[Federal Register Volume 66, Number 210 (Tuesday, October 30, 2001)]
[Rules and Regulations]
[Pages 54834-54862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27074]



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Part III





Department of the Interior





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Bureau of Land Management



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43 CFR Part 3800



Mining Claims Under the General Mining Laws; Surface Management; Final 
Rule and Proposed Rule

  Federal Register / Vol. 66, No. 210 / Tuesday, October 30, 2001 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[WO-300-1990-PB-24 1A]
RIN 1004-AD44


Mining Claims Under the General Mining Laws; Surface Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM or ``we'') amends its 
regulations governing mining operations involving metallic and some 
other minerals on public lands. We are amending the regulations by 
removing certain provisions of the regulations and returning others to 
those in effect on January 19, 2001. We intend these regulations to 
prevent unnecessary or undue degradation of BLM-administered lands by 
mining operations authorized under the mining laws. The approach BLM 
takes today balances the nation's need to maintain reliable sources of 
strategic and industrial minerals, while ensuring protection of the 
environment and natural resources on public lands. The hardrock mining 
regulations, including the changes adopted today, are consistent with 
the recommendations of the National Research Council (NRC), and protect 
the Federal Government from financial risk if operators are unable to 
perform reclamation.

EFFECTIVE DATE: This rule is effective December 31, 2001.

ADDRESSES: You may send inquiries or suggestions to Director (630), 
Bureau of Land Management, 401 LS, 1849 C Street, NW, Washington, DC 
20240.

FOR FURTHER INFORMATION CONTACT: Robert M. Anderson, 202/208-4201; or 
Michael Schwartz, 202/452-5198. Individuals who use a 
telecommunications device for the deaf (TDD) may contact us through the 
Federal Information Relay Service at 1-800/877-8339, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION:

I. What is the Background of this Rulemaking?
II. How did BLM Change the Proposed Rule in Response to Comments?
III. How did BLM Fulfill its Procedural Obligations?

I. What Is the Background of This Rulemaking?

    On March 23, 2001, BLM published a proposed rule (66 FR 16162) to 
suspend, in whole or in part, the regulations we issued on November 21, 
2000 (65 FR 69998), which became effective on January 20, 2001 
(hereinafter, the 2000 rule), and put in their place, in whole or in 
part, the regulations that existed on January 19, 2001, which, for the 
most part, BLM adopted in 1980 (hereinafter, the 1980 rule). As stated 
in the proposal, the suspension would provide BLM the opportunity to 
review some of the requirements of the 2000 rule in light of issues the 
plaintiffs raised in legal challenges to the rule and concerns 
expressed by others, including several states. We also requested 
comment on whether we should retain some combination of the 2000 
regulations and the 1980 regulations. The 45-day comment period on the 
proposal closed on May 7, 2001. BLM received approximately 49,000 
comments.
    On June 15, 2001 (66 FR 32571), we published a final rule revising 
section 3809.505, which addressed how the new financial guarantee 
requirements of the 2000 rule affect existing approved plans of 
operations. The final rule made no substantive change in the 
requirements except to postpone the date by which operators must comply 
with the financial guarantee requirements. The rule changes the date by 
which operators with plans of operation approved by BLM before January 
20, 2001, must provide a new financial guarantee--from July 19, 2001, 
to November 20, 2001, and to September 13, 2001, for operations without 
any financial guarantee. The extension was intended to give BLM field 
offices and state government agencies time to prepare to administer the 
requirements. We also announced in that rule that it is our intention 
to retain the financial guarantee provisions of the 2000 rule.
    Congress also directed BLM as to how to conduct the rulemaking and 
what provisions BLM could include in a final rule. In particular, 
Congress provided express guidance to BLM in the FY 2000 and FY 2001 
Interior Appropriations Acts as follows:

    None of the funds in this Act or any other Act shall be used by 
the Secretary of the Interior to promulgate final rules to revise 43 
CFR subpart 3809, except that the Secretary, following the public 
comment period required by section 3002 of Public Law 106-31, may 
issue final rules to amend 43 CFR Subpart 3809 which are not 
inconsistent with the recommendations contained in the National 
Research Council report entitled ``Hardrock Mining on Federal 
Lands'' so long as these regulations are also not inconsistent with 
existing statutory authorities. Nothing in this section shall be 
construed to expand the existing statutory authority of the 
Secretary. (Public Law 106-113, 113 Stat. 1501, App. C., 113 Stat. 
1501A-210 sec. 357 (1999).)

(See the National Research Council Report , entitled Hardrock Mining 
on Federal Lands (NRC Report), September, 1999).

An identical provision was enacted in Sec. 156 of the FY 2001 Interior 
Appropriations Act (Public Law 106-291, sec. 156, 114 Stat. 922, 962-63 
(Oct. 11, 2000)).

    Following issuance of the 2000 rule four lawsuits were filed 
challenging the rule, three in the U.S. District Court for the District 
of Columbia (brought by the National Mining Association (NMA), the 
Newmont Mining Corporation, and the Mineral Policy Center and two other 
environmental groups), and one in the U.S. District Court for Nevada 
(brought by the State of Nevada). These cases include National Mining 
Association v. Department of the Interior, No. 00CV-2998 (D.D.C. filed 
December 15, 2000); Newmont Mining Corporation v. Department of the 
Interior, No. 01CV-23 (D.D.C. filed January 5, 2001); Mineral Policy 
Center v. Department of the Interior, No. 01CV-73 (D.D.C. filed January 
16, 2001); and State of Nevada v. DOI, No. CV-N01-0040-ECR-VPC (D. NV 
filed January 19, 2001).
    The industry plaintiffs and the State of Nevada assert that BLM 
improperly issued the 2000 rule and violated numerous statutes, 
including:
     The specific congressional provisions cited above 
applicable to promulgation of the revised 3809 rule;
     The notice and comment provisions of the Administrative 
Procedure Act, particularly with regard to the ``substantial 
irreparable harm'(SIH) standard of the final regulatory definition of 
the term ``unnecessary or undue degradation;'
     The National Environmental Policy Act;
     The Regulatory Flexibility Act;
     The Federal Land Policy and Management Act; and
     The General Mining Law.
    The environmental plaintiffs assert that the 3809 regulations are 
not sufficiently stringent and improperly allow mining operations on 
lands without valid mining claims or mill sites.
    On January 19, 2001, the Federal District Court in the National 
Mining Association suit denied NMA's motion for a preliminary 
injunction to stay the effective date of the final rules, holding that 
the plaintiff did not successfully meet its burden of showing that the 
revised 3809 rule becoming effective would cause irreparable harm. As 
to the merits of the plaintiff's claims, the Court concluded that, 
although such claims

[[Page 54835]]

may or may not have merit, it was unclear at the preliminary injunction 
stage of the proceeding that the NMA would eventually prevail. The 
litigation is currently stayed pending this rulemaking.
    On February 2, 2001, the Nevada Governor sent a letter to the 
Secretary of the Interior requesting postponement of the effective date 
and the implementation of the revised 3809 rule based on legal 
deficiencies associated with promulgation of the new regulations and 
the assertion that the revised 3809 rules were unnecessary. In his 
February 2, 2001, letter, the Governor expressed concern that:

    These new regulations will, if not overturned, impose 
significant new and unnecessary regulatory burdens on Western States 
and will preclude mining companies from engaging in operations they 
might otherwise pursue, thereby leading to a dramatic decrease in 
employment and revenue in the mining sector and a corresponding 
decrease in tax revenue and other economic benefits to Western 
states. BLM's own Final Environmental Impact statement concludes 
that the new rules will result in a loss of up to 6,050 jobs, up to 
$396 million in total income and up to $877 million in total 
industry output.

The Governor was particularly concerned because Nevada would bear the 
greatest impact of the revised 3809 regulations.

    In the March 23, 2001, proposal, BLM acknowledged that the 
plaintiffs, including the State of Nevada, raised serious concerns 
regarding the revised 3809 regulations. These factors were, in part, 
the basis for BLM's proposal to suspend the 2000 rule.
    In the March 23, 2001, proposal we stated:

    If BLM were to implement the new regulations, and then be 
required to change back again if the new rules are found deficient, 
the impact on both large and small miners is of substantial concern. 
Many of the latter, particularly, may not be sophisticated in 
dealing with changing regulatory requirements. On a larger scale, 
implementation of the 2000 rule could create an uncertain economic 
environment. (66 FR 10164)

In addition we also stated:

* * * we specifically solicit comments as to whether some provisions 
of the revised 3809 rules should not be suspended while BLM conducts 
its review of the issues. For example, rather than suspending all of 
the revised 3809 rules, BLM could leave in place some or all of the 
new revisions that address the specific regulatory gaps identified 
by the National Research Council (as identified in Alternative 5, 
the ``NRC Alternative,'' in BLM's final environmental impact 
statement), which most commenters agreed are warranted. BLM requests 
comments on this approach or others, e.g., whether all of the 
revised rules should be suspended until either BLM completes further 
rulemaking or until the litigation is resolved.

Basis and Purpose of the Rule

    After reviewing comments, we have decided that acting in phases 
provides the best approach to achieving the overall objective of 
preventing unnecessary or undue degradation while providing 
opportunities to explore, develop, and produce minerals.
    The first phase was to postpone the deadlines in the financial 
guarantee requirements for those operating under plans of operations 
approved before January 20, 2001, to enable both BLM and states to 
prepare to implement the requirements. At the same time we affirmed our 
intention to retain the substantive financial guarantee requirements of 
the 2000 rule. We published a final rule to this effect in the Federal 
Register on June 15, 2001 (66 FR 32571).
    Today's action is the second step in the process. We are amending 
the regulations in a way that removes from the regulatory scheme the 
components of the 2000 rule that created the most uncertainty regarding 
proper regulatory standards, while leaving in place the remainder of 
the rule. BLM continues to believe that undertaking implementation of 
certain provisions of the new regulatory program applicable to hardrock 
mining on public lands before additional examination of the legal, 
economic, and environmental concerns that plaintiffs raise could prove 
unnecessarily disruptive and confusing to the mining industry and the 
states that, together with BLM, regulate the mining industry. We 
removed these provisions in today's rulemaking.
    The provisions we are retaining reflect the many comments that 
support retention of the 2000 rules. The retained provisions will not 
unnecessarily disrupt the mining industry and will prevent unnecessary 
or undue degradation of the public lands while the agency considers 
whether further changes to the rules are warranted. For the most part, 
the rationale for retaining many sections of the 2000 rules is set 
forth in the November 2000 Federal Register preamble to those rules. 
The provisions we are leaving in place implement recommendations of the 
NRC Report, although we are continuing to consider whether we should 
modify specific provisions.
    In an effort to avoid a regulatory vacuum, the March 23 notice 
proposed a regulatory scheme wherein the 2000 rules would have been 
suspended in one part of the Code of Federal Regulations (proposed 
subpart 3809a) and the 1980 rules would have been reinstated as subpart 
3809. We do not need such an approach in these final rules because, for 
the most part, we are retaining the overall regulatory structure of the 
2000 rules. With such a scheme in place we avoid a regulatory vacuum by 
removing specific provisions of the 2000 rules, replacing such 
provisions by corresponding provisions of the 1980 rules, or by 
continuing provisions from the 2000 rule that reflect the previous 
status quo that existed in the absence of specific provisions in the 
1980 rules. We explain this latter situation in the discussion of 
specific sections.
    As the next phase, we are also publishing in the Federal Register a 
proposed rule containing the same changes as in this final rule, as 
well as some additional changes we had not considered previously. The 
proposed rule we published on March 23, 2001, provides a logical and 
legally sufficient basis for today's action which changes only a few 
sections of the 2000 rules. However, we recognize that because of the 
high level of interest in this rule among affected industry groups, 
environmental organizations, and states, we might benefit from 
providing an opportunity to comment on the specific changes we are 
adopting today. As a result of those comments we may make further 
adjustments to the rules.
    While we considered providing an opportunity for further public 
comment before issuing this final rule, we decided that it is more 
important to resolve as much uncertainty as to the status of the 2000 
rules as quickly as possible. This benefits all affected parties by 
clarifying the Department's position on several issues involved in the 
litigation challenging the 2000 rules. However, if comments in the 
companion proposed rule indicate that additional changes to the rules 
are warranted, we will make these changes in a subsequent final rule.
    This final rule is authorized by the Federal Land Policy and 
Management Act of 1976 (43 U.S.C. 1701 et seq.) (FLPMA) and the Mining 
Law of 1872, as amended (hereinafter ``mining laws''). Section 302(b) 
of FLPMA, 43 U.S.C. 1732(b), directs the Secretary to manage 
development of the public lands. In addition, the final rule we are 
adopting today carries out the FLPMA directive that, ``[i]n managing 
the public lands, the Secretary shall, by regulation or otherwise, take 
any action necessary to prevent unnecessary or undue degradation of the 
public lands.'' See 43 U.S.C. 1732(b).

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    The final rule we are adopting today is consistent with the FLPMA 
directive. We issue it under the general rulemaking authorities of 
FLPMA and the mining laws (43 U.S.C. 1733 and 1740 and 30 U.S.C. 22, 
respectively).

Consistency With the NRC Report Recommendations

    As described earlier, in the fiscal year 2001 appropriations act 
for the Department of the Interior (Pub. L. 106-113, Sec. 357), 
Congress prohibited the Secretary from spending money to issue final 
3809 rules other than those ``which are not inconsistent with the 
recommendations contained in the [NRC Report] so long as these 
regulations are also not inconsistent with existing statutory 
authorities.'' Comments we received during this and earlier comment 
periods indicate that there are divergent views on the consistency 
question. Some respondents strongly believe that the ``not inconsistent 
with'' provision sets strict limits on what we can include in this 
rule. That is, we can promulgate only regulations that conform exactly 
to specific NRC Report recommendations, and no more. Commenters on the 
March 23 proposal made extensive arguments in support of their views. 
Much discussion reiterated the positions and comments received before 
the November 2000 rules were published.
    In the Federal Register preamble of the 2000 rule (65 FR 69999), we 
discussed this issue at length, and we continue to stand by the points 
we made in that discussion. There is no need to repeat those 
discussions here. It is clear that ``not inconsistent with'' is a more 
lenient standard than others that Congress could have chosen to use. 
For instance, Congress could have expressly said that the BLM rules 
could not ``go beyond'' the NRC recommendations, but it did not. 
Accordingly, BLM continues to interpret the Appropriations Act as not 
barring BLM from promulgating rules that address matters not expressly 
covered by the NRC Report. Nevertheless, BLM has carefully considered 
the entire NRC Report in deciding what course of action to take.
    Today's rule continues in place those sections that specifically 
address NRC recommendations. As a practical matter, however, it is not 
feasible to publish a regulation which so narrowly interprets the 
Appropriation Act that BLM could not promulgate rules with provisions 
necessary to implement the specific overall recommendation. For 
example, the public and the regulated industry are better served if the 
financial guarantee requirements the NRC recommends include a 
description of acceptable instruments, and provisions on release and 
forfeiture, to mention a few components of a sound financial guarantee 
program.
    In addition, we continue to leave in place portions of the 2000 
rule that specific NRC recommendations do not address. We do so because 
BLM needs such provisions for sound land management. For example, this 
rule retains section 3809.101, which addresses what an operator may do 
with mineral materials on mining claims. Although the NRC did not 
discuss this issue, the problem has existed for years and the rule 
helps alleviate industry concerns and improves the Bureau's ability to 
manage mineral resources. We are still considering whether we need to 
make additional changes. However, today's action removes those 
provisions that created the most questions regarding consistency with 
the NRC Report. We now see ourselves in a position to learn more 
through the implementation of these rules before we engage in 
additional rulemaking.

Summary of Rule Adopted

    Today's rule makes several changes to the 2000 rule. The rule 
continues to address regulatory gaps identified in the NRC Report. 
Today's changes do not affect that.
    We are changing the definition of ``operator,'' found at section 
3809.5. We are restoring the definition contained in the 1980 
regulations.
    We are also changing the definition of ``unnecessary or undue 
degradation'' found at section 3809.5. The proposal leading to the 2000 
rule did not contain the ``substantial irreparable harm'' clause in the 
definition of unnecessary or undue degradation (paragraph 4). As 
discussed above, all but one of the lawsuits contended that the SIH 
provision in the definition of unnecessary or undue degradation 
violated the Administrative Procedure Act, NEPA, and FLPMA. Today's 
action removes that provision.
    We also amend section 3809.116 by revising paragraph (a), which 
established a joint and several liability provision. This also was a 
provision generating numerous comments suggesting that (1) BLM had 
exceeded its authority and (2) liability should be proportional. As 
with the SIH provision, the comments we received were highly critical 
of the policy itself and also questioned its legality. In its revised 
form, the paragraph provides that mining claimants and operators are 
liable for obligations that accrue while they hold their interests. In 
effect, this returns the regulation to that in place prior to the 2000 
rule.
    We also amend the standards contained in section 3809.420. We 
removed most of the 2000 rules' environmental and operational 
performance standards and replaced them with the 1980 rule standards. 
We chose to maintain the general standards in section 3809.420(a), 
because these standards form a foundation upon which operators should 
base their plans of operations. We are unaware of widespread concern 
addressing these broad standards. From the 2000 rule we have retained 
and renumbered sections 3809.420(c)(3) and (4). These sections codify 
the longstanding BLM policies on acid mine drainage and use of cyanide.
    The last substantive changes are the elimination of sections 
3809.702 and 3809.703, which established administrative civil 
penalties. Throughout the process of preparing the 2000 rule, BLM was 
aware, as was the NRC, that BLM's authority to impose civil penalties 
is uncertain. Therefore, we have decided to remove these sections. At 
the same time, we intend to work with the Congress to clarify our 
authority. BLM's authority to establish an administrative penalty 
scheme is uncertain and, until such authority is clearly established, 
administrative penalties should not be part of subpart 3809.
    In addition, we made a few technical changes to correct errors 
which appeared in the November publication of the 2000 rules. All these 
are discussed in more detail below.

II. How Did BLM Change the Proposed Rule in Response to Public 
Comments?

    BLM received approximately 49,000 comments on the March 23, 2001, 
proposal. Mail campaigns generated the majority of the comments, as 3 
repeated messages constituted over 95 percent of the comments. Each 
comment succinctly asked us to retain the 2000 regulations because they 
would better protect the environment than the previous regulations. The 
comments also pointed out that the 2000 rule followed years of public 
comment and congressional debate, and deserve a chance to work. This 
last point clearly disputes the uncertainty argument BLM noted in the 
March 23, 2001, proposal.
    In response to these comments, we are retaining intact most of the 
2000 regulations. We are removing several provisions that seem 
particularly and unnecessarily onerous and raise clear legal and policy 
issues. Some industry comments made recommendations as to particular 
sections of the 2000 regulations that we should retain. Since we are 
retaining most of those regulations, we do not need to discuss

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these recommendations individually, and rely on the November 21, 2000, 
Federal Register preamble to support individual sections. On June 15, 
2001 (66 FR 32571), we published the final rule saying that we would 
retain the financial guarantee provisions from the 2000 regulations, 
but postponing their effective date for operations BLM approved prior 
to January 20, 2001.
    We received comments in support of the March 23, 2001, proposal 
that generally contained arguments that were made in opposition to the 
2000 rule when it was proposed. We also received new arguments 
concerning the SIH provision. These detailed comments generally came 
from state governments, industry associations, and mining companies. A 
limited number of individuals also submitted detailed comments. A joint 
comment from several environmental organizations included a detailed 
analysis opposing the proposal. Responses to these specific comments 
follow in the next paragraphs.

Section 3809.5  How Does BLM Define Certain Terms Used in This Subpart?

Casual Use
    Several comments from persons who engage in small scale placer 
mining objected to language in the definition of ``casual use'' 
allowing employment of only hand or battery-powered dry washers, as 
part of casual use. Many recreational miners use dry washers powered by 
small gasoline motors that are roughly equivalent to lawn mower motors. 
The comments said that this definition would bar these miners from 
using public lands for their activities due to the cost of acquiring 
battery-powered dry washers. We are not making this change in the final 
rule. However, in the proposed rule that we are issuing today, we will 
propose amending the definition of ``casual use'' to accommodate this 
small-scale use.
Operator
    This final rule revises the definition of the term ``operator'' to 
say that it means any person who is conducting or proposing to conduct 
operations. This is a return to the definition set forth in the 1980 
regulations. It does not contain the 2000 rule provisions that 
expressly include persons who manage or direct operations and corporate 
parents and affiliates who materially participate in the operations. We 
also removed the statement that the operator can also be the claimant. 
Of course, the claimant may operate his or her mining claim, but 
stating that in the definition is unnecessary, and confusing as it 
could be interpreted to mean that BLM will always treat the claimant as 
the operator.
    BLM is concerned that the 2000 rule definition of the term 
``operator,'' by referencing ``parent'' entities and affiliates, 
appeared to authorize BLM routinely to breach the corporate veil that 
generally is established under state corporate laws to protect such 
entities. As explained in the Federal Register preamble to the 2000 
rule (65 FR 70013), BLM adopted the ``material participation'' standard 
in the 2000 rules based on a concept authorized under CERCLA, as 
enunciated in a recent Supreme Court decision. However, there is no 
indication that Congress intended to override state laws in this regard 
under FLPMA. Unlike statutes such as the Surface Mining Control and 
Reclamation Act (see, e.g., 30 U.S.C. 1260(c)) that expressly focus on 
``ownership'' and ``control'' of entities, neither the mining laws nor 
FLPMA expressly holds parent entities and affiliates responsible for 
activities which occur at mining operations conducted by other 
entities. Thus, we decided we will not include the concept of 
``parent'' or ``affiliate'' responsibility in the definition of the 
term ``operator'' in subpart 3809. Under these final rules, we will 
hold the appropriate entity liable through established state common law 
principles.
    Commenters objected to the 2000 rules' definition of the term 
``operator'' because of their concern that the definition, working 
together with the principle of joint and several liability in section 
3809.116(a), would create a presumption that parents and affiliates of 
an entity conducting mining operations at a mine site each would be 100 
percent liable for activities at the mine site. Many stakeholders 
consider this standard to be inequitable in its application. As 
described below, the principle of joint and several liability has been 
removed from subpart 3809, and merely characterizing an entity as an 
``operator'' does not establish a particular level of responsibility, 
absent a specific and significant degree of involvement with the mining 
operation that we must determine on a case-specific basis, guided by 
common law principles.
    At this time, the least confusing course of action is to reinstate 
the definition that BLM used for 20 years and is familiar to BLM and 
the states, while considering whether changes are appropriate.
Unnecessary or Undue Degradation
    The final rule amends the definition of the term ``unnecessary or 
undue degradation'' by removing paragraph (4) which included in the 
definition conditions, activities, or practices that occur on mining 
claims or millsites located after October 21, 1976, (or on unclaimed 
lands) and result in substantial irreparable harm to significant 
scientific, cultural, or environmental resource values of the public 
lands that cannot be mitigated (the ``SIH'' standard). This paragraph, 
which was included in the final rule without first appearing in either 
of BLM's proposals which preceded the November 2000 final rules, gave 
BLM authority to deny plans of operation even if all of the other 
standards could be satisfied. Of all the provisions in the 2000 rules, 
this one paragraph had more projected economic impacts than all of the 
other sections combined. It is this provision that the Nevada Governor 
most strenuously objects to, and various plaintiffs have challenged. 
BLM has concluded that, as a matter of basic fairness, we should not 
have adopted this truly significant provision without first providing 
affected entities an opportunity to comment both as to its substance 
and as to its potential impacts. Because the potential impacts of the 
SIH standard are so dramatic, BLM is reluctant to continue to include 
such a provision at all. BLM is also concerned that it would be very 
difficult to implement the standard fairly as it relates to significant 
cultural resource values. In addition, the Interior Department 
Solicitor has issued an opinion (M-37007) addressing the legal 
authority of the SIH standard. This opinion has been placed in the 
Administrative Record.
    Persons commenting on the March 23 proposed rule objected to the 
SIH standard. Commenters said that including the ``substantial 
irreparable harm'' standard in the final rule was not lawful for the 
following reasons:
    (1) The introduction of the term ``substantial irreparable harm'' 
in the final rule did not constitute a legal rulemaking. Commenters 
stated that its inclusion violated the Administrative Procedure Act as 
it had not been directly used in the proposed rule and therefore did 
not receive adequate public scrutiny. Most of these commenters also 
noted their belief that the economic analysis and NEPA analysis of SIH 
in support of the 2000 rule was inadequate. Comments also asserted that 
the SIH standard is contrary to the Appropriations Act provision 
regarding consistency with the NRC Report; and,
    (2) SIH would improperly give the BLM the right to disapprove plans 
of operations after an applicant has spent

[[Page 54838]]

considerable sums. Comments said that this creates uncertainty for the 
industry and its financing, and therefore provides a strong 
disincentive against conducting exploration and development activities 
in the United States. As mentioned above, commenters such as the 
Governor of Nevada were concerned about the dramatic economic impacts 
the SIH standard might cause.
    Comments supporting the 2000 rule endorsed the reasoning behind the 
SIH provision, namely that some locations contain resources which BLM 
should protect from the impacts of mining. Some of these comments came 
from Indian tribes, which were concerned about the impact of mining on 
cultural resources.
    One of the primary factors prompting the March 23, 2001, proposed 
rule was the concern about the SIH provision. Regardless of whether 
this provision was legally promulgated in the 2000 rule, BLM has 
determined that we should remove the provision, since other means exist 
to protect the resources covered by the SIH standard.
    Because the term ``unnecessary or undue degradation'' is not 
defined in FLPMA, BLM has substantial discretion in defining the term 
and in establishing the appropriate means to prevent unnecessary or 
undue degradation of the public lands. BLM does not need an SIH 
standard in its rules either to protect against unnecessary degradation 
or to protect against undue degradation. FLPMA does not define either 
concept to mean substantial irreparable harm. Moreover, BLM has other 
statutory and regulatory means of preventing irreparable harm to 
significant scientific, cultural, or environmental resource values. 
These include the Endangered Species Act, the Archaeological Resources 
Protection Act, withdrawal under Section 204 of FLPMA (43 U.S.C. 1714), 
the establishment of areas of critical environmental concern (ACECs) 
under Section 202(c)(3) of FLPMA (43 U.S.C. 1712(c)(3)), and the 
performance standards in section 3809.420, to recite a partial list.
    In particular, FLPMA defines ACECs as ``areas within the public 
lands where special management attention is required * * * to protect 
and prevent irreparable damage to important historic, cultural, or 
scenic values, fish and wildlife resources or other natural systems or 
processes, or to protect life and safety from natural hazards.'' 43 
U.S.C. 1702(a). Thus, FLPMA established a specific means to protect 
resources on the public lands from irreparable damage. Congressional 
intent to protect these resources can clearly be satisfied by using the 
statutorily created land use planning process of establishing ACECs, 
without creating an additional overlay in the definition of 
``unnecessary or undue degradation.'' It should be understood that, 
although 43 U.S.C. 1712, which provides for the designation of ACECs, 
does not impair the rights of claimants under the mining law, BLM may 
establish protective conditions to prevent irreparable damage within 
ACECs.
    Another comment supporting the reinstatement of the 1980 
unnecessary or undue degradation definition containing a ``prudent 
operator'' standard noted that the NRC Report did not advocate 
abandoning the prudent operator standard. BLM carefully considered 
reinstating the previous definition. On balance, however, BLM decided 
simply to strike paragraph (4) from the definition in the 2000 rule 
rather than completely reinstating the 1980 rule. Thus the definition 
of unnecessary or undue degradation resulting from today's action does 
not use the term ``prudent operator.'' In effect, paragraph (1) of the 
definition of unnecessary or undue degradation sets forth how a prudent 
operator would conduct operations. Such an operator would comply with 
the performance standards in this subpart and other environmental 
protection statutes, which describe a prudent way to conduct operations 
to prevent surface disturbance greater than necessary. This is the 
basis of the previous definition. The NRC Report (p. 121) discusses the 
ambiguity resulting from the 1980 rule definition of unnecessary or 
undue degradation. The current definition has the benefit of being a 
clearer exposition of what constitutes unnecessary or undue degradation 
than the definition in the 1980 regulations. To comply with NRC Report 
recommendation 15, BLM intends to develop guidance manuals to 
communicate the agency's authority under the definition of unnecessary 
or undue degradation to protect resources that may not be protected 
under other laws. For these reasons, we believe the definition in the 
2000 rule is not inconsistent with the NRC Report and, other than 
removing paragraph 4, we did not change it in today's rule.

Section 3809.11  When Do I Have To Submit a Plan of Operations?

    One comment from an industry trade association generally approved 
of this section, saying that the NRC had recommended most of its 
provisions. However, the comment stated that BLM should remove 
paragraphs (c)(6) and (7). These paragraphs require a plan of 
operations for operations causing surface disturbance greater than 
casual use in lands or waters known to contain Federally proposed or 
listed threatened or endangered species or critical habitat, or in any 
of BLM's National Monuments or National Conservation Areas. The comment 
stated that ``[t]he NRC Report did not recommend any additions to the 
list of `special status areas,' '' and that ``requiring a plan because 
the mining activity will take place in a `so called' special status 
area is in violation of the withdrawal procedures of FLPMA.''
    No change was made in response to these comments. These same points 
were made in comments on the 1999 proposed rule (see 65 FR 70021). Our 
response in the preamble of the 2000 rule still applies: these 
provisions do not withdraw any land from the operation of the mining 
law. They merely establish a threshold for requiring a plan of 
operations for exploration activities. (All mining operations are 
required to submit a plan of operations under the 2000 rule, regardless 
of whether they are located in a special status area.) The NRC Report, 
which focused only on the 1980 regulations, acknowledged that certain 
lands require a greater degree of protection than others. In 1980, BLM 
did not manage National Monuments and therefore could not have included 
them as lands requiring a plan of operations. With respect to 
threatened and endangered species, as a practical matter, even under 
the 1980 regulations BLM looked carefully at any activity in lands or 
waters where surface disturbance could cause an impact to species or 
habitat. This scrutiny helps the operator avoid inadvertently violating 
the Endangered Species Act.

Section 3809.31  Are There Any Special Situations That Affect What 
Submittals I Must Make Before I Conduct Operations?

    We added the phrase ``For other than Stock Raising Homestead Act 
lands'' to the beginning of paragraph (e) to make it clear that 
paragraph (c) does not apply to Stock Raising Homestead Act lands, 
which we address in paragraph (d). We made the change because it was 
possible to construe paragraph (e) in such a way that it could be read 
to include Stock Raising Homestead Act lands. This was not our intent 
in the 2000 rule, as demonstrated by the presence of paragraph (d), 
which applies only to Stock Raising Homestead Act lands.

[[Page 54839]]

Section 3809.100  What Special Provisions Apply to Operations on 
Segregated or Withdrawn Lands?

    One comment from a state government agency said, ``The requirement 
for validity determinations of mining claims on withdrawn or segregated 
lands prior to approval of a Plan of operations is unwarranted and will 
present an unnecessary and burdensome cost to many small independent 
miners* * *''
    We appreciate the concern expressed by the state. BLM recognizes 
that conducting validity determinations is a resource intensive process 
that can take a considerable amount of time, particularly given the 
competing demands on BLM's mineral examiners. We also understand that 
the resulting delays could affect small operators. However, we made no 
change in this provision. Lands are withdrawn or segregated from the 
operation of the Mining Law, except for valid existing rights, for many 
resource protection reasons. The withdrawal or segregation would be 
seriously weakened if there were no process for determining whether a 
mining claim is valid and was valid at the time of withdrawal or 
segregation. The requirement for validity determinations before 
approval of plans of operations ensures that the withdrawn areas will 
not suffer resource damage from operations on invalid claims. This 
tradeoff provides an additional measure of protection for the public 
lands while allowing mining to proceed once a determination is made 
that the claims are valid (and BLM could otherwise approve the plans). 
In many instances, operators planning to operate in withdrawn areas 
should be able to allow in advance for the time necessary for a 
validity examination to be performed. The process in this section is 
similar to that in BLM's wilderness management regulations. We note 
that the impacts the state is concerned about may not occur in 
segregated areas because the validity process is discretionary in such 
areas (for reasons described in the preamble to the 2000 rule).

Section 3809.116  As a Mining Claimant or Operator What Are my 
Responsibilities Under This Subpart for my Project Area?

    The 2000 rules stated expressly that mining claimants and operators 
were ``jointly and severally'' liable for obligations arising under 
subpart 3809. Together with the revised definition of the term 
``operator,'' the 2000 rules expressly established the principle that 
all claimants and operators would each be 100 percent liable for all 
obligations that accrued while they held their interests.
    The 1980 rules contained no express provision addressing the 
apportionment of liability among operators and mining claimants. Under 
the previous (1980) regulatory scheme, liability was established on a 
case-by-case basis under state common law principles. The BLM Manual in 
effect since 1985 reflected that under the 1980 rules both operators 
and mining claimants could be liable for reclamation. The Manual 
provided: ``Reasonable reclamation of surface disturbance is required 
of all operators, regardless of the level of operations. Mining claims 
are commonly leased and the claimants are often unaware of the level of 
operations occurring on the claims. The mining claimants are ultimately 
responsible for reclamation if the operator abandons the operation.'' 
BLM Manual, Section 3809.11. Thus, even without an express regulatory 
provision, BLM considered operators and mining claimants responsible 
for reclamation.
    In this final rule, we eliminated the reference in section 
3809.116(a) to ``joint and several'' liability. The 2000 rules provided 
a series of examples. These are also removed in this final rule. 
Revised section 3809.116(a) thus provides that mining claimants and 
operators (if other than the mining claimant) are liable for 
obligations under this subpart that accrue while they hold their 
interests. BLM recognizes that neither FLPMA nor the Mining Laws 
expressly provide for joint and several liability, and such an approach 
has not been shown to be necessary to prevent unnecessary or undue 
degradation of the public lands. Establishment of adequate financial 
guarantees should be the first line of defense against incomplete of 
reclamation responsibilities. The underlying liability scheme serves as 
a backstop and has not been demonstrated to be inadequate.
    BLM intends the effect of this new provision to be equivalent to 
the situation that existed under the 1980 rules. The apportionment of 
liability among various responsible persons, including operators and 
mining claimants, will be established on a case-by-case basis under 
state common law principles, depending on the specific actions and 
express responsibilities of the entities involved. In some instances, 
mining claimants, as the entities who located the claims and have the 
development rights associated with the mining claims, could have the 
ultimate responsibility for reclamation if an operator is not available 
to complete its obligations.
    BLM considered removing section 3809.116(a) completely, replacing 
it with nothing (as existed in 1980), but rejected that option because 
it would have been more confusing and left all liability questions 
unanswered. The final rule adopted today codifies the scheme in effect 
under the 1980 rules, but removes the standard that operators and 
mining claimants will always be jointly and severally liable.
    One comment stated that this section's imposition of joint and 
several liability on claimants and operators has no statutory basis, 
since no provisions of FLPMA contemplate or support the imposition of 
such a liability scheme. It went on that there are both practical and 
due process problems with imposing joint and several liability for 
civil and criminal penalties, because such penalties could be 
considered ``obligations under this subpart.''
    The comment stated that only operators should be liable for 
compliance with operator requirements. Claimants who have leased 
claims, sold them reserving a royalty, or contributed them to a joint 
venture, have no control over operations other than those conferring 
operator status on claimants. The comment said that making claimants 
liable for the acts of others would chill, and probably eliminate, 
these types of transactions in mining claims.
    The comment concluded that the imposition of joint and several 
liability is inconsistent with the NRC Report recommendations, saying 
that the NRC Report did not endorse this approach. In fact, according 
to the comment, a joint and several liability scheme undermines the NRC 
recommendation to remove barriers to reclaiming abandoned mine sites 
through limiting the liability of the new operator as relates to 
previous contamination. The imposition of joint and several liability 
will discourage such cleanups.
    In light of these arguments and the equity issues involved, the 
final rule no longer expressly provides that claimants and operators 
are jointly and severally liable for damage caused by the operator. If 
the operator is bankrupt or out of business, and damage needs to be 
repaired, BLM will rely on other financial resources to perform the 
clean-up. The resources of first resort will normally be the bond or 
other financial guarantee posted by the operator. Liability may extend 
to parent companies, in some cases, under state common law principles. 
As mentioned earlier, claimants may also be ultimately responsible 
because they are the ones

[[Page 54840]]

who have rights and responsibilities under the mining laws.
    Some comments compared the requirements of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), 42 
U.S.C. 9601 et seq., to mining operations. In response, we note that 
subpart 3809 only covers liability for reclamation of mining operations 
under FLPMA and the mining laws. Unlike CERCLA, these statutes do not 
establish joint and several liability. To the extent obligations 
associated with mining operations arise under CERCLA or any other 
statute, such obligations are independent of those that subpart 3809 
establishes. Subpart 3809 is not intended to affect any obligations 
established under other statutes, and liability schemes under such 
other statutes do not determine the entities responsible under subpart 
3809. BLM will determine the appropriate degree of liability on a case-
specific basis, guided by common-law principles.

Section 3809.401  Where Do I File my Plan of Operations and What 
Information Must I Include With It?

    This final rule does not amend section 3809.401 except to change a 
cross-reference to a renumbered performance standard. Section 
3809.401(b), which specifies the required content of a plan of 
operations, contains more detail than its equivalent in the 1980 
regulations did, former section 3809.1-5(c). For example, section 
3809.1-5(c)(4) of the 1980 regulations required:

    Information sufficient to describe or identify the type of 
operations proposed, how they will be conducted, and the period 
during which the proposed activity will take place.

This previous requirement was vague and left a considerable amount of 
discretion to the BLM field manager. This created problems both with 
consistency among the BLM offices and uncertainty among operators as to 
which information to submit. Section 3809.401 in the 2000 rules 
specifies exactly what BLM needs: designs, cross-sections, and 
operating plans for mining areas, processing facilities, and waste 
disposal facilities; water management plans; rock characterization and 
handling plans; quality assurance plans; a schedule of operations; and 
access plans.
    One comment from an industry trade association specifically 
addressed this section, saying that it imposed ``[c]onsiderable new and 
burdensome information gathering and application requirements for 
proposed mining plans of operations.'' The respondent included this 
section in a list of provisions it considered ``inconsistent with the 
NRC Report.'' BLM disagrees with this comment. All the material 
specified in section 3809.401 is information that a field manager 
requires to analyze whether the plan of operations will comply with the 
performance standards and the National Environmental Policy Act. Many 
operators were already providing this level of detail under BLM's 1980 
regulations and under corresponding state rules. An important factor in 
industry decision-making is uncertainty, in this case as to whether BLM 
will approve a plan of operations. Spelling out the information 
requirements in the regulations goes a long way toward removing this 
uncertainty. Rather than being inconsistent with the NRC Report, 
section 3809.401 facilitates compliance with Recommendation 9 of the 
report, which endorses BLM use of the NEPA process in its permitting 
decisions. (See NRC Report at pp. 108-109.) The information BLM 
collects under section 3809.401 assists us in performing the analyses 
NEPA requires.

Section 3809.411  What Action Will BLM Take When it Receives my Plan of 
Operations?

    This final rule amends section 3809.411 by removing a portion of 
paragraph 3809.411(d)(3)(iii), which would have implemented the 
substantial irreparable harm standard. This is a corresponding change, 
part of the removal of the SIH standard from the definition of 
unnecessary or undue degradation.

Section 3809.415  How Do I Prevent Unnecessary or Undue Degradation 
While Conducting Operations on Public Lands?

    This final rule amends section 3809.415 by removing paragraph (d), 
which would have implemented the substantial irreparable harm standard. 
This is a corresponding change, part of the removal of the SIH standard 
from the definition of unnecessary or undue degradation.

Section 3809.420  What Performance Standards Apply to my Notice or Plan 
of Operations?

    The performance standards of subpart 3809 are key to establishing 
the adequacy of environmental protection that the rules require. In 
deciding which performance standards to include in the final rule, we 
carefully considered the NRC Report. The general conclusion of the NRC 
Report is that the existing regulations are generally effective, 
although some changes are necessary. (NRC Report, p. 5.) The NRC Report 
continues that the ``overall structure of the federal and state laws 
and regulations that provide mining-related environmental protection is 
complicated but generally effective.'' Id. This conclusion and the 
material in the NRC Report that follows has led BLM to conclude that we 
should not have adopted an entire new set of performance standards, and 
that we should reinstate the performance standards from the 1980 rules. 
Thus, this final rule reinstates the standards that were formerly set 
forth in sections 3809.1-3(d) and 3809.2-2. These have been 
incorporated into section 3809.420, as paragraph (a)(6) and paragraphs 
(b)(1) through (b)(10) and (b)(13).
    In addition to reinstating the 1980 performance standards, we 
decided to retain the general performance standards (paragraphs (a)(1) 
through (a)(5)) from the 2000 rule because they provide an overview of 
how an operator should conduct operations under an approved plan of 
operations and clarify certain basic responsibilities, including the 
operator's responsibility to comply with applicable land use plans and 
BLM's responsibility to specify necessary mitigation measures. We 
included paragraph (a)(6) in the general standards to make clear that 
operators must comply with pertinent state and Federal laws and 
regulations. This paragraph derives from the introductory text of 
former section 3809.2-2. These standards of final section 3809.420, 
while general in nature, provide ample guidance on how to conduct 
operations. In addition, we decided to retain from the 2000 rule the 
performance standards which address acid-forming, toxic, and 
deleterious materials and the standards governing leaching operations 
and impoundments. These latter standards reflect BLM's acid rock and 
cyanide policies, which have been in effect since before the 2000 rule 
was published. They have been redesignated as sections 3809.420(c)(11) 
and (c)(12).
    In general, we believe there is merit in the comments criticizing 
the 2000 rule for imposing requirements that differ from those imposed 
by states and other Federal agencies. The approach BLM now prefers to 
take is to avoid establishing new and unnecessary standards that apply 
to resources that are already covered by another agency's standards. 
Except in those instances we cite below, the 1980 regulations provide 
an appropriate level of protection without imposing a duplicative set 
of standards.
    The large majority of individual comments, most generated by 
mailing

[[Page 54841]]

campaigns, supported the performance standards in the 2000 regulations. 
However, numerous comments opposed the standards in this section. For 
example, one comment said that'

new Secs. 3809.420(a)(4), (b)(2), (b)(3), (b)(6), (c)(3), (c)(4), 
(c)(5), and 3809.5 require compliance with environmental or 
reclamation standards different from those imposed by states and 
other federal agencies, even though the NRC Report did not recommend 
that compliance with such standards was needed to prevent 
unnecessary or undue degradation of public lands.

This comment went on to cite specific instances in this section where 
the regulations established more stringent environmental protection 
measures than required by law or other Federal agency or state 
regulations. The comment concluded that this section in the 2000 rule 
lets BLM disregard EPA and state permits that an operator may have 
obtained and impose additional requirements upon mining operations that 
do not apply to other industrial activities.

    We understand that it is our responsibility to implement FLPMA and 
prevent unnecessary or undue degradation. To the extent that compliance 
with other Federal and state requirements will prevent unnecessary or 
undue degradation, BLM prefers to rely on such standards. Contrary to 
the assertion in the comment, neither this final rule nor the 2000 rule 
was intended to allow operators to operate in a manner out of 
compliance with EPA and state discharge or other requirements. In areas 
such as the handling of acid-forming, toxic, and other deleterious 
materials, and leaching operations and impoundments, BLM previously 
determined that a need for BLM surface management guidance existed and 
established policies, which we codify in this rule. These standards, as 
well as the reinstated 1980 standards, are authorized by FLPMA, and can 
be implemented in a manner to harmonize with standards established by 
the states, EPA, and other Federal agencies. Section 3809.420(a)(4) 
requires operators to comply with NEPA, and to protect public land 
resources where adequate resource protection may not exist under other 
laws. This is precisely what the NRC Report was concerned about in 
Recommendation 15 (NRC Report, pp. 120-122).
    The comment also questioned BLM's authority to establish 
environmental protection performance standards under the unnecessary or 
undue degradation standard of section 302(b) of FLPMA, 43 U.S.C. 
1732(b), other than in the California Desert Conservation Area and in 
wilderness study areas. The comment noted that the text of a proviso to 
an exception in FLPMA section 603(c), 43 U.S.C. 1782(c), concerning 
wilderness study areas treats ``unnecessary or undue degradation'' 
differently from ``environmental protection'' and that the protection 
standard for the California Desert Conservation area in FLPMA section 
601(f), 43 U.S.C. 1781(f), protects scenic, scientific, and 
environmental values of the public lands against ``undue impairment'' 
and against pollution of streams and waters. In comparing these two 
sections of FLPMA to Sec. 302(b), the comment concluded that Congress 
plainly differentiates between preventing unnecessary or undue 
degradation of the lands, and protecting resources and the environment.
    BLM rejects the comment's analysis. FLPMA section 601(f) does not 
use the unnecessary or undue degradation standard of FLPMA section 
302(b) and thus does not provide any indication of the meaning of 
section 302(b). The ``afford environmental protection'' language of 
FLPMA section 603(c) does not contain the modifiers ``unnecessary'' or 
``undue'' and thus cannot be directly compared either. Moreover, BLM's 
subpart 3809 rules are based not only on the last sentence of FLPMA 
section 302(b), but are also based on the general management mandate of 
section 302(b), the rulemaking authority of 43 U.S.C. 1733 and 1740, 
congressional policy set forth in FLPMA section 102(a)(8), 43 U.S.C. 
1701(a)(8), and the rulemaking authority of the 1872 Mining Law, 30 
U.S.C. 22. Clearly, FLPMA's overall structure protecting the public 
lands from unnecessary or undue degradation reflects congressional 
intent that unnecessary or undue environmental impacts not occur. For 
the past 20 years, BLM's 3809 regulations have been in place to protect 
the public lands against unnecessary or undue degradation, including 
environmental protection considerations, and they continue to do so in 
this rule.
    The comment also asserted that in other provisions of FLPMA, 
Congress directed BLM to ``provide for compliance with applicable 
pollution control laws'' in developing land use plans (Sec. 202(c)(8), 
43 U.S.C. 1712(c)(8)). The comment interpreted this to mean that 
Congress imposed limits on BLM's environmental protection 
responsibilities, instructing BLM to defer to other agencies, Federal 
and state.
    Although BLM rules do provide for compliance with applicable 
pollution control laws, the land use planning requirements do not 
control the interpretation of the unnecessary or undue degradation 
standard. However, we believe these arguments miss the point. The 
Secretary may exercise discretion to protect the environment through 
the process of approving a plan of operations under section 3809.411 of 
these regulations. The salient question is whether BLM's protection 
scheme should extend beyond the requirements state and other Federal 
agencies establish. Our response is that, as a general matter, it 
should not, for those areas and subjects adequately addressed by other 
agencies' requirements. Therefore, we do not intend to include 
environmental protection measures or resource protection measures in 
this subpart, where we can rely on those imposed by environmental 
protection laws such as the Clean Water Act, or regulations promulgated 
by the Environmental Protection Agency or jurisdictional state 
agencies. Thus, we concluded that the 1980 performance standards 
generally were more appropriate than those in section 3809.420(b) and 
(c) in the 2000 rule, if we include those in paragraphs (c)(3) and 
(c)(4) in the 2000 rule.
    A number of other comments repeated this theme, and asserted that 
under the 2000 rule, ``operators must comply with performance standards 
that go beyond federal and state environmental requirements. Among 
other things, operators must minimize all impacts to the environment 
and to public lands, even if those impacts do not result in degradation 
of the lands and even if such impacts are specifically authorized by 
permits issued by other federal or state agencies.'' In response to 
these concerns and the conclusion of the NRC Report that environmental 
protection under the 1980 rules was generally effective, BLM has 
removed the environmental performance standards and most of the 
operational performance standards of sections 3809.420(b) and (c) of 
the 2000 rules. In their place BLM has reinstated the standards of the 
1980 rules.
    Despite the critical comments, BLM has decided to retain section 
3809.420 (c)(3) and (c)(4), on acid-forming, toxic, or other 
deleterious materials (``acid rock''), and leaching operations and 
materials (``cyanide''), respectively. Although the acid rock and 
cyanide standards were first inserted into BLM's regulations as part of 
the 2000 rule, the reality is that BLM instituted these policies many 
years ago and they have become standard industry practice on the public 
lands. Thus, they should be considered the baseline requirements the 
NRC Report considered. As mentioned earlier, these are redesignated in 
this rule as sections

[[Page 54842]]

3809.420 (c)(11) and (c)(12). The provision on acid rock drainage 
implements water pollution control laws by stating the preferred venues 
for control: (1) Prevent or minimize the formation of the acid-forming 
toxic or deleterious materials; (2) if that can't be done, prevent such 
materials from migrating; and (3) if that can't be done, capture and 
treat the materials. This is a common-sense approach, but it is limited 
or mitigated by the statement in paragraph (c)(3)(iii) that operators 
do not have to go to lengths that are beyond ``reasonable'' for source 
and migration control. As to treatment, discharges of pollutants must 
meet state and EPA standards.
    On the other hand, comments from individuals opposing the 
suspension of the 2000 rule, along with some Indian tribes, said that 
``[t]he old rule contained no environmental performance standards while 
the current [2000] rule requires protection of rivers, streams and 
groundwater.'' These comments mis-characterize the 1980 regulations. 
Former section 3809.2-2(b), which we restore in this rule as section 
3809.420(b)(5), required all operators to ``comply with applicable 
Federal and state water quality standards, including the Federal Water 
Pollution Control Act, as amended (30 U.S.C. 1151 et seq.).'' Further, 
as we explained in the preceding paragraph, we are retaining the ``acid 
rock'' and ``cyanide'' provisions from the 2000 rule, which are partly 
intended as water protection measures.
    Along with the water quality provisions from the 1980 regulations, 
to accompany the ``acid rock'' and ``cyanide'' provisions from the 2000 
rule, we are restoring from the 1980 rule the paragraphs on air 
quality, solid wastes, fisheries, wildlife and plant habitat 
protection, cultural and paleontological resource protection, as well 
as cadastral survey monument protection. Thus, it is abundantly clear 
that today's regulations ensure protection of the environment and of 
natural and cultural resources.
    One comment addressed the cost allocation paragraph of the 
provision on cultural, paleontological, and cave resources, in which 
the 2000 rule gave BLM the responsibility for deciding who should pay 
for investigation, recovery, and preservation of such resources. The 
comment suggested an alternative scheme under which BLM would lease or 
sell the rights to recover and preserve such resources. The comment is 
moot because we are removing the provision in question and restoring 
the 1980 provision, which charged the costs to BLM.
    Restoring provisions from the 1980 regulations will cause the 
removal of the specific reference to protection of cave resources in 
paragraph (b)(7), since caves were not mentioned in the 1980 
regulations. However, paragraph (a)(6) in today's rule requires 
operator compliance with all pertinent Federal and state laws, which 
includes the Federal Cave Resources Protection Act (16 U.S.C. 4301 et 
seq.).
    BLM expects that implementation of the performance standards of 
this rule will be straightforward because this final rule does not 
introduce new performance standards. We recognize that some confusion 
could exist as to which performance standards apply to particular 
operations. The following table clarifies which set of performance 
standards you should follow:

------------------------------------------------------------------------
                   If                                  Then
------------------------------------------------------------------------
BLM approved your plan of operations     Continue to operate under your
 prior to the effective date of this      approved plan.
 rule.
Your plan of operations was pending      If approved, you must conduct
 prior to January 20, 2001.               your plan of operations under
                                          the performance standards in
                                          place before January 20, 2001.
You filed an application on or after     If approved, you must conduct
 January 20, 2001, and BLM has not        your plan of operations under
 acted on it as of the effective date     the performance standards in
 of this rule.                            place as of the effective date
                                          of this rule.
------------------------------------------------------------------------

    We should also note we did not change the plan content requirements 
in Section 3809.401.

Section 3809.421  Enforcement of Performance Standards

    In restoring provisions from the 1980 regulations containing 
performance standards, we have added section 3809.421 containing 
language on enforcing the performance standards. This section is taken 
from section 3809.1-3 of the 1980 regulations. The new section is 
helpful to remind operators that failure to comply with the performance 
standards subjects them to enforcement under this subpart. We included 
this as a separate section because it does not fit into the structure 
of section 3809.420 of this final rule.

Section 3809.500  In General, What Are BLM's Financial Guarantee 
Requirements?

    Numerous comments, including those of Indian tribes, supported the 
bonding and other financial guarantee provisions in the 2000 rule. 
Industry comments also acknowledged the need for financial guarantee 
requirements for all mining activities beyond casual use, as 
recommended by the NRC Report. As stated in our final rule of June 15, 
2001 (66 FR 32571), we are not changing the overall financial guarantee 
requirements in the 2000 rule.
    At this time we want to reiterate the Department's commitment to 
allow the use of existing state bond pools, if the BLM State Director 
determines that they provide an adequate level of protection to meet 
the requirements of this subpart. In particular, we wish to respond to 
comments suggesting that the State of Alaska bond pool would no longer 
be available for operations on BLM lands. That is an erroneous 
interpretation. Under these regulations, BLM could continue to use the 
State of Alaska bond pool to satisfy the requirements of subpart 3809. 
BLM and the State of Alaska are currently negotiating a revised 
Memorandum of Understanding to continue use of the bond pool. The 
previous Memorandum of Understanding allowing use of the bond pool has 
been extended until January 6, 2002 and may be extended twice again for 
a total of two years at the request of the State Governor. Thus 
negotiations can take place through the year 2003 before there would be 
a question as to whether BLM will accept a financial guarantee that 
uses the bond pool. In addition, you should note that BLM can accept 
other instruments, such as insurance.

Section 3809.554  How Do I Estimate the Cost To Reclaim My Operation?

    One comment stated that the 2000 rule should have adopted standard 
bond amounts for certain activities and types of terrain. The comment 
said that some of the new financial assurance requirements do not 
properly reflect the NRC recommendations or would have 
counterproductive consequences. For example, it said that the 2000 rule 
does not incorporate the NRC Report statement that standard bond 
amounts be established for certain types of activities in specific 
kinds of terrain, especially for the activities of

[[Page 54843]]

prospectors, small exploration companies, and small miners. 
Specifically, the NRC Report states:

    Standard bond amounts for certain types of activities on 
specific kinds of terrain should be established by the regulatory 
agencies. It should be recognized that certain types of activities 
are less costly to reclaim than others. A set of activity- and 
terrain-dependent standard bond amounts (by state, BLM district, or 
forest) should be established for typical activities, especially 
those of prospectors, small exploration companies, and small miners, 
so that adequate bonds are posted for activities under 5 acres and 
so that the permitting process is expedited. Standard bond amounts 
(a certain number of dollars per acre of land disturbed for a 
particular type of activity) should be used in lieu of detailed 
calculations of bond amounts based on the engineering design of a 
mine or mill.

(NRC Report at pp. 94-95.)

    According to the NRC Report, BLM should use these standard bond 
amounts, which would be in the form of a certain number of dollars per 
acre of land disturbed, instead of detailed calculations of bond 
amounts based on the engineering design of a mine or mill.
    As we stated on November 21, 2000 65 FR 70070), ``[T]he rule is 
flexible enough to permit the BLM field manager to establish fixed 
amounts for activities under his or her jurisdiction, but also allows 
the field manager to require a financial guarantee in an amount over or 
under the fixed amount if the cost of reclamation of a specific 
operation deviates from the fixed amount.'' This is in keeping with our 
continued belief, which the NRC Report endorses, that good management 
principles require that an operator post a financial guarantee covering 
actual reclamation costs. A national rule is impractical for the 
establishment of fixed bond amounts, because costs of reclamation would 
vary from state to state and by terrain. BLM will consider whether 
fixed bond amounts can be set during the implementation process for 
this final rule.

Section 3809.598  What if the Amount Forfeited Will Not Cover the Cost 
of Reclamation?

    In section 3809.598, we removed a reference to joint and several 
liability to conform to changes we made to section 3809.116. This 
change is supported by the discussion of the corresponding change in 
section 3809.116. We will determine on a case-by-case basis the 
apportionment of liability between operators and mining claimants to 
cover the full cost of reclamation.

Section 3809.604  What Happens if I Do Not Comply With a BLM Order?

    In today's final rule we remove a reference in paragraph (a) of 
this section to civil penalties in former section 3809.702. As BLM is 
removing the provisions for civil penalties this cross reference is no 
longer necessary.

Section 3809.702  What Civil Penalties Apply to Violations of This 
Subpart?/Section 3809.703 Can BLM Settle a Proposed Civil Penalty?

    Two comments from mining interests--a company and a trade 
association--addressed these sections. Both expressly stated that it 
would be a good idea for BLM to have civil penalty authority, and noted 
that the NRC recommended that we seek this authority from Congress, if 
statutory authority is necessary. One of the comments stated flatly 
that FLPMA does not provide authority for administrative penalties, and 
that BLM cannot retain these provisions without the appropriate 
statutory authority, and the other said that it would be prudent for 
BLM to ascertain whether it has administrative penalty authority before 
retaining these provisions.
    In light of these comments, we have decided to remove these two 
sections in the final rule. We agree that FLPMA does not contain a 
section expressly addressing administrative penalties. Although in the 
November 2000, Federal Register preamble we made an argument in support 
of the agency's authority to assess administrative penalties, this is 
an unsettled area for which it is prudent to await clear guidance from 
Congress before promulgating rules. Leaving the administrative penalty 
rules in effect will no doubt lead to continued litigation on the issue 
which the agency believes can be avoided by future legislation.
    Removing these provisions should not hamper our efforts to protect 
human health and the environment in the event that an operator misuses 
a mining claim or public lands and poses an immediate threat to these 
values. While it would be extremely useful to be able to impose civil 
penalties administratively, especially as a tool to penalize delayed 
compliance, we can pursue alternate remedies.
    We have retained the enforcement provisions of sections 3809.601 
through 3809.605. This contains a significant expansion of enforcement 
remedies available to BLM beyond those available under the 1980 rules. 
Under Sec. 303(b) of FLPMA, BLM, through the Secretary of the Interior, 
can request the Attorney General to seek injunctive relief or other 
appropriate remedy, which would include a temporary restraining order 
in an emergency, to prevent unnecessary or undue degradation, and the 
collection of monetary damages resulting from unlawful acts. In 
appropriate circumstances, monetary damages can be large, and provide a 
disincentive to unlawful conduct. Section 3809.604(a) of the 2000 
regulations, which we do not amend in this final rule except to correct 
a cross-reference, describes this statutory authority.
    We have additional remedies under 43 CFR subpart 3715. The use and 
occupancy regulations apply to all uses of mining claims and public 
lands. A use must be reasonably incident (as defined in section 3715.0-
5) and in compliance with all applicable Federal and state 
environmental standards. Further, the operator must have obtained all 
required permits before beginning a use, including approvals under 43 
CFR part 3800 and subpart 3809. Thus, a failure to be in compliance 
allows BLM to issue an immediate suspension order under section 3715.7-
1(a), and, where appropriate, to arrest individuals who fail to comply 
with such an order. At trial, the United States can demand monetary 
compensation for damages.
    Finally, BLM may seek cooperative enforcement by a state or other 
Federal agency that unquestionably has civil penalty authority.
Other Comments Not Directed at Particular Sections
    One comment urged that BLM, in its reconsideration of these 
regulations during the time they are suspended, add provisions to allow 
and promote the cleanup of abandoned mine sites in or adjacent to new 
mine areas without causing mine operators to incur additional 
environmental liabilities, which was an NRC recommendation. Our 
response to a similar comment in the 2000 rule was that ``subpart 3809 
applies to active operations, not to cleaning up previously abandoned 
mines.''
    We are also correcting a cross-reference in section 3809.2 by 
removing the term ``Sec. 3809.31(c)'' at the end of the first sentence 
of paragraph (a), and adding in its place the term ``Sec. 3809.31(d) 
and (e).'' This change is merely ministerial, to correct a mistake in 
the reference to section 3809.31, whose relevant paragraphs are (d) and 
(e), not (c). The discussion under section 3809.31 contains a more 
complete explanation.

[[Page 54844]]

III. How Did BLM Fulfill its Procedural Obligations?

Executive Order 12866, Regulatory Planning and Review

    BLM found in the 2000 rule that the new subpart 3809 regulations 
were a significant regulatory action under section 3(f) of Executive 
Order 12866 and require an assessment of potential costs and benefits 
under section 6(a)(3) of that Executive Order. Since we are retaining 
most of the 2000 rule, while amending selected provisions, we rely in 
today's rule on the regulatory impact analysis and benefit-cost 
analysis prepared for the 2000 rule and summarized in that rule. The 
full analyses remains on file in the BLM Administrative Record at the 
address specified in the ADDRESSES section. In the following 
paragraphs, we describe how the changes presented in today's rule 
affect this analysis.
    The estimated costs associated with this rule are significantly 
lower than those associated with the 2000 rule. Over the 10 year period 
that we analyzed, we do not expect today's rule to have significant 
annual impacts on the economy.
    The lower expected costs arise primarily from removing the SIH 
provision of the 2000 rule. Relative to the 2000 rule, substantial 
production benefits could accrue as a result of eliminating the SIH 
standard. However, uncertainly exists with respect to how eliminating 
the SIH provision will affect net economic benefits. Uncertainty about 
how the SIH provision would be implemented, site specific factors, and 
any exploration and production effects (and the timing of these 
effects) make evaluating net economic benefits very difficult.
    The net economic effects associated with eliminating joint and 
several liability, civil penalties, and revising the performance 
standards (with the exception of the acid rock drainage and cyanide 
standards, which would be retained) are equally difficult to quantify 
but are not significant because the economic costs associated with 
these provisions are likely to be overshadowed by the potential 
economic costs associated with the SIH provision. We estimated the net 
effect of modifying the performance standards from the 1980 rule to the 
2000 rule as being limited. Similarly, changing the 2000 standards back 
to the 1980 standards will result in negligible impact.

Clarity of the Regulations

    Executive Order 12866 requires each agency to write regulations 
that are simple and easy to understand. We invite your comments on how 
to make these final regulations easier to understand, including answers 
to questions such as the following:
    (1) Are the requirements in the final regulations clearly stated?
    (2) Do the final regulations contain technical language or jargon 
that interferes with their clarity?
    (3) Does the format of the final regulations (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce their 
clarity?
    (4) Would the regulations be easier to understand if they were 
divided into more (but shorter) sections? (A ``section'' appears in 
bold type and is preceded by the symbol ``Sec. '' and a numbered 
heading, for example ``Sec. 3809.420 What performance standards apply 
to my notice or plan of operations?'')
    (5) Is the description of the final regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble helpful in 
understanding the final regulations? How could this description be more 
helpful in making the final regulations easier to understand?
    Please send any comments you have on the clarity of the regulations 
to the address specified in the ADDRESSES section.

National Environmental Policy Act

    The 2000 rule found that the new subpart 3809 regulations 
constituted a major Federal action significantly affecting the quality 
of the human environment under section 102(2)(C) of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C). BLM prepared an 
environmental impact statement (EIS), which remains on file and is 
available to the public in the BLM Administrative Record at the address 
specified in the ADDRESSES section. Because this final rule retains 
most of the provisions of the 2000 rule, we rely on the findings in the 
EIS. In the following paragraphs, we discuss the extent to which we 
expect this rule to change the impacts on the human environment that we 
anticipated in the 2000 rule.
Record of Decision Under the National Environmental Policy Act
    This preamble constitutes BLM's record of decision required under 
the Council on Environmental Quality regulations at 40 CFR 1505.2. The 
decision is based on the proposed action and alternatives presented in 
the Final Environmental Impact Statement, ``Surface Management 
Regulations for Locatable Mineral Operations,'' (BLM, October 2000).
    BLM has since reevaluated its policy direction. The action BLM is 
taking today is to choose a new alternative as the preferred 
alternative, but which is made up entirely of elements from the range 
of alternatives in the FEIS, whose impacts have already been analyzed. 
Therefore, the existing FEIS provides adequate support and will serve 
as the basis of today's decision. This document contains a 
determination of NEPA adequacy with respect to each provision that has 
been altered from the 2000 regulation.
    After reconsidering all relevant issues, alternatives, potential 
impacts, and management constraints, BLM is modifying its decision of 
November 21, 2000, which selected Alternative 3 of the Final EIS for 
implementation. BLM is reissuing its Record of Decision and selecting a 
modified Alternative 3 from the Final EIS. The selected alternative 
retains many aspects of the regulations issued in 2000 while 
incorporating other elements of Alternative 1 (the 1980 surface 
management regulations) and Alternative 5 (the NRC Recommendation 
Alternative).
    The new selected alternative (the 2001 regulations) changes the 
1980 surface management regulations, which were the baseline for 
analysis in the EIS, in several general areas. The changes include:
    (1) Modifying the definition of unnecessary or undue degradation to 
provide a closer link between the performance standards and prevention 
of unnecessary or undue degradation;
    (2) Requiring mineral operators to file a Plan of Operations for 
any mining activity beyond casual use regardless of disturbance size;
    (3) Requiring operators to provide reclamation bonds for any 
disturbance greater than casual use;
    (4) Specifying outcome-based performance standards for conducting 
operations on public lands; and,
    (5) Providing options for Federal-state coordination in 
implementing the regulations.
    We present a side-by-side comparison of the 2001 regulations 
alternative with the regulations that were issued in 1980 (Alternative 
1), 2000 (Alternative 3), and the NRC Recommendations Alternative 5 in 
this Record of Decision under the section titled, ``Determination of 
NEPA Adequacy.''

Alternatives Considered

    BLM considered a full range of program alternatives when developing 
the 2000 rule. Chapter 2 of the Final EIS provides a description of how 
key issues drove the formulation of the alternatives. BLM developed the 
five

[[Page 54845]]

alternatives considered in the EIS in response to issues the public 
raised during the EIS scoping period and comments we received on the 
Draft EIS. The alternatives ranged from the required ``no action'' 
alternative (Alternative 1), which would have retained the 1980 
regulations, to Alternative 4, the ``maximum protection'' alternative. 
We added a fifth alternative, Alternative 5, to the Final EIS in 
response to comments that BLM should only make changes to the 3809 
regulations that were specifically recommended in the NRC Report. The 
following is a brief description of the alternatives we presented in 
the FEIS and the rationale behind their formulation:
    Alternative 1, No Action--This alternative would have retained the 
1980 surface management regulations for management of locatable mineral 
operations. This alternative served as the baseline for the EIS 
analysis. The No Action alternative encompasses the view expressed by 
many in industry and state governments that changes in the regulations 
are not needed, and that BLM should make non-regulatory changes to 
improve the program prior to proposing any regulatory changes.
    Alternative 2, State Management--The State Management alternative 
would have required rescinding the 1980 regulations and returning to 
the prior surface management program strategy, under which state or 
other Federal regulations governed locatable mineral operations on 
public land. Compliance with these other regulations would have been 
deemed adequate to prevent unnecessary or undue degradation under 
Alternative 2. We developed this alternative in response to comments 
that BLM should evaluate ways to encourage mineral development through 
less regulation, and that a BLM regulatory role was not needed since 
the respective state regulatory programs were adequate to protect the 
environment.
    Alternative 3, Year 2000 Regulations--This alternative considered 
the implementation of the proposed regulations developed by the 3809 
Task Force. Alternative 3 was the BLM's proposed action and the 
agency's ``preferred alternative'' in the Final EIS. The alternative 
was changed between the draft and final EIS in order to incorporate 
conclusions and recommendations from the NRC Report and in response to 
public comments. This alternative was selected for implementation in 
November 2000, but no longer represents the preferred regulatory 
approach.
    Alternative 4, Maximum Protection--We developed the maximum 
protection alternative presuming that the 3809 regulations could not 
change the basic mineral resource allocations made by the mining laws, 
and that the public lands are open to entry, location, and development 
of valuable mineral deposits unless segregated or withdrawn. While a 
total prohibition on mining activity would also achieve a higher level 
of environmental protection, it would be beyond the scope of the 
action, which is to manage activity authorized by the mining laws in a 
way that prevents unnecessary or undue degradation. A surface 
management program under Alternative 4 would allow BLM to give the 
highest priority to protecting resource values and impose design-based 
performance criteria. We developed this alternative in response to 
comments that stronger environmental requirements were needed, that BLM 
should have total discretion to deny certain mining operations, and 
that design-based performance standards should be developed as a 
nationwide minimum best management practice.
    Alternative 5, NRC Recommendations--Alternative 5, like Alternative 
3, incorporates the recommendations made by the NRC Report. However, 
Alternative 5 limits changes in the regulations to those specifically 
recommended by the NRC. See the NRC Report, especially pages 7 to 9. We 
developed this alternative in response to public comments and a then-
pending appropriations bill provision that would have restricted BLM to 
issuing a rule covering the regulatory gaps identified in pages 7-9 of 
the Report.
    New Selected Alternative, Year 2001 Regulations--The 2001 
regulation alternative retains most of the regulatory language of 
Alternative 3. The 2001 regulation alternative incorporates changes in 
five general areas to Alternative 3 to create the new preferred and 
selected alternative. The changes:
    (1) Revise the definition of ``operator'' by reinstating the 1980 
definition;
    (2) Remove paragraph four from the definition of unnecessary or 
undue degradation, which defined unnecessary or undue degradation, in 
part, as ``substantial irreparable harm to significant scientific, 
cultural, or environmental resource values of the public lands that 
cannot be effectively mitigated';
    (3) Remove the joint and several liability provision to ensure 
fairness to all persons;
    (4) Revise the section on performance standards to retain the 
general performance standards and the standards on acid-forming 
materials and leaching operations but to replace the other specific 
standards with those from the 1980 regulations;
    (5) Remove the sections on civil penalties for noncompliance; and,
    (6) Include minor editing of other sections to correct errors or 
provide references to appropriate sections.
    This alternative was developed after reconsidering legal authority, 
the policy direction that will best serve the public interest, weighing 
the environmental benefit (including implementation burdens) and 
impacts to industry from Alternative 3, while ensuring that the result 
will not be inconsistent with the NRC recommendations.

Environmentally Preferred Alternative

    Although we did not select it, the environmentally preferred 
alternative is Alternative 4, the maximum protection alternative. While 
many of the environmental protection measures contained in Alternative 
4 were included in the 2001 regulations, the BLM decided not to select 
Alternative 4 due to its adverse economic impact and administrative 
cost compared to the environmental benefit.

Decision Rationale

    BLM has included all practical means to avoid or minimize 
environmental harm in the new selected alternative. The following is a 
summary of the rationale for selection of the preferred alternative as 
compared to the other alternatives with respect to the key regulation 
issues. A detailed rationale for the selection of each regulatory 
provision, and the changes made to the 2000 regulations, is discussed 
elsewhere in this preamble.
Definition of ``Unnecessary or Undue Degradation'
    The selected alternative satisfactorily addresses the overall 
program issue of improving BLM's ability to prevent unnecessary or 
undue degradation, as required by FLPMA. The regulations change the 
definition of ``unnecessary or undue degradation'' to clarify that 
operations on public lands must be reasonably incident to prospecting, 
mining or milling activities, that operators must meet the performance 
standards, follow their Notice or Plan of Operations, and comply with 
other state and Federal laws related to environmental protection. The 
new regulations more closely tie the prevention of ``unnecessary or 
undue degradation'' to objective performance standards rather than the 
approach in the 1980 regulations, which tended to

[[Page 54846]]

rely upon standard industry practices to protect public resources.
    As we have stated earlier in this preamble we did not select the 
portion of the definition of ``unnecessary or undue degradation'' under 
Alternative 3, which contained the SIH provision. Although some 
comments with regard to this provision were received at the time that 
it was analyzed in the FEIS, BLM asked for further comments in its 
March 23, 2001, notice in order to enlist the aid of the public in its 
review of the rule, as well as ensure that the public has had ample 
opportunity to review and comment on the impact of the prohibition in 
paragraph (4) against substantial irreparable harm to significant 
resources. After reviewing the comments received and evaluating BLM's 
policy direction in order to better implement its mission in the manner 
that will best serve the public interest, BLM decided that 
implementation and enforcement of the SIH standard would be difficult 
and potentially subjective, as well as expensive for both BLM and the 
industry. The remainder of the 2000 definition of unnecessary or undue 
degradation, based more closely upon performance standards, will 
accomplish this goal in a more objective and practical manner.
    The impacts upon the level of protection afforded to sensitive 
resources by this change from the 2000 definition will not differ 
significantly from the range of alternatives analyzed in the FEIS, and 
will probably fall between Alternatives 1 and 3.
    In comparison, Alternatives 1 and 5 would not provide BLM with the 
maximum ability to determine necessary resource protection measures 
with its ``prudent operator'' standard for what constitutes 
``unnecessary or undue degradation.'' BLM believes that the ``prudent 
operator'' standard in these Alternatives gives the operator too great 
a role in determining the appropriate level of protection of public 
resources.
    Alternative 2 would remove the definition of ``unnecessary or undue 
degradation'' as a regulatory criterion and rely on the requirement for 
operators to comply with state regulations and other environmental laws 
to protect public lands. BLM decided not to select this alternative 
since certain resources, wildlife not proposed or listed as threatened 
or endangered, cultural resources, and riparian areas would, not 
receive the same level of consideration in planning and conducting 
mineral operations at the state level as under other alternatives. 
Alternative 2 did not provide a reasonable assurance that unnecessary 
or undue degradation would be prevented for a variety of public 
resources without a BLM role in the review of individual projects.
    Alternative 4 would tie the definition of ``unnecessary or undue 
degradation'' to use of design-based standards and best available 
technology. BLM does not believe such standards are flexible enough for 
application to the wide variety of mining operations and environmental 
conditions on public lands, resulting in over- or under-regulation of 
some operations.
Performance Standards
    The new alternative retains the general performance standards from 
Alternative 3 but replaces the specific and environmental standards , 
except those relating to acid rock and cyanide, with those in 
Alternative 1. The new selected alternative provides performance 
standards that enumerate specific outcomes or conditions, yet do not 
mandate specific designs. This type of performance standard provides 
BLM with the level of detail needed to ensure that all environmental 
components are addressed, and at the same time preserves flexibility to 
consider site-specific conditions and allows for innovation in 
environmental protection technology. The performance standards 
developed under the selected alternative often require compliance with, 
or achievement of, the applicable Federal or state standard. We believe 
this is appropriate as it facilitates coordination with the states and 
reduces the potential for a single operation to be subject to 
conflicting standards. The 2001 regulations also provide that BLM may 
take enforcement actions where the performance standards are not being 
met. We included these requirements because without enforcement the 
performance standards may not be effective in protecting or reclaiming 
public resources.
    We did not select Alternatives 1 or 5, which would retain only the 
performance standards in the 1980 regulations, because the regulations 
did not include recent program guidance related to the performance of 
operations using cyanide, or operations where acid rock drainage is an 
issue. This alleviates any concerns that policy and guidance documents 
may not provide an adequate basis for enforcement if either Alternative 
were selected.
    We did incorporate the 1980 performance standards into the selected 
alternative, but have added language linking the standards to existing 
state and Federal law and tied compliance with these standards more 
closely to the definition of unnecessary or undue degradation.
    Under Alternative 2, operators would have to comply with the 
performance standards of the state in which their operations are 
located. While BLM has found the standards in many states generally 
adequate in the areas they cover, BLM believes that minimum Federal 
standards are needed for operations on public lands in order to prevent 
unnecessary or undue degradation. Relying on individual state standards 
which may vary widely, which may not address all resources of concern 
to BLM, or which are subject to change or varying application would 
not, in our judgment, allow BLM to prevent unnecessary or undue 
degradation. Therefore, Alternative 2 was not been selected.
    The performance standards under Alternative 4 would have been 
design-based and would not be flexible enough to account for the 
variety of mining operations and environmental conditions on public 
lands. The performance standards under Alternative 4 would have been 
overly stringent for some operations or possibly not stringent enough 
in other cases. In addition, the NRC Report recommended against 
adoption of prescriptive, design-based, standards such as those in 
Alternative 4. Adoption of these standards would be inconsistent with 
the NRC Report.
Notice Plan of Operations Threshold
    BLM's main mechanism for preventing unnecessary or undue 
degradation is through the review of Notices and the review and 
approval of Plans of Operations. The threshold for when to file a Plan, 
what it must contain, and how it is reviewed, are part of this 
mechanism. After considering a variety of approaches for setting the 
notice/plan of operations threshold, including the NRC Report 
recommendations, BLM has decided the threshold should generally be set 
between the exploration and mining levels of activity. In special 
category lands, BLM has decided to set the threshold at any activity 
greater than ``casual use.'' By using these thresholds, the selected 
alternative focuses the detailed review upon the site-specific 
environmental analysis process conducted for a Plan of Operations. The 
basis is the level of harm likely to result from the activity, rather 
than its purpose or intended result, and so a distinction has been 
drawn between exploration activities and mining operations. Exploration 
generally has not created major environmental impacts, nor is it 
difficult to mitigate. Casual use generally results in no or negligible 
disturbance of the public lands. The

[[Page 54847]]

requirement to file a Notice for operations involving exploration 
activities, combined with the selected alternative's financial 
guarantee requirements and performance standards, will prevent 
unnecessary or undue degradation while focusing agency resources at the 
activity with the greatest potential to cause impacts.
    BLM has also included other changes to the regulations applicable 
to Plans of Operations in the selected alternative. We have developed a 
more comprehensive list of content requirements, as compared to 
Alternative 1, to ensure that critical items, such as plans and 
standards for reclamation, interim management and environmental 
monitoring, are not overlooked. We have added a mandatory public notice 
and comment requirement to the process of reviewing proposed Plans of 
Operations to ensure the public has an opportunity to comment prior to 
approval of plan activity that may impact public resources. The 
provisions in the selected alternative are the same as those found in 
Alternative 3.
    We did not choose Alternative 1 because to do so would have been 
inconsistent with the NRC Report. Some small mining operations 
disturbing less than 5 acres have created significant environmental 
impacts or compliance problems. These problems could have been avoided 
or reduced if BLM had required the operator to submit a Plan of 
Operations and the plan had been subject to NEPA review.
    Alternative 2 would not have addressed this issue satisfactorily. 
While generally all states have some permit review process, most do not 
have a comprehensive review process similar to NEPA. Other states may 
have permits geared towards specific media like air or water, but may 
not address concerns such as cultural resources, or may not always 
include a public involvement process.
    Conversely, Alternative 4 would require a Plan of Operations for 
any activity greater than casual use, including exploration. Use of 
agency resources to process Plans of Operations for exploration 
projects, which have a low environmental risk, would not be efficient 
and would result in unnecessary delay to the mineral operator. In 
addition, this requirement would not be consistent with the NRC Report, 
which recommended that Plans of Operations be required for mining and 
milling operations (but not exploration activities), even if the area 
disturbed is less than 5 acres.
    While Alternative 5 has the same notice/plan of operations 
threshold as the selected alternative, it does not contain the more 
specific Plan of Operations content or public notice and comment 
requirements. BLM believes these requirements are necessary for the 
identification, prevention, or mitigation, of environmental impacts 
associated with mining. These additional requirements are not 
inconsistent with the NRC Report.
Financial Guarantees
    The posting of a financial guarantee for performance of the 
required reclamation is a major component of the regulatory program 
under all the alternatives BLM considered. The new selected alternative 
is the same as Alternative 3. It requires all notice- and plan-level 
operators to post a financial guarantee adequate to cover the cost as 
if BLM were to contract with a third party to complete reclamation 
according to the reclamation plan, including construction and 
maintenance costs for any treatment facilities necessary to meet 
Federal and state environmental standards. BLM decided to require 
financial guarantees for all Notices and Plans of Operations because of 
the inability or unwillingness of some operators to meet their 
reclamation obligations. At present, the potential taxpayer liability 
for reclamation of operations conducted under the 3809 regulations and 
not having a financial guarantee is in the millions of dollars. BLM has 
decided that to protect and restore the environment and to limit 
taxpayer liability, financial guarantees for reclamation should be 
required at 100 percent of the estimated cost for BLM to have the 
reclamation work performed. This includes any costs that may be 
necessary for long-term water treatment or site care and maintenance.
    The 1980 regulations (Alternative 1) do not contain financial 
guarantee requirements adequate to achieve this level of protection. 
Under the 1980 regulations, notice-level operators are not required to 
provide a financial guarantee for reclamation, and financial guarantees 
for plan-level operations are discretionary. A number of notice-level 
operations have been abandoned by operators, leaving the reclamation 
responsibilities to BLM. In addition, the existing regulations are 
silent on the need to provide bonding for any necessary water treatment 
or site maintenance. BLM believes it is necessary to specify this 
requirement to eliminate any argument about requiring such resource 
protection measures.
    Alternative 2 would rely on state financial guarantee programs. 
While BLM intends to work with the states under the selected 
alternative to avoid double bonding, relying exclusively on state 
bonding may not provide adequate protection of the public resources. 
Not all states require a financial guarantee for all disturbance at 100 
percent of the estimated reclamation cost.
    Alternative 4 requires financial guarantees for reclamation of all 
disturbance at 100 percent of the estimated reclamation costs. 
Alternative 4 would also require bonding for undesirable events, 
accidents, failures, or spills. BLM believes it would be overly 
burdensome on the operator to require a financial guarantee for the 
remediation of events with a low probability of occurrence and 
therefore did not select the Alternative 4 financial guarantee 
provisions. Such potential problems are best addressed by a thorough 
review of the operating plans and the development of contingency 
measures, which are part of the selected alternative.
    Alternative 5 would impose financial guarantee requirements similar 
to the selected alternative. However, under Alternative 5, the 
procedural requirements for establishing the amount of a financial 
guarantee are more limited than those followed under the selected 
alternative. For example, there is no public notification before 
release of the financial guarantee, as there is in the selected 
alternative. BLM believes these procedures are of value in arriving at 
a final reclamation financial guarantee amount and has therefore not 
selected the Alternative 5 financial guarantee requirements.
Enforcement
    The new selected alternative for enforcement of the regulations 
does not include the civil penalties provisions that were contained in 
Alternative 3. Throughout the process of preparing the 2000 rules, BLM 
was aware, as was the NRC, that it is not clear FLPMA provides BLM the 
authority to impose civil penalties is uncertain. In light of comments 
questioning BLM's authority to assess civil penalties the new selected 
alternative does not include provisions for assessment of civil 
penalties. We intend to work with the Congress, as recommended by the 
NRC Report, to clarify our authority with respect to civil penalties. 
While it would be extremely useful to be able to impose civil penalties 
administratively, especially as a tool to penalize delayed compliance 
in cases where unnecessary or undue degradation is ongoing or imminent, 
BLM can pursue alternate remedies such as injunctive relief, suspension 
orders under the regulations at 43 CFR 3715, and cooperative

[[Page 54848]]

enforcement agreements with states that do have civil penalty 
authority.
    The new selected alternative retains the language from Alternative 
3 regarding procedures for enforcement orders and criminal penalties. 
BLM believes the language regarding enforcement orders clarifies the 
sometimes cumbersome procedure related to notices of noncompliance in 
the 1980 regulations. The selected alternative also makes clear what 
constitutes prohibited acts under the regulations. BLM has decided to 
include language regarding criminal penalties in the selected 
alternative to make clear the potential criminal penalties for 
violation of the regulations. These penalties existed before the 
rulemaking.
    Relying exclusively on the states' enforcement programs under 
Alternative 2 may have limited utility in achieving Federal land 
management or reclamation objectives. Conversely, state enforcement in 
such delegated programs as air quality or water quality may be more 
effective than BLM enforcement action. The selected alternative 
provides for cooperation with the state in order to quickly resolve 
noncompliance in these delegated programs areas.
    Alternative 4 contains a requirement for mandatory enforcement. 
This means when a violation is observed in the field, the BLM inspector 
must issue a noncompliance and must assess a penalty. The problem with 
this approach is that there may be extenuating circumstances that an 
inspector should consider before taking an enforcement action, or it 
may be possible to resolve the violation in the field without issuing a 
notice of noncompliance. We did not select this mandatory enforcement 
provision. BLM believes the regulatory approach to compliance in 
Alternative 4 may actually hinder the resolution of compliance problems 
by providing an incentive for their concealment.
Federal/State Coordination
    Most of the activity under the 3809 program occurs in the Western 
States. These states have regulatory programs applicable to mineral 
operations in the form of either specific regulations that apply to 
mining, overall environmental protection regulations for a specific 
resource such as water quality, or both. How the BLM surface management 
program is coordinated with the state programs is an issue that crosses 
all elements of the alternatives we considered. After consultation with 
the states, consideration of BLM resource protection needs, and 
evaluation of the various alternatives, we have decided to use the 
Federal/state coordination approach in Alternative 3.
    The selected alternative provides a combination of Federal/state 
agreements that we can use to coordinate efforts, reduce duplication, 
and improve resource protection while not overly burdening the 
operator. The selected alternative provides for two types of Federal/
state agreements, those that provide for joint administration of the 
program, and those in which BLM defers part or all of the program to 
the state (with BLM retaining minimum involvement). BLM selected this 
alternative to provide flexibility for the BLM field offices to develop 
their own Federal/state program specific to their states' operating and 
regulatory environment. By also incorporating state performance 
standards into the BLM performance standards, as described above, this 
alternative facilitates coordination between BLM and the state 
regulatory agencies when it comes to development and implementation of 
Federal/state agreements.
    While the 1980 regulations (Alternative 1) provide for Federal/
state agreements, we did not select it because such agreements do not 
require BLM to concur in the state's approval of each Plan of 
Operations; or in the approval, release, or forfeiture of a financial 
guarantee. In the 2000 rule, BLM concluded that retaining at least a 
concurrence role in these actions is the minimum we need to prevent 
unnecessary or undue degradation of the public lands.
    Alternative 2 would leave review, approval, and enforcement for 
mineral operations to the respective state programs. Total reliance on 
state regulation may not be adequate to protect all the public land 
resources from unnecessary or undue degradation. BLM as a land manager 
has to meet a comprehensive requirement to protect all the resources on 
public lands from unnecessary or undue degradation. In addition, this 
would be a burden on the state for which BLM would not be able to 
provide compensation. For these reasons, we did not select Alternative 
2.
    BLM did not select Alternative 4 because it would assert Federal 
control over operations with only a minimal BLM effort to coordinate 
with state regulatory agencies. Such an approach could lead to 
conflicting, or at least confusing, standards for operators, and 
duplication of effort. Independent BLM standards would be difficult to 
administer because of the intermingling of private and public land that 
occurs at many mining operations. Alternative 4 could result in 
situations where two different performance requirements apply within 
the same operating area depending upon the land status. Nor does 
Alternative 4 result in substantial environmental benefits. Where the 
states have developed performance standards for mineral operations, 
they are generally considered adequate for operations on public lands. 
Where there are regulatory gaps in state standards or programs, 
development of a specific BLM requirement is warranted, but without 
wholesale replacement of the state standard.
    Federal/state coordination under Alternative 5 would not differ 
greatly from the 1980 regulations. Alternative 5 would provide 
procedures for referral of enforcement actions to the state. However, 
it would not provide for retention of a minimal level of involvement by 
BLM in individual project approvals or financial guarantees. In the 
2000 rule, BLM concluded this minimal level of participation is needed 
to meet its obligation to prevent unnecessary or undue degradation.
Consistency With the NRC Report
    Since release of the NRC Report, ``Hardrock Mining on Federal 
Lands,'' recent Congressional appropriations acts have contained a 
requirement that any final 3809 regulations must be ``not inconsistent 
with'' the recommendations in the NRC Report. This Congressional 
requirement places some management constraints on the selection of a 
final alternative. Of the five alternatives in the Final EIS, only 
Alternatives 3 and 5 are not inconsistent with the recommendations in 
the NRC Report.
    Alternative 1, retaining the 1980 regulations completely, would be 
inconsistent with the recommendations of the NRC Report. The NRC report 
identified specific gaps in the regulations and made six 
recommendations for regulatory changes. See the NRC Report, pages 7-9. 
BLM could not now decide to select the 1980 regulations, en toto, 
without being inconsistent with the NRC recommendations.
    Alternative 2 would be inconsistent with most of the NRC 
recommendations. Alternative 2 does not provide reclamation bonding for 
all disturbance greater than casual use, does not provide for a Plan of 
Operations for all mining activity, does not provide for clear 
procedures for modifying plans of operations, and does not require 
interim management plans. The NRC report clearly recommends regulatory 
changes that are inconsistent with the decreased BLM role inherent in 
Alternative 2.

[[Page 54849]]

    BLM has decided not to select Alternative 3, as presented in the 
Final EIS, due to legal and policy considerations and in light of the 
comments received. BLM has determined that we should remove the SIH 
standard as unnecessary and possibly needlessly burdensome to industry 
since other means exist to protect the resources covered by the SIH 
standard. In addition, BLM may not have the authority to implement the 
civil penalties provisions. Other changes to Alternative 3 reflect new 
policy choices.
    Regulations developed under Alternative 4 would be more stringent 
than those suggested by the NRC and therefore would be inconsistent 
with the NRC recommendations. The Alternative 4 requirement to file a 
Plan of Operations for all activity greater than casual use would be 
inconsistent with the NRC finding that exploration involving less than 
5 acres of disturbance should be allowed under a Notice. The use of 
design-based standards and mandatory pit backfilling under Alternative 
4 would be inconsistent with the NRC recommendation that BLM use 
performance-based standards. It is also not in harmony with a 
discussion (which was not incorporated in a specific recommendation) of 
the NRC Report which suggested that pit backfilling should be 
determined on a case-by-case basis.
    Alternative 5 was designed specifically to compare the impacts 
resulting from, and limited to, incorporating the specific 
recommendations in the NRC Report. Both Alternative 5 and the new 
selected alternative incorporate the NRC recommendations into the 3809 
regulations. The main difference between these two alternatives is that 
Alternative 5 limits the changes in the regulations to the specific NRC 
recommendations, while Alternative 3 includes both the changes 
recommended by NRC and some additional regulatory changes that BLM 
believes are necessary to address program issues.
    The new selected alternative for the 2001 regulations incorporates 
most of the requirements from Alternative 3, but removes the 
substantial irreparable harm provision in the definition of unnecessary 
or undue degradation. Other changes made to Alternative 3 are included 
in the new selected alternative. These additional changes reflect the 
Secretary's judgment as to what BLM requires to prevent unnecessary or 
undue degradation of the public lands. Because many regulatory sections 
are not addressed in the NRC Report, they would not be inconsistent 
with it. In addition, selection of the alternative for the 2001 
regulations does not preclude BLM from pursuing the NRC suggestions for 
non-regulatory improvements to the surface management program.
    In other portions of the preamble you can find additional 
discussion of how the NRC Report and Appropriations Act provisions 
affect today's final rule.

Determination of NEPA Adequacy

    Since the final selected alternative represents a combination of 
several alternatives, this Record of Decision includes a review of the 
adequacy of the Final EIS in addressing the potential impacts that 
would occur under the 2001 regulations as compared to the impacts we 
analyzed under the range of alternatives in the FEIS. The table 
presented below shows how key regulatory provisions of the 2001 
regulations are included in the analysis under one or more of the 
alternatives, and notes how impacts under the selected alternative 
compare with those predicted in the Final EIS. We have found that the 
impacts resulting from the new 2001 alternative, with respect to the 
baseline established by the 1980, as well as the change from the 2000 
regulations, would fall within the range of impacts analyzed, and thus 
are not significantly different. All the provisions adopted in 2001 
were options that could have been adopted in 2000. No significant new 
information or change in circumstances has occurred that would alter 
the analysis or findings in the FEIS. Based on this review, it is our 
determination that the Final EIS prepared in November 2000 provides 
adequate analysis of the impacts that would occur from implementation 
of the new selected alternative.
Changes From the 2000 Regulations
    The determination of NEPA adequacy is prepared for this Record of 
Decision based upon the following changes to the 3809 regulations that 
were promulgated in 2000 under Alternative 3:
    1. Revision of the definition of ``operator,'' and changes in the 
section on responsibilities under Sec. 3809.116 to eliminate the joint 
and several liability provisions.
    2. Removal of paragraph (4) of the definition of ``unnecessary or 
undue degradation,'' which defined unnecessary or undue degradation, in 
part, as causing substantial irreparable harm to significant 
scientific, cultural, or environmental resource values of the public 
lands that cannot be effectively mitigated. Also removal of similar 
language from sections 3809.415(d) and 3809.411(d)(3)(iii).
    3. Revision of section 3809.420 on performance standards. Retain 
the general performance standards and the standards on acid-forming 
materials and leaching operations. Replace the other specific standards 
with performance standards from the 1980 regulations.
    4. Removal of sections 3809.702 and 3809.703 regarding civil 
penalties from the 2000 regulations.
    5. Other minor edits to correct errors or provide references to 
appropriate sections.
Comparison of EIS Alternatives and 2001 Regulations
    The following table compares provisions of the 1980 regulations 
alternative, the 2000 regulations alternative, the NRC recommendation 
alternative and the 2001 regulation alternative. Immediately below the 
side-by-side comparison is an evaluation of the adequacy of the Final 
EIS in identifying and analyzing impacts that would result from 
selecting the 2001 regulations.

[[Page 54850]]



                   3809 Regulation Alternatives Comparison and Determination of NEPA Adequacy
----------------------------------------------------------------------------------------------------------------
                                                                          EIS alternative 5:     New selected
      Regulation component        EIS alternative 1:  EIS alternative 3:          NRC          alternative 2001
                                    1980 regulations    2000 regulations    recommendations       regulations
----------------------------------------------------------------------------------------------------------------
Casual Use Definition/Suction     Activities          Cumulative impacts  Same as             Same as Alt. 3.
 Dredging [3809.5].                resulting only in   could not exceed    Alternative 1.
                                   negligible          casual use level.
                                   surface            Regulations would
                                   disturbance and     specify that
                                   not involving       small suction
                                   mechanized          dredges could be
                                   earthmoving         casual use..
                                   equipment,         BLM would not
                                   explosives, or      require a Notice
                                   vehicle use in      or Plan for
                                   areas closed to     suction dredging
                                   off-road            if a state permit
                                   vehicles.           is required and
                                   Interior Board of   BLM has a MOU
                                   Land Appeals        with the state on
                                   (IBLA) has ruled    suction dredging.
                                   that suction
                                   dredges are not
                                   casual use under
                                   the 1980
                                   regulations.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The 2001 regulations are the same as the 2000 regulations regarding casual use and
 suction dredging. Impacts from casual use activities are described in the Final EIS under Alternative 3.
 Requiring suction dredge operators to contact BLM would delay activity, increase operation costs, and restrict
 access of small miners and recreationists to minerals. There would be an estimated 5 to 10% decrease in overall
 casual use activity, with an up to 25% decrease in suction dredging activity. Anticipated environmental
 benefits include prevention of impacts to T&E species and their habitat, and a decrease in cumulative impacts
 from large numbers of casual use operators working in a single area.
----------------------------------------------------------------------------------------------------------------
Definition of Project Area        A tract of land     Changed to not      Same as             Retain language in
 [3809.5].                         upon which          specify that        Alternative 1.      2000 regulations.
                                   operations are      mining claims
                                   conducted.          involved in a
                                   Includes area       project be under
                                   required for        single ownership.
                                   building or
                                   maintaining
                                   roads,
                                   powerlines,
                                   pipelines, or
                                   other means of
                                   access. Project
                                   area may include
                                   one or more
                                   mining claims,
                                   but claims must
                                   be under one
                                   ownership.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The definition of ``project area'' is covered under the analysis of Alt. 3 in the
 Final EIS. The definition was not identified during the EIS process as a significant impact to the environment
 or the operator. Intent of ``project area'' definition is to make sure that all support facilities are
 considered in the review and analysis processes.
----------------------------------------------------------------------------------------------------------------
Definition of Operator [3809.5].  Operator means a    Operator means any  Same as             Same as
                                   person conducting   person who          Alternative 1.      Alternative 1.
                                   or proposing to     manages, directs                        Remove 2000
                                   conduct             or conducts                             Operator
                                   operations.         operations at a                         definition and
                                                       project area, ...                       joint and several
                                                       including a                             liability in
                                                       parent entity or                        3809.116. Return
                                                       an affiliate who                        to 1980 operator
                                                       materially                              definition.
                                                       participates in                         Operator means a
                                                       such management,                        person conducting
                                                       direction, or                           or proposing to
                                                       conduct. An                             conduct
                                                       operator on a                           operations.
                                                       particular mining
                                                       claim may also be
                                                       the mining
                                                       claimant.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The definition of ``operator'' is covered under the analysis of Alts. 1 and 5 in the
 Final EIS; although it was not identified as a significant EIS issue. The impact of the change in ``operator''
 definition from the 2000 regulations to the 2001 regulations would only be significant where a reclamation
 liability existed that was not covered by a bond and BLM had to pursue legal action to obtain reclamation. The
 change in ``operator'' definition would make obtaining reclamation more difficult in these situations. However,
 we predict the number of such occurrences will be quite low given the improved financial guarantee regulations
 that were put in place with the 2000 regulations and would remain under the 2001 regulations.
----------------------------------------------------------------------------------------------------------------
Definition of Public Lands        BLM-administered    Expand definition   Same as             Retain language in
 (Lands where regulations would    lands subject to    to include lands    Alternative 1.      2000 regulations.
 apply) [3809.5].                  the Mining Law.     where mineral
                                   Does not include    estate is
                                   lands where only    federal, subject
                                   minerals or         to the Mining
                                   surface is          Law, and surface
                                   federal, except     estate is
                                   that amendments     private. Lands
                                   to the Stock        with reserved
                                   Raising Homestead   minerals from a
                                   Act require BLM     sale or exchange
                                   involvement when    could be open to
                                   surface owner       operation of the
                                   does not consent    Mining Law
                                   to mineral          through a land
                                   development.        use plan.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS. Impacts to minerals are both positive, with the potential to open lands with reserved
 minerals to exploration and development; and negative, by increasing the amount of future operations that fall
 under the 3809 regulations. Impacts to non-mineral resources are generally positive, with additional
 environmental review for projects on the split-estate lands which were previously regulated by the states
 without BLM involvement.
----------------------------------------------------------------------------------------------------------------
Unnecessary or Undue Degradation  Prudent operator    Replace prudent     Same as             Definition of UUD
 Definition (UUD) [3809.5].        standard. Follow    operator standard   Alternative 1.      is similar to
                                   ``usual,            with requirement                        2000 regulations
                                   customary, and      to comply with                          except delete
                                   proficient''        performance                             paragraph (4)
                                   measures.           standards.                              which defined
                                   Mitigate impacts.  Activity must be                         unnecessary or
                                   Comply with         reasonably                              undue degradation
                                   environmental       incident to                             in part as
                                   laws. Perform       prospecting,                            causing
                                   reclamation. Do     mining, or                              substantial
                                   not create a        processing                              irreparable harm
                                   nuisance.           operations..                            to significant
                                                      Could not create                         scientific,
                                                       substantial                             cultural, or
                                                       irreparable harm                        environmental
                                                       to significant                          resource values
                                                       scientific,                             of the public
                                                       cultural, or                            lands that cannot
                                                       environmental                           be effectively
                                                       resources that                          mitigated. Also
                                                       cannot be                               removal of
                                                       effectively                             similar language
                                                       mitigated.                              from Sec.
                                                                                               3809.415(d) and
                                                                                               Sec.  3809.411(d)
                                                                                               (3)(iii).
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The change in the definition of ``unnecessary or undue degradation'' is covered by
 the analysis in the Final EIS of Alternative 5, with some impacts reflected in the Alternative 3 analysis. The
 2001 definition would not be exactly the same as Alt. 5, which would have retained the 1980 UUD definition. The
 addition of the link to the performance standards in the UUD definition falls between Alt. 1 and Alt. 3.
 Impacts of the 2001 Alternative's definition of UUD is within the range of alternatives analyzed in the Final
 EIS, but not substantially different from those described for Alt. 5. The ``substantial irreparable harm''
 provision in the UUD definition was responsible for a large portion of the reduction in mineral activity
 predicted for the 2000 regulations. Removal of this provision would result in mineral activity levels at
 slightly less than predicted under Alternative 5 (see Final EIS Table 2.3). The slightly lower activity levels
 from Alt. 5 are due to other provisions from the 2000 regulations which were retained in the 2001 regulations
 that would contribute to a reduction in mineral activity.

[[Page 54851]]

 
The overall acreage disturbed by mineral activity under the 2001 regulations would be at the lower end of the
 range described in Final EIS Table 2.3 for Alt. 5 at 8,120 to 9,630 acres per year. This would be less than the
 estimated 8,700 acres per year of disturbance that occurred under the 1980 regulations, but is greater than the
 6,700 to 7,580 acres per year of disturbance that was predicted to occur under the 2000 regulations. While the
 intent was to invoke the ``substantial irreparable harm'' provision of the 2000 regulations only rarely, it was
 recognized that when it came to American Indian traditional cultural practices and resources the provision
 might be applied quite frequently. The Final EIS determined that the 2000 regulations would result in a
 moderate decrease in impacts to traditional cultural practices and resources, due at least in part to the
 definition of UUD (Final EIS, Table 2-3). Selection of the 2001 definition of UUD would instead result in
 impacts similar to those described for Alt. 5, which include a reduction in impacts from Notice operations to
 traditional cultural practices and resources when compared to the 1980 regulations.
----------------------------------------------------------------------------------------------------------------
Notice vs. Plan of Operations     Surface             Change threshold    Same as             Retain language in
 Threshold [3809.11].              disturbance less    on the basis of     Alternative 3.      2000 regulations.
                                   than 5 acres per    division between    Use 1980 special
                                   calendar year       exploration and     status lands.
                                   requires a          mining.
                                   Notice. Plans      All mining,
                                   required for more   milling, and bulk
                                   than 5 acres a      sampling over
                                   year of             1,000 tons would
                                   disturbance or      require Plans..
                                   for any activity   Exploration
                                   above casual use    disturbing less
                                   in special status   than 5 acres
                                   areas such as       would require
                                   ACECs, California   Notices..
                                   Desert             Exploration in
                                   Conservation        special status
                                   Area, wild and      lands or
                                   scenic rivers,      disturbing more
                                   wilderness areas,   than 5 acres
                                   and areas closed    would require
                                   to off-road         Plans.
                                   vehicles.          Expand special
                                                       status lands to
                                                       include: national
                                                       monuments/
                                                       conservation
                                                       areas, and lands
                                                       containing
                                                       proposed or
                                                       listed T&E
                                                       species or their
                                                       critical habitat.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: Since there would be no change from the 2000 regulations, the impacts of the 2001
 regulations are covered by the analysis in the Final EIS of Alt. 3. Impacts would not be quite the same as Alt.
 5 due to the expansion of special category lands in the 2000 and 2001 regulations to include monuments and T&E
 species areas. Previously described impacts in the Final EIS note that: Notices only for exploration would
 drive up costs for small mine operators, bonding of Notices would increase exploration costs and reduce
 exploration activity, using a Plan of Operations to review all mines would increase likelihood that operations
 would meet the performance standards, costs and workload for operators and BLM would increase, and the bonds
 for reclamation would be adequate to ensure reclamation performance. These same impacts would occur under the
 2001 regulations.
----------------------------------------------------------------------------------------------------------------
Mining Claim Validity, Existing   Not addressed in    Require that        Same as             Retain language in
 Rights, and Mine Economics        3809 regs.          validity exams      Alternative 1.      2000 regulations.
 [3809.100].                       Validity exams      determine valid
                                   are required        existing rights
                                   before Plan         before approval
                                   approval in         of Plans in areas
                                   wilderness areas    withdrawn from
                                   per 8560            operation of
                                   regulations. BLM    mining laws.
                                   has option of      Discretion to
                                   determining valid   perform validity
                                   existing rights     exams for
                                   before approving    segregated lands.
                                   Plans in
                                   segregated or
                                   withdrawn areas.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS. BLM would conduct such exams to ensure that surface disturbance did not occur without prior
 existing valid mining claims on lands where a withdrawal was protecting nonmineral resources.
----------------------------------------------------------------------------------------------------------------
Common Variety Minerals           Not addressed in    Regulations would   Same as             Retain language in
 [3809.101].                       3809 regs. Policy   provide for         Alternative 1.      2000 regulations.
                                   provides for        holding escrow
                                   holding escrow      during operations
                                   during operations   if materials to
                                   if materials to     be mined may be
                                   be mined may be     of a common
                                   of a common         variety and
                                   variety and         subject to
                                   subject to          payment of fair
                                   payment of fair     market value.
                                   market value.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS. BLM would protect potential Federal income from common variety minerals by establishing an
 escrow account.
----------------------------------------------------------------------------------------------------------------
State and Federal Government      MOUs in each state  When requested,     Same as             Retain language in
 Coordination [3809.201-204].      provide for         BLM must give       Alternative 1.      2000 regulations.
                                   coordination for    states the lead     MOUs would be
                                   review, approval,   where state         developed or
                                   bonding,            program is as       modified to
                                   monitoring, and     strict as BLM       provide clear
                                   enforcement.        requirements.       procedures for
                                   State may have     BLM must concur on   BLM to refer
                                   lead for some       Plan approvals.     certain
                                   program elements.   BLM retains         noncompliance
                                   Most restrictive    inspection and      actions to other
                                   requirements (BLM   enforcement         federal and state
                                   or state) apply.    option and NEPA,    agencies for
                                                       NHPA, Tribal        enforcement.
                                                       Govt.-Govt.
                                                       coordination and
                                                       T&E species
                                                       responsibilities.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
 

[[Page 54852]]

 
Applying Regulation Changes to    Not applicable....  Existing Notices    Same as             Retain language in
 Existing Operations or                                expire in 2 years   Alternative 3 but   2000 regulations.
 Facilities [3809.300]                                 unless bonded and   without new
 [3809.400] [3809.433-434].                            extended.           performance
                                                      Existing Notices     standards.
                                                       for mining are     Existing Plans,
                                                       not required to     pending Plans, or
                                                       refile as a Plan    Plan
                                                       if disturbance      modifications
                                                       area does not       would be subject
                                                       increase..          to new regula-
                                                      Existing Plans,      tions and would
                                                       pending Plans, or   have to meet new
                                                       Plan                bonding
                                                       modifications       requirements
                                                       need not comply     within 180 days
                                                       with new            of effective date
                                                       performance         of new
                                                       standards if        regulations..
                                                       filed before       Modifications to
                                                       effective date of   existing mines
                                                       new regulations.    after effective
                                                       All existing        date would have
                                                       Plans would have    to comply with
                                                       to meet new         new regulations
                                                       bonding             unless shown not
                                                       requirements..      practical for
                                                      New mine             economic,
                                                       facilities added    environmental,
                                                       to existing Plans   safety, or
                                                       after effective     technical reasons.
                                                       date would have
                                                       to meet new
                                                       regulation
                                                       requirements..
                                                      Modifications to
                                                       existing mine
                                                       facilities after
                                                       effective date
                                                       would have to
                                                       comply with new
                                                       regulations
                                                       unless shown not
                                                       practical for
                                                       economic,
                                                       environmental,
                                                       safety, or
                                                       technical reasons.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Notice and Plan of Operations     BLM review of       Expanded detail on  Same as             Retain language in
 Contents and Processing           Notices required    Notice and Plan     Alternative 1.      2000 regulations.
 [3809.301-313] [3809.401-412].    in 15 calendar      contents.                               Edits to reflect
                                   days. Plans, 30     Includes plans                          other changes in
                                   days, with option   for interim                             definition of
                                   of 60 more days.    management during                       unnecessary or
                                                       temporary                               undue
                                                       closures.                               degradation.
                                  Open-ended time     Operators also      Must provide
                                   frame for Plans     required to         interim
                                   for NEPA (EIS),     provide all         management plans
                                   NHPA, and T&E       studies/data BLM    for periods of
                                   species             needs to comply     temporary
                                   compliance.         with NEPA.          closure.
                                  Public comment      Review Plan for
                                   period on EA if     completeness
                                   BLM determines      within 30 days.
                                   there is            Notice time frame
                                   substantial         15 days.
                                   public interest.   Clarify review
                                                       time frames begin
                                                       when complete
                                                       Notice or Plan is
                                                       received..
                                                      Mandatory public
                                                       comment period on
                                                       all Plans for at
                                                       least 30 days..
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The impact of the Notice or Plan content and review requirements is covered under the
 existing analysis of Alt. 3 in the Final EIS. The regulatory language regarding denial on the basis a plan
 violating the SIH standard is revised from the 2001 regulations to reflect the change in definition of UUD
 described previously. However, the processing steps would remain the same as described for the 2000 regulations
 up to the decision point where the option of denial due to substantial irreparable harm is no longer available.
 The potential for denial or non-acceptance of Plans and Notices was the main reason for the number of projected
 Notices and Plans in Final EIS Table 2-3 to be lower for Alt. 3 compared to Alt. 5. With the new UUD definition
 in the 2001 regulations the number of Notices and Plans processed is anticipated to be between the numbers
 shown under Alt. 3 and Alt. 5 in Final EIS Table 2-3, but probably much closer to Alternative 5. It is
 therefore estimated that the 2001 regulations would result in an average of 360 to 380 Notices per year and 340
 to 360 Plan per year. The content and processing requirement for these Plans and Notices would result in a more
 comprehensive review and better protection of resources than would occur using the 1980 regulations, and would
 be nearly the same as that which would occur under the 2000 regulations.
----------------------------------------------------------------------------------------------------------------
Modifications [3809.330-331]      Operator-initiated  Eliminated          Same as             Retain language in
 [3809.430-431].                   modifications are   requirement for     Alternative 3.      2000 regulations.
                                   processed similar   BLM to show
                                   to original         unforeseen issues
                                   Notice or Plan.     that warrant
                                                       modification.
                                  Agency-required     BLM may require
                                   modifications       operator to
                                   must show need      modify Notice or
                                   and that the        Plan to prevent
                                   issue was           unnecessary or
                                   unforeseen at the   undue degradation
                                   time of initial     (UUD). Only test
                                   Plan approval.      is that the
                                                       modification is
                                                       needed to prevent
                                                       UUD.
                                                      Plan modifications
                                                       required at final
                                                       closure to
                                                       address
                                                       unanticipated
                                                       conditions or new
                                                       information..
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
 

[[Page 54853]]

 
Temporary or Permanent Closure    Site must be        Must follow         Same as             Retain language in
 [3809.334] [3809.336]             maintained in       interim             Alternative 3.      2000 regulations.
 [3809.424].                       safe and clean      management plans
                                   condition. May      during periods of
                                   require removal     temporary
                                   of all structures   closure.
                                   and equipment,     Notices expire
                                   and site            after 2 years.
                                   reclamation after   BLM may consider
                                   unspecified         projects
                                   period of           abandoned,
                                   nonoperating.       depending on time
                                                       and condition of
                                                       sites and
                                                       equipment..
                                                      Plans are similar
                                                       to Notices. After
                                                       5 consecutive
                                                       years of
                                                       inactivity, Plans
                                                       may be terminated.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Financial Guarantee Requirement   Bonds required      Actual-cost         Same as             Retain language in
 (Bonding) [3809.500--.599].       only for Plans at   bonding required    Alternative 3.      2000 regulations;
                                   BLM's discretion.   for all Notices                         and the changes
                                   Expired policy      and Plans.                              made in the time
                                   limits bond                                                 frames under
                                   amounts to $1,000/                                          regulations
                                   acre for                                                    promulgated on
                                   exploration and                                             June 15, 2001 for
                                   $2,000/acre for                                             existing
                                   mining, except                                              operations to
                                   for areas with                                              meet the new
                                   cyanide use or                                              bonding
                                   BEEN potential                                              requirements.
                                   which are bonded
                                   at 100% estimated
                                   BLM reclamation
                                   cost.
                                  Use state bonding   Operator would
                                   programs to meet    provide initial
                                   these               reclamation cost
                                   requirements        estimate.
                                   through            Financial
                                   agreements.         guarantee must
                                                       cover 100% of
                                                       reclamation
                                                       costs, including
                                                       any post-closure
                                                       water treatment
                                                       or other site
                                                       maintenance.
                                                      Equivalent state
                                                       bonding
                                                       instruments could
                                                       be used to meet
                                                       requirements, but
                                                       must be
                                                       redeemable by the
                                                       Secretary of the
                                                       Interior.
                                                      Discontinue
                                                       accepting
                                                       corporate
                                                       guarantees.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Inspection and Monitoring         Operators must      Same as             Same as             Retain language in
 [3809.600].                       allow BLM to        Alternative 1.      Alternative 1.      2000 regulations.
                                   inspect             Add: Mandate
                                   operations.         current policy of
                                   Policy is for       inspections four
                                   inspections four    times annually
                                   times annually      where cyanide is
                                   where cyanide is    used or potential
                                   used or             exists for acid
                                   significant         rock drainage.
                                   potential for
                                   acid rock
                                   drainage and
                                   twice annually
                                   for all other
                                   operations.
                                   Monitoring
                                   programs are
                                   developed during
                                   Plan review. The
                                   operator conducts
                                   environmental
                                   testing (water,
                                   air, soil, etc.)
                                   and submits the
                                   results to BLM.
                                   BLM may take
                                   check samples
                                   during
                                   inspections.
Public Mine Visits [3809.900].                        Upon prior
                                                       notification to
                                                       BLM, in certain
                                                       circumstances,
                                                       may allow the
                                                       public to
                                                       annually tour
                                                       mines.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The inspection, monitoring, and public mine tour provisions of the regulations are
 covered under the existing analysis of Alt. 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Type and Adequacy of Penalties    BLM issues notices  Similar to          Same as             Delete the civil
 for Non-compliance [3809.700].    and records of      Alternative 1.      Alternative 3.      administrative
                                   noncompliance.      Add: BLM would     No additional        penalties in
                                   Federal             issue               regulations on      sections 3809.702
                                   injunctions and     discretionary       criminal            and 3809.703
                                   criminal            administrative      penalties. Use     Add reminder in
                                   prosecution may     penalties ($5,000/  current criminal    3809.421 that
                                   be used.            day),               penalties process   failure of the
                                                       suspensions,        (Alt. 1).           operator to
                                                       revocation of                           prevent undue or
                                                       Plan approval,                          unnecessary
                                                       and nullification                       degradation or to
                                                       of Notice for                           complete
                                                       failure to comply                       reclamation to
                                                       with enforcement                        the standards
                                                       orders.                                 described in this
                                                      Under MOUs, BLM                          subpart may cause
                                                       would refer                             the operator to
                                                       certain                                 be subject to
                                                       noncompliance                           enforcement
                                                       actions to other                        actions. This was
                                                       federal and state                       in the 1980
                                                       agencies for                            regulations.
                                                       enforcement.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The penalties provision of the regulations is covered under the existing analysis of
 Alt. 1 in the Final EIS. The deletion of civil penalties from the 2000 regulations leaves only a criminal
 penalty framework which most closely resembles that which was used in the 1980 regulations per Alt. 1.
 Difficulties with enforcement using only criminal penalty provisions would continue as described in the Final
 EIS under Alt. 1. New section 3809.421 does not change any operator requirements or create any additional level
 of environmental protection over that presented in the 2000 regulations.
----------------------------------------------------------------------------------------------------------------

[[Page 54854]]

 
Appeals Process [3809.800]......  BLM decisions must  Both operator and   No Change. Same as  Retain language in
                                   be appealed         third parties       Alternative 1.      2000 regulations.
                                   within 30 days.     could request a
                                  Operators must       state director
                                   appeal to BLM       review of any
                                   state director,     decisions, or
                                   then to the         appeal directly
                                   Interior Board of   to IBLA.
                                   Land Appeals       State Director
                                   (IBLA).             decisions could
                                  Third-party          also be appealed
                                   appeals of BLM      to IBLA.
                                   decisions are      All decisions
                                   made to IBLA.       would be in full
                                  BLM's decision is    force and effect
                                   in full force and   unless a written
                                   effect during an    request for a
                                   appeal, unless      stay is granted
                                   IBLA grants a       by the reviewing
                                   written request     entity (state
                                   for a stay.         director or IBLA).
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Performance Standards, Generally  Prevent             Outcome-based       Same as             Retain language in
 [3809.420].                       unnecessary or      standards with      Alternative 1.      2000 regulations
                                   undue               site-specific                           regarding general
                                   degradation.        allowances.                             performance
                                   Follow              Includes BLM                            standards. Add
                                   requirements at     cyanide and acid                        reminder that
                                   3809.1-3(d).        rock drainage                           operations must
                                  Other site-          requirements. Use                       be conducted in
                                   specific            proper equipment,                       compliance with
                                   requirements may    devices, and                            all Federal and
                                   be developed        practices.                              state laws
                                   during individual  Follow reasonable                       Retain the
                                   project review.     and customary                           performance
                                                       sequence of                             standards in the
                                                       exploration,                            2000 rule related
                                                       development, and                        to BEEN and
                                                       reclamation.                            cyanide
                                                                                               management.
                                                                                               Combine them with
                                                                                               the 1980
                                                                                               performance
                                                                                               standards.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: The rewritten performance standards in the 2001 regulations are covered by analysis
 under either Alts. 1, 3, or 5 in the Final EIS. In overall effect, the performance standards most closely
 resemble those put forward in Alt. 3, the 2000 regulations, with some of the performances standards from the
 1980 regulation rewritten in Plain English and presented as they would be used under Alt. 5.
There would not be a substantial change in environmental protection, environmental impact, or operator
 requirements in going from the 2000 regulations to the 2001 regulations for several reasons. One, the two sets
 of regulations have performance requirements that are very similar, and in some cases identical. And two,
 performance requirements for mineral operations are not set until completion of the individual project review
 process. The actual performance standards in the regulations serve mostly as a guide for the site specific
 requirements. This is especially true with ``outcome-based`` performance standards such as those in Alts. 1, 3,
 and 5. A comparison of the individual performance standards follows:
----------------------------------------------------------------------------------------------------------------
Land Use Plans..................  Not addressed.....  Consistent with     Same as             Retain language in
                                                       the Mining Law,     Alternative 1.      2000 regulations.
                                                       operations and
                                                       postmining land
                                                       use must comply
                                                       with land use
                                                       plans and coastal
                                                       zone management
                                                       plans.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Surface and Ground Water          All operators must  Same as             Similar to Alt. 1   Water quality. All
 Protection.                       comply with         Alternative 1,      plus:.              operators shall
                                   federal and state   plus pit water     Project approvals    comply with
                                   water quality       quality must not    would establish     applicable
                                   standards.          endanger            acceptable          Federal and state
                                                       wildlife, public    postclosure water   water quality
                                                       water supplies,     quality             standards,
                                                       or users..          conditions for      including the
                                                      To meet this         pit lakes           Federal Water
                                                       standard,           suitable to long-   Pollution Control
                                                       operators would     term use of the     Act, as amended
                                                       use operation and   site and those      (30 U.S.C. 1151
                                                       reclamation         needed to           et seq.).
                                                       practices that      adequately
                                                       minimize water      protect ground
                                                       pollution and       and surface
                                                       changes in flow     waters, as well
                                                       in preference to    as wildlife and
                                                       water treatment     waterfowl.
                                                       or replacement.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 1 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Wetlands and Riparian Area        Not specified.      Same as             Same as             Same as Alt. 1. No
 Protection.                       State and 404       Alternative 1       Alternative 1.      specific standard
                                   permits (from the   with specific                           for a riparian
                                   Army Corps of       site-selection                          area.
                                   Engineers) must     criteria added:.
                                   be acquired for    Operator must: (1)
                                   dredging or         avoid locating
                                   filling in U.S.     operations in
                                   waters.             wetlands and
                                                       riparian areas
                                                       where possible,
                                                       (2) minimize
                                                       impacts to
                                                       wetlands and
                                                       riparian areas,
                                                       and (3) mitigate
                                                       damage to
                                                       wetlands and
                                                       riparian areas
                                                       through measures
                                                       such as
                                                       restoration or
                                                       offsite
                                                       replacement.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
 

[[Page 54855]]

 
Soil or Growth Media Handling...  Where reasonably    Topsoil or other    Same as             Same as
                                   practicable,        growth media must   Alternative 1.      Alternative 1.
                                   topsoil must be     be removed,
                                   saved and           segregated, and
                                   reapplied to        preserved for
                                   disturbed areas     later use in
                                   after areas have    revegetation
                                   been reshaped.      during
                                                       reclamation. Must
                                                       transport soil
                                                       from original
                                                       location to point
                                                       of reclamation
                                                       without
                                                       stockpiling where
                                                       economically and
                                                       technically
                                                       feasible.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Revegetation Requirements.......  Where reasonable    Same as             Same as             Same as
                                   and practicable,    Alternative 1       Alternative 1.      Alternative 1.
                                   disturbed areas     with more
                                   must be             specifics on
                                   revegetated.        outcome. All
                                   Revegetation is     disturbed lands
                                   to provide a        must be
                                   diverse             revegetated to
                                   vegetation cover    establish a
                                   and is a            stable and long-
                                   component of the    lasting cover
                                   requirement to      that is self-
                                   rehabilitate        sustaining and
                                   wildlife habitat.   comparable in
                                   Ban on creating a   both diversity
                                   nuisance would be   and density to
                                   used to address     preexisting
                                   noxious weed        natural
                                   control.            vegetation. Use
                                                       native species to
                                                       the extent
                                                       feasible and
                                                       establish success
                                                       according to
                                                       schedule in
                                                       reclamation plan.
                                                       Operations must
                                                       prevent and
                                                       control noxious
                                                       weed infestations.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Fish, Wildlife and Plant          Operator must act   Similar to          Same as             Same as
 Protection and Habitat            to prevent          Alternative 1,      Alternative 1.      Alternative 1.
 Restoration.                      adverse impacts     plus:.
                                   to threatened and  Operators must
                                   endangered          minimize
                                   species and their   disturbances and
                                   habitats that       adverse impacts
                                   might be affected   to fish,
                                   by operations..     wildlife, and
                                  Reclamation must     related
                                   include             environmental
                                   rehabilitating      values..
                                   fisheries and      All processing
                                   wildlife habitat.   solutions,
                                                       reagents, or mine
                                                       drainage toxic to
                                                       wildlife must be
                                                       fenced or netted
                                                       to prevent
                                                       wildlife access.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Protecting Cultural Resources...  National Historic   Same as             Same as             Same as
                                   Preservation Act    Alternative 1,      Alternative 1.      Alternative 1.
                                   Section 106         except 30
                                   process used to     calendar days
                                   develop             instead of 10
                                   mitigation for      working days
                                   cultural            would be allowed
                                   resources found     for data
                                   before Plan         recovery.
                                   approval.          BLM would
                                  Operators cannot     determine who
                                   knowingly           bears cost of
                                   disturb, alter,     recovery on a
                                   injure, or          case-by-case
                                   destroy any         basis.
                                   historical or
                                   archaeological
                                   site, structure,
                                   building, object,
                                   or cultural site
                                   discovered during
                                   operations..
                                  Operators must
                                   immediately
                                   notify BLM of any
                                   cultural
                                   resources found
                                   during operations
                                   and must leave
                                   such discoveries
                                   intact. BLM has
                                   10 working days
                                   to protect or
                                   remove discovery
                                   at the
                                   government's
                                   cost, after which
                                   operations may
                                   proceed.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Protecting Paleontological        Operators cannot    Same as             Same as             Same as
 Resources.                        knowingly           Alternative 1,      Alternative 1.      Alternative 1.
                                   disturb, alter,     except 30
                                   injure, or          calendar days
                                   destroy any         instead of 10
                                   scientifically      working days
                                   important           would be allowed
                                   paleontological     for data recovery.
                                   remains.
                                  Operators must      BLM would
                                   immediately         determine who
                                   notify BLM of any   bears cost of
                                   paleontological     recovery on a
                                   resources           case-by-case
                                   discovered during   basis.
                                   operations and
                                   must leave such
                                   discoveries
                                   intact. BLM has
                                   10 working days
                                   to protect or
                                   remove
                                   discoveries at
                                   the government's
                                   cost, after which
                                   operations may
                                   proceed.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
 

[[Page 54856]]

 
Protecting Cave Resources.......  Not specified.....  Inventories and     Not specified.      Not specified.
                                                       mitigation plans    Same as             Same as Alt. 1.
                                                       would be required   Alternative 1.
                                                       before
                                                       disturbance of
                                                       cave resources.
                                                      Operators must
                                                       immediately
                                                       notify BLM of any
                                                       significant cave
                                                       resources found
                                                       during operations
                                                       and leave such
                                                       discoveries
                                                       intact. BLM has
                                                       30 calendar days
                                                       to protect a
                                                       discovery, after
                                                       which operations
                                                       may proceed. BLM
                                                       would determine
                                                       who bears the
                                                       cost for
                                                       protecting cave
                                                       resources.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
American Indian Traditional       Not specified in    Consultation with   Same as             Retain language in
 Cultural Values, Practices, and   regulations.        American Indians    Alternative 1.      2000 regulations.
 Resources.                        Consultation with   is specified as
                                   American Indians    part of Plan
                                   is used to          review process.
                                   develop             (3809.411(a)(3)).
                                   mitigation on a     Consultation
                                   case-by-case        would be used to
                                   basis.              develop
                                                       mitigation on a
                                                       case-by-case
                                                       basis where
                                                       mitigation is
                                                       possible.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Roads and Structures............  Access routes for   Generally the same  Same as             Same as Alt. 1.
                                   only the minimum    as Alt. 1 without   Alternative 1.
                                   width needed for    the requirement
                                   operations and      to consult with
                                   shall follow        BLM for roadcuts
                                   natural contours    greater than 3-
                                   to minimize cut     feet.
                                   and fill.
                                  Require the use of
                                   existing roads to
                                   minimize the
                                   number of access
                                   routes, and to
                                   construct access
                                   roads within a
                                   designated
                                   transportation or
                                   utility corridor.
                                   When commercial
                                   hauling is
                                   involved on
                                   public road the
                                   operator may be
                                   required to make
                                   arrangements for
                                   use and
                                   maintenance.
                                  Operators must
                                   consult with BLM
                                   for roadcuts
                                   greater than 3
                                   feet on inside
                                   edge.
                                  All structures
                                   must be built and
                                   maintained
                                   according to
                                   state and local
                                   codes. Structures
                                   are addressed in
                                   separate rules at
                                   43 CFR 3715.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1, 3, and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Handling of Potentially Acid-     Reclamation must    Includes            Same as             Retain language in
 Forming, Toxic, or Other          include measures    requirements from   Alternative 1.      2000 regulations.
 Deleterious Materials.            to isolate,         BEEN policy.
                                   remove, or          Static or kinetic
                                   control toxic or    testing must be
                                   deleterious         used to identify
                                   materials.          and guide
                                  Other requirements   handling and
                                   imposed would be    placement of
                                   based on site-      potentially acid-
                                   specific review     forming
                                   according to BLM    materials. BEEN
                                   policies [acid      control measures
                                   rock drainage       must be fully
                                   (BEEN) policy].     integrated with
                                                       operational
                                                       procedures,
                                                       facility design,
                                                       and environmental
                                                       monitoring
                                                       programs.
                                                      BEEN control must
                                                       focus on
                                                       prevention or
                                                       control of acid-
                                                       forming reaction.
                                                       If formation of
                                                       BEEN cannot be
                                                       prevented, its
                                                       potential
                                                       migration must be
                                                       prevented or
                                                       controlled.
                                                       Capture and
                                                       treatment of BEEN
                                                       or other
                                                       undesirable
                                                       effluent is
                                                       required if
                                                       source controls
                                                       and migration
                                                       controls do not
                                                       prove effective.
                                                       Effluent
                                                       treatment could
                                                       be used only
                                                       after source
                                                       control has been
                                                       employed.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS. Retaining the performance requirements for handling of potentially acid-forming, toxic, or
 other deleterious materials in the 2001 regulations, along with the Plan content requirements for information
 on acid drainage potential, would maintain protection of environmental resources at essentially the same level
 as the 2000 regulations.
----------------------------------------------------------------------------------------------------------------
 

[[Page 54857]]

 
Leaching and Processing           Reclamation must    Incorporated        Same as             Retain language in
 Operations and Impoundment.       include measures    requirements of     Alternative 1.      2000 regulations.
                                   to isolate,         BLM's cyanide
                                   remove, or          policy: Cyanide
                                   control toxic or    facilities must
                                   deleterious         be able to
                                   materials.          contain maximum
                                  Other requirements   operating
                                   imposed would be    solution with
                                   based on site-      capacity for the
                                   specific review     100-year, 24-hour
                                   according to BLM    storm event,
                                   policies [cyanide   including
                                   management          snowmelt events
                                   policy, BLM state   and expected
                                   cyanide             draindown from
                                   management plans,   heaps during
                                   and acid rock       power outages.
                                   drainage (BEEN)     Secondary
                                   policy].            containment
                                                       required for
                                                       vats, tanks, or
                                                       recovery circuits
                                                       to prevent
                                                       release of toxic
                                                       solutions. Heaps
                                                       and other
                                                       solution
                                                       containment
                                                       structures must
                                                       be monitored for
                                                       leaks. Cyanide
                                                       solution and
                                                       heaps must be
                                                       detoxified upon
                                                       release to the
                                                       environment, at
                                                       temporary
                                                       closure, or at
                                                       final
                                                       reclamation.
                                                       Operations must
                                                       not cause
                                                       wildlife
                                                       mortality.
                                                       Exposed cyanide
                                                       solutions must be
                                                       fenced and
                                                       covered to
                                                       prevent access by
                                                       public, wildlife,
                                                       and livestock.
                                                       Neutralization
                                                       may be used in
                                                       lieu of fencing
                                                       tailings
                                                       impoundments.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of Alt.
 3 in the Final EIS. Retaining the performance requirements for leaching and processing operations in the 2001
 regulations, along with the Plan content requirements for information facility design and reclamation, would
 maintain protection of environmental resources at essentially the same level as the 2000 regulations.
----------------------------------------------------------------------------------------------------------------
Stability, Grading, and Erosion   Reclamation must    Erosion must be     Same as             Same as
 Control.                          include measures    minimized during    Alternative 1.      Alternative 1.
                                   to control          all phases of
                                   erosion,            operations. All
                                   landslides, and     disturbed areas
                                   runoff.             must be graded or
                                                       otherwise
                                                       engineered to a
                                                       stable condition
                                                       to minimize
                                                       erosion and
                                                       facilitate
                                                       revegetation. All
                                                       areas must be
                                                       recontoured to
                                                       blend in with the
                                                       premining natural
                                                       topography to the
                                                       extent practical.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Pit Backfilling and Reclamation.  Not specified.      BLM would           Same as             Same as
                                   Stable highwall     determine degree    Alternative 1.      Alternative 1.
                                   might be left       of backfilling      Amount of pit       Amount of pit
                                   where required to   required, if any,   backfilling         backfilling
                                   preserve evidence   from a site-        determined on a     determined on a
                                   of                  specific operator   case-by-case        case-by-case
                                   mineralization.     demonstration of    basis.              basis.
                                   Current practice    feasibility based
                                   is to determine     on economic,
                                   amount of pit       environ-mental,
                                   backfilling on      and safety
                                   case-by-case        considerations.
                                   basis.             Mitigation would
                                                       be required for
                                                       pit areas that
                                                       are not
                                                       backfilled.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Waste Rock, tailings, and leach   Mining wastes. All  Must locate,        Same as             Same as
 pads.                             tailings, dumps,    design,             Alternative 1.      Alternative 1.
                                   deleterious         construct,
                                   materials or        operate and
                                   substances, and     reclaim to
                                   other waste         minimize
                                   produced by the     infiltration and
                                   operations shall    contamination of
                                   be disposed of so   water, achieve
                                   as to prevent       stability; and to
                                   unnecessary or      the extent
                                   undue degradation   economically and
                                   and in accordance   technically
                                   with applicable     feasible, blend
                                   Federal and state   with the pre-
                                   laws.               mining natural
                                                       topography.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Drill Holes.....................  Exploration         All drill cuttings  Same as             Same as
                                   operations and      and mud must be     Alternative 1.      Alternative 1.
                                   drill hole          contained onsite.
                                   plugging are not    All exploration
                                   specified.          drill holes must
                                   Decided on case-    be plugged to
                                   by-case basis       prevent mixing of
                                   during Notice or    waters from
                                   Plan review.        aquifers, impacts
                                                       to beneficial
                                                       uses, downward
                                                       water loss, or
                                                       upward loss from
                                                       artesian
                                                       conditions. Bore
                                                       holes must be
                                                       plugged on the
                                                       surface to
                                                       prevent direct
                                                       inflow of surface
                                                       water and to
                                                       eliminate the
                                                       open hole as a
                                                       hazard.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------

[[Page 54858]]

 
Solid Wastes....................  All operators       Must comply with    Same as             Same as
                                   shall comply with   Federal, state,     Alternative 1.      Alternative 1.
                                   applicable          and where
                                   Federal and state   delegated by the
                                   standards for the   state, local
                                   disposal and        standards for the
                                   treatment of        disposal and
                                   solid wastes. All   treatment of
                                   garbage, refuse     solid wastes.
                                   or waste shall      Must remove from
                                   either be removed   the project area,
                                   from the affected   dispose of, or
                                   lands or disposed   treat all non-
                                   of or treated to    mine garbage,
                                   minimize, so far    refuse or waste
                                   as is               to minimize their
                                   practicable, its    impact.
                                   impact on the
                                   lands.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1 and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Protection of survey monuments..  To the extent       To the extent       Same as             Same as
                                   practicable, all    economically and    Alternative 1.      Alternative 1.
                                   operators shall     technically
                                   protect all         feasible, you
                                   survey monuments,   must protect all
                                   witness corners,    survey monuments,
                                   reference           witness corners,
                                   monuments,          reference
                                   bearing trees and   monuments,
                                   line trees          bearing trees,
                                   against             and line trees
                                   unnecessary or      against damage or
                                   undue               destruction.
                                   destruction,       If you damage or
                                   obliteration or     destroy a
                                   damage. If, in      monument, corner,
                                   the course of       or accessory, you
                                   operations, any     must immediately
                                   monuments,          report the matter
                                   corners, or         to BLM. BLM will
                                   accessories are     tell you in
                                   destroyed,          writing how to
                                   obliterated or      restore or re-
                                   damaged by such     establish a
                                   operations, the     damaged or
                                   operator shall      destroyed
                                   immediately         monument, corner
                                   report the matter   or accessory.
                                   to the authorized
                                   officer. The
                                   authorized
                                   officer shall
                                   prescribe, in
                                   writing, the
                                   requirements for
                                   the restoration
                                   or
                                   reestablishment
                                   of monuments,
                                   corners, bearing
                                   and line trees.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the regulations is essentially covered under the existing analysis
 of Alts. 1, 3, and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Fire Prevention and control.....  The operator shall  You must comply     Same as             Same as
                                   comply with all     with all            Alternative 1.      Alternative 1.
                                   applicable          applicable
                                   Federal and state   Federal and state
                                   fire laws and       fire laws and
                                   regulations, and    regulations, and
                                   shall take all      take all
                                   reasonable          reasonable
                                   measures to         measures to
                                   prevent and         prevent and
                                   suppress fires in   suppress fires in
                                   the area of         your area of
                                   operations.         operations.
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1, 3, and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------
Air Quality.....................  All operators       Your operations     Same as             Same as
                                   shall comply with   must comply with    Alternative 1.      Alternative 1.
                                   applicable          applicable
                                   Federal and state   Federal, Tribal,
                                   air quality         state, and where
                                   standards,          delegated by the
                                   including the       state, local
                                   Clean Air Act (42   government laws
                                   U.S.C. 1857 et      and requirements.
                                   seq.).
----------------------------------------------------------------------------------------------------------------
Adequacy of NEPA analysis: This provision of the 2001 regulations is covered under the existing analysis of
 Alts. 1, 3, and 5 in the Final EIS.
----------------------------------------------------------------------------------------------------------------

    One comment stated that the joint and several liability provision 
in section 3809.116(a) would cause severe disincentives to mineral 
exploration activities, a ``significant factor'' that should have been 
analyzed in the draft environmental impact statement. We have removed 
this provision from paragraph (a).
    The Environmental Protection Agency commented on the proposed 
suspension of the 2000 rule, focusing on two main issues:
    (1) EPA suggested ``that the new financial assurance requirements 
not be suspended but be continued'; and
    (2) EPA stated that by amending the definition of ``unnecessary or 
undue degradation'' to include ``a proposed activity that would cause 
substantial irreparable harm,'' the 2000 rule ``significantly enhanced 
BLM's ability to prevent serious and foreseeable environmental harm.'' 
EPA requested BLM to ``consider these important measures and 
protections in its review of the 3809 regulations.''
    The final rule of June 15, 2001, as stated earlier in this 
preamble, maintains the financial assurance provisions of the 2000 
rule.
    Although this final rule removes the substantial irreparable harm 
provision in the definition of unnecessary or undue degradation, BLM 
retains ample authority to protect surface resources and the 
environment. As we stated earlier, in the discussion of public 
comments, BLM has ample statutory and regulatory means of preventing 
harm to significant scientific, cultural, or environmental resource 
values: The Endangered Species Act, the Archaeological Resources 
Protection Act, withdrawal under Section 204 of FLPMA, the performance 
standards in section 3809.420, and so forth. Many statutory protections 
are invoked in the performance standards in section 3809.420.
    The revision of section 3809.420 removes duplicative requirements 
for environmental protection. For example, paragraph (b)(7), on 
fisheries, wildlife, and plant habitat explicitly protects only 
threatened and endangered species, while the 2000 rule required that 
the operator ``must minimize disturbances and adverse impacts on [all] 
fish, wildlife, and related environmental values.'' However, the 
requirements that the operator must comply with the Clean Water Act, 
Clean Air Act, and other environmental laws and regulations will have 
the same effect. The final rule removes unnecessary language.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980, as 
amended, 5 U.S.C. 601-612, (RFA) to ensure that Government regulations 
do not unnecessarily or disproportionately burden small entities. The 
RFA requires

[[Page 54859]]

a regulatory flexibility analysis if a rule would have a significant 
economic impact, either detrimental or beneficial, on a substantial 
number of small entities. BLM prepared a regulatory flexibility 
analysis on the expected impact of the final 2000 rule on small 
entities and determined that the final regulations will have a 
significant economic effect on a substantial number of small entities, 
and summarized it in the 2000 rule (65 FR 69998, 70103). The regulatory 
flexibility analysis remains on file in the BLM Administrative Record 
at the address specified in the ADDRESSES section. In this final rule 
we have made changes that should reduce the burdens on small entities. 
The regulations no longer provide for joint and several liability for 
violations of the regulations, no longer provide for civil liability 
for violations, simplify the definition of ``operator,'' and reduce the 
burdens of performance standards.
    The Small Business Administration (SBA) commented in support of the 
proposed rule to suspend the 2000 rule. The principal substantive 
objection of the SBA was to the definition of ``unnecessary or undue 
degradation'' and the inclusion in it of ``substantial irreparable 
harm'' as an element. Removing this element from the definition in this 
final rule should obviate this objection.
    One comment stated that BLM must consider ``the impact of the new 
regulations on small farmers and ranchers, as well as recreation-based 
businesses,'' in our regulatory flexibility analyses. Since these 
regulations have little or nothing to do, per se, with the operations 
of these kinds of business, the unstated implication of this comment is 
that changing the compliance standards for mining operators might 
somehow degrade the environment upon which these businesses largely 
depend.
    As discussed earlier in the preamble, we are not abandoning surface 
resource protection and environmental protection by removing some 
onerous provisions in the 2000 rule and replacing them with provisions 
that functioned well for 20 years. Operators must maintain air and 
water quality to the standards established by Congress in the Clean Air 
Act and the Clean Water Act, and must manage solid wastes in accordance 
with the Solid Waste Disposal Act and the Resource Conservation and 
Recovery Act. These concerns are those most vital to the business 
interests mentioned in the comment.

Small Business Regulatory Enforcement Fairness Act

    Evaluated against the baseline of the 2000 rule, BLM has concluded 
that today's rule will not have a significant economic impact on a 
substantial number of small entities. This rule should reduce the costs 
borne by small entities relative to the 2000 rule. However, the 
magnitude of the cost reductions depends on site and operation specific 
factors. The removal of the SIH provision will benefit small entities. 
As stated earlier, the SBA objected to the 2000 rules primarily because 
of the SIH provision. Today's action obviates that objection and 
benefits small entities.

Unfunded Mandates Reform Act

    In the 2000 final rule (65 FR 69998, 70109), BLM found that those 
final regulations do not impose an unfunded mandate on state, local, or 
tribal governments or the private sector of more than $100 million per 
year; nor do these final regulations have a significant or unique 
effect on state, local, or tribal governments or the private sector. 
The impacts of this final rule do nothing to change that finding. 
Therefore, BLM is not required to prepare a statement containing the 
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 
et seq.). None of the comments we received from state governmental 
entities or associations of such entities alleged any unfunded mandates 
in the 2000 rule.

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights (Takings)

    In the 2000 final rule (65 FR 69998, 70109), BLM found that those 
final regulations do not represent a government action capable of 
interfering with constitutionally protected property rights. We stated 
that it doesn't affect property rights or interests in property, such 
as mining claims; it governs how an individual or corporation exercises 
those rights. However, one comment on the proposed suspension of the 
2000 rule stated that the joint and several liability provision in 
section 3809.116(a) would diminish the property value by severely 
restraining alienation and thus amount to a taking in violation of the 
Fifth Amendment of the Constitution. We have removed this provision in 
this final rule. Because this final rule does not make any changes that 
increase the burdens on mining claim owners or other property owners, 
the Department of the Interior has determined that the rule would not 
cause a taking of private property or require further discussion of 
takings implications under this Executive Order.

Executive Order 13132, Federalism

    In the 2000 rule, BLM found (65 FR 69998, 70109) that it would have 
federalism implications in that in certain circumstances it may preempt 
state law. However, we found further that it would not have a 
substantial direct effect on the states, on the relationship between 
the Federal Government and the states, or on the distribution of power 
and responsibilities among the various levels of government. The 2000 
rule describes the consultation BLM engaged in with the states and the 
results of that consultation. The changes made in this final rule and 
in the final rule of June 15, 2001 (66 FR 32571), will not increase 
burdens on states, and will facilitate cooperation between states and 
the United States in the area of surface management of mining claims. 
This final rule does not change the findings in the 2000 rule. This 
rule does not change the regulations in a manner contrary to the 
interests of the states as found from consultation with the states.
    Further, we received comments from governors, agencies, or 
legislatures of or Members of Congress from the following Western 
States, as well as the Western Governors' Association: Alaska, Idaho, 
Nevada, Utah, and Wyoming. These comments were critical of the 2000 
regulations and supported their suspension and revision. Only one of 
these provided detailed recommendations that largely tracked those of 
the NRC. To the extent that those specific recommendations pertain to 
BLM, or are within the legal responsibility of BLM, we believe this 
final rule follows those recommendations.
    BLM's full Federalism assessment, performed on the 2000 rule, 
remains on file in the BLM Administrative Record at the address 
specified in the ADDRESSES section.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that this final rule would not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    We rely in part on Tribal consultation that occurred before 
publication of the 2000 rule. In accordance with Executive

[[Page 54860]]

Order 13175, we have also found that this final rule does not include 
policies that have significant tribal implications. We have made clear 
that plans of operations under these regulations must comply with 
state, local, Tribal, and other Federal requirements. Although removing 
the SIH standard could potentially affect Native American cultural 
resources on the public lands, in most instances mitigation measures 
will be possible to reduce such impacts.
    In public comments, two tribes strongly opposed the idea of 
rescinding the 2000 regulations and reverting to the 1980 regulations. 
In this final rule, we are not reissuing the 1980 regulations. Rather, 
we are removing or revising a limited number of provisions that:
    (a) Courts have been asked to find legally untenable;
    (b) Are expected to have severe impacts on employment in Western 
States where mining is an important industry and a source of employment 
for Indians and non-Indians alike; and
    (c) BLM does not need in the regulations in order to prevent 
unnecessary or undue degradation of the public lands or to limit the 
impact of mining on Tribes.
    One of the comments said that members of the Tribe in question 
``regard salmon as essential to their spiritual and physical well-
being,'' and said that maintenance of environmental resources, 
especially water quality and salmon, is of great importance. Although 
we have removed the SIH provision from the definition of unnecessary or 
undue degradation because of the uncertainty and possible economic 
disruption it causes for the mining industry, we have retained the 
performance standards in section 3809.420 that are designed to preserve 
water quality: paragraph (b)(5) which requires operators to comply with 
Federal and state water quality standards; paragraph (b)(11), which is 
designed to prevent acid rock drainage into the watershed; and 
paragraph (b)(12), which is intended to prevent cyanide leaching into 
the watershed. These provisions provide ample protection to western 
streams that are habitat for salmon. Retaining these provisions should 
fully address the Tribe's concerns.

E.O. 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use

    This rule is not a significant energy action. It will not have an 
adverse effect on energy supplies. The principal changes proposed in 
the rule address (1) the definition of an operator, what entities are 
responsible for reclamation and other duties, (2) the definition of 
unnecessary or undue degradation, and (3) performance standards that 
operators must follow. To the extent that the rule affects the mining 
of energy minerals (i.e., uranium and other fissionable metals), they 
will tend to increase production marginally.

Paperwork Reduction Act

    The 2000 final rule (65 FR 69998, 70111) stated that it required 
collection of information from 10 or more persons. It went on to 
discuss our compliance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), and the public comments that discussed the information 
collection requirements. We continue to rely on the discussion in the 
2000 rule as to information collection requirement matters. The Office 
of Management and Budget has approved those information collection 
requirements in the final rule under the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 et seq., and has assigned clearance number 1004-
0194. This final rule does not contain additional information 
collection requirements that the Office of Management and Budget must 
approve under the Paperwork Reduction Act of 1995.

Author

    The principal authors of this rule are members of the Departmental 
3809 Task Force, chaired by Robert M. Anderson, Deputy Assistant 
Director, Minerals, Realty, and Resource Protection, Bureau of Land 
Management.

List of Subjects in 43 CFR Part 3800

    Administrative practice and procedure, Environmental protection, 
Intergovernmental relations, Land Management Bureau, Mines, Public 
lands-mineral resources, Reporting and recordkeeping requirements, 
Surety bonds, Wilderness areas.

P. Lynn Scarlett,
Assistant Secretary, Policy Management, and Budget.

    Accordingly, for the reasons stated in the Preamble, and under the 
authorities cited below, BLM amends Title 43 of the Code of Federal 
Regulations part 3800 as set forth below:

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

Subpart 3809--Surface Management

    1. The authority citation for subpart 3809 continues to read as 
follows:

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


    2. Amend Sec. 3809.2 by removing the term ``Sec. 3809.31(c)'' at 
the end of the first sentence of paragraph (a), and adding in its place 
the term ``Sec. 3809.31(d) and (e).''

    3. Amend Sec. 3809.5 by revising the definitions of ``operator'' 
and ``unnecessary or undue degradation'' to read as follows:


Sec. 3809.5  How does BLM define certain terms used in this subpart?

* * * * *
    Operator means a person conducting or proposing to conduct 
operations.
* * * * *
    Unnecessary or undue degradation means conditions, activities, or 
practices that:
    (1) Fail to comply with one or more of the following: the 
performance standards in Sec. 3809.420, the terms and conditions of an 
approved plan of operations, operations described in a complete notice, 
and other Federal and state laws related to environmental protection 
and protection of cultural resources;
    (2) Are not ``reasonably incident'' to prospecting, mining, or 
processing operations as defined in Sec. 3715. 0-5 of this chapter; or
    (3) Fail to attain a stated level of protection or reclamation 
required by specific laws in areas such as the California Desert 
Conservation Area, Wild and Scenic Rivers, BLM-administered portions of 
the National Wilderness System, and BLM-administered National Monuments 
and National Conservation Areas.

    4. Amend Sec. 3809.31(e) by removing the word ``If'' and adding the 
phrase ``For other than Stock Raising Homestead Act lands, if'' at the 
beginning of the first sentence.

    5. Amend Sec. 3809.116 by revising paragraph (a) to read as 
follows:


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

    (a) Mining claimants and operators (if other than the mining 
claimant) are liable for obligations under this subpart that accrue 
while they hold their interests.
* * * * *

    6. Amend Sec. 3809.401 (b)(5)(ii) by removing the term 
``Sec. 3809.420(c)(4)(vii)'', and adding in its place the term 
``Sec. 3809.420(c)(12)(vii).''

    7. Amend Sec. 3809.411 by revising paragraph (d)(3)(iii) to read:


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

* * * * *

[[Page 54861]]

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

    8. Amend Sec. 3809.415 by removing paragraph (d).

    9. Revise Sec. 3809.420 to read as follows:


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

    The following performance standards apply to your notice or plan of 
operations:
    (a) General performance standards. (1) Technology and practices. 
You must use equipment, devices, and practices that will meet the 
performance standards of this subpart.
    (2) Sequence of operations. You must avoid unnecessary impacts and 
facilitate reclamation by following a reasonable and customary mineral 
exploration, development, mining and reclamation sequence.
    (3) Land-use plans. Consistent with the mining laws, your 
operations and post-mining land use must comply with the applicable BLM 
land-use plans and activity plans, and with coastal zone management 
plans under 16 U.S.C. 1451, as appropriate.
    (4) Mitigation. You must take mitigation measures specified by BLM 
to protect public lands.
    (5) Concurrent reclamation. You must initiate and complete 
reclamation at the earliest economically and technically feasible time 
on those portions of the disturbed area that you will not disturb 
further.
    (6) Compliance with other laws. You must conduct all operations in 
a manner that complies with all pertinent Federal and state laws.
    (b) Specific standards. (1) Access routes. Access routes shall be 
planned for only the minimum width needed for operations and shall 
follow natural contours, where practicable to minimize cut and fill. 
When the construction of access routes involves slopes that require 
cuts on the inside edge in excess of 3 feet, the operator may be 
required to consult with the authorized officer concerning the most 
appropriate location of the access route prior to commencing 
operations. An operator is entitled to access to his operations 
consistent with provisions of the mining laws. Where a notice or a plan 
of operations is required, it shall specify the location of access 
routes for operations and other conditions necessary to prevent 
unnecessary or undue degradation. The authorized officer may require 
the operator to use existing roads to minimize the number of access 
routes, and, if practicable, to construct access roads within a 
designated transportation or utility corridor. When commercial hauling 
is involved and the use of an existing road is required, the authorized 
officer may require the operator to make appropriate arrangements for 
use and maintenance.
    (2) Mining wastes. All tailings, dumps, deleterious materials or 
substances, and other waste produced by the operations shall be 
disposed of so as to prevent unnecessary or undue degradation and in 
accordance with applicable Federal and state Laws.
    (3) Reclamation. (i) At the earliest feasible time, the operator 
shall reclaim the area disturbed, except to the extent necessary to 
preserve evidence of mineralization, by taking reasonable measures to 
prevent or control on-site and off-site damage of the Federal lands.
    (ii) Reclamation shall include, but shall not be limited to:
    (A) Saving of topsoil for final application after reshaping of 
disturbed areas have been completed;
    (B) Measures to control erosion, landslides, and water runoff;
    (C) Measures to isolate, remove, or control toxic materials;
    (D) Reshaping the area disturbed, application of the topsoil, and 
revegetation of disturbed areas, where reasonably practicable; and
    (E) Rehabilitation of fisheries and wildlife habitat.
    (iii) When reclamation of the disturbed area has been completed, 
except to the extent necessary to preserve evidence of mineralization, 
the authorized officer shall be notified so that an inspection of the 
area can be made.
    (4) Air quality. All operators shall comply with applicable Federal 
and state air quality standards, including the Clean Air Act (42 U.S.C. 
1857 et seq.).
    (5) Water quality. All operators shall comply with applicable 
Federal and state water quality standards, including the Federal Water 
Pollution Control Act, as amended (30 U.S.C. 1151 et seq.).
    (6) Solid wastes. All operators shall comply with applicable 
Federal and state standards for the disposal and treatment of solid 
wastes, including regulations issued pursuant to the Solid Waste 
Disposal Act as amended by the Resource Conservation and Recovery Act 
(42 U.S.C. 6901 et seq.). All garbage, refuse or waste shall either be 
removed from the affected lands or disposed of or treated to minimize, 
so far as is practicable, its impact on the lands.
    (7) Fisheries, wildlife and plant habitat. The operator shall take 
such action as may be needed to prevent adverse impacts to threatened 
or endangered species, and their habitat which may be affected by 
operations.
    (8) Cultural and paleontological resources. (i) Operators shall not 
knowingly disturb, alter, injure, or destroy any scientifically 
important paleontological remains or any historical or archaeological 
site, structure, building or object on Federal lands.
    (ii) Operators shall immediately bring to the attention of the 
authorized officer any cultural and/or paleontological resources that 
might be altered or destroyed on Federal lands by his/her operations, 
and shall leave such discovery intact until told to proceed by the 
authorized officer. The authorized officer shall evaluate the 
discoveries brought to his/her attention, take action to protect or 
remove the resource, and allow operations to proceed within 10 working 
days after notification to the authorized officer of such discovery.
    (iii) The Federal Government shall have the responsibility and bear 
the cost of investigations and salvage of cultural and paleontology 
values discovered after a plan of operations has been approved, or 
where a plan is not involved.
    (9) Protection of survey monuments. To the extent practicable, all 
operators shall protect all survey monuments, witness corners, 
reference monuments, bearing trees and line trees against unnecessary 
or undue destruction, obliteration or damage. If, in the course of 
operations, any monuments, corners, or accessories are destroyed, 
obliterated, or damaged by such operations, the operator shall 
immediately report the matter to the authorized officer. The authorized 
officer shall prescribe, in writing, the requirements for the 
restoration or reestablishment of monuments, corners, bearing and line 
trees.
    (10) Fire. The operator shall comply with all applicable Federal 
and state fire laws and regulations, and shall take all reasonable 
measures to prevent and suppress fires in the area of operations.
    (11) Acid-forming, toxic, or other deleterious materials. You must 
incorporate identification, handling, and placement of potentially 
acid-forming, toxic or other deleterious materials into your 
operations, facility design, reclamation, and environmental monitoring 
programs to minimize the formation and impacts of acidic, alkaline, 
metal-bearing, or other deleterious leachate, including the following:
    (i) You must handle, place, or treat potentially acid-forming, 
toxic, or other

[[Page 54862]]

deleterious materials in a manner that minimizes the likelihood of acid 
formation and toxic and other deleterious leachate generation (source 
control);
    (ii) If you cannot prevent the formation of acid, toxic, or other 
deleterious drainage, you must minimize uncontrolled migration of 
leachate; and
    (iii) You must capture and treat acid drainage, or other 
undesirable effluent, to the applicable standard if source controls and 
migration controls do not prove effective. You are responsible for any 
costs associated with water treatment or facility maintenance after 
project closure. Long-term, or post-mining, effluent capture and 
treatment are not acceptable substitutes for source and migration 
control, and you may rely on them only after all reasonable source and 
migration control methods have been employed.
    (12) Leaching operations and impoundments. (i) You must design, 
construct, and operate all leach pads, tailings impoundments, ponds, 
and solution-holding facilities according to standard engineering 
practices to achieve and maintain stability and facilitate reclamation.
    (ii) You must construct a low-permeability liner or containment 
system that will minimize the release of leaching solutions to the 
environment. You must monitor to detect potential releases of 
contaminants from heaps, process ponds, tailings impoundments, and 
other structures and remediate environmental impacts if leakage occurs.
    (iii) You must design, construct, and operate cyanide or other 
leaching facilities and impoundments to contain precipitation from the 
local 100-year, 24-hour storm event in addition to the maximum process 
solution inventory. Your design must also include allowances for 
snowmelt events and draindown from heaps during power outages in the 
design.
    (iv) You must construct a secondary containment system around vats, 
tanks, or recovery circuits adequate to prevent the release of toxic 
solutions to the environment in the event of primary containment 
failure.
    (v) You must exclude access by the public, wildlife, or livestock 
to solution containment and transfer structures that contain lethal 
levels of cyanide or other solutions.
    (vi) During closure and at final reclamation, you must detoxify 
leaching solutions and heaps and manage tailings or other process waste 
to minimize impacts to the environment from contact with toxic 
materials or leachate. Acceptable practices to detoxify solutions and 
materials include natural degradation, rinsing, chemical treatment, or 
equally successful alternative methods. Upon completion of reclamation, 
all materials and discharges must meet applicable standards.
    (vii) In cases of temporary or seasonal closure, you must provide 
adequate maintenance, monitoring, security, and financial guarantee, 
and BLM may require you to detoxify process solutions.
    (13) Maintenance and public safety. During all operations, the 
operator shall maintain his or her structures, equipment, and other 
facilities in a safe and orderly manner. Hazardous sites or conditions 
resulting from operations shall be marked by signs, fenced, or 
otherwise identified to alert the public in accordance with applicable 
Federal and state laws and regulations.

    10. Add section 3809.421 to read as follows:


Sec. 3809.421  Enforcement of performance standards.

    Failure of the operator to prevent unnecessary or undue degradation 
or to complete reclamation to the standards described in this subpart 
may cause the operator to be subject to enforcement as described in 
Secs. 3809.600 through 3809. 605 of this subpart.

    11. Revise section 3809.598 to read as follows:


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

    If the amount forfeited is insufficient to pay for the full cost of 
reclamation, the operators and mining claimants are liable for the 
remaining costs as set forth in Sec. 3809.116. BLM may complete or 
authorize completion of reclamation of the area covered by the 
financial guarantee and may recover from responsible persons all costs 
of reclamation in excess of the amount forfeited.


Sec. 3809.604  [Amended]

    12. Amend Sec. 3809.604 revising the phrase ``Secs. 3809.700 and 
3809.702'' to read ``Sec. 3809.700'' at the end of the last sentence of 
paragraph (a).


Sec. 3809.702  [Removed]

    13. Remove Sec. 3809.702.


Sec. 3809.703  [Removed]

    14. Remove Sec. 3809.703.

[FR Doc. 01-27074 Filed 10-29-01; 8:45 am]
BILLING CODE 4310-84-P