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.

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

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.

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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

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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

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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

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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:

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

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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.

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