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CODE of Federal
Regulations
Title 43, Volume 2, Parts
1000 to END [Revised as of October 1, 1996]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR3800]
TITLE 43--PUBLIC LANDS: INTERIOR
DEPARTMENT OF THE INTERIOR
PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS
Subpart 3802--Exploration and Mining, Wilderness Review Program
Sec.
3802.0-1 Purpose.
3802.0-2 Objectives.
3802.0-3 Authority.
3802.0-5 Definitions.
3802.0-6 Policy.
3802.0-7 Scope.
3802.1 Plan of operations.
3802.1-1 When required.
3802.1-2 When not required.
3802.1-3 Operations existing on October 21, 1976.
3802.1-4 Contents of plan of operations.
3802.1-5 Plan approval.
3802.1-6 Modification of plan.
3802.1-7 Existing operations.
3802.2 Bond requirements.
3802.3 Environmental protection.
3802.3-1 Environmental assessment.
3802.3-2 Requirements for environmental protection.
3802.4 General provisions.
3802.4-1 Noncompliance.
3802.4-2 Access.
3802.4-3 Multiple-use conflicts.
3802.4-4 Fire prevention and control.
3802.4-5 Maintenance and public safety.
3802.4-6 Inspection.
3802.4-7 Notice of suspension of operations.
3802.4-8 Cessation of operations.
3802.5 Appeals.
3802.6 Public availability of information.
Subpart 3809--Surface Management
General
3809.0-1 Purpose.
3809.0-2 Objectives.
3809.0-3 Authority.
3809.0-5 Definitions.
3809.0-6 Policy.
3809.1 Operations.
3809.1-1 Reclamation.
3809.1-2 Casual use: Negligible disturbance.
3809.1-3 Notice: Disturbance of 5 acres or less.
3809.1-4 Plan of operations: When required.
3809.1-5 Filing and contents of plan of operations.
3809.1-6 Plan approval.
3809.1-7 Modification of plan.
3809.1-8 Existing operations.
3809.1-9 Bonding requirements.
3809.2 Prevention of unnecessary or undue degradation.
3809.2-1 Environmental assessment.
3809.2-2 Other requirements for environmental protection.
3809.3 General provisions.
3809.3-1 Applicability of State law.
3809.3-2 Noncompliance.
3809.3-3 Access.
3809.3-4 Fire prevention and control.
3809.3-5 Maintenance and public safety.
3809.3-6 Inspection.
3809.3-7 Periods of non-operation.
3809.4 Appeals.
3809.5 Public availability of information.
3809.6 Special provisions relating to mining claims patented within the
boundaries of the California Desert Conservation Area.
Authority: 16 U.S.C. 447; 16 U.S.C. 347-354; 16 U.S.C. 460y et seq.;
16 U.S.C. 473, 478-482; 16 U.S.C. 1901, 1907; 30 U.S.C. 22 et seq.; 30
U.S.C. 122, 161, 162; 30 U.S.C. 242; 31 U.S.C. 9701; 43 U.S.C. 2; 43
U.S.C. 154; 43 U.S.C. 299, 300; 43 U.S.C. 1201; 43 U.S.C. 1474; 43
U.S.C. 1701 et seq.; 50 U.S.C. Appendix 565; 62 Stat. 162; 100 Stat.
3457-3468; 107 Stat. 60; and 30 U.S.C. 28f-k, 107 Stat. 405.
Source: 45 FR 13974, Mar. 3, 1980, unless otherwise noted.
Subpart 3802--Exploration and Mining, Wilderness Review Program
Sec. 3802.0-1 Purpose.
The purpose of this subpart is to establish procedures to prevent
impairment of the suitability of lands under wilderness review for
inclusion in the wilderness system and to prevent unnecessary or undue
degradation by activities authorized by the U.S. Mining Laws and provide
for environmental protection of the public lands and resources.
Sec. 3802.0-2 Objectives.
The objectives of this subpart are to:
(a) Allow mining claim location, prospecting, and mining operations
in lands under wilderness review pursuant to the U.S Mining Laws, but
only in a manner that will not impair the suitability of an area for
inclusion in the wilderness system unless otherwise permitted by law;
and
(b) Assure management programs that reflect consistency between the
U.S. Mining Laws, and other appropriate statutes.
Sec. 3802.0-3 Authority.
These regulations are issued under the authority of sections 302 and
603 of the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1732, 1733, and 1782).
Sec. 3802.0-5 Definitions.
As used in this subpart, the term:
(a) Reclamation, which shall be commenced, conducted and completed
as soon after disturbance as feasible without undue physical
interference with mining operations, means:
(1) Reshaping of the lands disturbed and affected by mining
operations to the approximate original contour or to an appropriate
contour considering the surrounding topography as determined by the
authorized officer;
(2) Restoring such reshaped lands by replacement of topsoil; and
(3) Revegetating the lands by using species previously occurring in
the area to provide a vegetative cover at least to the point where
natural succession is occuring.
(b) Environment means surface and subsurface resources both tangible
and intangible, including air, water, mineral, scenic, cultural,
paleontological, vegetative, soil, wildlife, fish and wilderness values.
(c) Wilderness Study Area means a roadless area of 5,000 acres or
more or roadless islands which have been found through the Bureau of
Land Management wilderness inventory process to have wilderness
characteristics (thus having the potential of being included in the
National Wilderness Preservation System), and which will be subjected to
intensive analysis through the Bureau's planning system, and through
public review to determine wilderness suitability, and is not yet
the subject of a Congressional decision regarding its designation as
wilderness.
(d) Impairment of suitability for inclusion in the Wilderness System
means taking actions that cause impacts, that cannot be reclaimed to the
point of being substantially unnoticeable in the area as a whole by the
time the Secretary is scheduled to make a recommendation to the
President on the suitability of a wilderness study area for inclusion in
the National Wilderness Preservation System or have degraded wilderness
values so far, compared with the area's values for other purposes, as to
significantly constrain the Secretary's recommendation with respect to
the area's suitability for preservation as wilderness.
(e) Mining claim means any unpatented mining claim, millsite, or
tunnel site authorized by the U.S. mining laws.
(f) Mining operations means all functions, work, facilities, and
activities in connection with the prospecting, development, extraction,
and processing of mineral deposits and all uses reasonably incident
thereto including the construction and maintenance of means of access to
and across lands subject to these regulations, whether the operations
take place on or off the claim.
(g) Operator means a person conducting or proposing to conduct
mining operations.
(h) Authorized officer means any employee of the Bureau of Land
Management to whom has been delegated the authority to perform the
duties described in this subpart.
(i) Wilderness inventory means an evaluation conducted under BLM
wilderness inventory procedures which results in a written description
and map showing those lands that meet the wilderness criteria
established under section 603(a) of the Federal Land Policy and
Management Act.
(j) Manner and degree means that existing operations will be defined
geographically by the area of active development and the logical
adjacent (not necessarily contiguous) continuation of the existing
activity, and not necessarily by the boundary of a particular, claim or
lease, and in some cases a change in the kind of activity if the impacts
from the continuation and change of activity are not of a significantly
different kind than the existing impacts. However, the significant
measure for these activities is still the impact they are having on the
wilderness potential of an area. It is the actual use of the area, and
not the existence of an entitlement for use, which is the controlling
factor. In other words, an existing activity, even if impairing, may
continue to be expanded in an area or progress to the next stage of
development so long as the additional impacts are not significantly
different from those caused by the existing activity. In determining the
manner and degree of existing operations, a rule of reason will be
employed.
(k) Valid existing right means a valid discovery had been made on a
mining claim on October 21, 1976, and continues to be valid at the time
of exercise.
(l) Undue and unnecessary degradation means impacts greater than
those that would normally be expected from an activity being
accomplished in compliance with current standards and regulations and
based on sound practices, including use of the best reasonably available
technology.
(m) Substantially unnoticeable means something that either is so
insignificant as to be only a very minor feature of the overall area or
is not distinctly recognizable by the average visitor as being manmade
or man-caused because of age, weathering or biological change.
Sec. 3802.0-6 Policy.
Under the 1872 Mining Law (30 U.S.C. 22 et seq.), a person has a
statutory right consistent with other laws and Departmental regulations,
to go upon the open (unappropriated and unreserved) public lands for the
purpose of mineral prospecting, exploration, development, and
extraction. The Federal Land Policy and management Act requires the
Secretary to regulate mining operations in lands under wilderness review
to prevent impairment of the suitability of these areas for inclusion in
the wilderness system. However, mining operations occurring in the same
manner and degree that were being conducted on October 21, 1976,
may continue, even if they are determined to be impairing. Mining
activities not exceeding manner and degree shall be regulated only to
prevent undue and unnecessary degradation of public lands.
Sec. 3802.0-7 Scope.
(a) These regulations apply to mining operations conducted under the
United States mining laws, as they affect the resources and environment
or wilderness suitability of lands under wilderness review.
(b) These regulations apply to means of access across public land
for the purpose of conducting operations under the U.S. mining laws.
Sec. 3802.1 Plan of operations.
An approved plan shall include appropriate environmental protection
and reclamation measures selected by the authorized officer that shall
be carried out by the operator. An operator may prepare and submit with
a plan measures for the reclamation of the affected area.
Sec. 3802.1-1 When required.
An approved plan of operations is required for operations within
lands under wilderness review prior to commencing:
(a) Any mining operations which involve construction of means of
access, including bridges, landing areas for aircraft, or improving or
maintaining such access facilities in a way that alters the alignment,
width, gradient size, or character of such facilities;
(b) Any mining operations which destroy trees 2 or more inches in
diameter at the base;
(c) Mining operations using tracked vehicles or mechanized earth
moving equipment, such as bulldozers or backhoes;
(d) Any operations using motorized vehicles over other than open use
areas and trails as defined in subpart 6292 of this title, off-road
vehicles, unless the use of a motorized vehicle can be covered by a
temporory use permit issued under subpart 8372 of this title;
(e) The construction or placing of any mobile, portable or fixed
structure on public land for more than 30 days;
(f) On mining operations requiring the use of explosives; or
(g) Any operation which may cause changes in a water course.
Sec. 3802.1-2 When not required.
A plan of operations under this subpart is not required for--
(a) Searching for and occasionally removing mineral samples or
specimens;
(b) Operating motorized vehicles over open use areas and trails as
defined in 43 CFR part 8340 so long as the vehicles conform to the
operating regulations and vehicle standards contained in that subpart;
(c) Maintaining or making minor improvements of existing access
routes, bridges, landing areas for aircraft, or other facilities for
access where such improvements or maintenance shall not alter the
alignment, width, gradient, size or character of such facilities; or
(d) Making geological, radiometric, geochemical, geophysical or
other tests and measurements using instruments, devices, or drilling
equipment which are transported without using mechanized earth moving
equipment or tracked vehicles.
Sec. 3802.1-3 Operations existing on October 21, 1976.
A plan of operations shall not be required for operations that were
being conducted on October 21, 1976, unless the operation is undergoing
changes that exceed the manner and degree of operations on October 21,
1976. However, if the authorized officer determines that operations in
the same manner and degree are causing undue or unnecessary degradation
of lands and resources or adverse environmental effects, an approved
plan containing protective measures may be required. Any changes planned
in an existing operation that would result in operations exceeding the
present manner and degree shall be delayed until the plan is processed
under provisions of Sec. 3802.1-5 of this title.
Sec. 3802.1-4 Contents of plan of operations.
(a) A plan of operations shall be filed in the District Office of
the Bureau of Land Management in which the claim is located.
(b) No special form is required to file a plan of operations.
(c) The plan of operations shall include--
(1) The name and mailing address of both the person for whom the
operation will be conducted, and the person who will be in charge of the
operation and should be contacted concerning the reclamation or other
aspects of the operation (any change in the mailing address shall be
reported promptly to the authorized officer);
(2) A map, preferably a topographic map, or sketch showing present
road, bridge or aircraft landing area locations, proposed road, bridge
or aircraft landing area locations, and size of areas where surface
resources will be disturbed;
(3) Information sufficient to describe either the entire operation
proposed or reasonably foreseeable operations and how they would be
conducted, including the nature and location of proposed structures and
facilities;
(4) The type and condition of existing and proposed means of access
or aircraft landing areas, the means of transportation used or to be
used, and the estimated period during which the proposed activity will
take place;
(5) If and when applicable, the serial number assigned to the mining
claim, mill or tunnel site filed pursuant to subpart 3833 of this title.
Sec. 3802.1-5 Plan approval.
(a) The authorized officer shall promptly aknowledge the receipt of
a plan of operations and within 30 days of receipt of the plan act on
the plan of operations to determine its acceptability.
(b) The authorized officer shall review the plan of operations to
determine if the operations are impairing the suitability of the area
for preservation as wilderness. Pending approval of the plan of
operations, mining operations may continue in a manner that minimizes
environmental impacts as prescribed in Sec. 3802.3 of this title. After
completing the review of the plan of operations, the authorized officer
shall give the operator written notice that:
(1) The plan is approved subject to measures that will prevent the
impairment of the suitability of the area for preservation as wilderness
as determined by the authorized officer;
(2) Plans covering operations on a claim with a valid existing right
are approved subject to measures that will prevent undue and unnecessary
degradation of the area; or
(3) The anticipated impacts of the mining operations are such that
all or part of further operations will impair the suitability of the
area for preservation as wilderness, the plan is disapproved and
continuance of such operations is not allowed.
(c) Upon receipt of a plan of operations for mining activities
commencing after the effective date of these regulations, the authorized
officer may notify the operator, in writing, that:
(1) In an area of lands under wilderness review where an inventory
has not been completed, an operator may agree to operate under a plan of
operations that includes terms and conditions that would be applicable
in a wilderness study area. Without an agreement to this effect, no
action may be taken on the plan until a wilderness inventory is
completed;
(2) The area has been inventoried and a final decision has been
issued and become effective that the area does not contain wilderness
characteristics, and that the mining operations are no longer subject to
these regulations; or
(3) The anticipated impacts are such that all or part of the
proposed mining operations will impair the suitability of the area for
preservation as wilderness, and therefore, the proposed mining operation
cannot be allowed.
(d) In addition to paragraphs (a) through (c) of this section, the
following general plan approval procedures may also apply. The
authorized officer may notify the operator, in writing, that:
(1) The plan of operations is unacceptable and the reasons
therefore;
(2) Modification of the plan of operations is necessary to meet the
requirements of these regulations;
(3) The plan of operations is being reviewed, but that more time,
not to exceed an additional 60 days, is necessary to complete such
review, setting forth
the reasons why additional time is needed except in those instances
where it is determined that an Environmental Impact Statement,
compliance with section 106 of the National Historic Preservation Act
(NHPA) or section 7 of the Endangered Species Act is needed. Periods
during which the area of operations is inaccessible for inspection due
to climatic conditions, fire hazards or other physical conditions or
legal impediments, shall not be included when counting the 60 calendar
day period; or
(4) The proposed operations do not require a plan of operations.
(e) If the authorized officer does not notify the operator of any
action on the plan of operations within the 30-day period, or the 60-day
extension, or notify the operator of the need for an Environmental
Impact Statement or compliance with section 106 of NHPA or section 7 of
the Endangered Species Act, operations under the plan may begin. The
option to begin operations under this section does not constitute
approval of a plan of operations. However, if the authorized officer at
a later date finds that operations under the plan are impairing
wilderness suitability, the authorized officer shall notify the operator
that the operations are not in compliance with these regulations and
what changes are needed, and shall require the operator to submit a
modified plan of operations, within a time specified in the notice. If
the operator is notified of the need for an Environmental Impact
Statement, the plan of operations shall not be approved before 30 days
after a final statement is prepared and filed with the Environmental
Protection Agency. If the is operator notified of the need for
compliance with section 106 of the NHPA or section 7 of the Endangered
Species Act, the plan of operations shall not be approved until the
compliance responsibilities of the Bureau of Land Management are
satisfied.
(f) If cultural resource properties listed on or eligible for
listing on the National Register of Historic Places are within the area
of operations, no operations which would affect those resources shall be
approved until compliance with section 106 of the National Historic
Preservation Act is accomplished. The operator is not required to do or
to pay for an inventory. The responsibility and cost of the cultural
resource mitigation, except as provided in Sec. 3802.3-2(f) of this
title, included in an approved plan of operation shall be the
operator's.
(g) Pending final approval of the plan of operations, the authorized
officer may approve any operations that may be necessary for timely
compliance with requirements of Federal and State laws. Such operations
shall be conducted so as to prevent impairment of wilderness suitability
and to minimize environmental impacts as prescribed by the authorized
officer in accordance with the standards contained in Sec. 3802.3 of
this title.
Sec. 3802.1-6 Modification of plan.
(a) If the development of a plan for an entire operation is not
possible, the operator shall file an initial plan setting forth this
proposed operation to the degree reasonably foreseeable at that time.
Thereafter, the operator shall file a supplemental plan or plans prior
to undertaking any operations not covered by the initial plan.
(b) At any time during operations under an approved plan of
operations, the authorized officer or the operator may initiate a
modification of the plan detailing any necessary changes that were
unforeseen at the time of filing of the plan of operations. If the
operator does not furnish a proposed modification within a time
considered reasonable by the authorized officer, the authorized officer
may recommend to the State Director that the operator be required to
submit a proposed modification of the plan. The recommendation of the
authorized officer shall be accompanied by a statement setting forth the
supporting facts and reasons for his recommendations. In acting upon
such recommendation, except in the case of a modification under
Sec. 3802.1-5(e) of this title, the State Director shall determine (1)
whether all reasonable measures were taken by the authorized officer to
predict the environmental impacts of the proposed operations; (2)
whether the disturbance is or may become of such significance as to
require modification of the plan of
operations in order to meet the requirement for environmental protection
specified in Sec. 3802.3-2 of this title, and (3) whether the
disturbance can be minimized using reasonable means. Lacking such a
determination by the State Director, an operator is not required to
submit a proposed modification of an approved plan of operations.
Operations may continue in accordance with the approved plan of
operations until a modified plan is approved, unless the State Director
determines that the operations are causing impairment or unnecessary or
undue degradation to surface resources. He shall advise the operator of
those measures needed to avoid such damage and the operator shall
immediately take all necessary steps to implement measures recommended
by the State Director.
(c) A supplemental plan of operations or a modification of an
approved plan of operations shall be approved by the authorized officer
in the same manner as the initial plan of operations.
Sec. 3802.1-7 Existing operations.
(a) Persons conducting mining operations on the effective date of
these regulations, who would be required to submit a plan of operations
under Sec. 3802.1-1 of this title, may continue operations but shall,
within 60 days after the effective date of these regulations, submit a
plan of operations. Upon a showing of good cause, the authorized officer
shall grant an extension of time to submit a plan of operations not to
exceed an additional 180 days.
(b) Operations may continue according to the submitted plan of
operations during its review unless the operator is notified otherwise
by the authorized officer.
(c) Upon approval of a plan of operations, mining operations shall
be conducted in accordance with the approved plan.
Sec. 3802.2 Bond requirements.
(a) Any operator who conducts mining operations under an approved
plan of operations shall, if required to do so by the authorized
officer, furnish a bond in an amount determined by the authorized
officer. The authorized officer may determine not to require a bond
where mining operations would cause nominal environmental damage, or the
operator has an excellent past record for reclamation. In determining
the amount of the bond, the authorized officer shall consider the
estimated cost of stabilizing and reclaiming all areas disturbed by the
operations consistent with Sec. 3802.3-2(h) of this title.
(b) In lieu of a bond, the operator may deposit and maintain in a
Federal depository account of the United States Treasury, as directed by
the authorized officer, cash in an amount equal to the required dollar
amount of the bond or negotiable securities of the United States having
a face and market value at the time of deposit of not less than the
required dollar amount of the bond.
(c) In place of the individual bond on each separate operation, a
blanket bond covering hardrock mining operations may be furnished, at
the option of the operator, if the terms and conditions as determined by
the authorized officer are sufficient to comply with these regulations.
(d) In the event that an approved plan of operations is modified in
accordance with Sec. 3802.1-5 of this title, the authorized officer
shall review the initial bond for adequacy and, if necessary, shall
require that the amount of bond be adjusted to conform to the plan of
operations, as modified.
(e) When a mining claim is patented, except for the California
Desert Conservation Area, the authorized officer shall release the
operator from that portion of the performance bond and plan of
operations which applies to operations within the boundaries of the
patented land. The authorized officer shall release the operator from
the remainder of the performance bond and plan of operations (covering
approved means of access outside the boundaries of the mining claim)
when the operator has either completed reclamation in accordance with
paragraph (f) of this section or those requirements are waived by the
authorized officer.
(f) When all or any portion of the reclamation has been completed in
accordance with paragraph (h) of Sec. 3802.3-2 of this title, the
operator shall notify the authorized officer who shall promptly make a
joint inspection with the operator. The authorized officer
shall then notify the operator whether the performance under the plan of
operations is accepted. When the authorized officer has accepted as
completed any portion of the reclamation, he shall reduce proportionally
the amount of bond with respect to the remaining reclamation.
Sec. 3802.3 Environmental protection.
Sec. 3802.3-1 Environmental assessment.
(a) When a plan of operations or significant modification is filed,
the authorized officer shall make an environmental assessment to
identify the impacts of the proposed mining operations upon the
environment and to determine whether the proposed activity will impair
the suitability of the area for preservation as wilderness or cause
unnecessary and undue degradation and whether an environmental impact
statement is required.
(b) Following completion of the environmental assessment or the
environmental impact statement, the authorized officer shall develop
measures deemed necessary for inclusion in the plan of operations that
will prevent impairment of wilderness suitability and undue or
unnecessary degradation of land and resources.
(c) If as a result of the environment assessment, the authorized
officer determines that there is substantial public interest in the
proposed mining operations, the operator may be notified that an
additional period of time is required to consider public comments. The
period shall not exceed the additional 60 days provided for approval of
a plan in Sec. 3802.1-4 of this title except as provided for cases
requiring an environmental impact statement, a cultural resource
inventory or section 7 of the Endangered Species Act.
Sec. 3802.3-2 Requirements for environmental protection.
(a) Air quality. The operator shall comply with applicable Federal
and State air quality standards, including the requirements of the Clean
Air Act (42 U.S.C. 1857 et seq.).
(b) Water quality. The operator shall comply with applicable Federal
and State water quality standards, including regulations issued pursuant
to the Federal Water Pollution Control Act (33 U.S.C. 1151 et seq.).
(c) Solid wastes. The operator shall comply with applicable Federal
and State standards for the disposal and treatment of solid wastes. All
garbage, refuse, or waste shall either be removed from the affected
lands or disposed or treated to minimize, so far as is practicable, its
impact on the environment and the surface resources. All tailings, waste
rock, trash, deleterious materials of substances and other waste
produced by operations shall be deployed, arranged, disposed or treated
to minimize adverse impact upon the environment, surface and subsurface
resources.
(d) Visual resources. The operator shall, to the extent practicable,
harmonize operations with the visual resources, identified by the
authorized officer, through such measures as the design, location of
operating facilities and improvements to blend with the landscape.
(e) Fisheries, wildlife and plant habitat. The operator shall take
such action as may be needed to minimize or prevent adverse impact upon
plants, fish, and wildlife, including threatened or endangered species,
and their habitat which may be affected by the operations.
(f) Cultural and paleontological resources. (1) The operator shall
not knowingly disturb, alter, injure, destroy or take any scientifically
important paleontological remains or any historical, archaeological, or
cultural district, site, structure, building or object.
(2) The operator shall immediately bring to the attention of the
authorized officer any such cultural and/or paleontological resources
that might be altered or destroyed by his operation, and shall leave
such discovery intact until told to proceed by the authorized officer.
The authorized officer shall evaluate the discoveries brought to his
attention, and determine within 10 working days what action shall be
taken with respect to such discoveries.
(3) The responsibility and the cost of investigations and salvage of
such values discovered during approved operations shall be the Federal
Goverment's.
(g) Access routes. No new access routes that would cause more than
temporary impact and therefore would impair wilderness suitability shall
be constructed in a wilderness study area. Temporary access routes that
are constructed by the operator shall be constructed and maintained to
assure adequate drainage and to control or prevent damage to soil,
water, and other resource values. Unless otherwise approved by the
authorized officer, roads no longer needed for operations shall be
closed to normal vehicular traffic; bridges and culverts shall be
removed; cross drains, dips, or water bars shall be constructed, and the
road surface shall be shaped to as near a natural contour as
practicable, be stabilized and revegetated as required in the plan of
operations.
(h) Reclamation. (1) The operator shall perform reclamation of those
lands disturbed or affected by the mining operation conducted by the
operator under an approved plan of operations containing reclamation
measures stipulated by the authorized officer as contemporaneously as
feasible with operations. The disturbance or effect on mined land shall
not include that caused by separate operations in areas abandoned before
the effective date of these regulations.
(2) An operator may propose and submit with his plan of operations
measures for reclamation of the affected area.
(i) Protection of survey monuments. The operator shall, to the
extent practicable and consistent with the operation, protect all survey
monuments, witness corners, reference monuments, bearing trees and line
trees against destruction, obliteration, or damage from the approved
operations. If, in the course of operations, any monuments, corners or
accessories are destroyed, obliterated or damaged by such operations,
the operator shall immediately report the matter to the authorized
officer. The authorized officer shall prescribe in writing the
requirement for the restoration or reestablishment of monuments,
corners, bearing trees, and line trees.
Sec. 3802.4 General provisions.
Sec. 3802.4-1 Noncompliance.
(a) An operator who conducts mining operations undertaken either
without an approved plan of operations or without taking actions
specified in a notice of noncompliance within the time specified therein
may be enjoined by an appropriate court order from continuing such
operations and be liable for damages for such unlawful acts.
(b) Whenever the authorized officer determines that an operator is
failing or has failed to comply with the requirements of an approved
plan of operations, or with the provisions of these regulations and that
noncompliance is causing impairment of wilderness suitability or
unnecessary and undue degradation of the resources of the lands
involved, the authorized officer shall serve a notice of noncompliance
upon the operator by delivery in person to the operator or the
operator's authorized agent, or by certified mail addressed to the
operator's last known address.
(c) A notice of noncompliance shall specify in what respects the
operator is failing or has failed to comply with the requirements of the
plan of operations of the provisions of applicable regulations, and
shall specify the actions which are in violation of the plan or
regulations and the actions which shall be taken to correct the
noncompliance and the time limits, not to exceed 30 days, within which
corrective action shall be taken.
Sec. 3802.4-2 Access.
(a) An operator is entitled to non-exclusive access to his mining
operations consistent with provisions of the United States mining laws
and Departmental regulations.
(b) In approving access as part of a plan of operations, the
authorized officer shall specify the location of the access route, the
design, construction, operation and maintenance standards, means of
transportation, and other conditions necessary to prevent impairment of
wilderness suitability, protect the environment, the public health or
safety, Federal property and economic interests, and the interests of
other lawful users of adjacent lands or
lands traversed by the access route. The authorized officer may also
require the operator to utilize existing access routes in order to
minimize the number of separate rights-of-way, and, if practicable, to
construct access routes within a designated transportation and utility
corridor. When commercial hauling is involved and the use of an existing
access route is required, the authorized officer may require the
operator to make appropriate arrangements for use and maintenance.
Sec. 3802.4-3 Multiple-use conflicts.
In the event that uses under any lease, license, permit, or other
authorization pursuant to the provisions of any other law, shall
conflict, interfere with, or endanger operations in approved plans or
otherwise authorized by these regulations, the conflicts shall be
reconciled, as much as practicable, by the authorized officer.
Sec. 3802.4-4 Fire prevention and control.
The operator shall comply with all applicable Federal and State fire
laws and regulations, and shall take all reasonable measures to prevent
and suppress fires on the area of mining operations.
Sec. 3802.4-5 Maintenance and public safety.
During all operations, the operator shall maintain his structures,
equipment, and other facilities in a safe and orderly manner. Hazardous
sites or conditions resulting from operations shall be marked by signs,
fenced, or otherwise identified to protect the public in accordance with
applicable Federal and State laws and regulations.
Sec. 3802.4-6 Inspection.
The authorized officer shall periodically inspect operations to
determine if the operator is complying with these regulations and the
approved plan of operations, and the operator shall permit access to the
authorized officer for this purpose.
Sec. 3802.4-7 Notice of suspension of operations.
(a) Except for seasonal suspension, the operator shall notify the
authorized officer of any suspension of operations within 30 days after
such suspension. This notice shall include:
(1) Verification of intent to maintain structures, equipment, and
other facilities, and
(2) The expected reopening date.
(b) The operator shall maintain the operating site, structure, and
other facilities in a safe and environmentally acceptable condition
during nonoperating periods.
(c) The name and address of the operator shall be clearly posted and
maintained in a prominent place at the entrance to the area of mining
operations during periods of nonoperation.
Sec. 3802.4-8 Cessation of operations.
The operator shall, within 1 year following cessation of operations,
remove all structures, equipment, and other facilities and reclaim the
site of operations, unless variances are agreed to in writing by the
authorized officer. Additional time may be granted by the authorized
officer upon a show of good cause by the operator.
Sec. 3802.5 Appeals.
(a) Any party adversely affected by a decision of the authorized
officer or the State Director made pursuant to the provisions of this
subpart shall have a right of appeal to the Board of Land Appeals,
Office of Hearings and Appeals, pursuant to part 4 of this title.
(b) In any case involving lands under the jurisdiction of any agency
other than the Department of the Interior, or an office of the
Department of the Interior other than the Bureau of Land Management, the
office rendering a decision shall designate the authorized officer of
such agency as an adverse party on whom a copy of any notice of appeal
and any statement of reasons, written arguments, or brief must be
served.
Sec. 3802.6 Public availability of information.
(a) Except as provided herein, all information and data, including
plans of operation, submitted by the operator shall be available for
examination by the public at the office of the authorized officer in
accordance with the provisions of the Freedom of Information Act
(F.O.I.A.).
(b) Information and data submitted and specifically identified by
the operator as containing trade secrets or confidential or privileged
commercial or financial information and so determined by the authorized
officer will not be available for public examination.
(c) The determination concerning specific information which may be
withheld from public examination will be made in accordance with the
rules in 43 CFR part 2.
Subpart 3809--Surface Management
Authority: Secs. 2319 (30 U.S.C. 22); 2478 (43 U.S.C. 1201 ) of the
Revised Statutes and the Federal Land Policy and Management Act of 1976
(43 U.S.C. 1701 et seq.).
Source: 45 FR 78909, Nov. 26, 1980, unless otherwise noted.
Note: The information collection requirements contained in this
subpart have been approved by the Office of Management and Budget under
44 U.S.C. 3507 and assigned clearance number 1004-0104. This information
is needed to permit the authorized officer to determine if a plan of
operation is needed to protect the public lands and their resources and
to determine if the plan of operations, if one is required, is adequate.
The obligation to respond is required to obtain a benefit.
(See 48 FR 8816, Mar. 2, 1983.)
General
Sec. 3809.0-1 Purpose.
The purpose of this subpart is to establish procedures to prevent
unnecessary or undue degradation of Federal lands which may result from
operations authorized by the mining laws.
Sec. 3809.0-2 Objectives.
The objectives of this regulation are to:
(a) Provide for mineral entry, exploration, location, operations,
and purchase pursuant to the mining laws in a manner that will not
unduly hinder such activities but will assure that these activities are
conducted in a manner that will prevent unnecessary or undue degradation
and provide protection of nonmineral resources of the Federal lands;
(b) Provide for reclamation of disturbed areas; and
(c) Coordinate, to the greatest extent possible, with appropriate
State agencies, procedures for prevention of unnecessary or undue
degradation with respect to mineral operations.
Sec. 3809.0-3 Authority.
(a) Section 2319 of the Revised Statutes (30 U.S.C. 22 et seq.)
provides that exploration, location and purchase of valuable mineral
deposits, under the mining laws, on Federal lands shall be ``under
regulations prescribed by law,'' and section 2478 of the Revised
Statutes, as amended (43 U.S.C. 1201), provides that those regulations
shall be issued by the Secretary.
(b) Sections 302, 303, 601, and 603 of the Federal and Policy and
Management Act of 1976 (43 U.S.C. 1701 et seq.) require the Secretary to
take any action, by regulation or otherwise, to prevent unnecessary or
undue degradation of the Federal lands, provide for enforcement of those
regulations, and direct the Secretary to manage the California Desert
Conservation Area under reasonable regulations which will protect the
scenic, scientific, and environmental values against undue impairment,
and to assure against pollution of streams and waters.
(c) The Act of July 23, 1955 (30 U.S.C. 612), provides that rights
under mining claims located after July 23, 1955, shall prior to issuance
of patent therefor, be subject to the right of the United States to
manage and dispose of the vegetative surface resources and to manage
other surface resources. The Act also provides that ``Any mining claim
hereafter located under the mining laws of the United States shall not
be used, prior to issuance to patent therefor, for any purposes other
than prospecting, mining or processing operations and uses reasonably
incident thereto.''
(d) Section 9 of the Wild and Scenic Rivers Act (16 U.S.C. 1280)
provides that regulations issued shall, among other things, provide
safeguards against pollution of the rivers involved and unnecessary
impairment of the scenery within the area designated for potential
addition to, or an actual component of the national wild and scenic
rivers system.
(e) The Act of October 21, 1970 (16 U.S.C. 460y et seq.), as amended
by Section 602 of the Federal Land Policy and Management Act of 1976 (16
U.S.C. 460y-8), established the King Range Conservation Area in
California. The Secretary is required under these Acts to manage
activities in this conservation area under the General Mining Law of
1872 in such a manner as to protect the scenic, scientific, and
environmental values against undue impairment, and ensure against
pollution of streams and waters.
[45 FR 78909, Nov, 26, 1980, as amended at 59 FR 44856, Aug. 30, 1994]
Sec. 3809.0-5 Definitions.
As used in this subpart, the term:
(a) Authorized officer means any employee of the Bureau of Land
Management to whom authority has been delegated to perform the duties
described in this subpart.
(b) Casual Use means activities ordinarily resulting in only
negligible disturbance of the Federal lands and resources. For example,
activities are generally considered casual use if they do not involve
the use of mechanized earth moving equipment or explosives or do not
involve the use of motorized vehicles in areas designated as closed to
off-road vehicles as defined in subpart 8340 of this title.
(c) Federal lands means lands subject to the mining laws including,
but not limited to, the certain public lands defined in section 103 of
the Federal Land Policy and Management Act of 1976. Federal lands does
not include lands in the National Park System, National Forest System,
and the National Wildlife Refuge System, nor does it include acquired
lands, Stockraising Homestead lands or lands where only the mineral
interest is reserved to the United States or lands under Wilderness
Review and administered by the Bureau of Land Management (these lands
are subject to the 43 CFR part 3802 regulations).
(d) Mining claim means any unpatented mining claim, millsite, or
tunnel site located under the mining laws and those patented mining
claims and millsites located in the California Desert Conservation Area
which have been patented subsequent to the enactment of the Federal Land
Policy and Management Act of October 21, 1976.
(e) 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); and all
laws supplementing and amending those laws, including among others the
Building Stone Act of August 4, 1892, as amended (27 Stat. 348); and the
Saline Placer Act of January 31, 1901 (31 Stat. 745).
(f) Operations means all functions, work, facilities, and activities
in connection with prospecting, discovery and assessment work,
development, extraction, and processing of mineral deposits locatable
under the mining laws and all other uses reasonably incident thereto,
whether on a mining claim or not, including but not limited to the
construction of roads, transmission lines, pipelines, and other means of
access for support facilities across Federal lands subject to these
regulations.
(g) Operator means a person conducting or proposing to conduct
operations.
(h) Person means any citizen of the United States or person who has
declared the intention to become such and includes any individual,
partnership, corporation, association, or other legal entity.
(i) Project area means a single tract of land upon which an operator
is, or will be, conducting operations. It may include one mining claim
or a group of mining claims under one ownership on which operations are
or will be conducted, as well as Federal lands on which an operator is
exploring or prospecting prior to locating a mining claim.
(j) Reclamation means taking such reasonable measures as will
prevent unnecessary or undue degradation of the Federal lands, including
reshaping land disturbed by operations to an appropriate contour and,
where necessary, revegetating disturbed areas so as to provide a diverse
vegetative cover. Reclamation may not be required where the retention of
a stable highwall or other mine workings is needed to preserve evidence
of mineralization.
(k) Unnecessary or undue degradation means surface disturbance
greater than
what would normally result when an activity is being accomplished by a
prudent operator in usual, customary, and proficient operations of
similar character and taking into consideration the effects of
operations on other resources and land uses, including those resources
and uses outside the area of operations. Failure to initiate and
complete reasonable mitigation measures, including reclamation of
disturbed areas or creation of a nuisance may constitute unnecessary or
undue degradation. Failure to comply with applicable environmental
protection statutes and regulations thereunder will constitute
unnecessary or undue degradation. Where specific statutory authority
requires the attainment of a stated level of protection or reclamation,
such as in the California Desert Conservation Area, Wild and Scenic
Rivers, areas designated as part of the National Wilderness System
administered by the Bureau of Land Management and other such areas, that
level of protection shall be met.
(l) King Range Conservation Area means the area designated pursuant
to the Act of October 21, 1970 (16 U.S.C. 460y et seq.), as amended by
Section 602 of the Federal Land Policy and Management Act of 1976 (16
U.S.C. 460y-8).
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980, as amended at
48 FR 8816, Mar. 2, 1983; 59 FR 44856, Aug. 30, 1994]
Sec. 3809.0-6 Policy.
Consistent with section 2 of the Mining and Mineral Policy Act of
1970 and section 102(a) (7), (8), and (12) of the Federal Land Policy
and Management Act, it is the policy of the Department of the Interior
to encourage the development of Federal mineral resources and
reclamation of disturbed lands. Under the mining laws a person has a
statutory right, consistent with Departmental regulations, to go upon
the open (unappropriated and unreserved) Federal lands for the purpose
of mineral prospecting, exploration, development, extraction and other
uses reasonably incident thereto. This statutory right carries with it
the responsibility to assure that operations include adequate and
responsible measures to prevent unnecessary or undue degradation of the
Federal lands and to provide for reasonable reclamation.
Sec. 3809.1 Operations.
Sec. 3809.1-1 Reclamation.
All operations, whether casual, under a notice, or by a plan of
operations, shall be reclaimed as required in this title.
Sec. 3809.1-2 Casual use: Negligible disturbance.
No notification to or approval by the authorized officer is required
for casual use operations. However, casual use operations are subject to
monitoring by the authorized officer to ensure that unnecessary or undue
degradation of Federal lands will not occur.
Sec. 3809.1-3 Notice: Disturbance of 5 acres or less.
(a) All operators on project areas whose operations, including
access across Federal lands to the project area, cause a cumulative
surface disturbance of 5 acres or less during any calendar year shall
notify the authorized officer in the District office of the Bureau of
Land Management having jurisdiction over the land in which the claim(s)
or project area is located. Prior to conducting additional operations
under a subsequent notice covering substantially the same ground, the
operator shall have completed reclamation of operations which were
conducted under any previous notice. Notification of such activities, by
the operator, shall be made at least 15 calendar days before commencing
operations under this subpart by a written notice or letter.
(b) Approval of a notice, by the authorized officer, is not
required. Consultation with the authorized officer may be required under
paragraph (c)(3) of this section when the construction of access routes
are involved. Notices properly filed under this section constitute
authorization under part 8340 of this title (Off-Road Vehicles).
(c) The notice or letter shall include:
(1) Name and mailing address of the mining claimant and operator, if
other than the claimant. Any change of operator or in the mailing
address of the mining claimant or operator shall be
reported promptly to the authorized officer;
(2) When applicable, the name of the mining claim(s), and serial
number(s) assigned to the mining claim(s) recorded pursuant to subpart
3833 of this title on which disturbance will likely take place as a
result of the operations;
(3) A statement describing the activities proposed and their
location in sufficient detail to locate the activities on the ground,
and giving the approximate date when operations will start. The
statement shall include a description and location of access routes to
be constructed and the type of equipment to be used in their
construction. 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 which require cuts on the inside edge in 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;
(4) A statement that reclamation of all areas disturbed will be
completed to the standard described in Sec. 3809.1-3(d) of this title
and that reasonable measures will be taken to prevent unnecessary or
undue degradation of the Federal lands during operations.
(d) The following standards govern activities conducted under a
notice:
(1) 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.
(2) All tailings, dumps, deleterious materials or substances, and
other waste produced by the operations shall be disposed of so as to
prevent unnecessary or undue degradation and in accordance with
applicable Federal and State Laws.
(3) At the earliest feasible time, the operator shall reclaim the
area disturbed, except to the extent necessary to preserve evidence of
mineralization, by taking reasonable measures to prevent or control on-
site and off-site damage of the Federal lands.
(4) Reclamation shall include, but shall not be limited to:
(i) Saving of topsoil for final application after reshaping of
disturbed areas have been completed;
(ii) Measures to control erosion, landslides, and water runoff;
(iii) Measures to isolate, remove, or control toxic materials;
(iv) Reshaping the area disturbed, application of the topsoil, and
revegetation of disturbed areas, where reasonably practicable; and
(v) Rehabilitation of fisheries and wildlife habitat.
(5) When reclamation of the disturbed area has been completed,
except to the extent necessary to preserve evidence of mineralization,
the authorized officer shall be notified so that an inspection of the
area can be made.
(e) Operations conducted pursuant to this subpart are subject to
monitoring by the authorized officer to ensure that operators are
conducting operations in a manner which will not cause unnecessary or
undue degradation.
(f) Failure of the operator to prevent undue or unnecessary
degradation or to complete reclamation to the standards described in
this subpart may cause the operator to be subject to a notice of
noncompliance as described in Sec. 3809.3-2 of this title.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980, as amended at
48 FR 8816, Mar. 2, 1983]
Sec. 3809.1-4 Plan of operations: When required.
An approved plan of operations is required prior to commencing:
(a) Operations which exceed the disturbance level (5 acres)
described in Sec. 3809.1-3 of this title.
(b) Any operation, except casual use, in the following designated
areas:
(1) Lands in the California Desert Conservation Area designated as
controlled or limited use areas by the California Desert Conservation
Area plan;
(2) Areas designated for potential addition to, or an actual
component of the national wild and scenic rivers system,
(3) Designated Areas of Critical Environmental Concern;
(4) Areas designated as part of the National Wilderness Preservation
System and administered by the Bureau of Land Management;
(5) Areas designated as closed to off-road vehicle use as defined in
subpart 8340 of this title.
(6) The area designated as the King Range Conservation Area pursuant
to 16 U.S.C. 460y et seq., as amended by section 602 of the Federal Land
Policy and Management Act of 1976.
(c) Plans properly filed and approved under this section constitute
authorization under part 8340 of this title (Off-Road Vehicles).
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980, as amended at
48 FR 8816, Mar. 2, 1983; 59 FR 44856, Aug. 30, 1994]
Sec. 3809.1-5 Filing and contents of plan of operations.
(a) A plan of operations must be filed in the District Office of the
Bureau of Land Management having jurisdiction over the Federal lands in
which the claim(s) or project area is located.
(b) No special form is required for filing a plan.
(c) The plan shall include:
(1) The name and mailing address of the operator (and claimant if
not the operator). Any change of operator or change in the mailing
address shall be promptly reported to the authorized officer;
(2) A map, preferably a topographic map, or sketch showing existing
and/or proposed routes of access, aircraft landing areas, or other means
of access, and size of each area where surface disturbance will occur;
(3) When applicable, the name of the mining claim(s) and mining
claim serial numbers assigned to the mining claim(s) recorded pursuant
to subpart 3833 of this title.
(4) Information sufficient to describe or identify the type of
operations proposed, how they will be conducted and the period during
which the proposed activity will take place;
(5) Measures to be taken to prevent unnecessary or undue degradation
and measures to reclaim disturbed areas resulting from the proposed
operations, including the standards listed in Sec. 3809.1-3(d) of this
title. Where an operator advises the authorized officer that he/she does
not have the necessary technical resources to develop such measures the
authorized officer will assist the operator in developing such measures.
If an operator submits reclamation measures, the authorized officer will
ensure that the operator's plan is sufficient to prevent unnecessary or
undue degradation. All reclamation measures developed by the operator,
or by the authorized officer in conjunction with the operator, shall
become a part of the plan of operations.
(6) Measures to be taken during extended periods of nonoperation to
maintain the area in a safe and clean manner and to reclaim the land to
avoid erosion and other adverse impacts. If not filed at the time of
plan submittal, this information shall be filed with the authorized
officer whenever the operator anticipates a period of nonoperation.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980]
Sec. 3809.1-6 Plan approval.
(a) A proposed plan of operations shall be submitted to the
authorized officer, who shall promptly acknowledge receipt thereof to
the operator. The authorized officer shall, within 30 days of such
receipt, analyze the proposal in the context of the requirement to
prevent unnecessary or undue degradation and provide for reasonable
reclamation, and shall notify the operator:
(1) That the plan is approved; or
(2) Of any changes in or additions to the plan necessary to meet the
requirements of these regulations; or
(3) That the plan is being reviewed, but that a specified amount of
time, not to exceed an additional 60 days, is necessary to complete the
review, setting forth the circumstances which justify additional time
for review. However, days during which the area of operations is
inaccessible for inspection shall not be counted when computing the 60
day period; or
(4) That the plan cannot be approved until 30 days after a final
environmental statement has been prepared and filed with the
Environmental Protection Agency; or
(5) That the plan cannot be approved until the authorized officer
has complied with section 106 of the National Historic Preservation Act
or section 7 of the Endangered Species Act.
(b) The authorized officer shall consult with the appropriate
official of the
bureau or agency having surface management responsibilities where such
responsibility is not exercised by the Bureau of Land Management. Prior
to plan approval the authorized officer shall obtain the concurrence of
such appropriate official to the terms and conditions that may be needed
to prevent unnecessary or undue degradation.
(c) The authorized officer shall undertake an appropriate level of
cultural resource inventory of the area to be disturbed. The inventory
shall be completed within the time allowed by these regulations for
approval of the plan (30 days). The operator is not required to do the
inventory but may hire an archaeologist approved by the Bureau of Land
Management in order to complete the inventory more expeditiously. The
responsibility for and cost of salvage of cultural resources discovered
during the inventory shall be the Federal Government's. The
responsibility of avoiding adverse impacts on those cultural resources
discovered during the inventory shall be the operator's.
(d) Pending final approval of the plan, the authorized officer shall
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.
(e) In the event of a change of operators involving an approved plan
of operations, the new operator shall satisfy the requirements of
Sec. 3809.1-9 of this title as it relates to bonding.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980]
Sec. 3809.1-7 Modification of plan.
(a) At any time during operations under an approved plan, the
operator on his/her own initiative may modify the plan or the authorized
officer may request the operator to do so.
(b) A significant modification of an approved plan must be reviewed
and approved by the authorized officer in the same manner as the initial
plan.
(c)(1) If, when requested to do so by the authorized officer, the
operator does not furnish a proposed modification within a reasonable
time, usually 30 days, the authorized officer may recommend to the State
Director that the operator be required to submit a proposed modification
of the plan. The recommendation of the authorized officer shall be
accompanied by a statement setting forth the facts and the reasons for
the recommendations.
(2) In acting upon such recommendations the State Director shall
determine, within 30 days, whether:
(i) All reasonable measures were taken by the authorized officer at
the time the plan was approved to ensure that the proposed operations
would not cause unnecessary or undue degradation of the Federal land;
(ii) The disturbance from the operations of the plan as approved or
from unforeseen circumstances is or may become of such significance that
modification of the plan is essential in order to prevent unnecessary or
undue degradation; and
(iii) The disturbance can be minimized using reasonable means.
(3) Once the matter has been sent to the State Director, an operator
is not required to submit a proposed modification of an approved plan
until a determination is made by the State Director. Where the State
Director determines that a plan shall be modified, the operator shall
timely submit a modified plan to the authorized officer for review and
approval.
(4) Operations may continue in accordance with the approved plan
until a modified plan is approved, unless the State Director determines
that the operations are causing unnecessary or undue degradation to the
land. The State Director shall advise the operator of those reasonable
measures needed to avoid such degradation and the operator shall
immediately take all necessary steps to implement those measures within
a reasonable period established by the State Director.
Sec. 3809.1-8 Existing operations.
(a) Persons conducting operations on the effective date of these
regulations, who would be required to submit a notice under Sec. 3809.1-
3 or a plan of operations under Sec. 3809.1-4 of this title may continue
operations but shall, within:
(1) 30 days submit a notice with required information outlined in
Sec. 3809.1-
3 of this title for operations where 5 acres or less will be disturbed
during a calendar year; or
(2) 120 days submit a plan in those areas identified in Sec. 3809.1-
4 of this title. Upon a showing of good cause, the authorized officer
may grant an extension of time, not to exceed an additional 180 days, to
submit a plan.
(b) Operations may continue according to the submitted plan during
its review. If the authorized officer determines that operations are
causing unnecessary or undue degradation of the Federal lands involved,
the authorized officer shall advise the operator of those reasonable
measures needed to avoid such degradation, and the operator shall take
all necessary steps to implement those measures within a reasonable time
recommended by the authorized officer. During the period of an appeal,
if any, operations may continue without change, subject to other
applicable Federal and State laws.
(c) Upon approval of a plan by the authorized officer, operations
shall be conducted in accordance with the approval plan.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980]
Sec. 3809.1-9 Bonding requirements.
(a) No bond shall be required for operations that constitute casual
use (Sec. 3809.1-2) or that are conducted under a notice (Sec. 3809.1-3
of this title).
(b) Any operator who conducts operations under an approved plan of
operations as described in Sec. 3809.1-5 of this title may, at the
discretion of the authorized officer, be required to furnish a bond in
an amount specified by the authorized officer. The authorized officer
may determine not to require a bond in circumstances where operations
would cause only minimal disturbance to the land. In determining the
amount of the bond, the authorized officer shall consider the estimated
cost of reasonable stabilization and reclamation of areas disturbed. In
lieu of the submission of a separate bond, the authorized officer may
accept evidence of an existing bond pursuant to State law or regulations
for the same area covered by the plan of operations, upon a
determination that the coverage would be equivalent to that provided in
this section.
(c) In lieu of a bond, the operator may deposit and maintain in a
Federal depository account of the United States Treasury, as directed by
the authorized officer, cash in an amount equal to the required dollar
amount of the bond or negotiable securities of the United States having
a market value at the time of deposit of not less than the required
dollar amount of the bond.
(d) In place of the individual bond on each separate operation, a
blanket bond covering statewide or nationwide operations may be
furnished at the option of the operator, if the terms and conditions, as
determined by the authorized officer, are sufficient to comply with
these regulations.
(e) In the event that an approved plan is modified in accordance
with Sec. 3809.1-7 of this title, the authorized officer shall review
the initial bond for adequacy and, if necessary, adjust the amount of
the bond to conform to the plan as modified.
(f) When all or any portion of the reclamation has been completed in
accordance with the approved plan, the operator may notify the
authorized officer that such reclamation has occurred and that she/he
seeks a reduction in bond or Bureau approval of the adequacy of the
reclamation, or both. Upon any such notification, the authorized officer
shall promptly inspect the reclaimed area with the operator. The
authorized officer shall then notify the operator, in writing, whether
the reclamation is acceptable. When the authorized officer has accepted
as completed any portion of the reclamation, the authorized officer
shall authorize that the bond be reduced proportionally to cover the
remaining reclamation to be accomplished.
(g) When a mining claim is patented, the authorized officer shall
release the operator from that portion of the performance bond which
applies to operations within the boundaries of the patented land. The
authorized officer shall release the operator from the remainder of the
performance bond, including the portion covering approved means of
access outside the boundaries of the mining claim, when the operator has
completed acceptable reclamation.
However, existing access to patented mining claims, if across Federal
lands shall continue to be regulated under the approved plan. The
provisions of this subsection do not apply to patents issued on mining
claims within the boundaries of the California Desert Conservation Area
(see Sec. 3809.6 of this title).
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980]
Sec. 3809.2 Prevention of unnecessary or undue degradation.
Sec. 3809.2-1 Environmental assessment.
(a) When an operator files a plan of operations or a significant
modification which encompasses land not previously covered by an
approved plan, the authorized officer shall make an environmental
assessment or a supplement thereto to identify the impacts of the
proposed operations on the lands and to determine whether an
environmental impact statement is required.
(b) In conjunction with the operator, the authorized officer shall
use the environmental assessment to determine the adequacy of mitigating
measures and reclamation procedures included in the plan to insure the
prevention of unnecessary or undue degradation of the land. If an
operator advises the authorized officer that he/she is unable to prepare
mitigating measures, the authorized officer, in conjunction with the
operator, shall use the environmental assessment as a basis for
assisting the operator in developing such measures.
(c) If, as a result of the environmental assessment, the authorized
officer determines that there is substantial public interest in the
plan, the authorized officer shall notify the operator, in writing, that
an additional period of time, not to exceed the additional 60 days
provided for approval of a plan in Sec. 3809.1-6 of this title, is
required to consider public comments on the environmental assessment.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980, as amended at
48 FR 8816, Mar. 2, 1983]
Sec. 3809.2-2 Other requirements for environmental protection.
All operations, including casual use and operations under either a
notice (Sec. 3809.1-3) or a plan of operations (Sec. 3809.1-4 of this
title), shall be conducted to prevent unnecessary or undue degradation
of the Federal lands and shall comply with all pertinent Federal and
State laws, including but not limited to the following:
(a) Air quality. All operators shall comply with applicable Federal
and State air quality standards, including the Clean Air Act (42 U.S.C.
1857 et seq.).
(b) Water quality. All operators shall comply with applicable
Federal and State water quality standards, including the Federal Water
Pollution Control Act, as amended (30 U.S.C. 1151 et seq.).
(c) Solid wastes. All operators shall comply with applicable Federal
and State standards for the disposal and treatment of solid wastes,
including regulations issued pursuant to the Solid Waste Disposal Act as
amended by the Resource Conservation and Recovery Act (42 U.S.C. 6901 et
seq.). All garbage, refuse or waste shall either be removed from the
affected lands or disposed of or treated to minimize, so far as is
practicable, its impact on the lands.
(d) Fisheries, wildlife and plant habitat. The operator shall take
such action as may be needed to prevent adverse impacts to threatened or
endangered species, and their habitat which may be affected by
operations.
(e) Cultural and paleontological resources. (1) Operators shall not
knowingly disturb, alter, injure, or destroy any scientifically
important paleontological remains or any historical or archaeological
site, structure, building or object on Federal lands.
(2) Operators shall immediately bring to the attention of the
authorized officer any cultural and/or paleontological resources that
might be altered or destroyed on Federal lands by his/her operations,
and shall leave such discovery intact until told to proceed by the
authorized officer. The authorized officer shall evaluate the
discoveries brought to his/her attention, take action to protect or
remove the resource, and allow operations to proceed within 10 working
days after notification to the authorized officer of such discovery.
(3) The Federal Government shall have the responsibility and bear
the cost of investigations and salvage of cultural and paleontology
values discovered after a plan of operations has been approved, or where
a plan is not involved.
(f) Protection of survey monuments. To the extent practicable, all
operators shall protect all survey monuments, witness corners, reference
monuments, bearing trees and line trees against unnecessary or undue
destruction, obliteration or damage. If, in the course of operations,
any monuments, corners, or accessories are destroyed, obliterated or
damaged by such operations, the operator shall immediately report the
matter to the authorized officer. The authorized officer shall
prescribe, in writing, the requirements for the restoration or
reestablishment of monuments, corners, bearing and line trees.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980, as amended at
48 FR 8816, Mar. 2, 1983]
Sec. 3809.3 General provisions.
Sec. 3809.3-1 Applicability of State law.
(a) Nothing in this subpart shall be construed to effect a
preemption of State laws and regulations relating to the conduct of
operations or reclamation on Federal lands under the mining laws.
(b) After the publication date of these regulations the Director,
Bureau of Land Management, shall conduct a review of State laws and
regulations in effect or due to come into effect, relating to
unnecessary or undue degradation of lands disturbed by exploration for,
or mining of, minerals locatable under the mining laws.
(c) The Director may consult with appropriate representatives of
each State to formulate and enter into agreements to provide for a joint
Federal-State program for administration and enforcement. The purpose of
such agreements is to prevent unnecessary or undue degradation of the
Federal lands from operations which are conducted under the mining laws,
to prevent unnecessary administrative delay and to avoid duplication of
administration and enforcement of laws. Such agreements may, whenever
possible, provide for State administration and enforcement of such
programs.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980]
Sec. 3809.3-2 Noncompliance.
(a) Failure of an operator to file a notice under Sec. 3809.1-3 of
this title or a plan of operations under Sec. 3809.1-4 of this title
will subject the operator, at the discretion of the authorized officer,
to being served a notice of non-compliance or enjoined from the
continuation of such operations by a court order until such time as a
notice or plan is filed with the authorized officer. The operator shall
also be responsible to reclaim operations conducted without an approved
plan of operations or prior to the filing of a required notice.
(b) Failure to reclaim areas disturbed by operations under
Sec. 3809.1-3 of this title is a violation of these regulations.
(1) Where an operator is conducting operations covered by 3809.1-3
(notice) of this title and fails to comply with the provisions of that
section or properly conduct reclamation according to standards set forth
in 3809.1-3(d) of this title, a notice of noncompliance shall be served
by delivery in person to the operator or his/her authorized agent, or by
certified mail addressed to his/her address of record.
(2) Operators conducting operations under an approved plan of
operations who fails to follow the approved plan of operations may be
subject to a notice of noncompliance. A notice of noncompliance shall be
served in the same manner as described in Sec. 3809.3-2(b)(1) of this
section.
(c) All operators who conduct operations under a notice pursuant to
Sec. 3809.1-3 and a plan pursuant to Sec. 3809.1-4 of this title on
Federal lands without taking the actions specified in a notice of
noncompliance within the time specified therein may be enjoined by an
appropriate court order from continuing such operations and be liable
for damages for such unlawful acts.
(d) A notice of noncompliance shall specify in what respects the
operator is failing or has failed to comply with the requirements of
applicable regulations, and shall specify the actions which are in
violation of the regulations and the
actions which shall be taken to correct the noncompliance and the time,
not to exceed 30 days, within which corrective action shall be started.
(e) Failure of an operator to take necessary actions on a notice of
noncompliance, may constitute justification for requiring the submission
of a plan of operations under Sec. 3809.1-5 of this title, and mandatory
bonding for subsequent operations which would otherwise be conducted
pursuant to a notice under Sec. 3809.1-3 of this title.
[45 FR 78909, Nov. 26, 1980; 45 FR 82934, Dec. 17, 1980]
Sec. 3809.3-3 Access.
(a) An operator is entitled to access to his operations consistent
with provisions of the mining laws.
(b) 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.
Sec. 3809.3-4 Fire prevention and control.
The operator shall comply with all applicable Federal and State fire
laws and regulations, and shall take all reasonable measures to prevent
and suppress fires in the area of operations.
Sec. 3809.3-5 Maintenance and public safety.
During all operations, the operator shall maintain his structures,
equipment, and other facilities in a safe and orderly manner. Hazardous
sites or conditions resulting from operations shall be marked by signs,
fenced, or otherwise identified to alert the public in accordance with
applicable Federal and State laws and regulations.
Sec. 3809.3-6 Inspection.
The authorized officer may periodically inspect operations to
determine if the operator is complying with these regulations. The
operator shall permit the authorized officer access for this purpose.
Sec. 3809.3-7 Periods of non-operation.
All operators shall maintain the site, structures and other
facilities of the operations in a safe and clean condition during any
non-operating periods. All operators may be required, after an extended
period of non-operation for other than seasonal operations, to remove
all structures, equipment and other facilities and reclaim the site of
operations, unless he/she receives permission, in writing, from the
authorized officer to do otherwise.
Sec. 3809.4 Appeals.
(a) Any operator adversely affected by a decision of the authorized
officer made pursuant to the provisions of this subpart shall have a
right of appeal to the State Director, and thereafter to the Board of
Land Appeals, Office of Hearings and Appeals, pursuant to part 4 of this
title, if the State Director's decision is adverse to the appellant.
(b) No appeal shall be considered unless it is filed, in writing, in
the office of the authorized officer who made the decision from which an
appeal is being taken, within 30 days after the date of receipt of the
decision. A decision of the authorized officer from which an appeal is
taken to the State Director shall be effective during the pendency of an
appeal. A request for a stay may accompany the appeal.
(c) The appeal to the State Director shall contain:
(1) The name and mailing address of the appellant.
(2) When applicable, the name of the mining claim(s) and serial
number(s) assigned to the mining claims recorded pursuant to subpart
3833 of this title which are subject to the appeal.
(3) A statement of the reasons for the appeal and any arguments the
appellant wishes to present which would justify reversal or modification
of the decision.
(d) The State Director shall promptly render a decision on the
appeal. The decision shall be in writing and shall set forth the reasons
for the decision. The decision shall be sent to the appellant
by certified mail, return receipt requested.
(e) The decision of the State Director, when adverse to the
appellant, may be appealed to the Board of Land Appeals, Office of
Hearings and Appeals, pursuant to part 4 of this title.
(f) Any party, other than the operator, aggrieved by a decision of
the authorized officer shall utilize the appeals procedures in part 4 of
this title. The filing of such an appeal shall not stop the authorized
officer's decision from being effective.
(g) Neither the decision of the authorized officer nor the State
Director shall be construed as final agency action for the purpose of
judicial review of that decision.
[45 FR 78909, Nov. 26, 1980, as amended at 48 FR 8816, Mar. 2, 1983]
Sec. 3809.5 Public availability of information.
(a) Information and data submitted and specifically identified by
the operator as containing trade secrets or confidential or privileged
commercial or financial information shall not be available for public
examination. Other information and data submitted by the operator shall
be available for examination by the public at the office of the
authorized officer in accordance with the provisions of the Freedom of
Information Act.
(b) The determination concerning specific information which may be
withheld from public examination shall be made in accordance with the
rules in 43 CFR part 2.
Sec. 3809.6 Special provisions relating to mining claims patented
within the boundaries of the California Desert Conservation
Area.
In accordance with section 601(f) of the Federal Land Policy and
Management Act of October 21, 1976, all patents issued on mining claims
located within the boundaries of the California Desert Conservation Area
after the enactment of the Federal Land Policy and Management Act shall
be subject to the regulations in this part, including the continuation
of a plan of operations and of bonding with respect to the land covered
by the patent. |