
provisions for notifying BLM of unplanned or extended temporary
closures.

[[Page 764]]

© In addition to the requirements of paragraph (b) of this
section, BLM may require you to supply--
(1) Operational and baseline environmental information for BLM to
analyze potential environmental impacts as required by the National
Environmental Policy Act and to determine if your plan of operations
will prevent unnecessary or undue degradation. This could include
information on public and non-public lands needed to characterize the
geology, paleontological resources, cave resources, hydrology, soils,
vegetation, wildlife, air quality, cultural resources, and socioeconomic
conditions in and around the project area, as well as information that
may require you to conduct static and kinetic testing to characterize
the potential for your operations to produce acid drainage or other
leachate. BLM is available to advise you on the exact type of
information and level of detail needed to meet these requirements; and
(2) Other information, if necessary to ensure that your operations
will comply with this subpart.
(d) Reclamation cost estimate. At a time specified by BLM, you must
submit an estimate of the cost to fully reclaim your operations as
required by Sec. 3809.552. BLM will review your reclamation cost
estimate and notify you of any deficiencies or additional information
that must be submitted in order to determine a final reclamation cost.
BLM will notify you when we have determined the final amount for which
you must provide financial assurance.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 54860, Oct. 30, 2001]

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

(a) BLM will review your plan of operations within 30 calendar days
and will notify you that--
(1) Your plan of operations is complete, that is, it meets the
content requirements of Sec. 3809.401(b);
(2) Your plan does not contain a complete description of the
proposed operations under Sec. 3809.401(b). 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; or
(3) 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 collect adequate baseline data;
(ii) BLM completes the environmental review required under the
National Environmental Policy Act;
(iii) BLM completes any consultation required under the National
Historic Preservation Act, the Endangered Species Act, or the Magnuson-
Stevens Fishery Conservation and Management 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 plan of
operations;
(vii) For public lands where BLM does not have responsibility for
managing the surface, BLM consults with the surface-managing agency;
(viii) In cases where the surface is owned by a non-Federal entity,
BLM consults with the surface owner; and
(ix) BLM completes consultation with the State to ensure your
operations will be consistent with State water quality requirements.
(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.
© Following receipt of your complete plan of operations and before
BLM acts on it, we will publish a notice of the availability of the plan
in either a local newspaper of general circulation or a NEPA document
and will accept public comment for at least 30 calendar days on your
plan of operations.
(d) Upon completion of the review of your plan of operations,
including analysis under NEPA and public comment, BLM will notify you
that--

[[Page 765]]

(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) BLM approves your plan of operations subject to changes or
conditions that are necessary to meet the performance standards of Sec.
3809.420 and to prevent unnecessary or undue degradation. BLM may
require you to incorporate into your plan of operations other agency
permits, final approved engineering designs and plans, or other
conditions of approval from the review of the plan of operations filed
under Sec. 3809.401(b); or
(3) BLM disapproves, or is withholding approval of your plan of
operations because the plan:
(i) Does not meet the applicable content requirements of Sec.
3809.401;
(ii) Proposes operations that are in an area segregated or withdrawn
from the operation of the mining laws, unless the requirements of Sec.
3809.100 are met; or
(iii) Proposes operations that would result in unnecessary or undue
degradation of public lands.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 54860, Oct. 30, 2001]

Sec. 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 Sec.
3809.551.

Sec. 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 Sec. 3809.420, as applicable; the terms and
conditions of your notice or approved plan of operations; and other
Federal and State laws related to environmental protection and
protection of cultural resources;
(b) Assuring that your operations are ``reasonably incident'' to
prospecting, mining, or processing operations and uses as defined in
Sec. 3715.0-5 of this title; and
© 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.

[65 FR 70112, Nov. 21, 2000, as amended at 66 FR 54861, Oct. 30, 2001]

Sec. 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 equipment, devices, and practices that will meet the
performance standards of this subpart.
(2) Sequence of operations. You must avoid unnecessary impacts and
facilitate reclamation 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 public lands.
(5) Concurrent reclamation. You must initiate and complete
reclamation at the earliest economically and technically feasible time
on those portions of the disturbed area that you will not disturb
further.
(6) Compliance with other laws. You must conduct all operations in a
manner that complies with all pertinent Federal and state laws.
(b) Specific standards--(1) Access routes. Access routes shall be
planned for only the minimum width needed for operations and shall
follow natural contours, where practicable to minimize cut and fill.
When the construction of access routes involves slopes that require cuts
on the inside edge in

[[Page 766]]

excess of 3 feet, the operator may be required to consult with the
authorized officer concerning the most appropriate location of the
access route prior to commencing operations. An operator is entitled to
access to his operations consistent with provisions of the mining laws.
Where a notice or a plan of operations is required, it shall specify the
location of access routes for operations and other conditions necessary
to prevent unnecessary or undue degradation. The authorized officer may
require the operator to use existing roads to minimize the number of
access routes, and, if practicable, to construct access roads within a
designated transportation or utility corridor. When commercial hauling
is involved and the use of an existing road is required, the authorized
officer may require the operator to make appropriate arrangements for
use and maintenance.
(2) Mining wastes.................continued in next post

[CP]

And the ending of the same.........

Sec. 3809.900 Will BLM allow the public to visit mines on public
lands?

(a) If requested by any member of the public, BLM may sponsor and
schedule a public visit to a mine on public land once each year. The
purpose of the visit is to give the public an opportunity to view the
mine site and associated facilities. Visits will include

[[Page 782]]

surface areas and surface facilities ordinarily made available to
visitors on public tours. BLM will schedule visits during normal BLM
business hours at the convenience of the operator to avoid disruption of
operations.
(b) Operators must allow the visit and must not exclude persons
whose participation BLM authorizes. BLM may limit the size of a group
for safety reasons. An operator's representative must accompany the
group on the visit. Operators must make available any necessary safety
training that they provide to other visitors. BLM will provide the
necessary safety equipment if the operator is unable to do so.
© Members of the public must provide their own transportation to
the mine site, unless provided by BLM. Operators don't have to provide
transportation within the project area, but if they don't, they must
provide access for BLM-sponsored transportation.