[House Report 105-569]
[From the U.S. Government Publishing Office]



                                                 Union Calendar No. 322
105th Congress, 2nd Session  - - - - - - - - - - - House Report 105-569


 
               ABUSE OF POWER: THE HARDROCK BONDING RULE

                               __________

                              R E P O R T

                                 By the


                         COMMITTEE ON RESOURCES

                             together with

                            DISSENTING VIEWS





  June 5, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed


                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F. H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS ROMERO-BARCELO, Puerto Rico
WALTER B. JONES, Jr., North          MAURICE D. HINCHEY, New York
    Carolina                         ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas   SAM FARR, California
JOHN B. SHADEGG, Arizona             PATRICK J. KENNEDY, Rhode Island
JOHN E. ENSIGN, Nevada               ADAM SMITH, Washington
ROBERT F. SMITH, Oregon              WILLIAM D. DELAHUNT, Massachusetts
CHRIS CANNON, Utah                   CHRIS JOHN, Louisiana
KEVIN BRADY, Texas                   DONNA CHRISTIAN-GREEN, Virgin 
JOHN E. PETERSON, Pennsylvania           Islands
RICK HILL, Montana                   RON KIND, Wisconsin
BOB SCHAFFER, Colorado               LLOYD DOGGETT, Texas
JIM GIBBONS, Nevada
MICHAEL D. CRAPO, Idaho
                                 ------                                

              Subcommittee on Energy and Mineral Resources

                        BARBARA CUBIN, Chairman
W.J. (BILLY) TAUZIN                  CARLOS A. ROMERO-BARCELO*
JOHN J. DUNCAN, Jr.                  NICK JOE RAHALL, II
KEN CALVERT                          SOLOMON P. ORTIZ
WILLIAM M. (MAC) THORNBERRY          CALVIN M. DOOLEY
CHRIS CANNON                         CHRIS JOHN
KEVIN BRADY                          DONNA CHRISTIAN-GREEN
JIM GIBBONS                          [VACANCY]


                         LETTER OF TRANSMITTAL

                              ----------                              

                          House of Representatives,
                                    Committee on Resources,
                                      Washington, DC, June 5, 1998.
Hon. Newt Gingrich,
Speaker of the House of Representatives,
Washington, DC.
    Dear Mr. Speaker: By direction of the Committee on 
Resources, I submit the Committee's report to the 105th 
Congress on ``Abuse of Power: The Hardrock Bonding Rule.'' The 
report is based on a study conducted by the Subcommittee on 
Energy and Mineral Resources. The report was adopted and 
ordered reported to the House of Representatives by voice vote 
on May 20, 1998.
            Sincerely,
                                                 Don Young,
                                                          Chairman.


                            C O N T E N T S

                              ----------                              
                                                                   Page
Executive Summary................................................     1
Introduction: Committee Review of Bonding Rule for Hardrock 
  Mining.........................................................     4
Part I: How the rule was made....................................     5
    A. Introduction..............................................     5
    B. First period (January 1990-September 1992)................     6
    C. Second period (August 1993-November 1994).................     7
    D. Third period (late November 1994-February 1997)...........     8
Part II: Problems with DOI's rulemaking process..................     8
    A. Fair and meaningful public input denied...................     8
        Administrative Procedures Act problems...................     8
        Staleness issue..........................................     9
        Substantial modification issue...........................     9
    B. Forcing undue hardship on small businesses................    10
        Regulatory Flexibility Act violated......................    10
        Efforts to comply with Regulatory Flexibility Act (RFA) 
          nullified..............................................    11
        Major defects in determination of effects result in 
          erroneous conclusions..................................    11
        Determination of effects not considered in rulemaking....    12
        RFA requirements ignored.................................    13
    C. Appearance of impropriety.................................    14
    D. A significant regulatory action is concealed..............    16
    E. Poor record keeping undercuts legitimacy of the rule......    18
Part III: DOI's uncooperative attitude...........................    20
    A. Example One--Avoid, dodge and delay.......................    20
    B. Example Two--Misleading answers to important questions....    22
    C. Example Three--The litigation excuse......................    22
Part IV: Analysis and conclusions: DOI's actions corrupted the 
  rulemaking process.............................................    23
Appendix A--Exhibits.............................................    26
Appendix B--Exhibits.............................................   108
                                                 Union Calendar No. 322
105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-569
_______________________________________________________________________


               ABUSE OF POWER: THE HARDROCK BONDING RULE

                                _______
                                

  June 5, 1998.--Committed to the Committee of the Whole House on the 
              state of the Union and ordered to be printed

_______________________________________________________________________


  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                           Executive Summary

    In February 1997, the Bureau of Land Management (BLM) 
published a ``Final Rule on Hardrock Bonding,'' which amended 
its surface management regulations under the Federal Land 
Management Policy Act (FLPMA). The Committee on Resources has 
jurisdiction over FLPMA and the regulations issued pursuant to 
this law, jurisdiction that is delegated, in this case, to the 
Subcommittee on Energy and Mineral Resources. The Subcommittee, 
in concert with the Full Committee, undertook its Congressional 
oversight responsibility after concluding that the process for 
developing the new rule was seriously flawed.
    The hardrock bonding rule provides an example of rulemaking 
at its worst. Documents obtained by the Committee clearly show 
that undue interference of political appointees at the 
Department of Interior (DOI) in the BLM rulemaking was so great 
that the integrity of the rulemaking process itself was 
discredited. The political bosses controlling the regulatory 
authority at DOI used their power to implement an agenda that 
Congress had refused to enact--even when controlled by their 
own party. In doing this, DOI silenced the voice of those who 
participated in the legislative process through their elected 
representatives, thereby denying them participation in our 
democratic process.
    The problems with the hardrock bonding rulemaking result 
from the refusal of a few, high-level political appointees in 
DOI to obey the laws that govern the rulemaking process, 
thereby demonstrating contempt for both the spirit and the 
letter of the law. These bureaucrats refused to comply with the 
Administrative Procedures Act (APA) and Regulatory Flexibility 
Act (RFA), concealed the significance of the new rule, 
obstructed the impartiality of the rulemaking process, excluded 
interested parties from participating in the rulemaking process 
in a meaningful way, attempted to prevent Congress from 
carrying out its Constitutional oversight responsibilities, and 
tried to use various inapplicable claims of ``privilege'' to 
hide these actions. These actions, taken together, constitute a 
coordinated effort by DOI policy-makers to affirmatively 
mischaracterize the hardrock bonding rule's import and impact 
and prevent any Congressional oversight of their actions. These 
politically-motivated bureaucrats did not allow interested 
members of the public an opportunity to comment on the rule 
once they had dictated its contents.
    The hardrock bonding rulemaking process can be divided into 
three periods: (1) development and publication of a draft rule 
for public comment followed by completion of a final rules 
package for publication (January 1990 through September 1992); 
(2) DOI management decision to disregard previous rulemaking 
efforts and issue a new, substantially different bonding rule 
without further public comment (August 1993 through November 
1994); and (3) extensive rewriting of the preamble several 
times by the regulation writers in an attempt to evade legal 
problems with the rulemaking process and meet the mandates they 
were given by their political bosses (late November 1994 
through February 1997).
    One crucial problem with the hardrock bonding rulemaking is 
that an upper-level DOI political appointee, who played a major 
role in determining the contents of the new rule, appeared to 
have a serious conflict of interest. Mr. David Alberswerth, 
only recently employed by the National Wildlife Federation 
(NWF), laid out the terms of the hardrock bonding rule. 
Coincidently, Mr. Alberswerth's co-signed comments on the draft 
rule submitted on behalf of NWF and the new rule he dictated 
are strikingly similar. Meaningful input into the new 
rulemaking from anyone other than environmental advocacy groups 
was stifled by refusing to publish the new rule for a period of 
comment by other interested parties.
    The final rule violates the APA because: (1) it was based 
on information that was more than six years old; (2) it is a 
substantive alteration of the draft rule; and (3) interested 
parties were denied participation in the rulemaking process in 
any meaningful way through a period of public comment after 
substantive alterations were made. Examples of substantial 
modifications made to the regulation are the requirement that 
reclamation cost estimates be certified by a professional 
engineer, a standard which was not mentioned at all in the 
notice of proposed rulemaking, and changing proposed maximum 
bonding amounts per acre to minimum bonding amounts. The latter 
alteration was made even though the notice of proposed 
rulemaking stated that in order to ``reduce the impacts on 
industry . . . these bond caps would be intended to be in 
effect for 3 years after promulgation of the final rule, and 
their adequacy would be reevaluated at that time.''
    Either of these substantive changes to the draft rule may 
in and of itself be enough to trigger a violation of APA. For 
example, the professional engineer certification requirement 
was not mentioned at all in the notice of proposed rulemaking. 
However, when all of the changes to the draft rule are 
considered together, there is no doubt that the new bonding 
rule is substantively modified from the draft rule. Many 
interested parties, who did not comment on the draft rule 
because they had no reason to believe that it would have a 
material effect on them, certainly would have commented on the 
new rule.
    DOI's RFA violations include: (1) no effort to address the 
concerns of small business entities; and (2) major defects in 
the analysis of the effect of the regulation on small entities 
in the Determination of Effects of Rule (the Determination of 
Effects), including use of an illegal definition of a small 
entity. This definition is illegal because DOI did not bother 
to adhere to any of the requirements, including consulting with 
the Small Business Administration's Office of Advocacy, 
mandated by the RFA if an agency wishes to deviate from the 
lawful definition of a small entity; thus, the Determination of 
Effects is invalid. If the primary document which DOI relies on 
to certify that the final rule has no significant effect on 
small entities is illegal, the resulting certification cannot 
be legal.
    DOI concealed the fact, shown by its own analysis, that the 
hardrock bonding rule was a significant regulatory action with 
an annual economic impact exceeding $100 million. This effect 
is greatly underestimated because DOI made no attempt to 
consider the effects incurred when a project is delayed or 
canceled because certification by a professional engineer 
cannot be obtained due to uncertain risks associated with 
calculation of reclamation costs. By concealing the fact that 
the bonding rule was a significant regulatory action, DOI 
avoided more rigorous scrutiny of the new rule and evaded the 
legal requirement to consider alternatives to the rule.
    There is no doubt that the hardrock bonding rule is 
significantly different from the draft rule, nor is there any 
doubt that political appointees at DOI denied the general 
public an opportunity for full and meaningful input into the 
rulemaking. The new rule was published despite warnings from 
BLM regulation writers and DOI solicitors that they had significant APA 
concerns.
    DOI's actions, taken together, constitute a coordinated 
effort by politically-motivated bureaucrats to misrepresent the 
hardrock bonding rule's import and impact. These individuals 
continually mischaracterized the economic effect of the rule 
and the nature of the alterations made to the rule to deny 
interested members of the public full and meaningful 
participation in the rule-making process. Even if the notice of 
proposed rule-making was facially sufficient, it is rendered 
inadequate by DOI's affirmative mischaracterization of the new 
rule.
    After the new regulation was published, DOI attempted to 
obstruct the Committee from carrying out its Constitutional 
oversight responsibilities. A drawn-out string of dilatory 
tactics was initiated after all documents pertaining to this 
rule-making were requested. Some records were produced by DOI 
pursuant to this request, but many documents were withheld from 
the Committee under a prospective claim of ``privilege.'' DOI 
also tried to impose rules and conditions under which the 
Committee could have access to documents. After DOI's dilatory 
tactics continued for more than three months, the Committee 
subpoenaed the documents. The delay in producing the requested 
documents thwarted efforts of the Committee to properly 
undertake its Constitutional oversight duties. Two Subcommittee 
hearings on the matter had already been held and remaining days 
in the first session of the 105th Congress were limited.
    This hardrock bonding rule reflects a prevalent perspective 
within the upper levels of DOI, an attitude that if Congress 
does not enact their favored legislation, it is appropriate to 
establish the failed legislation through new regulations. This 
attitude turns the Constitution into a sham. Under the 
Constitution, Congress possesses the ultimate power to regulate 
or dispose of lands belonging to the United States. The 
Executive Branch (DOI) holds only such regulatory power over 
these lands as delegated to it by Congress. DOI possesses no 
power to act because Congress failed to enact policies 
advocated by DOI. Congress has a right to refuse to act.
    When bureaucrats make laws on behalf or in lieu of 
Congress, those legislative hurdles so carefully constructed by 
the authors of the Constitution are circumvented and the 
restraints on promiscuous lawmaking are demolished. Government 
as a result runs riot, and the people's voice through their 
elected representatives is muted.

   Introduction: Committee Review of Bonding Rule for Hardrock Mining

    On February 28, 1997, the Bureau of Land Management (BLM) 
published a ``Final Rule on Hardrock Bonding'' (the Rule) in 
the Federal Register (v. 62, No. 40, p. 9083; Exhibit 1), which 
amended its surface management regulations at 43 CFR subpart 
3809 pursuant to the Federal Land Management Policy Act 
(FLPMA). According to DOI, the new rule requires submission of 
financial guarantees for reclamation of all hardrock mining 
operations greater than casual use, increases the types of 
financial instruments acceptable to satisfy the requirement for 
a financial guarantee, and amends the noncompliance section of 
the regulations to require the filing of plans of operations by 
operators who have a record of noncompliance.
    The Committee on Resources has jurisdiction over FLPMA and 
the regulations issued pursuant to this law under Articles I 
and IV of the U.S. Constitution, Rules X and XI of the U.S. 
House of Representatives and Rule 6 of the Rules for the 
Committee on Resources (Committee Rules), jurisdiction that, in 
this case, is delegated under Rule 6(a) of the Committee Rules 
to the Subcommittee on Energy and Mineral Resources. The 
Subcommittee has a continuing responsibility under Rule 6(a) of 
the Committee Rules to monitor and evaluate administration of 
laws within its jurisdiction. In relevant part, Rule 6 states: 
``Each Subcommittee shall review and study, on a continuing 
basis, the application, administration, execution, and 
effectiveness of those statutes or parts of statutes, the 
subject matter of which is within that Subcommittee's 
jurisdiction; and the organization, operation, and regulations 
of any Federal agency or entity having responsibilities in or 
for the administration of such statutes, to determine whether 
these statutes are being implemented and carried out in 
accordance with the intent of Congress.''
    The Subcommittee, in concert with the Full Committee, 
undertook its Rule 6 responsibility when, on March 6, 1997, 
Chairman Don Young and Subcommittee Chairman Barbara Cubin 
initiated a review of the rule-making process for the new BLM 
bonding regulation. They had concerns about the regulation 
because:
          (1) The new regulation was stale because the comment 
        period closed on October 9, 1991, nearly six years 
        previously.
          (2) The regulation was substantively different from 
        the draft rule published in the Federal Register.
          (3) The BLM did not comply with requirements of the 
        Administrative Procedures Act (APA) or the Regulatory 
        Flexibility Act (RFA) in the rule-making process.
    Congress delegates rule-making power under FLPMA to the 
Department of Interior (DOI) on the presumption that the agency 
will act responsibly and guarantee a fair rule-making process 
with full and meaningful public input. Congress also has the 
responsibility to ensure that these objectives are met to the 
maximum possible extent. In conducting oversight, the Committee 
is simply asking DOI to demonstrate that DOI has respected both 
the letter and the spirit of the laws passed by Congress which 
govern the rule-making process and bonding of federal hardrock 
mining operators.
    DOI conducted a long, drawn-out sequence of dilatory and 
delaying tactics from March through mid-August to avoid turning 
embarrassing documents over to the Committee. These tactics 
ceased only after the Committee subpoenaed the documents.
    As a result of this delay, Chairman Young and Subcommittee 
Chairman Cubin requested this report which analyzes and appends 
relevant documents (Appendix A, Exhibits) that show whether DOI 
abused the rule-making process in making this rule and whether 
DOI conducted rule-makings authorized under FLPMA in accordance 
with the intent of Congress as expressed in the APA and the 
RFA. This report is developed for Members of the Committee on 
Resources so that they may undertake their legislative and 
oversight responsibilities under the Constitution, the Rules of 
the U.S. House of Representatives, and the Rules for the 
Committee on Resources.

                     Part I: How the Rule Was Made

                            A. Introduction

    From Subcommittee on Energy and Mineral Resources hearings 
held on March 20, 1997 (Rpt. No. 105-8), and June 19, 1997 
(Rpt. No. 105-24), and a review of documents obtained by the 
Committee, the hardrock bonding rule-making process can be 
divided into three major periods: (1) development and 
publication of a draft rule for public comment followed by 
completion of a final rule package for publication (January 
1990 through September 1992); (2) decision by DOI political 
appointees to disregard previous rule-making efforts and issue 
a new, substantive different bonding rule without further 
public comment (August 1993 through November 1994); and (3) 
extensive rewriting of the preamble several times by regulation 
writers in an attempt to circumvent APA deficiencies in the 
rule-making process while meeting the mandates they were given 
by DOI political appointees (late November 1994 through 
February 1997).

             B. First Period (January 1990-September 1992)

    The development of a final rules package for bonding of 
hardrock mining operations during the period from January 1990 
through September 1992 (hereinafter referred to as the 92 
iteration) is well documented in BLM Bond Policy Chronology 
(Exhibit 2). As a result of a General Accounting Office report, 
vocal Congressional criticism of BLM bonding practices in the 
late 1980's, and a recommendation by a BLM mining task force, 
BLM Director Cy Jamison asked for a proposal that would 
implement mandatory bonding for all operators under the general 
mining law. A bonding proposal presented to the Director on 
January 11, 1990, was approved and circulated for comment 
within BLM. After internal BLM review, the draft bonding rule 
was published in the Federal Register on July 11, 1991 (Exhibit 
3).
    The draft rule required all operators to post financial 
guarantees. ``Notice level operators'' (less than 5 acres 
surface disturbance) were required to post a maximum bond of 
$5,000 whereas plan level operators (more than 5 acres of 
surface disturbance) were required to post a maximum bond of 
$1,000 per acre for exploration activities and $2,000 per acre 
for mining activities. Operations utilizing cyanide were 
required to post a bond covering 100 percent of their 
reclamation costs regardless of surface disturbance. The 
proposed rule also required operators with an established 
record of noncompliance to conduct all activities under a plan 
of operations and to post financial guarantees equal to 100 
percent of their reclamation costs.
    The comment period on the draft rule, after an extension, 
ended on September 9, 1991. Comments were evaluated and 
language for the final rule reviewed by BLM in the ensuing 
year. The 92 iteration was ready for publication in the Federal 
Register by the end of September 1992, but the package stalled 
in the Solicitor's Office at DOI (Exhibit 4A). The 92 iteration 
differed from the draft rule in that bonds for notice 
operations were changed from a maximum of $5,000 to a maximum 
of $1,000 per disturbed acre or any part thereof and the 
noncompliance provision was substantially rewritten to add 
``death penalty'' provisions. A standard bond forfeiture clause 
and penalties for violations were added. Violators were made 
subject to a maximum fine of $1,000 or a maximum prison term of 
12 months under a provision of FLPMA.
    The 92 iteration was apparently redone several times in an 
effort to address concerns of small business entities that 
lacked access to surety bonds or sources of capital available 
to large mining companies. Also, a memo dated November 29, 1991 
(Exhibit 4B), expresses concern that some of the proposed 
changes, particularly the forfeiture, ``death sentence'' and 
penalty provisions, were substantial enough to require re-
publication as a proposed rule to comply with the APA.
    The changes in the 92 iteration were far less substantive 
than ones later included in the ultimately published final 
rule. The 92 iteration was left to the incoming Clinton 
administration after the 1992 election and, according to 
Exhibit 4A, remained in the Solicitor's Office essentially on 
hold until well into 1993.

              C. Second Period (August 1993-November 1994)

    The second period of activity on the hardrock bonding rule-
making began in early August 1993 when the 92 iteration was 
retrieved from the Solicitor's Office and sent to Mr. David 
Alberswerth, Special Assistant to the Assistant Secretary for 
Land and Minerals Management. Mr. Alberswerth, a political 
appointee, apparently held the 92 iteration until the Fall of 
1994, when after review, he initiated several memos (Exhibits 5 
and 6) and at least one meeting (Exhibit 7) during the latter 
part of October and early November.
    This spurt of activity culminated in Mr. Alberswerth's 
memorandum to Mr. Hord Tipton (then acting Director of BLM), 
dated November 8, 1994 (Exhibit 6), in which he laid out the 
revisions to be made to the 92 iteration and directed that the 
preamble was to be modified to reflect these changes. Mr. 
Alberswerth insisted on the following modifications to the 92 
iteration:
          1. Bonds should be required for all operations on 
        public lands (except for ``casual use''), regardless of 
        ``prior record.''
          2. Bonds should be set at a level to cover 100 
        percent of the costs of reclamation, with bonds for 
        operations requiring an approved plan of operation set 
        at a minimum level of $2,000 per acre, and ``notice'' 
        operations set at a minimum of $1,000 per acre.
          3. Financial instruments used to provide financial 
        guarantees of reclamation should not allow equipment 
        liens or bonds, nor property or mortgage bonds.
          4. Each individual operation should be bonded to the 
        full estimated costs of reclamation--``Statewide'' and 
        ``nationwide'' bonds should not be allowed.
          5. Since all operations would be required to be fully 
        bonded, provision should be made for phased bond 
        release on a case-by-case basis at the discretion of 
        the authorized officer.
    Mr. Alberswerth also emphasized that the bonding 
requirements must provide a guarantee \1\ that reclamation 
would be completed, rather than act as an economic incentive to 
encourage satisfactory completion of reclamation, the stated 
purpose in the 92 iteration. The Alberswerth modifications 
significantly changed the nature and scope of the proposed rule 
(for clarity, the Alberswerth modification is hereinafter 
referred to as ``the Rule'').
---------------------------------------------------------------------------
    \1\ The problem with this approach is that it assumes that all risk 
can be avoided, but risk is the inescapable partner of any human 
endeavor. In reality, there are no guarantees. Managing or reducing 
risk is achieved by defining its nature so that we can make rational 
choices among alternatives. As Arthur Rudolph, developer of the Saturn 
5 rocket said, ``You want a valve that doesn't leak, and you try 
everything possible to develop one. But the real world provides you 
with a leaky valve. You have to determine how much leaking you can 
tolerate.'' However, using Mr. Alberswerth's approach, the risk of a 
leaky valve would be reduced by doing away with valves altogether or 
making them so expensive that few could afford one. Neither of these 
alternatives is a wise choice in a contemporary society based on 
economic growth, improved quality of life and technological progress.
---------------------------------------------------------------------------

           D. Third Period (late November 1994-February 1997)

    Regulation writers at BLM spent the remaining time from 
November 1994, until the Rule was issued in February 1997, 
modifying and rewriting the preamble again and again in an 
attempt to evade APA problems that they had identified while at 
the same time meeting mandates given them by high-level DOI 
political appointees. An obvious question that arises is ``Why 
not encourage meaningful public input into the rule-making 
process instead of spending 27 months trying to conceal 
problems caused by not allowing a one or two month public 
comment period?''
    Much time was also spent writing a Determination of Effects 
of Rule after the fact to justify DOI's certification that the 
Rule had no significant impact on small business entities. 
Several significant changes and new requirements, which were 
not a part of the modifications listed in Mr. Alberswerth's 
November 11, 1994 memo, were also added to the 92 iteration. 
These new changes included: (1) a requirement that a third 
party professional engineer certify the estimated reclamation 
costs; and (2) acceptance of statewide and nationwide bonding.
    The reasons for the requirement for a third party 
professional engineer to calculate reclamation costs cannot be 
drawn from the record. The professional engineer requirement, 
which was not in the draft rule published in 1991, first 
appears in a draft dated February 20, 1995. There is no 
evidence from the record in the Committee's possession 
explaining the origin of this requirement nor was any 
justification given for it in the preamble.
    The reasons for the decision to accept statewide and 
nationwide bonding are not obvious from the record but can be 
discerned after considerable effort on the part of the 
examiner. This decision was apparently made because DOI 
solicitors determined that if these bonds were prohibited, the 
rule-making would unquestionably be a significant regulatory 
action as well as an undeniable APA violation.

            Part II: Problems with DOI's Rule-making Process

               A. Fair and Meaningful Public Input Denied

Administrative Procedures Act problems

    The Administrative Procedures Act (APA, 5 U.S.C 500-559) is 
the basic statute governing the process whereby agencies of the 
executive branch propose informal rule-makings to implement 
statutes within their jurisdiction. A general requirement of 
APA is that an agency solicit public comment on a proposed 
rule-making, digest the comments received, and explain their 
disposition in the preamble to a final rule-making before the 
new rules become effective. Court decisions concerning the 
intent of APA make clear that the Act requires fair and 
meaningful public input.
    In the initial examination of the Rule, Committee staff 
concluded that DOI had apparently violated APA because:
          1. the comment period closed on October 9, 1991, 
        nearly six years prior to the date that DOI issued the 
        Rule; and
          2. the Rule was significantly different from the 
        draft rule published in the Federal Register requiring 
        a new round of public notice and comment.
    Documents provided by DOI to the Committee show that DOI's 
own lawyers and regulation writers were very concerned that the 
bonding regulation violated provisions of the APA (Exhibits 8-
13). They warned their superiors at DOI about APA problems and 
advised them to finalize a rule for bonding requirements 
limited to notice level operators and propose the rest as a 
draft rule for public comment (Exhibit 9 and 12). This 
recommendation was ignored.

Staleness issue

    The Rule was published on February 28, 1997 (Exhibit 1), 
almost six years after the comment period on the draft rule had 
ended on October 9, 1991. During this time, many states had 
passed new reclamation and bonding laws or implemented 
significant, new regulations covering these areas. Alaska, for 
example, was in the initial stages of implementing a new 
bonding and reclamation law when the 1991 comment period 
closed. In the March 20th hearing before the Energy and Mineral 
Resources Subcommittee, Paul Jones, Executive Director of the 
Minerals Exploration Coalition, a group that routinely tracks 
mineral exploration permitting requirements, testified that 
since the comment period had closed on the draft rule in 1991, 
Colorado, Montana and Nevada had substantially revised their 
regulations and that Arizona and New Mexico had issued 
completely new regulations. Since DOI failed to re-open the 
record on the Rule for comments by interested parties, out-
dated information was used in the rule-making process.

Substantial modification issue

    A new round of public notification and comment is not 
necessarily triggered by the APA just because an agency makes 
substantive modifications to a draft rule. In determining if a 
new period of publication and comment is required, the courts 
usually use one or both of the following tests:
          1. whether the final rule is a logical outgrowth of 
        the notice and comments made during the rule-making 
        period following publication of the proposed rule, and
          2. whether the notice of proposed rule-making fairly 
        appraised interested parties so that they had an 
        opportunity to comment.
    The Rule contained a number of alterations of the draft 
rule (Exhibit 14), such as the requirement that bonds be set at 
a level to cover 100 percent of the costs of reclamation; 
minimum bond of $2,000 per acre for ``plan'' operations instead 
of a maximum bond of $2,000 per acre; minimum bond of $1,000 
per acre for ``notice'' operations instead of a maximum bond of 
$1,000 per acre; and prohibition of equipment, property and 
mortgage bonds. One other noteworthy change is the requirement 
that reclamation cost estimates be certified by a professional 
engineer, which was discussed in a previous section.
    DOI argues that the change from a bonding cap of $1,000 per 
acre for notice operations ($2,000 per acre for plan 
operations) to full cost bonding with a floor of $1,000 per 
acre for notice operations ($2,000 per acre for plan 
operations) is a logical outgrowth of the draft rule. 
Requirement of full cost bonding voids any bonding caps. 
However, how are bonding floors or minimums a logical outgrowth 
of full cost bonding? Under 100 percent bonding, there is no 
more justification for minimum bonding levels than maximum 
bonding levels. In fact, with minimum bonds, a miner may 
actually have to bond for more than 100 percent of reclamation 
costs.
    DOI's logical outgrowth argument is also difficult to 
defend when the notice of the proposed rule (July 11, 1991; 
Exhibit 3) stated that to ``reduce the impacts on industry . . 
. these bond caps would be intended to be in effect for 3 years 
after promulgation of the final rule, and their adequacy would 
be reevaluated at that time.'' In light of this statement, 
there was no reason for any member of the public to anticipate 
the final form of the Rule.
    A substantive change to the draft rule such as the 
professional engineer certification may alone be reason enough 
to trigger a violation of APA, since this change was not 
mentioned at all in the notice of proposed rule-making and the 
change has no support in the rule-making record. The logical 
outgrowth of nothing is nothing.
    However, when considered together, there is no doubt that 
all of the changes in the Rule (Exhibit 14) make it 
significantly different from the draft rule. Political 
appointees at DOI denied an opportunity for full and meaningful 
public input into the rule-making. Many people, who did not 
comment on the draft rule because they had no reason to believe 
that it would have a material effect on them, would certainly 
have commented on this new, substantively expanded regulation. 
DOI failed to meet either one of the tests used to determine 
whether or not the APA requirement for meaningful public 
comment has been met.

             B. Forcing Undue Hardship on Small Businesses

Regulatory Flexibility Act (RFA) violated

    Political bosses at DOI showed disdain for the provisions 
of the Regulatory Flexibility Act (RFA), which Congress enacted 
in 1980 to curb government regulatory abuse of small 
businesses. A primary purpose of the RFA is to prevent a 
disproportionate adverse economic hardship caused by regulatory 
actions from falling on the shoulders of small business 
entities. RFA requires federal agencies to prepare and publish 
an initial regulatory flexibility analysis when proposing a 
regulation and a final regulatory flexibility analysis when 
issuing a final rule if such rule will have a significant 
economic impact on a substantial number of small entities. The 
RFA exempted an agency from these requirements if the agency 
certified that a rule would not have a significant effect on 
small entities. Agencies routinely avoided RFA requirements by 
making this certification.
    Recognizing that the certification exemption provided an 
overly broad loophole in RFA, Congress passed the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) in 1996, 
which required that agencies must provide more substantial 
reasons for their certification if they wanted to avoid 
preparing a full regulatory flexibility analysis. SBREFA also 
provided for judicial review of an agency's decisions under 
RFA.
    DOI has four major problems with RFA and the Rule: (1) the 
modifications made to the 92 iteration by Mr. Alberswerth 
nullified all of DOI's previous efforts to address the concerns 
of small entities; (2) the analysis of the effect of the Rule 
on small entities in the Determination of Effects contains 
major defects leading to erroneous conclusions; (3) the 
Determination of Effects was completed just days before the 
Rule was published and could not possibly have been seriously 
considered by DOI in making the Rule; and (4) the definition of 
a small entity in the Determination of Effects is illegal, 
rendering the RFA analysis invalid.

Efforts to comply with RFA nullified

    As previously discussed, the 92 iteration was apparently 
redone several times before the Clinton Administration came 
into office, in an effort to address concerns of small business 
entities (Exhibit 4A) that lacked access to surety bonds or 
sources of capital available to large mining companies. To 
address these concerns in the 92 iteration, DOI allowed the use 
of equipment liens and real estate mortgages as collateral for 
a bond. However, Mr. Alberswerth directed BLM regulation 
writers to eliminate equipment liens and real property 
mortgages as collateral for a bond (Exhibit 4B), nullifying 
previous efforts to address the concerns of small business 
entities.
    There would be no attempt by DOI to address the concerns of 
small business entities in the rule-making. As Mr. Karl 
Hanneman, President of the Alaska Miners Association, testified 
at the March 20th hearing, ``They [DOI] eliminated the right to 
use real property or mining property, that is your house or 
your mining property. They eliminated the right to use your 
mining equipment, so for most small operators in Alaska the 
assets that they might otherwise have available to meet a bond 
have simply been removed.'' To make matters worse, required 
bonding levels on many small entities were further increased by 
DOI, creating an even greater burden on small mining entities.

Major defects in determination of effects result in erroneous 
        conclusions

    The Determination of Effects used by DOI to justify the 
Department's RFA certification of the Rule is based on 
confusing and contradictory definitions of a small entity. 
According to the Determination of Effects, a small entity for 
the purpose of DOI's analysis is ``an individual, small firm, 
or partnership at arm's length from the control of any parent 
companies.'' The Determination of Effects goes on to say that 
``The juniors and majors (not considered small entities), as 
discussed in the previous paragraphs, and entities under their 
direct control, have access to lines of credit and internal 
corporate cash flows that are not available to small 
entities.'' This definition is based on how a business is 
legally structured or organized rather than on the number of 
employees. Both small and large entities exist in all of these 
categories.
    DOI then goes on to make the inaccurate assumption that 
small entities will only be operating under a notice--not under 
a plan of operations. Compounding this error, DOI assumes that 
one-third of the notice level operations are small entities 
whereas the rest are plan level operations. The rationale for 
this appears to be based on an analysis showing that about one-
third of the mining claimants in Arizona and Nevada filed 
assessment work (had less than ten mining claims) in lieu of 
paying an annual fee of $100 per claim. According to DOI's 
logic, small entities cannot have more than ten mining claims 
or operate under a plan of operations. What this has to do with 
the number of employees of an entity, one can only guess.
    An example of a small entity operating under a plan of 
operations and having more than ten mining claims is Alaska 
Placer Development, which operates a gold mine in Livengood, 
Alaska. This company has 14 employees and would be a small 
entity under any definition. Karl Hannemann, President of 
Alaska Placer Development, testified at the March 20th hearing: 
``They [DOI] estimated the cost to plan operators [of the Rule] 
in Alaska is $470,000. Under this proposal, the cost to my 
operation alone would be $312,000 or 66 percent of this total. 
I am only one of 59 operators. It is clear that they have 
misestimated the economic impacts.'' Clearly, DOI's analysis of 
the Rule's impact is based on faulty assumptions and bad 
interpretations, leading to results that grossly understate the 
effect of the Rule on small businesses. Thus, the Determination 
of Effects does not justify the certification that the Rule has 
no effect on small entities.

Determination of effects not considered in rule-making

    The Determination of Effects was done only after the Rule 
had been finalized, and it was completed only days before the 
Rule was published in the Federal Register. The major tenets of 
the Rule were largely determined in Mr. Alberswerth's memo 
dated November 8, 1994 (Exhibit 4B). Remaining modifications to 
the Rule were decided by the end of June after a series of 
meetings within DOI concerning remaining issues with the Rule. 
The Solicitor's Office approved the Rule in September, 1996, 
subject to seeing the Determination of Effects (Exhibit 15). 
The Determination of Effects was compiled from October 1996 to 
mid-February 1997, and DOI was still completing major sections 
of the Determination of Effects in early 1997, just prior to 
publication of the Rule on February 28, 1997. The ink on the 
Determination of Effects was barely dry on the day the rule was 
published. In fact, DOI decided on February 24th to omit the 
date ofthe Determination of Effects in the preamble because 
they ``didn't need to highlight how recent the Determination of Effects 
was.'' (Exhibit 16)
    Very little, if any, of the Determination of Effects could 
have been taken into account by DOI when making the Rule. 
Congress intended that a federal agency consider the effects of 
a rule on small entities during the rule-making process and 
modify the rule, if necessary, to lessen disproportionate 
impacts on them. The record shows that DOI superficially 
examined the effect of the bonding rule on small entities only 
after the rule-making was essentially completed.

RFA requirements ignored

    DOI did not comply with requirements of RFA in preparing 
the economic analysis of the Rule. In the Determination of 
Effects, a ``small entity'' was defined as ``an individual, 
small firm or partnership, at arm's length from the control of 
any parent companies.'' This definition is not the definition 
presently allowed in section 3 of RFA (5 U.S.C. 601). A 
different definition can be used only if three conditions are 
met:
          1. the definition is determined after consultation 
        with the Office of Advocacy of the Small Business 
        Administration;
          2. an opportunity for public comment is provided; and
          3. the new definition has been published in the 
        Federal Register.
    During the hearing on March 20, 1997, DOI Solicitor John 
Leshy was queried whether DOI consulted with the Office of 
Advocacy of the Small Business Administration (SBA), as 
required by law, in developing its definition of a ``small 
entity'' since the definition used in the Determination of 
Effects differed from the one used by the SBA. Mr. Leshy 
testified that he did not know the answer and would provide it 
to the Committee at a later date.
    In a letter dated March 24, 1997, Chairman Cubin formally 
requested that DOI provide a written answer to this question 
for the hearing record. She further stated her belief that the 
Rule should be withdrawn if DOI did not comply with procedural 
requirements required by law.
    Mr. Leshy replied on April 3rd that DOI used the ``guidance 
of the Congress'' as provided in the Omnibus Reconciliation Act 
of 1993 in defining a small entity. Based on this argument, he 
maintained that DOI defined a small entity as a miner having 
ten mining claims or less since that was the definition used by 
the Omnibus Reconciliation Act.\2\ Chairman Cubin countered 
that the Omnibus Reconciliation Act of 1993 did not amend the 
RFA and again asked for an answer to the question originally 
posed at the March 20th hearing. On May 12th, Mr. Leshy replied 
(Exhibit 17) that ``for reasons stated in our letter of April 
3, 1997, we believe that we have complied with the applicable 
provisions of the Regulatory Flexibility Act.'' He further said 
that DOI analyzed the effect of the bonding rule on small 
business in the Department's Determination of Effects and 
contended that DOI complied with the ``applicable provisions'' 
of RFA.
---------------------------------------------------------------------------
    \2\ This specious assertion is based on a lack of understanding 
about why ten claims was used as the benchmark in the Appropriations 
bill. This Committee was consulted when that provision was being 
drafted in 1992. Ten claims or less was the only available statistical 
breakdown of claims kept by the BLM, and a precise number of 
claimholders falling in a particular category of claims was needed to 
obtain a cost estimate on the provision from the Congressional Budget 
Office.
---------------------------------------------------------------------------
    Chairman Cubin also wrote the SBA's Office of Advocacy on 
May 7, 1997, and asked if the office had been consulted by DOI 
about the Rule. From the documents supplied by SBA (Exhibit 
18), it is apparent that DOI first contacted the SBA on April 
2nd, three days after the Rule became final and almost two 
weeks after the March 20th hearing. It is quite clear that DOI 
failed to comply with RFA requirements in promulgating the 
Rule. In fact, DOI contacted the SBA only after this issue was 
raised during the March hearing in an attempt to get SBA to 
agree with DOI's action after the fact. This calls into 
question the veracity of Solicitor Leshy's replies of April 3rd 
and May 12th. If Solicitor Leshy and DOI had complied with the 
SBA consultation requirements in RFA, then there would have 
been no need for after-the fact attempts to establish the 
appearance of compliance.
    The definition of a small entity used in the Determination 
of Effects is an improper definition under RFA because DOI did 
not bother to follow the process mandated by law if an agency 
wishes to deviate from the legal definition of a small entity; 
thus, the Determination of Effects is invalid. If the primary 
document which DOI relies on to certify that the Rule has no 
significant effect on small entities is illegal, the resulting 
certification cannot be legal.

                      C. Appearance of Impropriety

    Mr. David Alberswerth, a political appointee who was a 
special assistant to the Assistant Secretary for Land and 
Minerals Management, a high-level policy-making job, played a 
major role in the evolution of the Rule (Exhibits 4A, 5, 6, 8-
10, and 20). Prior to accepting his appointment in late June 
1993, Mr. Alberswerth was Director for the Public Lands 
Division of the National Wildlife Federation (NWF), a national 
environmental advocacy group. He was a well-known environmental 
activist and a vocal critic of the mining industry. In fact, he 
co-signed NWF's comments (Exhibit 19) on the draft rule in 
1991. DOI documents show that from early August 1993 until 
publication of the Rule, Mr. Alberswerth was deeply involved in 
determining the contents of the Rule and that it is largely a 
product of his decision-making authority. He also apparently 
initiated the concealment that the hardrock bonding rule was a 
significant regulatory action (Exhibit 8).
    As discussed previously, an August 6, 1993, memo (Exhibit 
4A) to ``Dave'' from ``Dan'' makes it clear that Mr. 
Alberswerth was actively involved in developing what was to 
become the Rule, less than two months after he joined the 
Clinton Administration. In the November 8, 1994, memo to the 
acting Director of the BLM, Mr. Hord Tipton (Exhibit 6), Mr. 
Alberswerth laid out the major points that the final hardrock 
bonding rule would contain. These points largely mirrored the 
NWF comments (Exhibit 19) on the draft rule that he co-authored 
in 1991.
    Many of the restrictive provisions of the Ethics in 
Government Act concern themselves with the end of the 
government employment relationship: limits on activities by a 
federal employee after leaving the government. The Ethics Act 
contemplates further limits on current employee activities, 
however, by establishing the Office of Government Ethics, with 
a Director empowered to promulgate regulations ``pertaining to 
the identification and resolution of conflicts of interest''in 
matters before the executive branch. 5 U.S.C. App. IV 402(b)(2). 
Accordingly, the Office of Government Ethics (OGE) has published, at 5 
CFR 2635.501 et seq. and 2638.501 et seq., regulations intended `` to 
ensure that an employee takes appropriate steps to avoid an appearance 
of loss of impartiality in the performance of his official duties.'' 5 
CFR 2635.501(a). One focus of the regulations involves official actions 
which could affect the interests of a previous employer. Throughout the 
regulations, the thrust is to avoid any appearance of partiality.
    Section 2635.501(a) of the regulations states that, absent 
prior authorization, ``an employee should not participate in a 
particular matter involving specific parties which he knows is 
likely to affect the financial interests of a member of his 
household, or in which he knows a person with whom he has a 
covered relationship is or represents a party, if he determines 
that a reasonable person with knowledge of the relevant facts 
would question his impartiality in the matter.'' (Emphasis 
added). An OGE ethics pamphlet designed to clarify issues for 
government employees states: ``You should not act on a matter 
if a reasonable person who knew the circumstances of the 
situation could legitimately question your fairness.'' \3\ 
``The general rule,'' according to the OGE, ``is that if your 
participation is going to raise eyebrows, you will need to stop 
working on the matter unless your agency specifically 
authorizes you to participate.'' \4\
---------------------------------------------------------------------------
    \3\ USOGE, A Brief Wrap on Ethics: An Ethics Pamphlet for Executive 
Branch Employees, February 1995, p. 11.
    \4\ USOGE, Take the High Road: An Ethics Booklet for Executive 
Branch Employees, January 1995, p. 14.
---------------------------------------------------------------------------
    A ``covered relationship'' is defined in section 2635.502 
(b)(1)(4) as including ``[a]ny person for whom the employee 
has, within the last year, served as officer, director, 
trustee, general partner, agent, attorney, consultant, 
contractor or employee.'' Mr. Alberswerth was a lobbyist 
employed by the NWF until June 1993, on whose behalf he filed 
official comments pertaining to DOI's proposed bonding 
regulations. As an employee of the NWF, he obviously had a 
``covered relationship'' with them. In November, 1994, he was 
in the Clinton Administration making final decisions on those 
same bonding regulations (Exhibit 6). The ``Dan to Dave'' memo, 
written on August 6, 1993 (Exhibit 4A), shows that Mr. 
Alberswerth first involved himself in BLM's bonding policy less 
than two months after going to work in his policy-making 
position at DOI. Any action prior to June of 1994 is subject to 
rules governing the ''covered relationship'' he had with NWF. 
Any reasonable person would question his fairness.
    The OGE regulations do not provide a definition for the 
term ``party.'' Black's Law Dictionary defines ``parties'' as: 
``persons who take part in the performance of any act, or who 
are directly interested in any affair, contract, or conveyance, 
or who are actively concerned in the prosecution and defense of 
any legal proceeding.'' Mr. Alberswerth's former employer, NWF, 
actively lobbied and officially commented on the proposed 
bonding regulations, making NWF directly interested in the 
outcome.
    Mr. Alberswerth knew that the bonding rule was a matter in 
which his former employer--and those NWF represented--had a 
strong interest. He signed and filed the comments on the 
proposed bonding rule on behalf of NWF. In fact, the cover 
letter that he signed, which accompanied NWF's specific 
comments on the proposed rule, emphasized that NWF and its 
members had a strong interest in the outcome of the bonding and 
reclamation regulations (Exhibit 19).
    If these prohibitions were still somehow too unclear for 
Mr. Alberswerth to understand, he should have relied on section 
2635.502(a)(1), which states: ``In considering whether a 
relationship would cause a reasonable person to question his 
impartiality, an employee may seek the assistance of his 
supervisor, an agency ethics official or the agency designee.'' 
The OGE advises federal employees to double-check if there is 
any doubt: ``If you have a situation that you think might raise 
such a concern, then you should talk to an ethics official at 
your agency. He or she will be able to tell you whether or not 
there is an appearance problem and give you advice on how to 
deal with it.'' \5\ At the June 19th Subcommittee on Energy and 
Mineral Resources hearing, Mr. Alberswerth testified that he 
never asked for advice, or received a waiver, to resolve these 
ethical questions.
---------------------------------------------------------------------------
    \5\ See footnote 3.
---------------------------------------------------------------------------
    Imagine how Mr. Alberswerth, a frequent critic of the 
mining industry, would have reacted had DOI hired a former 
mining industry lobbyist to make judgements and decisions about 
the very same regulations for which he had lobbied, and then, 
this former mining industry lobbyist had acted to prevent any 
interested parties such as NWF from commenting on the new rules 
in the rule-making process.
    In fact, Mr. Alberswerth has raised questions in the past 
about the impartiality of even long-term public servants such 
as James Cason, President Bush's nominee to be Assistant 
Secretary of Natural Resources at the Department of 
Agriculture, because Mr. Alberswerth felt he was biased in 
favor of industry: ``We're going to tell the Senate Agriculture 
Committee we believe he's totally unsuitable,'' Alberswerth 
said, adding that he believed Cason's position is ``so pro-
industry * * * it's appalling.'' ``He's a person we simply 
cannot trust to be an arbiter on those issues.'' \6\ He also 
attacked retiring Reagan Administration Interior official Bob 
Burford for having an anti-environmentalist agenda that 
affected his impartiality: ``Burford successfully set back the 
clock. That was his agenda.'' \7\
---------------------------------------------------------------------------
    \6\ Inside Energy, September 9, 1995.
    \7\ San Diego Union Times, July 9, 1989, p. A25.
---------------------------------------------------------------------------
    Mr. Alberswerth's agenda is the agenda of his former bosses 
at NWF, and his bias appears in the outcome of the rule. To 
preserve fairness in the rule-making process for hardrock 
bonding, Mr. Alberswerth should have either recused himself 
from this rule-making or published his version of the rule for 
public comment--giving others, particularly those to be 
regulated--an opportunity to meaningfully and fully participate 
in the process. Mr. Alberswerth did neither. His actions during 
the rule-making process showed partiality to one advocacy group 
that participated in the rule-making comment period, while 
ignoring the input of most other participants. His regulation 
should have been published for public comment so that those 
left out of the rule-making could have a voice in the process.

            D. A Significant Regulatory Action Is Concealed

    In the informal rule-making process, a significant 
regulatory action is defined as anyregulatory action that is 
likely to result in a rule having an annual effect on the economy of 
$100 million or more or adversely affecting in any material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local, or tribal 
communities (Executive Order 12866). Major regulatory actions receive 
greater scrutiny before an agency can finalize the rule. The resulting 
rule undergoes greater review and must meet tougher legal standards. If 
DOI could avoid identifying the Rule as a significant regulatory 
action, it would likely bypass close scrutiny of the Rule by the 
public, the Office of Management and Budget, Congress, the courts and 
to a large extent, the affected parties.
    For example, under Executive Order 12866, the agency is 
required to provide the Office of Management and Budget with 
the following information:
          1. An assessment, including the underlying analysis, 
        of benefits anticipated from the regulatory action 
        together with, to the extent feasible, a quantification 
        of the benefits;
          2. An assessment, including the underlying analysis, 
        of costs anticipated from the regulatory action, 
        together with, to the extent feasible, a quantification 
        of those costs; and
          3. An assessment, including the underlying analysis, 
        of costs and benefits of potentially effective and 
        reasonably feasible alternatives to the planned 
        regulation, identified by the agencies or the public, 
        and an explanation why the planned regulatory action is 
        preferable to the identified potential alternatives.
    Also, a significant regulatory action requires more 
stringent analysis of a proposed rule's effect on small 
business entities, and a final rule cannot take effect until 
Congress has had a 60-day period in which to review the rule.
    From documents in the Committee's possession (Exhibits 8 
and 9), it is apparent that DOI's own analysis showed that the 
Rule would have an annual economic impact of $100 million on 
Nevada and Arizona alone; thus, the Rule was a major rule. 
Rather than follow the procedures laid out for a significant 
regulatory action, political appointees at DOI tried to conceal 
this fact by giving the Nevada State BLM Director discretionary 
authority to exclude Nevada from some of the bonding 
requirements (Exhibit 10). This ``solution'' is a charade. 
Giving discretionary authority conveys the power to deny as 
well as the power not to deny. This action merely obfuscated 
the $100 million effect of the Rule.
    The requirement that a professional engineer must certify 
the reclamation costs also adds millions of dollars to the 
economic effect of the Rule. DOI limited the analysis of this 
requirement to a direct calculation of the costs of obtaining 
certification of the estimated total number of bonds that would 
be obtained.
    DOI made no attempt to consider the resulting costs when a 
project is delayed or canceled because certification by a 
professional engineer cannot be obtained due to uncertain risks 
associated with calculation of reclamation costs. One example 
of this problem is provided by a copper mining project owned by 
Summo Minerals Corporation. The project, located in an 
industrial area in Lisbon Valley, Utah, was in the final stages 
of permitting, having received its permits from the State of 
Utah and a favorable Environmental Impact Statement and Record 
of Decision (ROD). The ROD provided for a $2.6 million initial 
bond, increasing to $8.6 million in the third year to cover 
reclamation costs. Almost all analyses of this project conclude 
that bonds covering groundwater standards could not be 
determined until enough data was collected to quantify these 
costs with reasonable certainty. The latter can not be done 
until mining has been completed to a certain depth below the 
surface. The ROD provided that the bond amount would be 
reviewed and adjusted when the groundwater issues could be 
realistically evaluated. The ROD was appealed by the NWF and 
the Mineral Policy Center who argued that the new bonding rule 
applied, and the Interior Board of Land Appeals ruled that the 
new regulations require that the bond must be determined up 
front. Whatever bond amount is determined up front will not 
meet the certification requirement because no professional 
engineer is going to certify reclamation costs in cases where 
there is a lack of reliable data to support these calculations.
    This mine, with an estimated capital cost of $48 million, 
offers significant economic benefits to one of the poorest 
counties in Utah. It has an average annual payroll of $5.4 
million and will employ 140 people for a ten-year period. 
Corporate and employee income taxes are estimated at $7.6 
million yearly. This project, on the verge of construction when 
the Rule was published, is now in limbo because of this 
regulation; thus, the Rule has destroyed jobs and extinguished 
millions of dollars in crucial state and local tax revenues.
    The preceding example combined with DOI's own analysis 
clearly show that the Rule has an annual economic impact 
exceeding $100 million, which is concentrated in a handful of 
western states. DOI's action to conceal the fact that the 
hardrock bonding regulatory action was a significant rule-
making avoided a more rigorous review, forestalled greater 
public input into the Rule, and short-circuited meaningful 
public input into the rule-making.
    By hiding the fact that the bonding regulation was a 
significant rule, DOI was also able to avoid considering any 
alternatives to the Rule. One alternative which appears to work 
well is a bonding pool. Alaska has operated a state-run bonding 
pool since 1992. A miner pays a deposit, refundable upon 
completion of reclamation, as surety and pays a non-refundable 
charge, currently amounting to about 33 percent of the 
refundable deposit. The non-refundable charge goes into a bond 
pool to pay for the full cost of reclamation in the event of a 
default. Alaska's reclamation law was passed with the help and 
support of miners, and there have been no bond forfeitures or 
draws against the bond pool since its inception. A similar 
approach by DOI could ensure reclamation was completed, free 
scarce capital for investment in more productive uses and have 
significantly less impact on small business entities.

        E. Poor Record Keeping Undercuts Legitimacy of the Rule

    A consensus has emerged under the APA that a rule-making 
record or file should be created in informal rule-making. In 
Citizens to Preserve Overton Park v. Volpe, the Supreme Court 
stated that, although agency action is entitled to a 
presumption of regularity, ``that presumption is not to shield 
[the] action from a thorough, probing, in-depth review.'' 401 
U.S. 402 (1971). The importance of a rule-making record in the 
review process was enunciated in Home Box Office, Inc. v. FCC 
where the District of Columbia Circuit Court said, ``there can 
be no doubt that implicit in the decision to treat the 
promulgation of rules as a `final event' in an ongoing process 
of administration is an assumption that an act of reasoned 
judgement has occurred, an assumption which further implicates 
the existence of a body of material--documents, 
comments,transcripts, and statements in various forms declaring agency 
expertise or policy--with reference to which such judgement was 
exercised.'' 567 F.2d 9 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977). 
The Court went on to say that it is the record in existence at the time 
that an agency publishes a final rule which is used ``to test the 
actions of the agency for arbitrariness or inconsistency with delegated 
authority.''
    In enacting rule-making statutes, Congress has specifically 
required an agency to maintain a record to support a final 
rule. Some rule-making statutes explicitly require the agency 
to maintain the record for judicial review, a few even going so 
far as to provide detailed record-keeping requirements.
    The requirement for a rule-making record for informal rule-
making is also dealt with in Executive Order 12291 on Federal 
Regulation which states that prior to approving any final major 
rule, an agency shall:

          [M]ake a determination that the factual conclusions 
        upon which the rule is based have substantial support 
        in the agency record, viewed as a whole, with full 
        attention to public comments in general and the 
        comments of persons directly affected by the rule in 
        particular.

    DOI failed to meet the above standard after October 1992. 
Prior to this date DOI kept a supporting record, entitled BLM 
Bond Policy Chronology (Exhibit 2), documenting each action on 
the bonding policy, but this record was not maintained after 
September, 1992. After the BLM Bond Policy Chronology ends, DOI 
is unable to identify, much less provide support for, changes 
made to the Rule during the rule-making process. Several 
examples of a defective rule-making record, such as the 
professional engineer certification requirement have been 
discussed previously, but several other examples include DOI's 
inability: (1) to identify and document modifications to the 
Rule on at least six occasions; and (2) to identify or provide 
documents that were faxed to SBA on April 18, 1997.
    Many of the documents that DOI supplied the Subcommittee 
had dates that reflected the date that the document was printed 
in response to the Committee's document request rather than the 
date on which the document was originated, making it very 
difficult for the Committee to determine either the sequence or 
the justifications for decisions made during the rule-making 
process. However, Committee staff found the following filing 
data on some of the draft preamble documents in its possession:
          Amended throughout per SOL 1/19/95.
          Amended throughout per SOL 7/28/95.
          Amended throughout per SOL 5/30-31/96, 6/21-6/24/96, 
        8/4/96.
          Amended per OPA 11/7/96 at p. 5-6, 29-30.
          Amended throughout per SOL 2/5/97.
    From the above notations, it is clear that the proposed 
rule underwent at least six rewrites. To better understand the 
rule-making process that DOI used in developing the Rule, the 
Committee asked DOI to provide a summary of the major changes 
and the reasons for each of the changes to the proposed rule 
made for each rewrite cited. DOI Solicitor Leshy answered that 
``rather than designating a change as `minor' v. `major', each 
commentator merely provided suggested deletions and additions 
to the rule. As we have stated previously, we believe that any 
changes made to the rule were well within the scope of changes 
allowable under the Administrative Procedures Act and none of 
the changes made were `major' in the sense of suggesting that 
reproposal of the rule was appropriate.'' Using Solicitor 
Leshy's logic, no rule-making record is necessary if the rule-
making agency makes a determination that any changes made to 
its rule are within the scope allowable under the APA.
    One example of key documents that DOI has been unable to 
locate or even identify are those documents which were faxed to 
SBA's Office of Advocacy on April 18, 1997. In a letter dated 
July 1, 1997, Solicitor Leshy responded to the Subcommittee's 
request: ``Let me also take this opportunity to respond to your 
June 17 letter requesting any material the Office of the 
Solicitor faxed to the SBA's Office of Advocacy on April 18, 
1997. . .We have not been able to determine what materials were 
faxed to the SBA's Office of Advocacy on that date because we 
did not separately identify in our files or anywhere else what 
materials we transmitted.'' Contacts with SBA are important in 
establishing a record of compliance with RFA, yet DOI cannot 
even identify what documents they provided to SBA. One can only 
wonder how many other actions during this rule-making lack any 
documentation whatsoever.
    DOI did not maintain an adequate supporting record for this 
rule-making after September 1992; thus, the rule-making is 
essentially undocumented from August 1993 through February 
1997, when it underwent major alterations. Several decisions 
made during this rule-making, such as the professional engineer 
certification requirement, have no justification at all in the 
record and other important decisions and meetings, such as 
those dealing with the RFA certification, are inadequately 
documented. Much of the reason for this appears to be because 
this rule-making was done by political bosses at DOI. These 
individuals saw no reason to allow meaningful public input into 
their decisions, to let a fair and impartial rule-making 
process interfere with implementing their plans or to provide 
any explanation for their rule-making actions.

                 Part III: DOI's Uncooperative Attitude

                 A. Example One--Avoid, Dodge and Delay

    DOI impeded this Committee from conducting its oversight 
responsibility by using dilatory tactics and trying to impose 
rules and conditions under which this Committee could have 
access to documents.
    DOI initiated a drawn-out string of dilatory and delaying 
tactics (Appendix B) shortly after March 12, 1997, when 
Chairman Cubin requested all documents pertaining to this rule-
making in order to prepare for an oversight hearing scheduled 
for March 20, 1997. Some records were produced by DOI pursuant 
to this request, but many documents were withheld from the 
Committee under a prospective claim of ``privilege.''
    During the March 20, 1997, hearing, Chairman Cubin 
reiterated her request for withheld documents, pointing out 
that only the President, not DOI, could assert executive 
privilege and that the Congress and the Subcommittee have 
oversight responsibility under Articles I and IV of the U.S. 
Constitution, Rules 10 and 11 of the U.S. House of 
Representatives and Committee Rule 6 that requires virtually 
unfettered access to nearly all DOI documents.
    Moreover, as to judicially created attorney-client and 
deliberative process privileges for litigation, precedent 
dictates that those privileges do not apply to Congressional 
Committees. Chairman Cubin stated that it is ``for the Congress 
to determine at its sole and sound discretion to accept any 
claim of any attorney privilege that the executive exerts.'' 
Additional documents were produced after the March 20th 
hearing. However, many were improperly dated, and DOI continued 
to withhold others. The new documents gave rise to more 
questions, the most serious being that a political appointee 
who played a major role in formulating the Rule appeared to 
have a conflict of interest. More documents were requested, and 
an additional hearing was held on June 19, 1997.
    After the June 19th hearing, DOI continued to refuse to 
provide copies of embarrassing documents, timely responses or 
direct answers to questions. DOI claimed and enlarged upon 
previous inapplicable assertions of confidentiality and 
privilege to excuse withholding or limiting access to key 
documents from the Subcommittee. At one point, DOI ``offered'' 
to allow designated members of the majority and minority staff 
of the Committee to make an appointment to come to DOI and 
``inspect'' requested documents. The Subcommittee refused any 
preconditions because they restricted when and under what 
conditions Congress could perform its oversight responsibility. 
This is a precedent that the Subcommittee had no desire to set 
for routine document productions.\8\
---------------------------------------------------------------------------
    \8\ While not accepting DOI conditions, Committee Staff did go to 
DOI and look at the documents. They were certainly embarrassing. 
However, with one possible exception, which the Committee has not 
released, a court would most likely order DOI to produce all of these 
documents as part of the rule-making record.
---------------------------------------------------------------------------
    After DOI's dilatory tactics continued for more than three 
months, the Committee authorized Chairman Young on July 16, 
1997, to issue a subpoena requiring that the documents be 
produced by August 15, 1997. The subpoena was issued on July 
30, 1997, and DOI finally provided the documents on August 19, 
1997.
    The delay--from March through mid-August 1997--in producing 
the ultimately subpoenaed documents thwarted efforts of the 
Subcommittee and Committee to properly undertake their duties 
under Article I and Article IV of the U.S. Constitution, Rules 
X and XI of the Rules of the House and Rule 6 of the Committee 
Rules. Two Subcommittee hearings on the matter had already been 
held and remaining days in the first session of the 105th 
Congress were limited.

       B. Example Two--Misleading Answers to Important Questions

    Regarding DOI's compliance with the RFA, Solicitor Leshy in 
his May 12th letter (Exhibit 17) to Chairman Cubin stated, 
``Among other things, before providing you with our reply to 
your letter of March 24, 1997, we discussed this matter with 
the Office of Advocacy, Small Business Administration. We 
explained our legal interpretation of the applicable provisions 
of the Regulatory Flexibility Act, the mining laws, and the 
analysis set forth in the BLM's Determination of Effects.'' 
This statement was clearly intended to leave the impression 
that the SBA did not have a problem with DOI's analysis.
    However, a memo dated April 21, 1997, from SBA to the DOI 
Office of the General Counsel (Exhibit 18), states, ``Our 
recollection of that conversation (April 2nd) is that initially 
Advocacy told you that the Bureau of Land Management was not in 
compliance with the Regulatory Flexibility Act because you did 
not define a small entity in compliance with SBA's definition 
of a small entity in the mining industry. After giving you our 
initial opinion, you stated that the definition of a `small 
miner' was mandated by statute. We responded that if the 
definition of small miner was mandated by statute, then the 
statutory definition would prevail.''
    The memo further states that, ``With regards to the 
`statutory mandate', Advocacy was under the impression that the 
mandated definition was not from the `Omnibus Reconciliation 
Act of 1993.' Advocacy believed that the mandated definition 
was specific to the regulation that you were attempting to 
implement.''
    Thus, SBA clearly disagreed with the position Solicitor 
Leshy conveyed to Chairman Cubin in his letter dated May 12, 
1997.

                C. Example Three--The Litigation Excuse

    After the Subcommittee was well into its review, a private 
party filed suit to set aside the Rule because it also believed 
that rule-making process was illegal. DOI continued to refuse 
to produce copies of embarrassing documents using the lawsuit 
as their reason. Solicitor Leshy said in his June 11, 1997, 
letter to Mr. Duane Gibson, Resources Committee Staff, ``Given 
the pendency of the litigation, we believe the federal court, 
and not the Subcommittee, is the proper forum for determining 
the extent to which these documents are subject to disclosure 
to the plaintiff or the public.'' \9\ This absurd position 
ignored the responsibilities of the Congress under Article I of 
the U.S. Constitution.
---------------------------------------------------------------------------
    \9\ The voluminous correspondence between DOI and the Committee 
concerning various arguments of ``privilege'' and the litigation excuse 
are included in Appendix B. Appendix B illustrates the protracted 
series of numerous dilatory tactics employed by DOI to obstruct the 
Committee's access to important documents needed to carry out its 
oversight responsibilities under Articles I and IV of the U.S. 
Constitution, Rules X and XI of the U.S. House of Representatives and 
Rule 6 of the Committee Rules.
---------------------------------------------------------------------------
    DOI's position that a pending lawsuit shields the 
Department from disclosing documents to Congress turns the 
Constitution into a sham. Litigation is not cause to delay or 
condition turning over documents to Congress. The Congress' 
oversight responsibility and obligation is Constitutionally 
derived; therefore, Congress' power to obtain information in 
furtherance of its oversight reviews is almost plenary. DOI 
must turn over the information unless there is a 
constitutionally-based excuse. A legitimate excuse is executive 
privilege, which is, by its nature, invalid in a rule-making. 
Using DOI's logic, the mere filing of a lawsuit would shield an 
agency from Congressional oversight. Congress would rarely be 
able to effectively carry out its oversight responsibilities 
since the U.S. Government is being sued over many of the 
contentious issues before Congress.

  Part IV: Analysis and Conclusions: DOI's Actions Corrupted the Rule-
                             Making Process

    The Committee is very concerned about the attitude that 
appears to be prevalent in DOI from Interior Secretary Babbitt 
on down to the middle management levels that are staffed by 
political appointees. This attitude was expressed by Secretary 
Babbitt in a memo, dated January 6, 1997, concerning 43 CFR 
3809 regulations. He said, ``It is plainly no longer in the 
public interest to wait for Congress to enact legislation that 
corrects the remaining shortcomings of the 3809 regulations.'' 
Solicitor Leshy used a similar argument during the hearing on 
March 20th to justify DOI's hardrock bonding informal rule-
making. In response to a question, Solicitor Leshy replied that 
DOI had put the rule-making ``on hold until Congress solved the 
problem for us.'' He went on to say, ``Now Congress did not 
solve the problem, so in early 1994 we resumed the process of 
going forward with a final rule.''
    Mr. Alberswerth also used this refrain in justifying the 
modifications to the draft rule in his November 8, 1994, memo 
(Exhibit 6) saying, ``Since Congress did not enact 
comprehensive changes in the Mining Law, it is now appropriate 
to modify and finalize new bonding regulations.'' In fact, from 
an earlier memo written on October 25, 1994, by Mr. 
Alberswerth, it appears that DOI is attempting to rewrite the 
draft bonding regulations to incorporate failed legislation 
that it supported. In this memo, Mr. Alberswerth states:

          Rates for individual operations should be set at a 
        level that ``is not less than the estimated cost to 
        complete reclamation if the work were to be performed 
        by the Secretary in the event of forfeiture (see House 
        offer to Senate of 7/26/94, p. 23).''

DOI supported the mining law bill passed by the House and 
opposed the Senate bill.
    Under Article IV, section 3 of the U.S. Constitution, 
Congress possesses the ultimate power to regulate or dispose of 
lands belonging to the United States. The Executive Branch 
(DOI) holds only such regulatory power over these lands as 
delegated to it by Congress. The Executive Branch possesses no 
power to act because Congress failed to enact policies 
advocated by DOI. Congress has a right to refuse to act. As 
Congressman Chris Cannon (R-UT) told Mr. Leshy at the March 
20th hearing, ``I do not think it is proper for the Department 
to substitute its judgement for Congress and if we have issues 
that are difficult here they ought to be perhaps left to wait 
on us.''
    The political appointees controlling the regulatory 
authority at DOI used their power to implement an agenda that 
the Congress refused to enact--even when controlled by their 
own party. In doing this, DOI silenced the voice of many of 
those who participated in the legislative process through their 
elected representatives, effectively denying those with 
differing opinions participation in our democratic process.
    The legislative process was meant to be cumbersome, with 
numerous checks and balances to ensure that law-making is 
something more than a casual affair. But when bureaucrats make 
laws by regulation on behalf or in lieu of Congress, those 
legislative hurdles so carefully constructed by the authors of 
the Constitution are circumvented and the restraints on 
promiscuous lawmaking are demolished. Government as a result 
runs riot, and the people's voice through their elected 
representatives is nullified.
    One of the Committee's chief concerns in this particular 
case of rule-making is whether DOI followed procedural law and 
rules laid down by numerous past Congresses to ensure an 
impartial regulatory process. Congress delegates rule-making 
power to a federal agency on the presumption that the agency 
will act responsibly and guarantee all interested parties full 
and meaningful participation in an open and impartial rule-
making process. The American people deserve a fair and open 
rule-making process which is accessible to all groups with an 
interest in a proposed regulation--not a politically driven 
regulatory system that is used by those in control of the 
Executive Branch to punish their perceived opponents and deny 
them any voice in determining regulations they are expected to 
obey.
    As the Supreme Court stated in Sierra Club v. Costle:

          Under our system of government, the very legitimacy 
        of general policymaking performed by unelected 
        administrators depends in no small part upon the 
        openness, accessibility, and amenability of these 
        officials to the needs and ideas of the public from 
        whom their ultimate authority derives, and upon whom 
        their commands must fall. 657 F.2d 298, 410 (D.C. Cir. 
        1981). Furthermore, the importance to effective 
        regulation of continuing contact with a regulated 
        industry, other affected groups, and the public cannot 
        be underestimated. Informal contacts may enable the 
        agency to win needed support for its program, reduce 
        future enforcement requirements by helping those 
        regulated to anticipate and shape their plans for the 
        future, and spur the provision of information which the 
        agency needs.

    Unfortunately, development of the hardrock bonding rule 
provides an example of rule-making at its worst--rule-making 
dominated by politics. Documents obtained by the Committee 
clearly show that the undue interference of upper echelon 
political bosses at DOI in the BLM hardrock bonding rule-making 
process was so great that the integrity of the rule-making 
process itself is discredited. It is also apparent that high-
level, political appointees at DOI did not intend to reopen the 
comment period to interested parties, particularly the 
regulated community, once they decreed their changes to the 
Rule.
    Mr. David Alberswerth, an upper level DOI political 
appointee, had recently been closely associated with one of the 
12 largest national environmental groups. In fact, in laying 
out the terms of the Rule, the input during the draft rule-
making from anyone other than environmental advocacy groups was 
essentially ignored. The similarity between Mr. Alberswerth's 
comments on the draft rule submitted on behalf of NWF in 
October 1991, and the major changes he mandated be made to the 
92 iteration in his November 1994 memo, are striking.
    Mr. Alberswerth's directive substantially altered the 
direction that BLM regulation writers were moving with bonding 
regulations in both the draft rule and the 92 iteration. Mr. 
Alberswerth changed the objective from using a bond as a tool 
to encourage reclamation to using it as a means to make it as 
expensive as possible for mines to operate on public lands. 
Hisapproach is designed to tie up as much scarce investment capital as 
possible in a bond, a relatively inefficient use of resources. More 
reasonable alternatives, which could accomplish the same objectives at 
far lower costs, were never considered.\10\ At the same time, Mr. 
Alberswerth denied miners any meaningful input into these decisions, 
which were designed to have a major impact on their operations.
---------------------------------------------------------------------------
    \10\ This approach punishes everyone in the mining industry, not 
just the few problem operators. Solicitor Leshy testified at the March 
20th hearing that ``most members of the mining industry are responsible 
operators who live up to their reclamation obligations. . . .''
---------------------------------------------------------------------------
    According to the notice of the proposed rule (July 11, 
1991; Exhibit 3), DOI was capping the bonding amount in order 
to ``reduce the impacts on industry . . . these bond caps would 
be intended to be in effect for 3 years after promulgation of 
the final rule, and their adequacy would be reevaluated at that 
time.'' Mr. Alberswerth totally abandoned this approach, even 
going so far as to require operators to post bond for any 
additional reclamation costs that would be incurred if the BLM 
did the reclamation. Certainly, interested parties cannot be 
expected to anticipate the Rule from this notice of the 
proposed rule-making.
    The memo also rendered comments made during the public 
comment period by anyone other than environmental advocacy 
groups moot and annulled previous efforts by the BLM to reach 
out to the regulated community, particularly small entities, to 
win needed support for its program. From November 4, 1994, 
onward, meaningful input into the Rule was to be denied to 
anyone who did not agree with DOI political appointees.
    Mr. Alberswerth's memo determining the Rule is significant 
because it shows that the rule-making was arbitrary and 
capricious. In reality, the normal rule-making process ceased 
on November 4, 1994. A rule-making is an ongoing process that 
assumes that an act of reasoned judgement has been made by the 
agency with expertise in the area covered by the rule. BLM, the 
agency with expertise in mining and direct responsibility for 
regulating mining on public lands, was shut out of the rule-
making process. Hereafter, BLM's role would be to mold a 
preamble to fit the Rule dictated by DOI political bosses. The 
lack of a record justifying decisions made in the rule-making 
process indicates that these political appointees lacked the 
necessary experience to make the reasoned judgements required 
during the rule-making process.
    DOI political bosses acted to move the Rule to publication 
despite warnings from BLM regulation writers and DOI lawyers 
that there were significant APA concerns with the Rule. These 
personnel met with Mr. Alberswerth in early June to express 
their concerns (Exhibit 8). An E-mail to Mr. Hord Tipton, 
acting Director of the BLM, from Mr. Rick Deery stated that all 
of the participants in this meeting (presumably excluding Mr. 
Alberswerth) agreed on the APA issue (Exhibit 9). Other than 
the meaningless word-smithing to hide the significant rule 
issue, these concerns were ignored by upper level DOI policy-
makers.
    The problems with the hardrock bonding rule-making result 
from the refusal of a few imperious, high-level, politically-
motivated bureaucrats to obey the laws that govern the rule-
making process. These political bosses refused to comply with 
laws such as RFA, obstructed the impartiality of the rule-
making process, excluded interested parties from participating 
in the rule-making process in a meaningful way, attempted to 
prevent and obstruct Congress from carrying out its 
Constitutional oversight responsibilities, and tried to use 
various inapplicable claims of ``privilege'' to hide these 
actions.
    The above actions, taken together, constitute a coordinated 
effort by DOI policy-makers to affirmatively misrepresent the 
Rule's import and impact. Even if the notice of a proposed 
rule-making is facially sufficient, the courts have ruled in 
Natural Resources Defense Council v. Hodel that the notice is 
rendered inadequate by an agency's affirmative 
mischaracterization of the rule's import and impact. 618 F. 
Supp. 848 (ED Cal 1985). DOI continually mischaracterized the 
economic effect of the rule and the nature of the alterations 
made to the rule by Mr. Alberswerth to deny interested members 
of the public full and meaningful participation in the rule-
making process.

                          Appendix A--Exhibits

    Exhibit and description:
    1. Notice of Final Rule (published February 28, 1997).
    2. BLM Chronology 1983 to September, 1992.
    3. Notice of Proposed Rule (published July 11, 1991).
    4A. Memo from Dan to Dave dated 8/6/93.
    4B. Memo Laying Out Groundwork for Final Rule dated 11/29/
91.
    5. Memo dated 10/25/94 from Dave Alberswerth to Bob 
Armstrong, John Leshy, Mike Dombeck, and Patty Benecke on Hard 
Rock Bonding Regulations.
    6. Memo dated 11/8/94 from Dave Alberswerth to Hord Tipton.
    7. Handwritten Notes on Meeting Held on 11/2/94.
    8. Memo dated 6/14/96 to John Leshy from Dave Alberswerth 
on Status of Hardrock Bonding Rule.
    9. Memo dated 6/19/96 from Rick Deery to Hord Tipton 
Concerning ``Just Talked to Dave A--Forwarded--Reply--Reply''.
    10. Memo dated 6/19/96 from Rick Deery to Ted Hudson and 
Natalie Eades Concerning ``Just Talked to Dave A--Forwarded'' 
With Memo dated 6/17/96 From Annetta Cheek to Rick Deery 
Concerning ``Just Talked to Dave A'' Attached.
    11. Memo dated 6/3/96 from Annetta Cheek to Ted Hudson.
    12. Memo dated 6/7/96 from Annetta Cheek to Monica Burke.
    13. Memo dated 6/17/96 to Rick Deery from Annetta Cheek on 
Bonding.
    14. Side by Side Table Comparing Draft Rule and Final Rule.
    15. Memo dated 9/17/96 from Sharon Allender to Hord Tipton, 
Mike Schwartz and Rick Deery Concerning ``Bonding Regs''.
    16. Changes dated 2/24/97 Made by Ted Hudson to Preamble.
    17. Letter dated May 12, 1997, from John Leshy to Chairman 
Cubin.
    18. SBA Communication dated 4/21/97 from Shawne Carter and 
Jennifer Smith to Natalie Eades and A Note (undated) from 
Natalie Eades to Shawne Carter and Jennifer Smith.
    19. Comments by National Wildlife Federation on Draft Rule 
(Submitted by Dave Alberswerth and Cathy Carlson).
    20. Memo dated 2/11/97 from Dave Alberswerth to Mike 
Schwartz Concerning ``Comments on 2/11/97 draft DOE on hard 
rock bonding reg.''.


                          Appendix B--Exhibits

    Exhibit and description
    1. Letter from Chairman Cubin to Interior Secretary Babbitt 
dated March 12, 1997.
    2. Letter from Chairman Cubin to Deputy Interior Solicitor 
Cohen dated March 20, 1997.
    3. Letter from Deputy Interior Solicitor Cohen to Chairman 
Cubin dated March 21, 1997.
    4. Letter from Chairman Cubin to Interior Secretary Babbitt 
dated May 14, 1997.
    5. Letter from Interior Secretary Babbitt to Chairman Young 
dated May 21, 1997.
    6. Letter from Interior Solicitor Leshy to Chairman Cubin 
dated June 9, 1997.
    7. Letter from Mr. Duane Gibson to Deputy Interior 
Solicitor Cohen dated June 9, 1997.
    8. Letter from Interior Solicitor Leshy to Mr. Duane Gibson 
dated June 11, 1997.
    9. Letter from Interior Solicitor Leshy to Mr. Duane Gibson 
dated June 11, 1997.
    10. Letter from Honorable George Miller to Chairman Young 
dated June 11, 1997.
    11. Letter from Chairman Young to Honorable George Miller 
dated June 11, 1997.
    12. Letter from Interior Solicitor Leshy to Chairman Cubin 
dated July 1, 1997.
    13. Letter from Deputy Interior Solicitor Cohen to Mr. 
Duane Gibson dated July 7, 1997.
    14. Letter from Interior Solicitor Leshy to Chairman Young 
dated July 15, 1997.
    15. Letter from Chairman Cubin to Deputy Interior Solicitor 
Cohen dated July 15, 1997.
    16. Letter from Deputy Interior Solicitor Cohen to Chairman 
Cubin dated July 16, 1997.
    17. Memo dated July 21, 1997, from Mr. Lloyd Jones to 
Chairman Young.
    18. Memo dated July 22, 1997, from Mr. Doug Fuller et al to 
File.
    19. Letter from Chairman Young to Honorable George Miller 
dated July 22, 1997.
    20. Letter from Chairman Young to Honorable George Miller 
dated July 29, 1997.
    21. Memo dated July 31, 1997, from Chairman Young to 
Members, Committee on Resources.



                     DISSENTING VIEWS ON THE REPORT

    The catalyst for the Majority report is a 1997 regulation 
issued by the Bureau of Land Management (BLM). This rule was 
designed to enhance protection of the environment by requiring 
that all mining operations secure adequate financial guaranties 
to assure that the taxpayer not be left with the bill for 
cleaning-up after irresponsible miners.
    Since 1981, BLM has required mining operators to provide 
bonds, or financial guaranties for reclamation of the public 
land disturbed by mining activities. However, that regulation 
was flawed in a number of aspects. The General Accounting 
Office (GAO) found in 1988 that at least a half million acres 
of land abandoned by hardrock miners needed to be reclaimed at 
taxpayers' expense (U.S. General Accounting Office, Federal 
Land management: An Assessment of Hardrock Mining Damage, April 
1988). Consequently, using statutory authority under the 
Federal Land Policy and Management Act (FLPMA) that requires 
the BLM to ``take any action necessary to prevent unnecessary 
or undue degradation of the public lands'' by ``regulation or 
otherwise,'' in 1991, the Bush Administration published a 
proposed rule to reform the hardrock mining bonding 
requirements.
    When the Clinton Administration came into office, Congress 
was actively debating comprehensive reform of the 1872 Mining 
Law. After the 1994 elections, it became obvious that the new 
Republican-led Congress was no longer interested in this 
subject. The Administration reinitiated promulgation of the 
mining regulations that had been deferred pending Congressional 
action, publishing a final rule on bonding in February 1997. In 
the last year, DOI has also issued new rules relating to the 
use and occupancy of public lands for mining purposes (also 
after a six-year hiatus but not opposed by the mining industry 
or the Majority) and is currently revising the surface 
management rules for hardrock mining.
    On May 12, 1997, in response to the new rules, the Mountain 
States Legal Foundation filed suit in U.S. District Court for 
the Northwest Mining Association, seeking to overturn the 
bonding regulations. Mountain States asserted that DOI violated 
the Administrative Procedures Act (APA) and the Regulatory 
Flexibility Act (RFA) by improperly issuing the regulations.\1\ 
Subsequently, the Arizona Mining Association and Nevada Mining 
Association filed amicus briefs in support of Northwest. The 
Department of Justice (DOJ) argued on behalf of DOI the Court 
should issue a ruling in favor of DOI as the Northwest Mining 
Association had failed to establish that the BLM has not 
complied with the APA and the RFA.
---------------------------------------------------------------------------
    \1\ Northwest Mining Association v. Babbitt; Civil Action No. 97-
1013 (JLG). Mountain States Legal Foundation, which litigates on behalf 
of conservative interests and causes, appears to have a close working 
relationship with Republican Members of the Committee. In addition to a 
mutual interest in seeking to overturn the mining bonding regulation, 
Mountain States gained access to subpoenaed White House documents which 
were released in a Republican staff report on the establishment of the 
Grand Staircase-Escalante National Monument (Committee Print 105-D, 
Nov. 7, 1997). Mountain States had filed suit in federal district court 
in Utah on June 13, 1997 to overturn the monument declaration and filed 
a revised lawsuit Mountain States Legal Foundation v. Clinton; Civil 
Case No. 2:97CV-0863G (Dec. 15, 1997), after release of the Republican 
staff report containing the subpoenaed documents. Moreover, Mountain 
States directly represented four Republican Members (Reps. Chenoweth, 
Pombo, Schaffer, and Young) seeking to prevent the Administration from 
implementing the American Heritage Rivers Initiative. Chenoweth, et al. 
v. Clinton; Civil Action 1:97CV02954 (Dec. 12, 1997).
---------------------------------------------------------------------------
    On May 13, 1998, the U.S. District Court for the District 
of Columbia ruled in favor of the mining association, finding 
that the DOI had violated a procedural requirement of the 
Regulatory Flexibility Act by not properly consulting with the 
Small Business Administration on the definition of ``small 
business'' used in the rule. The BLM had relied on the 
statutory definition of ``small miner'' provided in the Omnibus 
Budget Reconciliation Act of 1992. The Court did not find that 
the DOI had violated the APA.
    As a result, the rule was remanded to DOI. Normally, this 
would mean that DOI would reissue the rule as a proposed rule, 
solicit and consider comments and then issue a final rule. 
However, Congress placed a rider on the FY 1998 DOI 
Appropriations bill last year that will prevent the DOI from 
issuing new rules on hardrock mining activities, including 
bonding, until November 14, 1998. In the interim, it is unclear 
what steps, if any, are available to DOI to assure that mining 
operations are adequately bonded.
    The 100-plus page report prepared by Majority Committee 
Staff contains many confidential documents secured under a 
subpoena. These confidential documents are part of the DOI's 
deliberative process on the development of the bonding rule. 
The DOI supplied these documents to this Committee under 
subpoena only after the Committee Majority refused to respect 
the DOI's determination to keep these documents confidential 
(See attachment 1). The report unfairly accuses DOI of engaging 
in delaytactics to defer turning the documents over to 
Congress. In fact, the DOI Solicitor has spent months attempting to 
negotiate a protocol with the Majority for use of confidential 
documents. The Department sought this assurance to protect its position 
in the litigation brought by the mining industry after the Republican 
majority had released other confidential documents. Democratic Members 
of the Resources Committee have similarly sought, without success, a 
protocol to establish effective and fair procedures for the 
solicitation, management and disposition of confidential documents. On 
February 12, 1998, all 23 Democratic Members of the Resources Committee 
requested that Chairman Don Young convene the Committee for the purpose 
of devising such a protocol.
    By issuing this report, with the privileged documents 
appended, the Majority proves the Department's concerns to have 
been well founded.
    The Majority report closely parallels the arguments made by 
the Northwest Mining Association in its lawsuit. The arguments 
presented by industry to the District Court are essentially the 
same as those made in the Majority report. Both documents 
include the same examples to support their allegations. For 
example, both the report and the industry brief erroneously 
cite an issue now pending before the Interior Board of Land 
Appeals relating to the Summo Corporation's plan to develop a 
large copper mine in Utah. Both documents specifically target 
and denigrate Mr. David Alberswerth, a political appointee in 
the Clinton Administration, who served as a special assistant 
to the Assistant Secretary of Lands and Minerals. Prior to his 
public service, Mr. Alberswerth worked as the Director of the 
Public Lands and Energy Program of the National Wildlife 
Federation. By issuing this report, the Majority usurps the 
traditional role of the Courts and provides to the mining 
industry litigants documents that would not be available to 
them through either the Courts or through this Freedom of 
Information Act.
    The Majority report ignores the need for an adequate bond, 
or financial guaranty, to cover the estimated costs of mining 
reclamation on public lands. Mining causes serious 
environmental problems for local communities across the United 
States and throughout the world, including perpetual water 
pollution caused by acid mine drainage, cyanide spills and 
heavy metals contamination, wildlife habitat destruction and 
fish kills and creation of toxic waste rock despite existing 
environmental laws and regulations The GAO noted in 1988 that 
424,049 acres of public land were unreclaimed. More recently, 
in 1993, the Mineral Policy Center, a nonprofit public interest 
group, estimated that more than 557,000 abandoned hardrock mine 
sites exist throughout the United States. Mine effluents have 
polluted more than 12,000 miles of American rivers and streams 
and 180,000 acres of our lakes and reservoirs. Such 
contamination presents a growing threat to underground 
aquifers.
    Superfund was created by the Comprehensive Environmental 
Response, Compensation and Liability Act of 1980 (CERCLA) which 
as enacted to ameliorate hazardous waste sites across the 
country, including abandoned hardrock mine sites. The law 
requires the U.S. Environmental Protection Agency (EPA) to 
identify and investigate actual or threatened releases of 
hazardous wastes The worst hazardous waste sites are placed on 
the National Priorities List (NPL) for emergency intervention 
and priority cleanup. Although the government attempts to 
identify parties responsible for the contamination, taxpayer 
money is used to clean up sites where responsible parties 
cannot be identified or are unable to pay cleanup costs.
    Sixty-six hardrock mine sites were listed on the NPL as of 
August 1996. (Hardrock mine sites representing six percent of 
the 1,100 sites on the list. Hardrock mine sites, many of which 
stem from 1872 Mining Law claims, are among the largest and 
most expensive Superfund sites to remediate.
    Acid mine drainage is a major contaminant at several NPL 
mine sites, including Iron Mountain outside Redding, 
California, and Bunker Hill, near Kellogg, Idaho. A threat to 
human health and aquatic life, Acid mine drainage also leaches 
potentially toxic heavy metals from surrounding rock. Every 
day, thousands of pounds of copper and zinc leach into surface 
waters surrounding Iron Mountain, and have contributed to 
drinking water contamination and major fish kills.
    Similar conditions exist at Bunker Hill--one of the largest 
Superfund sites in the nation. The abandoned silver mine has 
deposited Acid mine drainage in the south fork of the Coeur 
d'Alene River for more than 90 years. A lead smelting operation 
on the site has emitted extensive toxins to surrounding soils 
and nearby communities, including some six million pounds of 
lead and 860,000 pounds of zinc.
    The four contiguous Superfund sites in the Clark Fork River 
Basin, Montana, comprise the country's largest hazardous waste 
repository. The Anaconda Smelter at Mill Creek, the Milltown 
Reservoir, Silver Bow Creek, and East Helena, together cover 
some 57,000 acres (approximately 90 square miles) and encompass 
two entire cities--Butte and Walkersville, The area contains 
millions of cubic yards of tailings, slag, and flue dust, and 
billions of gallons of arsenic-laced groundwater and surface 
water. Besides arsenic, other heavy metals detected in soil and 
water (including drinking water) include cadmium, copper, lead, 
and zinc.
    Cyanide is a serious contaminant frequently associated with 
hardrock mining. Used to leach gold from piles or ``heaps'' of 
crushed ore, cyanide has become a major contaminant only in the 
last 20 years, as such ``heap leach'' technology has come into 
increasing use to exploit remaining low-grade deposits. Not 
only do the heaps and mill tailings become hazardous waste, but 
cyanide itself will leach other metals besides gold, including 
arsenic and lead.
    The most notorious example of cyanide contamination is the 
Summitville Mine Superfund site in southwestern Colorado, a 
heap leach gold mine that had been in operation only seven 
years before being taken over by EPA in 1992. Summitville 
suffered from a serious of poor design and management 
decisions, including the placement of the ore heap behind a dam 
in a narrow valley, not on level land; damage to the heap liner 
due to faulty installation; and the lack of any liner 
whatsoever for an on-site waste rock pile. After the mine's 
start-up, nearby watersheds and groundwater were contaminated 
by cyanide solution leaking through the torn liner, and by acid 
runoff from the waste pile. After the operators declared 
bankruptcy, EPA, using the emergency provisions of CERCLA, 
intervened, stabilizing the site and beginning the cleanup. As 
of August 1996, EPA put cleanup costs at Summitville at $142 
million. Had Summitville been adequately bonded the federal 
taxpayer would not be paying for this cleanup now.
    In 1993, EPA estimated that reclamation of the 52 hardrock 
mine sites then listed on the NPL would cost a minimum of $15 
billion. However, only a small percentage of abandoned hard 
rock mine sites are targeted for cleanup under Superfund. 
Moreover, progress in cleaning up and de-listing these sites 
has been slow with only three hardrock mining sites deleted 
from the NPL, while 12 new sites have been added.

                          blm's bonding policy

    Prior BLM regulations gave each BLM State Director 
discretion to decide whether to require a bond at all and the 
amount that such a bond should equal for operations 
encompassing more than five acres on public land. Operations 
covering less than five acres, approximately 80 percent of all 
operations, were not required to carry a bond or any other 
financial guaranty.
    On July 11, 1991, in response to criticism from Congress 
and others that these rules were inadequate, BLM issued a 
proposed rule calling for certification from the operator for 
operations covering five acres or less that a bond had been 
secured in the amount of $5,000. Operations on more than 5 
acres were required to secure financial assurance in the amount 
of either $1,000 or $2,000 per acre depending on the type of 
activity proposed. Operations using cyanide would be required 
to post a 100 percent financial guaranty to cover the cost of 
reclaiming the cyanide heap. Casual-use operations causing 
negligible damage would not require a financial guaranty. To 
avoid duplication, BLM proposed allowing an operator the use of 
a state bond if it were equal to at least 75 percent of the 
amount required by BLM.
    Following the close of the public comment period in October 
1991 through June 1992, the BLM organized and revised the 
proposed rule to accommodate the 218 comments provided by three 
citizen-petitions, 58 public interest groups, 51 business 
entities or associations, 22 government agencies and 135 
individuals, not including the petitions. The comments 
addressed three major perspectives. A number of comments 
addressed the adequacy of the bond levels, self-certification 
and the number of financial instruments available under the 
rule. The commentors expressed concern that the bond levels 
were too low and that BLM should require full cost bonding for 
all mining operations. Those expressing concern regarding self-
certification and the use of certain financial instruments 
questioned the efficacity of the rule. Mining associations and 
some individuals agreed that the rules were necessary but 
expressed reservations regarding the cost of a $5,000 bond 
proposed for smaller operations. Finally, many of the 
individuals asserted that the rule would force small miners out 
of business.
    An audit released by the USDI Inspector General in March 
1992, found that the proposed rule would not provide an 
adequate financial guaranty. As the Inspector General 
concluded, ``BLM's proposed amendment to the regulations 
governing bonding of mining operators does not provide the 
financial guaranty necessary to ensure that funds will be 
available to reclaim mining sites abandoned by mining 
operators.'' In addition, the Inspector General strongly urged 
the BLM to modify the rule to require all operators engaged in 
mining activities greater than casual use to ``post financial 
guarantees with the Bureau that are commensurate with the 
anticipated type and size of the operations.''
    Since the Bush Administration had placed a moratorium on 
promulgation of new rules, BLM sought an exemption to enable 
promulgation of the final rule which was received in August 
1992. The BLM readied the rules package during the next few 
months. However, Secretary Lujan did not approve the final 
rules prior to the Presidential elections and subsequent change 
in Administration. As noted previously, the Congress, then 
under Democratic leadership, was actively considering 
comprehensivemining reform. Therefore, Secretary Babbitt 
deferred completion of the rule pending resolution of Congressional 
action. Consideration of the bonding rule resumed following the 1994 
elections, when the Republican Party assumed control of the Congress 
and the future of mining law reform became more difficult to predict.
    In February 1997, the DOI issued its final rule on bonding 
including modifications made in response to comments received 
on the proposed rule. The proposed rule would have required 
each small miner to put up a $5,000 bond; the final rule 
requires the greater of either $1,000 per acre bond or the 
estimated costs of reclamation. The final rule would therefore 
impose a potentially lower cost than the proposed rule for 
those miners occupying less than five acres of public land. 
Also, the final rule allows use of bonding pools in Nevada and 
Alaska. Both of these provisions respond to the concerns 
expressed by the smaller mining operators that they would not 
be able to secure or afford financial guaranties.
    The Majority report criticized the DOI for not factoring in 
the implementation of new state laws or regulations. However, 
they fail to recognize that the final rule allows the 
substitution of any state requirement that is as strict as the 
federal baseline established in the rule.
    The final rule requires the certification of a professional 
engineer that the estimated costs of reclamation. Contrary to 
the evidence in the record, the Majority report inaccurately 
asserts that BLM did not support the requirement for a 
professional engineer certification in the rulemaking record 
(see Exhibit 7 of the Majority Report).

                     administrative procedures act

    The Majority asserts that BLM violated the APA because the 
final rule was based on information that was more than six 
years old. Although a proposed rule can become outdated, the 
APA ``does not establish a `useful life' for a notice and 
comment record.'' Action on Smoking and Health v. CAB 713 F2d 
795, 799-800 (D.C. Cir. 1983). The District Court in its May 
13, 1998 ruling did not find that DOI violated the APA.
    The Majority argues that there was a substantial alteration 
from the draft rule to the final rule that required an 
additional public review and comment period. In its brief to 
the Court, DOJ argued that the final rule was a ``logical 
outgrowth'' of the draft rule and therefore did not require 
additional public review and comment. The preamble to the final 
rule states: ``Some comments generally disapproved of [the 
proposed rule's] expansion of possible security instruments [to 
allow use of equipment bonds] stating that there appeared to be 
no problem in getting traditional surety bonds. Contrary to 
this view, it appears that there may be a problem for the 
smaller operator . . . the list is expanded State and municipal 
bonds . . . Whatever additional risk may be involved is offset, 
at least somewhat, by the amendment requiring that financial 
guarantees be equal to an independent professional engineer's 
estimate of reclamation costs. It is important to recall, in 
this connection, that the financial guarantee and the duty to 
reclaim are backed up by criminal penalties, and by the 
provision that the operator is not free of liability if the 
guarantee is cashed in and found insufficient.''
    Further, as noted in the DOJ brief, in Kooritzky v. Reich, 
17 F.3d 1509, 1513, (D.C. Cir. 1994) the Court stated: ``It is 
an elementary principle of rulemaking that a final rule need 
not match the rule proposed, indeed must not if the record 
demand a change. [cites omitted]. The reason is plain enough. 
Agencies should be free to adjust or abandon their proposal in 
light of public comments or internal agency reconsideration 
without having to start another round of rulemaking. The 
necessary predicate, however, is that the agency has alerted 
parties of the agency's adopting a rule different than the one 
proposed.''
    BLM made changes in the final rule specifically in response 
to comments received on the draft rule from States, another 
federal agency, the regulated community and other interested 
parties. For example, the BLM stated in the preamble (Federal 
Register, Vol. 62, No. 40, Friday, February 28, 1997, page 
9094):

          In response to the comments regarding bond levels, 
        BLM has amended the rule to require bonds that would be 
        needed to pay for 100 percent of the amount that would 
        be needed to pay for reclamation by a third-party 
        contractor using equipment from an off-site location. 
        This will ensure that, if the bonded party fails to 
        perform its reclamation responsibilities, BLM will have 
        access to adequate funds to reclaim the lands, and 
        thereby protect the interest of the public, including 
        federal taxpayers.

    and

          The guarantee amount of $5,000 * * * generated the 
        largest number of comments * * * In drafting the 
        proposed rule it was assumed that notice-level 
        operators would use the full 5 acres allowed and be 
        bonded for the same at the proposed exploration level 
        cap which was $1,000 per acre. Many comments should be 
        based on actual acreage disturbed. This suggestion has 
        been adopted in the final rule.

    and

          As discussed below, in response to comments, a 
        procedure for phased release or reduction of bonds as 
        reclamation phases are completed has been included in 
        the final rule.

    regulatory flexibility act and the small business administration

    The Majority report is especially critical of the DOI for 
deleting certain provisions of the proposed rule that were 
aimed at satisfying small miners' concerns. As an example, the 
Majority notes that the Alaska Placer Development Co., 
employing 14 people, operates a gold mine in Livengood, Alaska, 
would not fit within the statutory definition of a ``small 
miner'' incorporated in the rule. Congress created the ``small 
miner definition'' in the 1992 Omnibus Budget Reconciliation 
Act as part of the provision that established rental fees for 
mining claims. Under that law, a ``small miner'' is one who 
hold ten or fewer mining claims. ``Small miners'' are not 
required to pay the $100 per 20-acre mining claim that others 
holding more than ten claims must. The Majority also fails to 
note that the final rule enabled BLM to negotiate a Memorandum 
of Understanding with the State of Alaska (as well as Nevada 
and others) that allows Alaska Placer, and other similar small 
mining operators, to meet their bonding requirements through 
the State's bonding pool, a relatively low-cost option aimed 
specifically at small miners' needs and financial concerns.
    The report also criticizes the DOI for deleting the 
provision of the proposed rule that would have allowed small 
miners to use ``equipment bonds'' (i.e., pick-up trucks, 
bulldozers, etc.) as a legitimate bond or financial guaranty. 
Under the proposed rule, BLM would repossess the ``equipment'' 
or home of a miner who failed to reclaim public land disturbed 
by his mining activities. Several commentors on the proposed 
rule suggested that this provision be eliminated since such 
instruments would not be entirely liquid and which might not 
cover the costs of reclamation and the BLM agreed. However, 
according tothe preamble of the final rule, the BLM concurred 
with the concern that acquisition of financial guarantees could be 
problematic for small mining operators and therefore, allowed the use 
of state and municipal bonds. The final rule retained additional 
options for the smaller mining operation. This was intentional as noted 
in ``Exhibit 5/6'' of the Majority report, a memorandum from Mr. 
Alberswerth to his superiors, that states.

          The BLM proposal allows use of a wide variety of 
        financial instruments to be substituted for bonds, 
        including liens on mining equipment, nationwide and 
        statewide bonds, mortgages, etc.
          Property bonds, collateral bonds, equipment liens 
        frequently are inadequate to guarantee reclamation 
        (ref. The Mid-Continent coal mine Colorado). The 
        challenge here is to provide enough flexibility in the 
        type of financial instruments allowed, while minimizing 
        the risk to the government. I think [emphasis added] we 
        should at least rule out equipment liens and property 
        bonds, as well as nationwide and statewide bonds.

    DOI decision makers concurred with Mr. Albersweth's 
recommendation to eliminate equipment bonds. However, the 
decision makers did not accept his recommendation regarding 
statewide or nationwide bonds. The final rule allows statewide 
and nationwide bonds to be used. In Nevada and Alaska, BLM 
allows small business entities to use statewide bonding pools. 
In so, doing, BLM clearly acted in consideration of small 
business concerns.
    These facts notwithstanding, the Court did find that DOI 
violated only the procedural requirement of the RFA by not 
consulting with the SBA on the definition of a ``small 
entity.'' The substance of the rule was not challenged. The 
mining industry argued and the Court upheld only that BLM did 
not use the proper definition of ``small entity'' when it 
certified that the rule would have no ``significant impact'' on 
a substantial number of small entities (small businesses). 
Consequently, the Court remanded the rule to BLM so that it may 
reconsider the impact the rule will have on small miners. As 
the Court noted, ``While recognizing the public interest in 
preserving the environment, the Court also recognizes the 
public interest in preserving the rights of parties which are 
affected by government regulation to be adequately informed 
when their interests are at stake and to participate in the 
regulatory process as directed by congress. For this reason. . 
. the Court remands the final rule to the BLM for procedures 
consistent with this opinion.'' [emphasis added].

                       appearance of impropriety

    The Majority report aggressively questions the 
impartiality, fairness and professionalism of Mr. David 
Albersweth. The Majority report mentions Mr. Alberswerth no 
less than 56 times. Despite assurances from Representative 
Cubin to the contrary during two oversight hearings in 1997, 
the report argues that because Mr. Alberswerth worked for the 
National Wildlife Federation before his tenure as Special 
Assistant to the Assistant Secretary for Land and Minerals, his 
involvement in the development of the final rule constitutes a 
``serious conflict of interest.'' The transcript from the March 
1997 Subcommittee Oversight hearing contains the following 
dialogue:

          Mr. Alberswerth. But there is no conflict of interest 
        here at all. I have no financial interest in this 
        matter. The organization I worked for had no financial 
        interest.
          Mrs. Cubin. I am not implying that there is a 
        conflict of interest. I am not implying that at all.

    Not only does the Majority report conflict with the 
statements of the Subcommittee Chair, but it also inaccurately 
describes Mr. Alberswerth's duties. As the Committee hearing 
record clearly shows, Mr. Alberswerth was a special assistant 
who advised others but did not make policy himself. As 
Solicitor Leshy testified under oath: ``So that is all 
assuming, by the way, that someone in Mr. Alberswerth's 
position is a real decision maker on the rules. Mr. Alberswerth 
obviously played a role here, but the decision makers on the 
rules, in fact, were the Assistant Secretary for Land and 
Minerals, the Director for the BLM. On the legal issues it was 
my office and obviously the Secretary ultimately has 
responsibility as decision maker on these rules. . .''
    The Majority report exaggerates Mr. Alberswerth's authority 
within the Department by misrepresenting his actions related to 
the development of the rule. Further, the report fails to note, 
or otherwise reference, sworn testimony by both Mr. Alberswerth 
and Mr. John Leshy, Solicitor of the DOI, that Mr. 
Alberswerth's prior employment did not constitute a conflict of 
interest. According to Solicitor Leshy during the March 1997 
oversight hearing: ``A rulemaking such as we are concerned with 
here with the bonding rule is a legislative matter, not an 
adjudicatory matter, so it is quite clear, and I can cite you 
and am happy to supply court cases that address the subject, 
that in a rulemaking kind of process, the fact that Mr. 
Alberswerth signed comments for an outside organization on a 
rule in no way limits his ability to work on the rule inside 
the government because it is considered a legislative type of 
function.'' Finally, at no time during the Subcommittee's 
meetings, did the Chair call an expert on the question of 
conflict of interest to support or refute the Administration's 
interpretation of the ethics rules. On June 1, 1998, DOI 
Solicitor John Leshy wrote to Chairman Don Young outlining the 
DOI's objections to the Majority's characterization of Mr. 
Alberswerth, ``so that the baseless and harmful character of 
these allegations of misconduct can be exposed.'' (Attachment 
3)

                        the role of the minority

    Throughout the development of this report the Majority has 
disregarded the legitimate role of the Minority. In 1997, all 
the Democratic Members of the Resources Committee requested of 
the Chairman that the Committee adopt a protocol covering the 
solicitation and management of documents that are sought during 
investigations in the name of the Committee. The Senior 
Democrat has personally raised this issue several times with 
Chairman Young. However, there still is no procedure in place 
to assure the Minority a fair role in these Committee 
activities. Nor can the Interior Department or anyone else who 
provides confidential material to the Committee rest assured 
that it will be treated with caution or discretion.
    We are pleased that in this case, the Majority sought 
Committee authorization to issue subpoenas, which was provided 
on a 20 to 19 partisan vote. And, we appreciate that the 
Majority report was subjected to a vote before its release to 
the general public. However, we remain very concerned at the 
total lack of procedures, safeguards and guarantees for the 
Minority and for those providing confidential materials to the 
Committee.

                               conclusion

    The Majority report erroneously characterizes the 
regulatory action of the Clinton Administration, taken as a 
result of Congressional inaction in addressing the need for 
comprehensive mining reform as supplanting the role of Congress 
by issuing new rules for bonding mining operations. However, 
theExecutive Branch clearly possesses the authority to issue 
appropriate regulations under existing law to protect the public lands. 
Under FLPMA, the DOI is required to take any action necessary to 
protect the public lands from unnecessary or undue degradation.
    The 1988 GAO report estimated that 424,049 acres of federal 
land were unreclaimed from hardrock mining operations in 11 
western states. At that time, GAO estimated the reclamation 
costs for these lands to be about $284 million. Had these sites 
been adequately bonded, industry funds, not taxpayer dollars, 
would have paid for remediation. Ironically, the Majority's 
report does not address the need to save the taxpayers from 
picking up the multi-million dollar cost of reclamation.
    The Majority report states that the Department's 
regulations are ``illegal'' and that their promulgation 
violated the Administrative Procedure Act and the Regulatory 
Flexibility Act. The Majority report concludes that the bonding 
regulation is illegal. However, the Court found only that DOI 
had violated a procedural requirement to consult with the Small 
Business Administration. The substance of the rule was not 
challenged.
    This report does indeed address an ``abuse of power'' but 
an abuse by the Majority that is using the powers of this 
Committee to aid and abet the mining industry, all the while 
running roughshod over the duties of the judicial system and 
the financial interests of taxpayers.


    attachment 1--excerpt from february 28, 1997 oversight hearing--
                            confidentiality


    Mrs. Cubin. You may be aware that I wrote the Secretary 
asking for internal documents within the Department which may 
shed light on the final decision on why this decision became 
final. These have not yet been provided to me.
    I appreciate the Department for providing the Subcommittee 
with some of the documents that I requested for this hearing. 
However, the Congress and this Subcommittee have a 
responsibility under House Rule 10 and 11, Committee Rule 6 in 
Article 1 of the U.S. Constitution that requires this 
Subcommittee to have virtually unfettered access to nearly all 
departmental documents.
    Therefore, I expect all requested documents to be 
produced----
    Mr. Romero-Barcelo. Madam Chair.
    Mrs. Cubin. Mr. Barcelo.
    Mr. Romero-Barcelo. I just wanted to make sure, I 
understand that the Department believes some of the documents 
to be turned over are considered privileged documents and if 
that is so I am sure that before they turn over the documents 
they would like to enter into some kind of a written agreement 
or stipulation to make sure that those privileged documents are 
not made available to anyone else.
    Mrs. Cubin. Mr. Barcelo, I would suggest to you that is not 
within the authority nor the purview of the Department. The 
President, yes, but the Department, no.
    Mr. Leshy. May I speak to that issue?
    Mrs. Cubin. Please.
    Mr. Leshy. The concern expressed by Congressman Romero-Mr. 
Barcelo is exactly right. We have no desire to withhold 
documents that you have requested. We will make them available 
to you. The procedure we are trying to work out here on quite 
short notice, since we got the document request I think last 
week, is a procedure that we have worked out with any number of 
congressional committees, I think including this one in the 
past, which is to just have an understanding that the documents 
we turn over to you will not be disclosed outside of the 
committee without at least checking with us, because they 
involve things that could become privileged in litigation and 
if they are disclosed----
    Mrs. Cubin. Well, Mr. Leshy, why did we have to have this 
hearing for you to tell us that?
    Mr. Leshy. We have told you that previously. My deputy 
wrote the committee counsel a letter a couple days ago, I 
believe, which spelled all this out. They have had numerous 
phone conversations. I thought it was well on its way to being 
resolved. We are asking for no special treatment here.
    We have worked this out with Congressman Burton's 
committee, we have worked this out with any number of other 
committees under which we make available documents that could 
be sensitive where we could waive privilege if litigation 
ensued over a matter, documents that we would normally keep 
privileged and not disclose in litigation. All we are trying to 
work out is an understanding of how these documents will be 
treated. We are not trying to withhold any documents.
    Mrs. Cubin. Just because you give them to us does not waive 
the privilege in a judicial process.
    Mr. Leshy. We have to have an understanding about what you 
are going to do with the documents in order for us to be 
assured when we turn them over that the privilege----
    Mrs. Cubin. And I believe you have had that under--I 
believe that you have understood very well. I believe that you 
have been very disagreeable about providing those documents to 
us but there is no question there has never been--how simple 
can it be? We want to understand how the decision for the final 
rule was derived and we need these documents. How simple can it 
be?
    Mr. Leshy. We have reached arrangements like this with any 
number of other committees without difficulty. We are simply 
trying to reach an equivalent understanding here. We have had 
no problem in this area. We have had numerous discussions with 
your counsel and your staff on this. I thought we were working 
this out.
    Mrs. Cubin. We can get you a letter today if it will be 
satisfactory and I hope the documents will be coming forthwith. 
Mr. Romero-Barcelo, do you have questions?
    Mr. Romero-Barcelo. Do I understand it is all right to word 
the agreement, to make an agreement as to how the committee is 
going to proceed with what is considered privileged documents?
    Mrs. Cubin. We will agree to discuss why we need the 
documents. However, we are not obligated to do that and I would 
like to make that very clear on the record. I will give them 
written assurance as to how we will handle the documents if 
that is the problem.
    Mr. Romero-Barcelo. Is that a concern of the Department?
    Mr. Leshy. The Concern of the Department is simply that 
some of the documents that have been requested, that we are 
willing to supply, are documents that we could assert a 
disclosure privilege on if the matter concerning these rules 
ends up in litigation, and we need to just have an assurance, 
an understanding with the committee, about how those documents 
will be treated.
    Again, this is something we have worked out with any number 
of congressional committees on matters like this. This is not 
anything unique to this arrangement, and we have worked this 
out without problem everywhere else. I am not sure why we are 
having a problem here.


 attachment 2--excerpt from the march 1997 oversight hearing--conflict 
                              of interest


    Mr. Leshy. Could I interject here, Madam Chair? This issue, 
we have looked at this issue in many different contexts in the 
past. To the extent that you are raising a possible conflict of 
interest concern about someone coming in from outside into 
government to work on a matter, that is the same matter that 
they had represented or worked outside the government, in the 
rulemaking context, the rule and the principles are very clear.
    A rulemaking such as we are concerned with here with the 
bonding rule is a legislative matter, not an adjudicatory 
matter, so it is quite clear, and I can cite you and am happy 
to supply court cases that address the subject, that in a 
rulemaking kind of process, the fact that Mr. Alberswerth 
signed comments for an outside organization on a rule in no way 
limits his ability to work on the rule inside the government 
because it is considered a legislative type of function.
    And frankly, the purpose for that, and the courts talk 
about this, is it is important that the government at all 
levels, including the executive branch have access to 
expertise, and it is certainly an advantage to hire employees 
who know something about the issues that they are working on. 
And often the way those employees get that experience and 
knowledge is by working for industry associations or other 
environmental groups, and it would be a severe problem for the 
government generally, and that, again, goes to the legislative 
branch as well as the executive branch, if people were disabled 
from coming in and lending their expertise to rules that they 
participated in on the outside.
    So that is all assuming, by the way, that someone in Mr. 
Alberswerth's position is a real decision maker on the rules. 
Mr. Alberswerth obviously played a role here, but the decision 
makers on the rules, in fact, were the Assistant Secretary for 
Land and Minerals, the Director for the BLM. On the legal 
issues it was my office and obviously the Secretary ultimately 
has responsibility as decision maker on these rules. . . 
    Mr. Alberswerth. But there is no conflict of interest here 
at all. I have no financial interest in this matter. The 
organization I worked for had no financial interest.
    Mrs. Cubin. I am not implying that there is a conflict of 
interest. I am not implying that at all.
    Mr. Alberswerth. Thank you.


                      june 1997 oversight hearing


    Mr. Alberswerth. I would say, sir, that I think an 
analogous situation in terms of my role in the development of 
this rule is analogous to a congressional staff person's role 
in the development of a legislation. That is I make 
recommendations. My job is to make some recommendations to 
various individuals in the Department who had decision making 
authority with respect to this matter. I was not the decision 
maker, and I made those recommendations, very similar to the 
congressional staff person making recommendations to a Member 
of Congress or a committee. And I think my role is very 
analogous in that regard, so I think what you might want to ask 
yourself is would you apply the same sort of standards to a 
congressional staff person as you would to me in this instance?
    Mr. Cannon. The point is if you continue, you have a 
definition of covered relationship, including any person for 
whom the employee has within the last year served as financial 
or as officer, director, trustee, general partner, et cetera. 
It seems to me there are two issues here that I would like to 
understand. In the first place, you were employed by NWF and 
received a salary, and therefore had an interest; and in 
addition, I understand you were a director. Don't those with 
particularity qualify you as having to be in a position where 
you need a prior authorization before you participate in that 
process?
    Mr. Alberswerth. The National Wildlife Federation has no 
interest, no financial interest whatsoever.
    Mr. Cannon. You had a financial interest because they paid 
you a salary. You also had a covered relationship because you 
were a director. Is that true?
    Mr. Alberswerth. No, sir, I was a director of the program. 
I was not on the board of directors.
    Mr. Cannon. Oh, okay.
    Mr. Leshy. I should go back because I think there is a 
fundamental misunderstanding. First of all, he severed all his 
ties when he came to the Department. Second, the regulation you 
were quoting talks about a particular matter, and the rules and 
the case law in this are quite clear. A legislative rulemaking 
is not a particular matter. That was the point I was trying to 
make earlier. In other words, the principles and the 
constraints that you apply when you come into government or go 
out of government in terms of working on particular matters 
that you worked on in one place or another, a legislative rule 
is not a matter. It is well understood that is the case. The 
courts basically said that. So we really don't have that kind 
of problem in this case. Everybody in the Department knew where 
Mr. Alberswerth came from the knew of his interest, but he has 
not, in our view, behaved inappropriately at all by working on 
this kind of rule, having worked on it outside, because it is 
not a particular matter involving a particular party.
                   U.S. Department of the Interior,
                                   Office of the Solicitor,
                                      Washington, DC, June 1, 1998.
Hon. Don Young,
Chairman, Committee on Resources, House of Representatives, Washington, 
        DC.
    Dear Chairman Young: I write to register our objection to 
the accusation in the report the Resources Committee issued 
last week (Abuse of Power: The Hardrock Bonding Rule) that Mr. 
David Alberswerth of this Department has or had an appearance 
of a ``conflict of interest'' in his work on the Department's 
hardrock mining bonding rule (the Rule). Report, pp. 2, 14-17. 
It reaches this conclusion through its analysis of 5 CFR 
Sec. Sec. 2635.501 and .502, provisions of Subpart E 
(``Impartiality In Performing Official Duties'') of the Office 
of Government Ethics (OGE) Standards of Ethical Conduct for 
Employees of the Executive Branch.
    For several reasons, we believe the regulations cited in 
the Report do not apply to Mr. Alberswerth's situation.
    First and most important, the cited regulations do not 
apply to Mr. Alberswerth's work regarding the bonding 
rulemaking because it is not a particular matter involving 
specific parties within the meaning of the applicable OGE 
regulations. The regulations make clear that rulemakings and 
regulations are not such matters. See 5 CFR Sec. 2637.102(a)(7) 
and 5 CFR Sec. 2637.201(c)(1).
    The restrictions of 5 CFR Sec. 2635.502, dealing with the 
appearance of loss of impartiality, apply only where a 
``particular matter involving specific parties'' is 
involved.\1\ At 5 CFR Sec. 2635.502(b)(3) OGE defines 
``particular matter involving specific parties'' as having 
``the meaning in Sec. 2637.102(a)(7) of this chapter'', thus 
adopting that definition. That definition is contained in a 
section of OGE's regulations dealing with post-employment 
issues. It provides (emphasis supplied):
---------------------------------------------------------------------------
    \1\ The Report correctly points out that the OGE regulations do not 
define ``party''. This is because OGE has traditionally focused heavily 
on the entire phrase ``particular matter involving specific parties,'' 
an issue with which it deals regularly in the conflict of interest 
laws. The Report ignores that focus, and instead cites a general 
definition of ``parties'' from Black's Law Dictionary to conclude that 
Mr. Alberswerth's former employer was a ``party'' to the rulemaking.

          (7) Particular Government matter involving a specific 
        party means any judicial or other proceeding, 
        application, request for a ruling or other 
        determination, contract, claim, controversy, 
        investigation, charge, accusation, arrest or other 
        particular matter involving a specific party or parties 
        in which the United States is a party or has a direct 
---------------------------------------------------------------------------
        and substantial interest.

    This list of covered items does not include regulations, 
legislation, or general policy issues.
    5 CFR Sec. 2637.102(b) (6) and (7) go on to supplement the 
definition of particular matter (with or without specific 
parties); specifically, 5 CFR Sec. 2637(b)(6) cites to 5 CFR 
Sec. 2637.201(c) for an interpretive definition of ``particular 
matter involving a specific party or parties.'' This latter 
regulation states in part: ``Rulemaking, legislation, the 
formulation of general policy, standards or objectives, or 
other action of general application is not such a matter.'' 
(emphasis added)
    5 CFR Sec. 2637.102(b)(7) cites to 5 CFR 2637.204(d) for an 
interpretive definition of ``particular matter (without 
parties)''. This latter regulation makes it clear that the 
phrase ``particular matter'' without the qualifier ``involving 
a specific party or parties'' must be read to include 
regulations. This further confirmation that OGE intended there 
be a different meaning to the term ``particular matter'' when 
it is used with the extra phrase ``involving a specific party 
or parties'' (or some version thereof), as contrasted with 
situations where there is no extra phrase. The regulation cited 
in the Report (5 CFR Sec. Sec. 2635.501 and .502) employs the 
extra phrase, thereby eliminating consideration of policies, 
regulations, and legislation from the prohibition.
    In short, 5 CFR Sec. 2635.502(b)(3)'s adoption of the 
definition of 5 CFR Sec. 2637.102(a)(7) for ``particular matter 
involving specific parties'' leads inexorably to the conclusion 
that rulemakings are not covered by 5 CFR Sec. Sec. 2635.501, 
.502. Thus, the bottom line is that the activities of Mr. 
Alberswerth to which the Report refers are not covered by 5 CFR 
Sec. Sec. 2635.501, 502, because they are not ``particular 
matters involving specific parties.''
    Even if the regulations discussed above did cover 
rulemaking, Mr. Alberswerth did not violate them. As the Report 
points out, the regulation indicate that an employee should not 
participate in a particular matter involving specific parties 
when the employee has a ``covered relationship'' with one who 
is a party or represents a party to the matter. 5 CFR 
Sec. 2635.502(a). A ``covered relationship'' is defined in 5 
CFR Sec. 2635.502(b)(1)(iv) to include situations in which the 
employee has been an employee of a person within the last year.
    Mr. Alberswerth joined the Department in June of 1993 from 
the National Wildlife Federation, His one year ``cooling-off'' 
period expired in June 1994.
    The Committee cites no concrete evidence that Mr. 
Alberswerth participated in Departmental decisions on the 
content of the Rule prior to November of 1994, more than 
sixteen months after beginning his employment at the 
Department. During all of this period, the bonding rulemaking 
was on hold as the Secretary sought to devote the Department's 
full attention to getting Mining Law reform through the 
Congress, where the House and Senate had each passed wildly 
differing reform bills.
    The Report suggests that evidence of Mr. Alberswerth's 
participation in Departmental deliberations on this issue 
during the one year cooling off period is found in an August 6, 
1993, note from ``Dan to Dave''. (Report, p. 15) It seems clear 
that merely being a passive recipient of an internal message 
relating to the bonding rulemaking does not make Mr. 
Alberswerth a participant in the matter. To conclude otherwise 
would in essence allow any employee--or indeed, any person 
outside the Department--to put a Departmental official in 
violation merely by sending them a message, whether or not the 
recipient responded in any way.
    Finally, 5 CFR Sec. 2635.502(b)(1) Note States: ``Nothing 
in this section shall be construed to suggest that an employee 
should not participate in a matter because of his political, 
religious or moral views.''
    The inclusion of this Note in the regulation is a 
recognition that federal political appointees should not be 
restricted under the standards on an appearance of loss of 
impartiality in 5 CFR Sec. 2635.501 because of their political 
affiliation. Mr. Alberswerth has been in a Schedule C political 
appointee position since his appointment in June of 1993. He 
was, therefore, appointed because of his political affiliation 
and the need of the administration to have his political views 
factored into its decisions. Even if the regulation cited in 
the Report otherwise applied in this situation, the note in the 
regulations supports the conclusion that it was not so 
intended.
    Finally, I should also note that at no time prior to the 
publication of this report did anyone on the Committee or its 
staff interview Mr. Alberswerth or anyone else at he Department 
regarding these allegations. Mr. Alberswerth in fact testified 
under oath at the subcommittee hearing on June 19, 1997, and 
responded to a number of questions regarding his role in the 
development of the rule in question. The following is the 
transcript of the relevant portions of the hearing, as 
published on the Committee's website:

    Mr. Alberswerth. But there is no conflict of interest here 
at all. I have no financial interest in this matter. The 
organization I worked for had no financial interest.
    Mrs. Cubin. I'm not implying that there is a conflict of 
interest. I'm not implying that at all.
    Mr. Alberswerth. Thank you.

    Later on in the hearing, Mrs. Cubin reiterated that she 
``did not imply in any way that there was a conflict of 
interest'' with regard to Mr. Alberswerth's role in the 
development of the hard rock bonding rule.
    We believed that the subcommittee chair's statements that 
no conflict of interest existed or would be implied ended the 
matter. We are, to say the least, surprised that your committee 
would nearly a year later, without further discussion, issue a 
report alleging the appearance of such a conflict.
    We have serious problems with other aspects of the report 
which we would be happy to discuss with you and the Committee's 
staff and put in writing if necessary. Because of the personal 
nature of the allegations against Mr. Alberswerth, however, we 
see a particular need to ensure that those allegations do not 
stand unanswered. I request that you include this letter in the 
record so that the baseless and harmful character of these 
allegations of misconduct can be exposed.
            Sincerely
                                             John D. Leshy,
                                                         Solicitor.
                                   George Miller.
                                   William D. Delahunt.
                                   Donna M. Christian-Green.
                                   Lloyd Doggett.
                                   Maurice D. Hinchey.
                                   Carlos Romero-Barcelo.
                                   Peter A. DeFazio.
                                   Dale E. Kildee.
                                   Bruce F. Vento.
                                   Eni F.H. Faleomavaega.
                                   Nick Rahall.
                                   Frank Pallone. Jr.
                                   Robert A. Underwood.
                                   Sam Farr.
                                   Calvin M. Dooley.
                                   Neil Abercrombie.
                                   Edward J. Markey.
                                   Solomon P. Ortiz.
                                   Owen B. Pickett.
                                   Adam Smith.
                                   Patrick J. Kennedy
                                   Ron Kind.
                                   Chris John.

                                
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