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.

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

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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.

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

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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

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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

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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.

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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: