43 CFR Part 3800

Pt. 3800

43 CFR Ch. II (10–1–18 Edition)

13, 1954, section 10(d) of the act provides:
(d) Notwithstanding the provisions of the
Atomic Energy Act, and particularly sec.
5(b)(7) thereof, prior to its amendment hereby, or the provisions of the Act of August 12,
1953 (67 Stat. 539), and particularly sec. 3
thereof, any mining claim, heretofore located under the mining laws of the United
States for or based upon a discovery of a
mineral deposit which is a fissionable source
material and which, except for the possible
contrary construction of said Atomic Energy
Act, would have been locatable under such
mining laws, shall, insofar as adversely affected by such possible contrary construction, be valid and effective, in all respects to
the same extent as if said mineral deposit
were a locatable mineral deposit other than
a fissionable source material.
[35 FR 9741, June 13, 1970, as amended at 41
FR 50690, Nov. 17, 1976]

Group 3800—Mining Claims Under
the General Mining Laws
NOTE: The information collection requirements contained in parts 3800, 3810, 3820, 3830,
3860 and 3870 of Group 3800 have been approved by the Office of Management and
Budget under 44 U.S.C. 3507 and assigned
clearance numbers 1004–0025, 1004–0104, 1004–
0110 and 1004–0114. The information is being
collected to permit the authorized officer to
review certain proposed mining activities to
ensure that they provide adequate protection
of the public lands and their resources. The
information will be used to make this determination. A response is required to obtain a
benefit.
(See 48 FR 40890, Sept. 12, 1983)

PART
3800—MINING
CLAIMS
UNDER THE GENERAL MINING
LAWS
Subpart 3800—General
3800.5 Fees
3800.6 Am I required to pay any fees to use
the surface of public lands for mining
purposes?

jstallworth on DSKBBY8HB2PROD with CFR

Subpart 3802—Exploration and Mining,
Wilderness Review Program

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 INFORMATION
3809.1 What are the purposes of this subpart?
3809.2 What is the scope of this subpart?
3809.3 What rules must I follow if State law
conflicts with this subpart?
3809.5 How does BLM define certain terms
used in this subpart?
3809.10 How does BLM classify operations?
3809.11 When do I have to submit a plan of
operations?
3809.21 When do I have to submit a notice?
3809.31 Are there any special situations that
affect what submittals I must make before I conduct operations?
3809.100 What special provisions apply to operations on segregated or withdrawn
lands?
3809.101 What special provisions apply to
minerals that may be common variety
minerals, such as sand, gravel, and building stone?
3809.111 Will BLM disclose to the public the
information I submit under this subpart?
3809.115 Can BLM collect information under
this subpart?.
3809.116 As a mining claimant or operator,
what are my responsibilities under this
subpart for my project area?
FEDERAL/STATE AGREEMENTS
3809.200 What kinds of agreements may
BLM and a State make under this subpart?
3809.201 What should these agreements address?
3809.202 Under what conditions will BLM
defer to State regulation of operations?

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.

914

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00924

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

Pt. 3800

3809.203 What are the limitations on BLM
deferral to State regulation of operations?
3809.204 Does this subpart cancel an existing
agreement between BLM and a State?

3809.433 Does this subpart apply to a new
modification of my plan of operations?
3809.434 How does this subpart apply to
pending modifications for new or existing
facilities?

OPERATIONS CONDUCTED UNDER NOTICES

FINANCIAL GUARANTEE REQUIREMENTS—
GENERAL

3809.300 Does this subpart apply to my existing notice-level operations?
3809.301 Where do I file my notice and what
information must I include in it?
3809.311 What action does BLM take when it
receives my notice?
3809.312 When may I begin operations after
filing a complete notice?
3809.313 Under what circumstances may I
not begin operations 15 calendar days
after filing my notice?
3809.320 Which performance standards apply
to my notice-level operations?
3809.330 May I modify my notice?
3809.331 Under what conditions must I modify my notice?
3809.332 How long does my notice remain in
effect?
3809.333 May I extend my notice, and, if so,
how?
3809.334 What if I temporarily stop conducting operations under a notice?
3809.335 What happens when my notice expires?
3809.336 What if I abandon my notice-level
operations?

INDIVIDUAL FINANCIAL GUARANTEE
3809.552 What must my individual financial
guarantee cover?
3809.553 May I post a financial guarantee for
a part of my operations?
3809.554 How do I estimate the cost to reclaim my operations?
3809.555 What forms of individual financial
guarantee are acceptable to BLM?
3809.556 What special requirements apply to
financial
guarantees
described
in
§ 3809.555(e)?
BLANKET FINANCIAL GUARANTEE
3809.560 Under what circumstances may I
provide a blanket financial guarantee?

OPERATIONS CONDUCTED UNDER PLANS OF
OPERATIONS
3809.400 Does this subpart apply to my existing or pending plan of operations?
3809.401 Where do I file my plan of operations and what information must I include with it?
3809.411 What action will BLM take when it
receives my plan of operations?
3809.412 When may I operate under a plan of
operations?
3809.415 How do I prevent unnecessary or
undue degradation while conducting operations on public lands?
3809.420 What performance standards apply
to my notice or plan of operations?
3809.421 Enforcement of performance standards.
3809.423 How long does my plan of operations remain in effect?
3809.424 What are my obligations if I stop
conducting operations?
MODIFICATIONS OF PLANS OF OPERATIONS

jstallworth on DSKBBY8HB2PROD with CFR

3809.500 In general, what are BLM’s financial guarantee requirements?
3809.503 When must I provide a financial
guarantee for my notice-level operations?
3809.505 How do the financial guarantee requirements of this subpart apply to my
existing plan of operations?
3809.551 What are my choices for providing
BLM with a financial guarantee?

3809.430 May I modify my plan of operations?
3809.431 When must I modify my plan of operations?
3809.432 What process will BLM follow in reviewing a modification of my plan of operations?

STATE-APPROVED FINANCIAL GUARANTEE
3809.570 Under what circumstances may I
provide a State-approved financial guarantee?
3809.571 What forms of State-approved financial guarantee are acceptable to
BLM?
3809.572 What happens if BLM rejects a financial instrument in my State-approved
financial guarantee?
3809.573 What happens if the State makes a
demand against my financial guarantee?
3809.574 What happens if I have an existing
corporate guarantee?
MODIFICATION OR REPLACEMENT OF A
FINANCIAL GUARANTEE
3809.580 What happens if I modify my notice
or approved plan of operations?
3809.581 Will BLM accept a replacement financial instrument?
3809.582 How long must I maintain my financial guarantee?
RELEASE OF FINANCIAL GUARANTEE
3809.590 When will BLM release or reduce
the financial guarantee for my notice or
plan of operations?

915

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00925

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3800.5

43 CFR Ch. II (10–1–18 Edition)

3809.591 What are the limitations on the
amount by which BLM may reduce my financial guarantee?
3809.592 Does release of my financial guarantee relieve me of all responsibility for
my project area?
3809.593 What happens to my financial guarantee if I transfer my operations?
3809.594 What happens to my financial guarantee when my mining claim or millsite
is patented?
FORFEITURE OF FINANCIAL GUARANTEE
3809.595 When may BLM initiate forfeiture
of my financial guarantee?
3809.596 How does BLM initiate forfeiture of
my financial guarantee?
3809.597 What if I do not comply with BLM’s
forfeiture decision?
3809.598 What if the amount forfeited will
not cover the cost of reclamation?
3809.599 What if the amount forfeited exceeds the cost of reclamation?
INSPECTION AND ENFORCEMENT
3809.600 With what frequency will BLM inspect my operations?
3809.601 What types of enforcement action
may BLM take if I do not meet the requirements of this subpart?
3809.602 Can BLM revoke my plan of operations or nullify my notice?
3809.603 How does BLM serve me with an enforcement action?
3809.604 What happens if I do not comply
with a BLM order?
3809.605 What are prohibited acts under this
subpart?
PENALTIES
3809.700 What criminal penalties apply to
violations of this subpart?
3809.701 What happens if I make false statements to BLM?

jstallworth on DSKBBY8HB2PROD with CFR

APPEALS
3809.800 Who may appeal BLM decisions
under this subpart?
3809.801 When may I file an appeal of the
BLM decision with OHA?
3809.802 What must I include in my appeal
to OHA?
3809.803 Will the BLM decision go into effect
during an appeal to OHA?
3809.804 When may I ask the BLM State Director to review a BLM decision?
3809.805 What must I send BLM to request
State Director review?
3809.806 Will the State Director review the
original BLM decision if I request State
Director review?
3809.807 What happens once the State Director agrees to my request for a review of
a decision?
3809.808 How will decisions go into effect
when I request State Director review?

3809.809 May I appeal a decision made by
the State Director?
PUBLIC VISITS TO MINES
3809.900 Will BLM allow the public to visit
mines on public lands?
AUTHORITY: 16 U.S.C. 3101 et seq.; 30 U.S.C.
22–42, 181 et seq., 301–306, 351–359, and 601 et
seq.; 31 U.S.C. 9701; 40 U.S.C. 471 et seq.; 42
U.S.C. 6508; 43 U.S.C. 1701 et seq.; and Pub. L.
No. 97–35, 95 Stat. 357.
SOURCE: 45 FR 13974, Mar. 3, 1980, unless
otherwise noted.

Subpart 3800—General
§ 3800.5

Fees.

(a) An applicant for a plan of operations under this part must pay a processing fee on a case-by-case basis as described in § 3000.11 of this chapter whenever BLM determines that consideration of the plan of operations requires
the preparation of an Environmental
Impact Statement.
(b) An applicant for any action for
which a mineral examination, including a validity examination or a common variety determination, and their
associated reports, is performed under
§ 3809.100 or § 3809.101 of this part must
pay a processing fee on a case-by-case
basis as described in section 3000.11 of
this chapter for such examination and
report.
(c) An applicant for a mineral patent
under part 3860 of this chapter must
pay a processing fee on a case-by-case
basis as described in § 3000.11 of this
chapter for any validity examination
and report prepared in connection with
the application.
(d) An applicant for a mineral patent
also is required to pay a processing fee
under § 3860.1 of this chapter.
[70 FR 58878, Oct. 7, 2005]

§ 3800.6 Am I required to pay any fees
to use the surface of public lands
for mining purposes?
You must pay all processing fees, location fees, and maintenance fees specified in 43 CFR parts 3800 and 3830.
Other than the processing, location and
maintenance fees, you are not required
to pay any other fees to the BLM to

916

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00926

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3802.0–5

use the surface of public lands for mining purposes.
[73 FR 73794, Dec. 4, 2008]

Subpart 3802—Exploration and
Mining, Wilderness Review
Program
§ 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.
§ 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.
§ 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).

jstallworth on DSKBBY8HB2PROD with CFR

§ 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.

917

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00927

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

jstallworth on DSKBBY8HB2PROD with CFR

§ 3802.0–6

43 CFR Ch. II (10–1–18 Edition)

(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 insignifi-

cant 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.
§ 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.
§ 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.
§ 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.
§ 3802.1–1 When required.
An approved plan of operations is required for operations within lands
under wilderness review prior to commencing:

918

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00928

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3802.1–4

(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 part 2930 of this chapter;
(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.
[45 FR 13974, Mar. 3, 1980, as amended at 67
FR 61745, Oct. 1, 2002]

jstallworth on DSKBBY8HB2PROD with CFR

§ 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.

§ 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 § 3802.1–5 of this title.
§ 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

919

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00929

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3802.1–5

43 CFR Ch. II (10–1–18 Edition)

jstallworth on DSKBBY8HB2PROD with CFR

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.
§ 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 § 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 30day 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

920

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00930

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3802.1–7

jstallworth on DSKBBY8HB2PROD with CFR

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 § 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 § 3802.3
of this title.
§ 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
§ 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 § 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.
§ 3802.1–7 Existing operations.
(a) Persons conducting mining operations on the effective date of these
regulations, who would be required to

921

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00931

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3802.2

43 CFR Ch. II (10–1–18 Edition)

jstallworth on DSKBBY8HB2PROD with CFR

submit a plan of operations under
§ 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.
§ 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 § 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 § 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 § 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.
§ 3802.3

Environmental protection.

§ 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

922

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00932

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3802.3–2

jstallworth on DSKBBY8HB2PROD with CFR

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 § 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.
§ 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 en-

dangered 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 Government’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

923

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00933

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3802.4

43 CFR Ch. II (10–1–18 Edition)

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.
§ 3802.4

General provisions.

jstallworth on DSKBBY8HB2PROD with CFR

§ 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 regula-

tions, 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.
§ 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.
§ 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.
§ 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.

924

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00934

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.1

§ 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.
§ 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.
§ 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.

jstallworth on DSKBBY8HB2PROD with CFR

§ 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.
§ 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.
§ 3802.6 Public availability of information.
(a) All data and information concerning Federal and Indian minerals
submitted under this subpart 3802 are
subject to part 2 of this title. Part 2 of
this title includes the regulations of
the Department of the Interior covering the public disclosure of data and
information contained in Department
of the Interior records. Certain mineral
information not protected from public
disclosure under part 2 may of this
title be made available for inspection
without a Freedom of Information Act
(5 U.S.C. 552) request.
(b) When you submit data and information under this subpart 3802 that
you believe to be exempt from disclosure to the public, you must clearly
mark each page that you believe includes confidential information. BLM
will keep all data and information confidential to the extent allowed by
§ 2.13(c) of this title.
[63 FR 52954, Oct. 1, 1998]

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
§ 3809.1 What are the purposes of this
subpart?
The purposes of this subpart are to:

925

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00935

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.2

43 CFR Ch. II (10–1–18 Edition)

jstallworth on DSKBBY8HB2PROD with CFR

(a) Prevent unnecessary or undue
degradation of public lands by operations authorized by the mining laws.
Anyone intending to develop mineral
resources on the public lands must prevent unnecessary or undue degradation
of the land and reclaim disturbed
areas. This subpart establishes procedures and standards to ensure that operators and mining claimants meet
this responsibility; and
(b) Provide for maximum possible coordination with appropriate State
agencies to avoid duplication and to
ensure that operators prevent unnecessary or undue degradation of public
lands.
§ 3809.2 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 § 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.
(c) This subpart applies to all patents
issued after October 21, 1976 for mining
claims in the California Desert Conservation Area, except for any patent
for which a right to the patent vested
before that date.
(d) This subpart does not apply to
private land except as provided in paragraphs (a) and (c) 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]

§ 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.
§ 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 landuse plans, and the terms of temporary
closures ordered by BLM.

926

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00936

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

jstallworth on DSKBBY8HB2PROD with CFR

Bureau of Land Management, Interior

§ 3809.5

(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 § 8340.0–5 of this title,
chemicals, or explosives. It also does
not include ‘‘occupancy’’ as defined in
§ 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 § 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

927

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00937

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.10

43 CFR Ch. II (10–1–18 Edition)

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 § 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 op-

erations as defined in § 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]

§ 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 §§ 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 § 3809.31(b)); and
(c) Plan-level operations, for which
an operator must submit a plan of operations and obtain BLM’s approval.
§ 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
§ 3809.21. Also see §§ 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.
(c) You must submit a plan of operations for any operations causing surface disturbance greater than casual
use in the following special status
areas where § 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;

928

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00938

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.31

(3) Designated Areas of Critical Environmental Concern;
(4) Areas designated as part of the
National Wilderness Preservation System and administered by BLM;
(5) Areas designated as ‘‘closed’’ to
off-road vehicle use, as defined in
§ 8340.0–5 of this title;
(6) Any 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.
§ 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
§ 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 §§ 3809.300 through 3809.336
for regulations applicable to noticelevel operations.

jstallworth on DSKBBY8HB2PROD with CFR

§ 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
§ 3809.300 through 3809.336 and § 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
§ 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.
(c) If your operations require you to
occupy or use a site for activities
‘‘reasonably incident’’ to mining, as defined in § 3715.0–5 of this title, whether
you are operating under a notice or a
plan 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 § 3809.11 and obtain
BLM’s approval or a notice under
§ 3809.21.
[65 FR 70112, Nov. 21, 2000, as amended at 66
FR 54860, Oct. 30, 2001]

929

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00939

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.100

43 CFR Ch. II (10–1–18 Edition)

jstallworth on DSKBBY8HB2PROD with CFR

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

(d) Final decision. If a final departmental decision declares a mining
claim to be null and void, the operator
must cease all operations, except required reclamation.
§ 3809.101 What
special
provisions
apply to minerals that may be common variety minerals, such as sand,
gravel, and building stone?
(a) Mineral examination report. On
mining claims located on or after July
23, 1955, you must not initiate operations for minerals that may be ‘‘common variety’’ minerals, as defined in
§ 3711.1(b) of this title, until BLM has
prepared a mineral examination report,
except as provided in paragraph (b) of
this section.
(b) Interim authorization. Until the
mineral examination report described
in paragraph (a) of this section is prepared, BLM will allow notice-level operations or approve a plan of operations for the disputed 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
§ 3851.1 of this title; or
(3) Operations to remove possible
common variety minerals if you establish an escrow account in a form acceptable to BLM. You must make regular payments to the escrow account
for the appraised value of possible common variety minerals removed under a
payment schedule approved by BLM.
The funds in the escrow account must
not be disbursed to the operator or to
the U.S. Treasury until a final determination of whether the mineral is a
common variety and therefore salable
under part 3600 of this title.
(c) Determination of common variety. If
the mineral examination report under
paragraph (a) of this section concludes
that the minerals are common variety
minerals, you may either relinquish
your mining claim(s) or BLM will initiate contest proceedings. Upon relinquishment or final departmental determination that the mining claim(s) is
null and void, you must promptly close
and reclaim your operations unless you

930

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00940

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.201

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 § 3601.14 of
this chapter.
[65 FR 70112, Nov. 21, 2000, as amended at 66
FR 58910, Nov. 23, 2001]

jstallworth on DSKBBY8HB2PROD with CFR

§ 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.

that mining claim or in the project
area.
(c) Transfer of a mining claim or operation does not relieve a mining
claimant’s or operator’s responsibility
under this subpart for obligations 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

§ 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.

§ 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 § 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 § 3809.203.

§ 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

§ 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,

931

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00941

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.202

43 CFR Ch. II (10–1–18 Edition)

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
§ 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.

jstallworth on DSKBBY8HB2PROD with CFR

§ 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.
(c) State Director decision. The BLM
State Director will notify the State in
writing of his/her decision regarding
the State’s request. The State Director
will address whether the State requirements are consistent with the requirements of this subpart, and whether the
State has necessary legal authorities,
resources, and funding to implement
any agreement. If BLM determines
that the State’s requirements are consistent with the requirements of this
subpart and the State has the necessary legal authorities, resources, and
funding, BLM must enter into an
agreement with the State so that the
State will regulate some or all of the
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 § 3809.802.
[65 FR 70112, Nov. 21, 2000, as amended at 68
FR 32656, June 2, 2003]

§ 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

932

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00942

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.300

in the plan review process, including
preparation of NEPA documents.
(b) Federal land-use planning and other
Federal laws. BLM will continue to be
responsible for all land-use planning on
public lands and for implementing
other Federal laws relating to the public lands for which BLM is responsible.
(c) Federal enforcement. BLM may
take any authorized action to enforce
the requirements of this subpart or any
term, condition, or limitation of a notice or an approved plan of operations.
BLM may take this action regardless
of the nature of its agreement with a
State, or actions taken by a State.
(d) Financial guarantee. The amount
of the financial guarantee must be calculated based on the completion of
both Federal and State reclamation requirements, but may be held as one instrument. If the financial guarantee is
held as one instrument, it must be redeemable by both the Secretary and
the State. BLM must concur in the approval, 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.
§ 3809.300

§ 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.
(c) 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

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

jstallworth on DSKBBY8HB2PROD with CFR

To see how this subpart applies to your operations conducted under a notice
and existing on January 20, 2001, follow this table:

933

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00943

Fmt 8010

Sfmt 8016

Y:\SGML\244198.XXX

244198

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.301

43 CFR Ch. II (10–1–18 Edition)

If BLM has received your complete notice before January 20, 2001—

Then—

(a) You are the operator identified in
the notice on file with BLM on January 20, 2001.

You may conduct operations 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 1000end, revised as of Oct. 1, 1999.) After 2
years, you may extend your notice
under § 3809.333. BLM may require a
modification under § 3809.331(a)(1).
See § 3809.503 for financial guarantee
requirements applicable to notices.

(b) You are a new operator, that is, you
were not the operator identified in the
notice on file with BLM on January
20, 2001.

The provisions of this subpart, including § 3809.320, govern your operations
for 2 years after January 20, 2001, unless you extend your notice under
§ 3809.333.

(c) 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
§ 3809.333. BLM may require a modification under § 3809.331(a)(1). See
§ 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 §§ 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
§ 3809.301 or a plan of operations
under § 3809.401, whichever is applicable, or immediately begin to reclaim
your project area. See §§ 3809.11 and
3809.21.

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

(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

(a) If you qualify under § 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.

934

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00944

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.313

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 § 3809.420;
and
(4) Reclamation cost estimate. An estimate of the cost to fully reclaim your
operations as required by § 3809.552.
(c) BLM may require you to provide
additional information, if necessary to
ensure that your operations will comply with this subpart.
(d) You must notify BLM in writing
within 30 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.
§ 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 § 3809.301.

(b) If your notice is incomplete, BLM
will inform you in writing of the additional information you must submit.
BLM may also take the actions described in § 3809.313.
(c) BLM will review your additional
information within 15 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.
§ 3809.312 When may I begin operations after filing a complete notice?
(a) If BLM does not take any of the
actions described in § 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.
(c) 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.

jstallworth on DSKBBY8HB2PROD with CFR

§ 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 additional time, not to exceed 15 calendar
days, to complete its review.

You must not begin operations until
the additional review time period
ends.

935

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00945

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.320

43 CFR Ch. II (10–1–18 Edition)

If BLM reviews your notice and, within
15 calendar days—

Then—

(b) Notifies you that you must modify
your notice to prevent unnecessary or
undue degradation.

You must not begin operations until
you modify your notice to ensure
that your operations prevent unnecessary or undue degradation.

(c) Requires you to consult with BLM
about the location of existing or proposed access routes.

You must not begin operations until
you consult with BLM and satisfy
BLM’s concerns about access.

(d) Determines that an on-site visit is
necessary.

You must not begin operations until
BLM visits the site, and you satisfy
any concerns arising from the visit.
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 qualify
under § 3809.11 as a notice-level operation.

You must file a plan of operations before
beginning
operations.
See
§§ 3809.400 through 3809.420.

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

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.

Your notice-level operations must
meet all applicable performance standards of § 3809.420.
§ 3809.330

May I modify my notice?

(a) Yes, you may submit a notice
modification at any time during operations under a notice.
(b) BLM will review your notice
modification the same way it reviewed
your initial notice under §§ 3809.311 and
3809.313.

jstallworth on DSKBBY8HB2PROD with CFR

§ 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

§ 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 § 3809.333, or unless you notify
BLM beforehand that operations have
ceased and reclamation is complete.
BLM will conduct an inspection to
verify whether you have met your obligations, will notify you promptly in
writing, and terminate your notice, if
appropriate.
§ 3809.333 May I extend my notice,
and, if so, how?
Yes, if you wish to conduct operations for 2 additional years after the
expiration date of your notice, you
must notify BLM in writing on or before the expiration date and meet the
financial guarantee requirements of

936

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00946

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.401

§ 3809.503. You may extend your notice
more than once.
§ 3809.334 What if I temporarily stop
conducting operations under a notice?
(a) If you stop conducting operations
for any period of time, you must—
(1) Maintain public lands within the
project area, including structures, in a
safe and clean condition;
(2) Take all steps necessary to prevent unnecessary or undue degradation; and
(3) Maintain an adequate financial
guarantee.
(b) If the period of non-operation is
likely to cause unnecessary or undue
degradation, BLM, 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.
§ 3809.335 What happens when my notice expires?

jstallworth on DSKBBY8HB2PROD with CFR

(a) When your notice expires, you
must—
(1) Cease operations, except reclamation; and
(2) Complete reclamation promptly
according to your notice.
(b) Your reclamation obligations continue beyond the expiration or any termination of your notice until you satisfy them.
§ 3809.336 What if I abandon my notice-level operations?
(a) BLM may consider your operations to be abandoned if, for example,
you leave inoperable or non-mining related equipment in the project area, remove equipment and facilities from the
project area other than for purposes of
completing reclamation according to
your reclamation plan, do not maintain the project area, discharge local
workers, or there is no sign of activity
in the project area over time.
(b) If BLM determines that you abandoned your operations without completing reclamation, BLM may initiate
forfeiture under § 3809.595. If the
amount of the financial guarantee is

inadequate to cover the cost of reclamation, BLM may complete the reclamation, and the operator and all
other responsible persons are liable for
the cost of reclamation.
OPERATIONS CONDUCTED UNDER PLANS
OF OPERATIONS
§ 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
(§ 3809.401) and performance standards
(§§ 3809.415 and 3809.420) apply to such
plan of operations. See § 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.
(c) 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.
§ 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 § 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:

937

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00947

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.401

43 CFR Ch. II (10–1–18 Edition)

(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
§ 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 acidforming, 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
§ 3809.420(c)(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.

938

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00948

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.411

(c) 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
§ 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.

jstallworth on DSKBBY8HB2PROD with CFR

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

§ 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 § 3809.401(b);
(2) Your plan does not contain a complete description of the proposed operations under § 3809.401(b). BLM will
identify deficiencies that you must address before BLM can continue proc-

essing 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.
(c) 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—

939

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00949

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.412

43 CFR Ch. II (10–1–18 Edition)

(1) BLM approves your plan of operations as submitted (See part 3810, subpart 3814 of this title for specific planrelated 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 § 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
§ 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 § 3809.401;
(ii) Proposes operations that are in
an area segregated or withdrawn from
the operation of the mining laws, unless the requirements of § 3809.100 are
met; or
(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]

§ 3809.412 When may I operate under a
plan of operations?
You must not begin operations until
BLM approves your plan of operations
and you provide the financial guarantee required under § 3809.551.

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.415 How do I prevent unnecessary or undue degradation while
conducting operations on public
lands?
You prevent unnecessary or undue
degradation while conducting operations on public lands by—
(a) Complying with § 3809.420, as applicable; the terms and conditions of
your 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 § 3715.0–5 of this title;
and
(c) Attaining the stated level of protection or reclamation required by specific laws in areas such as the California Desert Conservation Area, Wild
and Scenic Rivers, BLM-administered
portions of the National Wilderness
System, and BLM-administered National Monuments and National Conservation Areas.
[65 FR 70112, Nov. 21, 2000, as amended at 66
FR 54861, Oct. 30, 2001]

§ 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

940

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00950

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

jstallworth on DSKBBY8HB2PROD with CFR

Bureau of Land Management, Interior

§ 3809.420

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. 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) Reclamation. (i) 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.
(ii) Reclamation shall include, but
shall not be limited to:
(A) Saving of topsoil for final application after reshaping of disturbed
areas have been completed;
(B) Measures to control erosion, landslides, and water runoff;
(C) Measures to isolate, remove, or
control toxic materials;
(D) Reshaping the area disturbed, application of the topsoil, and revegetation of disturbed areas, where reasonably practicable; and
(E) Rehabilitation of fisheries and
wildlife habitat.
(iii) 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.

(4) 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.).
(5) 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.).
(6) 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.
(7) 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.
(8) Cultural and paleontological resources. (i) 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.
(ii) 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.
(iii) 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.

941

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00951

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.420

43 CFR Ch. II (10–1–18 Edition)

(9) 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.
(10) Fire. 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.
(11) Acid-forming, toxic, or other deleterious materials. You must incorporate
identification, handling, and placement
of potentially acid-forming, toxic or
other deleterious materials into your
operations, facility design, reclamation, and environmental monitoring
programs to minimize the formation
and impacts of acidic, alkaline, metalbearing, or other deleterious leachate,
including the following:
(i) You must handle, place, or treat
potentially acid-forming, toxic, or
other deleterious materials in a manner that minimizes the likelihood of
acid formation and toxic and other deleterious leachate generation (source
control);
(ii) If you cannot prevent the formation of acid, toxic, or other deleterious
drainage, you must minimize uncontrolled migration of leachate; and
(iii) You must capture and treat acid
drainage, or other undesirable effluent,
to the applicable standard if source
controls and migration controls do not
prove effective. You are responsible for
any costs associated with water treatment or facility maintenance after
project closure. Long-term, or postmining, effluent capture and treatment
are not acceptable substitutes for
source and migration control, and you
may rely on them only after all reasonable source and migration control
methods have been employed.

(12) Leaching operations and impoundments. (i) You must design, construct,
and operate all leach pads, tailings impoundments, ponds, and solution-holding facilities according to standard engineering practices to achieve and
maintain stability and facilitate reclamation.
(ii) You must construct a low-permeability liner or containment system
that will minimize the release of leaching solutions to the environment. You
must monitor to detect potential releases of contaminants from heaps,
process ponds, tailings impoundments,
and other structures and remediate environmental impacts if leakage occurs.
(iii) You must design, construct, and
operate cyanide or other leaching facilities and impoundments to contain
precipitation from the local 100-year,
24-hour storm event in addition to the
maximum process solution inventory.
Your design must also include allowances
for
snowmelt
events
and
draindown from heaps during power
outages in the design.
(iv) You must construct a secondary
containment system around vats,
tanks, or recovery circuits adequate to
prevent the release of toxic solutions
to the environment in the event of primary containment failure.
(v) You must exclude access by the
public, wildlife, or livestock to solution containment and transfer structures that contain lethal levels of cyanide or other solutions.
(vi) During closure and at final reclamation, you must detoxify leaching
solutions and heaps and manage
tailings or other process waste to minimize impacts to the environment from
contact with toxic materials or leachate. Acceptable practices to detoxify
solutions and materials include natural
degradation, rinsing, chemical treatment, or equally successful alternative
methods. Upon completion of reclamation, all materials and discharges must
meet applicable standards.
(vii) In cases of temporary or seasonal closure, you must provide adequate maintenance, monitoring, security, and financial guarantee, and BLM
may require you to detoxify process solutions.
(13) Maintenance and public safety.
During all operations, the operator

942

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00952

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.424

shall maintain his or her 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.
[66 FR 54861, Oct. 30, 2001]

§ 3809.421 Enforcement of performance standards.
Failure of the operator to prevent
unnecessary or undue degradation or to
§ 3809.424

complete reclamation to the standards
described in this subpart may cause the
operator to be subject to enforcement
as described in §§ 3809.600 through 3809.
605 of this subpart.
[66 FR 54862, Oct. 30, 2001]

§ 3809.423 How long does my plan of
operations remain in effect?
Your plan of operations remains in
effect as long as you are conducting operations, unless BLM suspends or revokes your plan of operations for failure to comply with this subpart.

What are my obligations if I stop conducting operations?

jstallworth on DSKBBY8HB2PROD with CFR

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

Then—

(1) You stop conducting operations for
any period of time.

(1) You must follow your approved interim management plan submitted
under § 3809.401(b)(5); (ii) You must
submit a modification to your interim management plan to BLM
within 30 calendar days if it does not
cover the circumstances of your temporary closure per § 3809.431(a); (iii)
You must take all necessary actions
to assure that unnecessary or undue
degradation does not occur; and (iv)
You must maintain an adequate financial guarantee.

(2) The period of non-operation is likely
to cause unnecessary or undue degradation.

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

(3) Your operations are inactive for 5
consecutive years.

BLM will review your operations and
determine whether BLM should terminate your plan of operations and
direct final reclamation and closure.

943

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00953

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.430

43 CFR Ch. II (10–1–18 Edition)
If—

Then—

(4) BLM determines that you abandoned
your operations.

BLM may initiate forfeiture under
§ 3809.595. If the amount of the financial guarantee is inadequate to cover
the costs of reclamation, BLM may
complete the reclamation, and the
operator and all other responsible
persons are liable for the costs of
such reclamation. See § 3809.336(a) for
indicators of abandonment.

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

(1) Development of acid or toxic
drainage;
(2) Loss of surface springs or water
supplies;
(3) The need for long-term water
treatment and site maintenance;
(4) Repair of reclamation failures;
(5) Plans for assuring the adequacy of
containment structures and the integrity of closed waste units;
(6) Providing for post-closure management; and (7) Eliminating hazards
to public safety.

MODIFICATIONS OF PLANS OF
OPERATIONS
§ 3809.430 May I modify my plan of operations?
Yes, you may request a modification
of the plan at any time during operations under an approved plan of operations.
§ 3809.431 When must I modify my
plan of operations?
You must modify your plan of operations when any of the following apply:
(a) Before making any changes to the
operations described in your approved
plan of operations;
(b) When BLM requires you to do so
to prevent unnecessary or undue degradation; and
(c) Before final closure, to address
impacts from unanticipated events or
conditions or newly discovered circumstances or information, including
the following:

§ 3809.432 What process will BLM follow in reviewing a modification of
my plan of operations?
(a) BLM will review and approve a
modification of your plan of operations
in the same manner as it reviewed and
approved your initial plan under
§§ 3809.401 through 3809.420; or
(b) BLM will accept a minor modification without formal approval if it is
consistent with the approved plan of
operations and does not constitute a
substantive change that requires additional analysis under the National Environmental Policy Act.

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

jstallworth on DSKBBY8HB2PROD with CFR

To see how this subpart applies to a modification of your plan of operations
that you submit to BLM after January 20, 2001, refer to the following table.

944

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00954

Fmt 8010

Sfmt 8016

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.500

If you have an approved plan of operations on January 20, 2001

Then—

(a) New facility. You subsequently propose to modify your plan of operations by constructing a new facility,
such as waste rock repository, leach
pad, impoundment, drill site, or road.

The
plan
contents
requirements
(§ 3809.401) and performance standards
(§ 3809.420) of this subpart apply to
the new facility. Those facilities and
areas not included in the modification may continue to operate under
the terms of your existing plan of operations.
The
plan
contents
requirements
(§ 3809.401) and performance standards
(§ 3809.420) of this subpart apply to
the modified portion of the facility,
unless you demonstrate to BLM’s
satisfaction it is not practical to
apply them for economic environmental, safety, or technical reasons.
If you make the demonstration, the
plan content requirements (43 CFR
3809.1–5) and performance standards
(43 CFR 3809.1–3(d) and 3809.2–2) that
were in effect immediately before
January 20, 2001 apply to your modified facility. (See 43 CFR parts 1000–
end, revised as of Oct. 1, 2000.)

(b) Existing facility. You subsequently
propose to modify your plan of operations by modifying an existing facility, such as expansion of a waste rock
repository, leach pad, or impoundment; layback of a mine pit; or widening of a road.

§ 3809.434 How does this subpart apply
to pending modifications for new or
existing facilities?
(a) This subpart applies to modifications pending before BLM on January
20, 2001 to construct a new facility,
such as a waste rock repository, leach
pad, drill site, or access road; or to
modify an existing mine facility such
as expansion of a waste rock repository
or leach pad.
(b) All provisions of this subpart, except plan content (§ 3809.401) and performance standards (§§ 3809.415 and
3809.420) apply to any modification of a
plan of operations that was pending on
January 20, 2001. See § 3809.505 for appli-

cability of financial guarantee requirements.
(c) If your unapproved modification
of a plan of operations is pending on
January 20, 2001, then the plan content
requirements (§ 3809.1–5) and the performance standards (§§ 3809.1–3(d) and
3809.2–2) that were in effect immediately before January 20, 2001 apply to
your modification of a plan of operations. (See 43 CFR parts 1000–end, revised as of Oct. 1, 2000).
(d) If you want this subpart to apply
to your pending modification of a plan
of operations, where not otherwise required, you may choose to have this
subpart apply.

FINANCIAL GUARANTEE REQUIREMENTS—GENERAL
§ 3809.500

In general, what are BLM’s financial guarantee requirements?

jstallworth on DSKBBY8HB2PROD with CFR

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

945

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00955

Fmt 8010

Sfmt 8016

Y:\SGML\244198.XXX

244198

§ 3809.503

43 CFR Ch. II (10–1–18 Edition)
If—

Then—

(a) Your operations constitute casual
use,.

You do not have to provide any financial guarantee.

(b) You conduct operations under a notice or a plan of operations.

You must provide BLM or the State a
financial guarantee that meets the
requirements of this subpart before
starting operations operations. For
more information, see §§ 3809.551
through under a 3809.573.

§ 3809.503 When must I provide a financial guarantee for my notice-level operations?
To see how this subpart applies to your notice, follow this table:
If—

Then—

(a) Your notice was on file with BLM on
January 20, 2001.

You do not need to provide a financial
guarantee unless you modify the notice or extend the notice under
§ 3809.333.

(b) Your notice was on file with BLM
before January 20, 2001 and you choose
to modify your notice as required by
this subpart on or after that date.

You must provide a financial guarantee
before you can begin operations
under the modified notice. If you
modify your notice, you must post a
finacial guarantee for the entire notice.

(c) You file a new notice on or after
January 20, 2001.

You must provide a financial guarantee
before you can begin operations
under the notice.

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

2001, at the local BLM office with jurisdiction over the lands involved. You do
not need to post a new financial guarantee if your existing financial guarantee satisfies this subpart. If you are
conducting operations under a plan of
operations approved before January 20,
2001, but you have not provided a financial guarantee, you must post a financial guarantee under § 3809.551 by September 13, 2001.

For each plan of operations approved
before January 20, 2001, for which you
or your predecessor in interest posted a
financial guarantee under the regulations in force before that date, you
must post a financial guarantee according to the requirements of this
subpart no later than November 20,
§ 3809.551

[66 FR 32575, June 15, 2001]

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

jstallworth on DSKBBY8HB2PROD with CFR

You must provide BLM with a financial guarantee using any of the 3 options
in the following table:

946

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00956

Fmt 8010

Sfmt 8016

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.554

If—

Then—

(a) You have only one notice or plan of
operations, or wish to provide a financial guarantee for a single notice or
plan of operations.

You may provide an individual financial guarantee that covers only the
cost of reclaiming areas disturbed
under the single notice or plan of operations. See §§ 3809.552 through
3809.556 for more information.

(b) You are currently operating under
more than one notice or plan of operations.

You may provide a blanket financial
guarantee covering statewide or nationwide operations. See § 3809.560 for
more information.

(c) You do not choose one of the options
in paragraphs (a) and (b) of this section.

You may provide evidence of an existing financial guarantee under State
law or regulations. See §§ 3809.570
through 3809.573 for more information.

INDIVIDUAL FINANCIAL GUARANTEE

term operation, maintenance, or replacement of any treatment facilities
and infrastructure, for as long as the
treatment and facilities are needed
after mine closure. BLM may identify
the need for a trust fund or other funding mechanism during plan review or
later.

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.552 What must my individual financial guarantee cover?
(a) If you conduct operations under a
notice or a plan of operations and you
provide an individual financial guarantee, it must cover the estimated cost
as if BLM were to contract with a third
party to reclaim your operations according to the reclamation plan, including construction and maintenance
costs for any treatment facilities necessary to meet Federal and State environmental standards. The financial
guarantee must also cover any interim
stabilization and infrastructure maintenance costs needed to maintain the
area of operations in compliance with
applicable environmental requirements
while third-party contracts are developed and executed.
(b) BLM will periodically review the
estimated cost of reclamation and the
adequacy of any funding mechanism established under paragraph (c) of this
section and require increased coverage,
if necessary.
(c) When BLM identifies a need for it,
you must establish a trust fund or
other funding mechanism available to
BLM to ensure the continuation of
long-term treatment to achieve water
quality standards and for other long
term, post-mining maintenance requirements. The funding must be adequate to provide for construction, long-

§ 3809.553 May I post a financial guarantee for a part of my operations?
(a) Yes, BLM may authorize you to
provide a financial guarantee covering
a part of your operations if—
(1) Your operations do not go beyond
what is specifically covered by the partial financial guarantee; and
(2) The partial financial guarantee
covers all reclamation costs within the
incremental area of operations.
(b) BLM will review the amount and
terms of the financial guarantee for
each increment of your operations at
least annually.
§ 3809.554 How do I estimate the cost
to reclaim my operations?
(a) You must estimate the cost to reclaim your operations as if BLM were
hiring a third-party contractor to perform reclamation of your operations
after you have vacated the project
area. Your estimate must include
BLM’s cost to administer the reclamation contract. Contact BLM to obtain
this administrative cost information.

947

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00957

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.555

43 CFR Ch. II (10–1–18 Edition)

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

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.555 What forms of individual financial guarantee are acceptable to
BLM?
You may use any of the following instruments for an individual financial
guarantee, provided that the BLM
State Director has determined that it
is an acceptable financial instrument
within the State where the operations
are proposed:
(a) Surety bonds that meet the requirements of Treasury Department
Circular 570, including surety bonds arranged or paid for by third parties;
(b) Cash in an amount equal to the
required dollar amount of the financial
guarantee, to be deposited and maintained in a Federal depository account
of the United States Treasury by BLM;
(c) Irrevocable letters of credit from
a bank or financial institution organized or authorized to transact business in the United States;
(d) Certificates of deposit or savings
accounts not in excess of the maximum
insurable amount as set by the Federal
Deposit Insurance Corporation; and
(e) Either of the following instruments having a market value of not
less than the required dollar amount of
the financial guarantee and maintained in a Securities Investors Protection Corporation insured trust account
by a licensed securities brokerage firm
for the benefit of the Secretary of the
Interior, acting by and through BLM:
(1) Negotiable United States Government, State and Municipal securities
or bonds; or
(2) Investment-grade rated securities
having a Standard and Poor’s rating of
AAA or AA or an equivalent rating
from a nationally recognized securities
rating service.
(f) Insurance, if its form and function
is such that the funding or enforceable
pledges of funding are used to guarantee performance of regulatory obligations in the event of default on such
obligations by the operator. Insurance
must have an A.M. Best rating of ‘‘superior’’ or an equivalent rating from a
nationally recognized insurance rating
service.

§ 3809.556 What special requirements
apply to financial guarantees described in § 3809.555(e)?
(a) If you choose to use the instruments permitted under § 3809.555(e) in
satisfaction of financial guarantee requirements, you must provide BLM, before you begin operations and by the
end of each calendar year thereafter, a
certified statement describing the nature and market value of the instruments maintained in that account, and
including any current statements or
reports furnished by the brokerage
firm to the operator or mining claimant concerning the asset value of the
account.
(b) You must review the market
value of the account instruments by
December 31 of each year to ensure
that their market value continues to
be not less than the required dollar
amount of the financial guarantee.
When the market value of the account
instruments has declined by more than
10 percent of the required dollar
amount of the financial guarantee, you
must, within 10 calendar days after its
annual review or at any time upon the
written request of BLM, provide additional instruments, as defined in
§ 3809.555(e), to the trust account so
that the total market value of all account instruments is not less than the
required dollar amount of the financial
guarantee. You must send a certified
statement to BLM within 45 calendar
days thereafter describing your actions
to raise the market value of its account instruments to the required dollar amount of the financial guarantee.
You must include copies of any statements or reports furnished by the brokerage firm to you documenting such
an increase.
(c) If your review under paragraph (b)
of this section demonstrates that the
total market value of trust account instruments exceeds 110 percent of the
required dollar amount of the financial
guarantee, you may ask BLM to authorize a written release of that portion of the account that exceeds 110
percent of the required financial guarantee. BLM will approve your request
only if you are in compliance with the
terms and conditions of your notice or
approved plan of operations.

948

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00958

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.574

BLANKET FINANCIAL GUARANTEE
§ 3809.560 Under what circumstances
may I provide a blanket financial
guarantee?
(a) If you have more than one noticeor plan-level operation underway, you
may provide a blanket financial guarantee covering statewide or nationwide
operations instead of individual financial guarantees for each operation.
(b) BLM will accept a blanket financial guarantee if we determine that its
terms and conditions are sufficient to
comply with the regulations of this
subpart.
STATE-APPROVED FINANCIAL
GUARANTEE
§ 3809.570 Under what circumstances
may I provide a State-approved financial guarantee?
When you provide evidence of an existing financial guarantee under State
law or regulations that covers your operations, you are not required to provide a separate financial guarantee
under this subpart if—
(a) The existing financial guarantee
is redeemable by the Secretary, acting
by and through BLM;
(b) It is held or approved by a State
agency for the same operations covered
by your notice(s) or plan(s) of operations; and
(c) It provides at least the same
amount of financial guarantee as required by this subpart.

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.571 What forms of State-approved financial guarantee are acceptable to BLM?
You may provide a State-approved financial guarantee in any of the following forms, subject to the conditions
in §§ 3809.570 and 3809.574:
(a) The kinds of individual financial
guarantees specified under § 3809.555;
(b) Participation in a State bond
pool, if—
(1) The State agrees that, upon
BLM’s request, the State will use part
of the pool to meet reclamation obligations on public lands; and
(2) The BLM State Director determines that the State bond pool provides the equivalent level of protection
as that required by this subpart; or

(c) A corporate guarantee that existed on January 20, 2001, subject to the
restrictions on corporate guarantees in
§ 3809.574.
§ 3809.572 What happens if BLM rejects a financial instrument in my
State-approved
financial
guarantee?
If BLM rejects a submitted financial
instrument in an existing State-approved financial guarantee, BLM will
notify you and the State in writing,
with a complete explanation of the reasons for the rejection within 30 calendar days of BLM’s receipt of the evidence of State-approved financial guarantee. You must provide BLM with a
financial guarantee acceptable under
this subpart at least equal to the
amount of the rejected financial instrument.
§ 3809.573 What happens if the State
makes a demand against my financial guarantee?
When the State makes a demand
against your financial guarantee,
thereby reducing the available balance,
you must do both of the following:
(a) Notify BLM within 15 calendar
days; and
(b) Replace or augment the financial
guarantee within 30 calendar days if
the available balance is insufficient to
cover the remaining reclamation cost.
§ 3809.574 What happens if I have an
existing corporate guarantee?
(a) If you have an existing corporate
guarantee on January 20, 2001 that applies to public lands under an approved
BLM and State agreement, your corporate guarantee will continue in effect. BLM will not accept any new corporate guarantees or increases to existing corporate guarantees. You may not
transfer your existing corporate guarantee to another operator.
(b) If the State revises existing corporate guarantee criteria or requirements that apply to a corporate guarantee existing on January 20, 2001, the
BLM State Director will review the revisions to ensure that adequate financial coverage continues. If the BLM
State Director determines it is in the

949

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00959

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.580

43 CFR Ch. II (10–1–18 Edition)

public interest to do so, the State Director may terminate a revised corporate guarantee and require an acceptable replacement financial guarantee after due notice and a reasonable
time to obtain a replacement.

according to the requirements of
§ 3809.320 (for notices), including any
measures identified as the result of
consultation with BLM under § 3809.313,
or § 3809.420 (for plans of operations).
RELEASE OF FINANCIAL GUARANTEE

MODIFICATION OR REPLACEMENT OF A
FINANCIAL GUARANTEE
§ 3809.580 What happens if I modify
my notice or approved plan of operations?
(a) If you modify a notice or an approved plan of operations under
§ 3809.331 or § 3809.431 respectively, and
your estimated reclamation cost increases, you must increase the amount
of the financial guarantee to cover any
estimated additional cost of reclamation and long-term treatment in compliance with § 3809.552.
(b) If you modify a notice or an approved plan of operations under
§ 3809.331 or § 3809.431 respectively, and
your estimated reclamation cost decreases, you may request BLM decrease
the amount of the financial guarantee
for your operations.

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.581 Will BLM accept a replacement financial instrument?
(a) Yes, if you or a new operator have
an approved financial guarantee, you
may request BLM to accept a replacement financial instrument at any time
after the approval of an initial instrument. BLM will review the offered instrument for adequacy and may reject
any offered instrument, but will do so
by a decision in writing, with a complete explanation of the reasons for the
rejection, within 30 calendar days of
the offering.
(b) A surety is not released from an
obligation that accrued while the surety bond was in effect unless the replacement financial guarantee covers
such obligations to BLM’s satisfaction.
§ 3809.582 How long must I maintain
my financial guarantee?
You must maintain your financial
guarantee until you or a new operator
replace it with another adequate financial guarantee, subject to BLM’s written concurrence, or until BLM releases
the requirement to maintain your financial guarantee after you have completed reclamation of your operation

§ 3809.590 When will BLM release or
reduce the financial guarantee for
my notice or plan of operations?
(a) When you (the mining claimant or
operator) have completed all or any
portion of the reclamation of your operations in accordance with your notice or approved plan of operations,
you may notify BLM that the reclamation has occurred and request a reduction in the financial guarantee or BLM
approval of the adequacy of the reclamation, or both.
(b) BLM will then promptly inspect
the reclaimed area. We encourage you
to accompany the BLM inspector.
(c) For your plan of operations, BLM
will either post in the local BLM office
or publish notice of final financial
guarantee release in a local newspaper
of general circulation and accept comments for 30 calendar days. Subsequently, BLM will notify you, in writing, whether you may reduce the financial guarantee under § 3809.591, or the
reclamation is acceptable, or both.
§ 3809.591 What are the limitations on
the amount by which BLM may reduce my financial guarantee?
(a) This section applies to your financial guarantee, but not to any funding
mechanism
established
under
§ 3809.552(c) to pay for long-term treatment of effluent or site maintenance.
Calculation of bond percentages in
paragraphs (b) and (c) of this section
does not include any funds held in that
kind of funding mechanism.
(b) BLM may release up to 60 percent
of your financial guarantee for a portion of your project area when BLM determines that you have successfully
completed backfilling; regrading; establishment of drainage control; and
stabilization and detoxification of
leaching solutions, heaps, tailings, and
similar facilities on that portion of the
project area.
(c) BLM may release the remainder
of your financial guarantee for the

950

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00960

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.596

same portion of the project area
when—
(1) BLM determines that you have
successfully completed reclamation,
including revegetating the area disturbed by operations; and
(2) Any effluent discharged from the
area has met applicable effluent limitations and water quality standards for
one year without needing additional
treatment, or you have established a
funding mechanism under § 3809.552(c)
to pay for long-term treatment, and
any effluent discharged from the area
has met applicable effluent limitations
and water quality standards water for
one year with or without treatment.
§ 3809.592 Does release of my financial
guarantee relieve me of all responsibility for my project area?
(a) Release of your financial guarantee under this subpart does not release you (the mining claimant or operator) from responsibility for reclamation of your operations should reclamation fail to meet the standards of this
subpart.
(b) Any release of your financial
guarantee under this subpart does not
release or waive any claim BLM or
other persons may have against any
person under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended,
42 U.S.C. 9601 et seq., or under any other
applicable statutes or regulations.

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.593 What happens to my financial guarantee if I transfer my operations?
You remain responsible for obligations or conditions created while you
conducted operations unless a transferee accepts responsibility under
§ 3809.116, and BLM accepts an adequate
replacement
financial
guarantee.
Therefore, your financial guarantee
must remain in effect until BLM determines that you are no longer responsible for all or part of the operation.
BLM can release your financial guarantee on an incremental basis. The new
operator must provide a financial guarantee before BLM will allow the new
operator to conduct operations.

§ 3809.594 What happens to my financial guarantee when my mining
claim or millsite is patented?
(a) When your mining claim or millsite is patented, BLM will release the
portion of the financial guarantee that
applies to operations within the boundaries of the patented land. This paragraph does not apply to patents issued
on mining claims within the boundaries of the California Desert Conservation Area.
(b) BLM will release the remainder of
the financial guarantee, including the
portion covering approved access outside the boundaries of the mining
claim, when you have completed reclamation to the standards of this subpart.
FORFEITURE OF FINANCIAL GUARANTEE
§ 3809.595 When may BLM initiate forfeiture of my financial guarantee?
BLM may initiate forfeiture of all or
part of your financial guarantee for
any project area or portion of a project
area if—
(a) You (the operator or mining
claimant) refuse or are unable to conduct reclamation as provided in the
reclamation measures incorporated
into your notice or approved plan of
operations or the regulations in this
subpart;
(b) You fail to meet the terms of your
notice or your approved plan of operations; or
(c) You default on any of the conditions under which you obtained the financial guarantee.
§ 3809.596 How does BLM initiate forfeiture of my financial guarantee?
When BLM decides to require the forfeiture of all or part of your financial
guarantee, BLM will notify you (the
operator or mining claimant) by certified mail, return receipt requested;
the surety on the financial guarantee,
if any; and the State agency holding
the financial guarantee, if any, informing you and them of the following:
(a) BLM’s decision to require the forfeiture of all or part of the financial
guarantee;
(b) The reasons for the forfeiture;
(c) The amount that you will forfeit
based on the estimated total cost of

951

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00961

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.597

43 CFR Ch. II (10–1–18 Edition)

achieving the reclamation plan requirements for the project area or portion of the project area affected, including BLM’s administrative costs;
and
(d) How you may avoid forfeiture, including—
(1) Providing a written agreement
under which you or another person will
perform reclamation operations in accordance with a compliance schedule
which meets the conditions of your notice or your approved plan of operations and the reclamation plan, and a
demonstration that such other person
has the ability to satisfy the conditions; and
(2) Obtaining written permission
from BLM for a surety to complete the
reclamation, or the portion of the reclamation applicable to the bonded
phase or increment, if the surety can
demonstrate an ability to complete the
reclamation in accordance with the
reclamation measures incorporated in
your notice or approved plan of operations.
§ 3809.597 What if I do not comply with
BLM’s forfeiture decision?
If you fail to meet the requirements
of BLM’s forfeiture decision provided
under § 3809.596, and you fail to appeal
the forfeiture decision under §§ 3809.800
to 3809.807, or the Interior Board of
Land Appeals does not grant a stay
under 43 CFR 4.321, or the decision appealed is affirmed, BLM will—
(a) Immediately collect the forfeited
amount as provided by applicable laws
for the collection of defaulted financial
guarantees, other debts, or State bond
pools; and
(b) Use funds collected from financial
guarantee forfeiture to implement the
reclamation plan, or portion thereof,
on the area or portion of the area to
which financial guarantee coverage applies.

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.598 What if the amount forfeited
will not cover the cost of reclamation?
If the amount forfeited is insufficient
to pay for the full cost of reclamation,
the operators and mining claimants are
liable for the remaining costs as set
forth in § 3809.116. BLM may complete
or authorize completion of reclamation

of the area covered
guarantee and may
sponsible persons all
tion in excess of the

by the financial
recover from recosts of reclamaamount forfeited.

[66 FR 54862, Oct. 30, 2001]

§ 3809.599 What if the amount forfeited
exceeds the cost of reclamation?
If the amount of financial guarantee
forfeited is more than the amount necessary to complete reclamation, BLM
will return the unused funds within a
reasonable amount of time to the party
from whom they were collected.
INSPECTION AND ENFORCEMENT
§ 3809.600 With what frequency will
BLM inspect my operations?
(a) At any time, BLM may inspect
your operations, including all structures, equipment, workings, and uses
located on the public lands. The inspection may include verification that your
operations comply with this subpart.
See § 3715.7 of this title for special provisions governing inspection of the inside of structures used solely for residential purposes.
(b) At least 4 times each year, BLM
will inspect your operations if you use
cyanide or other leachate or where
there is significant potential for acid
drainage.
§ 3809.601 What types of enforcement
action may BLM take if I do not
meet the requirements of this subpart?
BLM may issue various types of enforcement orders, including the following:
(a) Noncompliance order. If your operations do not comply with any provision of your notice, plan of operations,
or requirement of this subpart, BLM
may issue you a noncompliance order;
and
(b) Suspension orders. (1) BLM may
order a suspension of all or any part of
your operations after—
(i) You fail to timely comply with a
noncompliance order for a significant
violation issued under paragraph (a) of
this section. A significant violation is
one that causes or may result in environmental or other harm or danger or
that substantially deviates from the

952

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00962

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.603

jstallworth on DSKBBY8HB2PROD with CFR

complete notice or approved plan of operations;
(ii) BLM notifies you of its intent to
issue a suspension order; and
(iii) BLM provides you an opportunity for an informal hearing before
the BLM State Director to object to a
suspension.
(2) BLM may order an immediate,
temporary suspension of all or any part
of your operations without issuing a
noncompliance order, notifying you in
advance, or providing you an opportunity for an informal hearing if—
(i) You do not comply with any provision of your notice, plan of operations,
or this subpart; and
(ii) An immediate, temporary suspension is necessary to protect health,
safety, or the environment from imminent danger or harm. BLM may presume that an immediate suspension is
necessary if you conduct plan-level operations without an approved plan of
operations or conduct notice-level operations without submitting a complete notice.
(3) BLM will terminate a suspension
order under paragraph (b)(1) or (b)(2) of
this section when BLM determines you
have corrected the violation.
(c) Contents of enforcement orders. Enforcement orders will specify—
(1) How you are failing or have failed
to comply with the requirements of
this subpart;
(2) The portions of your operations, if
any, that you must cease or suspend;
(3) The actions you must take to correct the noncompliance and the time,
not to exceed 30 calendar days, within
which you must start corrective action; and
(4) The time within which you must
complete corrective action.
§ 3809.602 Can BLM revoke my plan of
operations or nullify my notice?
(a) BLM may revoke your plan of operations or nullify your notice upon
finding that—
(1) A violation exists of any provision
of your notice, plan of operation, or
this subpart, and you have failed to
correct the violation within the time
specified in the enforcement order
issued under § 3809.601; or
(2) a pattern of violations exists at
your operations.

(b) The finding is not effective until
BLM notifies you of its intent to revoke your plan or nullify your notice,
and BLM provides you an opportunity
for an informal hearing before the BLM
State Director.
(c) If BLM nullifies your notice or revokes your plan of operations, you
must not conduct operations on the
public lands in the project area, except
for reclamation and other measures
specified by BLM.
§ 3809.603 How does BLM serve me
with an enforcement action?
(a) BLM will serve a noncompliance
order, a notification of intent to issue
a suspension order, a suspension order,
or other enforcement order on the person to whom it is directed or his or her
designated agent, either by—
(1) Sending a copy of the notification
or order by certified mail or by hand to
the operator or his or her designated
agent, or by any means consistent with
the rules governing service of a summons and complaint under rule 4 of the
Federal Rules of Civil Procedure. Service is complete upon offer of the notification or order or of the certified mail
and is not incomplete because of refusal to accept; or
(2) Offering a copy at the project area
to the designated agent or to the individual who, based upon reasonable inquiry, appears to be in charge. If no
such individual can be located at the
project area, BLM may offer a copy to
any individual at the project area who
appears to be an employee or agent of
the person to whom the notification or
order is issued. Service is complete
when the notice or order is offered and
is not incomplete because of refusal to
accept. Following service at the
project area, BLM will send an information copy by certified mail to the
operator or the operator’s designated
agent.
(b) BLM may serve a mining claimant in the same manner an operator is
served under paragraph (a)(1) of this
section.
(c) The mining claimant or operator
may designate an agent for service of
notifications and orders. You must provide the designation in writing to the
local BLM field office having jurisdiction over the lands involved.

953

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00963

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.604

43 CFR Ch. II (10–1–18 Edition)

§ 3809.604 What happens if I do not
comply with a BLM order?
(a) If you do not comply with a BLM
order issued under §§ 3809.601 or 3809.602,
the Department of the Interior may request the United States Attorney to institute a civil action in United States
District Court for an injunction or
order to enforce its order, prevent you
from conducting operations on the public lands in violation of this subpart,
and collect damages resulting from unlawful acts. This relief may be in addition to the enforcement actions described in §§ 3809.601 and 3809.602 and
the penalties described in § 3809.700.
(b) If you fail to timely comply with
a noncompliance order issued under
§ 3809.601(a), and remain in noncompliance, BLM may order you to submit
plans of operations under § 3809.401 for
current and future notice-level operations.
[65 FR 70112, Nov. 21, 2000, as amended at 66
FR 54862, Oct. 30, 2001]

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.605 What are prohibited
under this subpart?

acts

Prohibited acts include, but are not
limited to, the following:
(a) Causing any unnecessary or undue
degradation;
(b) Beginning any operations, other
than casual use, before you file a notice as required by § 3809.21 or receive
an approved plan of operations as required by § 3809.412;
(c) Conducting any operations outside the scope of your notice or approved plan of operations;
(d) Beginning operations prior to providing a financial guarantee that meets
the requirements of this subpart;
(e) Failing to meet the requirements
of this subpart when you stop conducting operations under a notice
(§ 3809.334), when your notice expires
(§ 3809.335), or when you stop conducting operations under an approved
plan of operations (§ 3809.424);
(f) Failing to comply with any applicable
performance
standards
in
§ 3809.420;
(g) Failing to comply with any enforcement actions provided for in
§ 3809.601; or
(h) Abandoning any operation prior
to complying with any reclamation re-

quired by this subpart or any order provided for in § 3809.601.
PENALTIES
§ 3809.700 What
criminal
penalties
apply to violations of this subpart?
The criminal penalties established by
statute for individuals and organizations are as follows:
(a) Individuals. If you knowingly and
willfully violate the requirements of
this subpart, you may be subject to arrest and trial under section 303(a) of
FLPMA (43 U.S.C. 1733(a)). If you are
convicted, you will be subject to a fine
of not more than $100,000 or the alternative fine provided for in the applicable provisions of 18 U.S.C. 3571, or imprisonment not to exceed 12 months, or
both, for each offense; and
(b) Organizations. If an organization
or corporation knowingly and willfully
violates the requirements of this subpart, it is subject to trial and, if convicted, will be subject to a fine of not
more than $200,000, or the alternative
fine provided for in the applicable provisions of 18 U.S.C. 3571.
§ 3809.701 What happens if I make
false statements to BLM?
Under Federal statute (18 U.S.C.
1001), you are subject to arrest and
trial before a United States District
Court if, in any matter under this subpart, you knowingly and willfully falsify, conceal, or cover up by any trick,
scheme, or device a material fact, or
make any false, fictitious, or fraudulent statements or representations, or
make or use any false writings or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry. If you are convicted,
you will be subject to a fine of not
more than $250,000 or the alternative
fine provided for in the applicable provisions of 18 U.S.C. 3571 or imprisonment for not more than 5 years, or
both.
APPEALS
§ 3809.800 Who may appeal BLM decisions under this subpart?
(a) A party adversely affected by a
decision under this subpart may ask
the State Director of the appropriate

954

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00964

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3809.805

BLM State Office to review the decision.
(b) An adversely affected party may
bypass State Director review and directly appeal a BLM decision under
this subpart to the Office of Hearings
and Appeals (OHA) under part 4 of this
title. See § 3809.801.
If—

(a) If you intend to appeal a BLM decision under this subpart, use the following table to see when you must file
a notice of appeal with OHA:

Then if you intend to appeal, you must file a notice of appeal with OHA—

And—

(1) You do not request
State Director review.

...........................................

(2) You request State
Director review.

The State Director does
not accept your request
for review.

(3) You request State
Director review.

The State Director has accepted your request for
review, but has not made
a decision on the merits
of the appeal.
The State Director makes
a decision on the merits
of the appeal.

(4) You request State
Director review.

(b) In order for OHA to consider your
appeal of a decision, you must file a notice of appeal in writing with the BLM
office where the decision was made.
§ 3809.802 What must I include in my
appeal to OHA?

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.801 When may I file an appeal of
the BLM decision with OHA?

(a) Your written appeal must contain:
(1) Your name and address; and
(2) The BLM serial number of the notice or plan of operations that is the
subject of the appeal.
(b) You must submit a statement of
your reasons for the appeal and any arguments you wish to present that
would justify reversal or modification
of the decision within the time frame
specified in part 4 of this chapter (usually within 30 calendar days after filing
your appeal).

Within 30 calendar days
after the date you receive the original decision.
On the original decision
within 30 calendar days
of the date you receive
the State Director’s decision not to review.
On the original decision
before the State Director
issues a decision.

On the State Director’s decision within 30 calendar
days of the date you receive, or are notified of,
the State Director’s decision.

§ 3809.803 Will the BLM decision go
into effect during an appeal to
OHA?
All decisions under this subpart go
into effect immediately and remain in
effect while appeals are pending before
OHA unless OHA grants a stay under
§ 4.21(b) of this title.
§ 3809.804 When may I ask the BLM
State Director to review a BLM decision?
The State Director must receive your
request for State Director review no
later than 30 calendar days after you
receive or are notified of the BLM decision you seek to have reviewed.
§ 3809.805 What must I send BLM to
request State Director review?
(a) Your request for State Director
review must be a single package that

955

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00965

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

§ 3809.806

43 CFR Ch. II (10–1–18 Edition)

includes a brief written statement explaining why BLM should change its
decision and any documents that support your written statement. Mark
your envelope ‘‘State Director Review.’’ You must also provide a telephone or fax number for the State Director to contact you.
(b) When you submit your request for
State Director review, you may also request a meeting with the State Director. The State Director will notify you
as soon as possible if he or she can accommodate your meeting request.
§ 3809.806 Will the State Director review the original BLM decision if I
request State Director review?
(a) The State Director may accept
your request and review a decision
made under this subpart. The State director will decide within 21 days of a
timely filed request whether to accept
your request and review the original
BLM decision. If the State Director
does not make a decision within 21
days on whether to accept your request
for review, you should consider your
request for State Director review declined, and you may appeal the original
BLM decision to OHA.
(b) The State Director will not begin
a review and will end an ongoing review if you or another affected party
files an appeal of the original BLM decision with OHA under section § 3809.801
before the State Director issues a decision under this subpart, unless OHA
agrees to defer consideration of the appeal pending a State Director decision.
(c) If you file an appeal with OHA
after requesting State Director review,
you must notify the State Director
who, after receiving your notice, may
request OHA to defer considering the
appeal.
(d) If you fail to notify the State Director of your appeal to OHA, any decision issued by the State Director may
be voided by a subsequent OHA decision.

jstallworth on DSKBBY8HB2PROD with CFR

§ 3809.807 What happens once the
State Director agrees to my request
for a review of a decision?
(a) The State Director will promptly
send you a written decision, which may
be based on any of the following:
(1) The information you submit;

(2) The original BLM decision and
any information BLM relied on for that
decision;
(3) Any additional information, including information obtained from
your meeting, if any, with the State
Director.
(b) Any decision issued by the State
Director under this subpart may affirm
the original BLM decision, reverse it
completely, or modify it in part. The
State Director’s decision may incorporate any part of the original BLM decision.
(c) If the original BLM decision was
published in the FEDERAL REGISTER,
the State Director will also publish his
or her decision in the FEDERAL REGISTER.
§ 3809.808 How will decisions go into
effect when I request State Director
review?
(a) The original BLM decision remains in effect while State Director review is pending, except that the State
Director may stay the decision during
the pendency of his or her review.
(b) The State Director’s decision will
be effective immediately and remain in
effect, unless a stay is granted by OHA
under § 4.21 of this title.
§ 3809.809 May I appeal a decision
made by the State Director?
(a) An adversely affected party may
appeal the State Director’s decision to
OHA under part 4 of this title, except
that you may not appeal a denial of
your request for State Director review
or a denial of your request for a meeting with the State Director.
(b) Once the State Director issues a
decision under this subpart, it replaces
the original BLM decision, which is no
longer in effect, and you may appeal
only the State Director’s decision.
PUBLIC VISITS TO MINES
§ 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

956

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00966

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198

Bureau of Land Management, Interior

§ 3811.1

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.
(c) 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.

PART 3810—LANDS AND MINERALS
SUBJECT TO LOCATION

3814.2 Mineral reservation in patent; conditions to be noted on mineral applications.

Subpart 3815—Mineral Locations in Stock
Driveway Withdrawals
3815.1 Mineral locations.
3815.2 Prospecting and mining.
3815.3 Surface limitation.
3815.4 Protection of stock.
3815.5 Access to stock watering places.
3815.6 Locations subject to mining laws.
3815.7 Mining claims subject to stock driveway withdrawals.
3815.8 Notation required in application for
patent; conditions required in patent.

Subpart 3816—Mineral Locations in
Reclamation Withdrawals
3816.1 Mineral locations.
3816.2 Application to open lands to location.
3816.3 Recommendations of Bureau of Reclamation to open lands.
3816.4 Recommendations as to reservations
and contract form.
AUTHORITY: 30 U.S.C. 22 et seq.; 43 U.S.C.
1201 and 1740.

Subpart 3811—Lands Subject to
Location and Purchase

Subpart 3811—Lands Subject to Location
and Purchase
Sec.
3811.1 Lands: General.
3811.2 Lands: Specific.
3811.2–1 States where locations may be
made.
3811.2–2 Lands in national parks and national monuments.
3811.2–3 Lands in Indian reservations.
3811.2–4 Lands in national forests.
3811.2–5 O and C and Coos Bay Wagon Road
lands.
3811.2–6 Lands in powersite withdrawals.
3811.2–9 Lands under Color of Title Act.

Subpart 3813—Disposal of Reserved
Minerals Under the Act of July 17, 1914

jstallworth on DSKBBY8HB2PROD with CFR

3813.0–3 Authority.
3813.1 Minerals reserved by the Act of July
17, 1914, subject to mineral location,
entry and patenting.
3813.2 Minerals subject to disposition.
3813.3 Provision of the mineral patent.

Subpart 3814—Disposal of Reserved Minerals Under the Stockraising Homestead Act
3814.1 Mineral reservation in entry and patent; mining and removal of reserved deposits; bonds.

SOURCE: 35 FR 9742, June 13, 1970, unless
otherwise noted.

§ 3811.1

Lands: General.

Vacant
public
surveyed
or
unsurveyed
lands
are
open
to
prospecting, and upon discovery of
mineral, to location and purchase. The
Act of June 4, 1897 (30 Stat. 36), provides that ‘‘any mineral lands in any
forest reservation which have been or
which may be shown to be such, and
subject to entry under the existing
mining laws of the United States and
the rules and regulations applying
thereto, shall continue to be subject to
such location and entry,’’ notwithstanding the reservation. This makes
mineral lands in the forest reserves in
the public land states, subject to location and entry under the general mining laws in the usual manner. Lands
entered
or
patented
under
the
stockraising homestead law (title to
minerals and the use of the surface
necessary for mining purposes can be
acquired), lands entered under other
agricultural laws but not perfected,

957

VerDate Sep<11>2014

08:24 Dec 13, 2018

Jkt 244198

PO 00000

Frm 00967

Fmt 8010

Sfmt 8010

Y:\SGML\244198.XXX

244198