Mining Claims Under the General Mining Laws, 73789-73794 [E8-28741]

Download as PDF Federal Register / Vol. 73, No. 234 / Thursday, December 4, 2008 / Rules and Regulations with the entities listed in appendix A. A U.S. person also is prohibited from engaging in most transactions with entities located in Iran that are not owned or controlled by the Government of Iran. Finally, please be aware that certain entities listed in Appendix A to Part 560 may be subject to further sanctions under other sanctions programs. Public Participation Because the amendment of the ITR involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601–612) does not apply. Paperwork Reduction Act The collections of information related to the ITR are contained in 31 CFR part 501 (the ‘‘Reporting, Procedures and Penalties Regulations’’). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505–0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number. List of Subjects in 31 CFR Part 560 Administrative practice and procedure, Banks, Banking, Brokers, Foreign trade, Investments, Loans, Securities, Iran. ■ For the reasons set forth in the preamble, the Office of Foreign Assets Control amends 31 CFR part 560 as follows: PART 560—IRANIAN TRANSACTIONS REGULATIONS 1. The authority citation of part 560 continues to read as follows: erowe on PROD1PC64 with RULES ■ Authority: 3 U.S.C. 301; 18 U.S.C. 2339B, 2332d; 22 U.S.C. 2349aa–9; 31 U.S.C. 321(b); 50 U.S.C. 1601–1651, 1701–1706; Pub. L. 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 106–387, 114 Stat. 1549; Pub. L. 110– 96, 121 Stat. 1011; E.O. 12613, 52 FR 41940, 3 CFR, 1987 Comp., p. 256; E.O. 12957, 60 FR 14615, 3 CFR, 1995 Comp., p. 332; E.O. 12959, 60 FR 24757, 3 CFR, 1995 Comp., p. 356; E.O. 13059, 62 FR 44531, 3 CFR, 1997 Comp., p. 217. 19 and 20 as 22 and 23, respectively, and adding new paragraphs 19, 20, and 21, to read as follows: ENVIRONMENTAL PROTECTION AGENCY Appendix A to Part 560—Entities Determined To Be Owned or Controlled by the Government of Iran [EPA–HQ–OAR–2004–0008; FRL–8712–8] This non-exhaustive appendix lists entities determined by the Office of Foreign Assets Control (‘‘OFAC’’) to be entities owned or controlled by the Government of Iran within the meaning of §§ 560.304 and 560.313 of this part 560. The entities listed below are considered to be entities owned or controlled by the Government of Iran when they operate not only from the locations listed below, but also from any other location. The names and addresses are subject to change. This part 560 contains prohibitions against engaging in most transactions with entities owned or controlled by the Government of Iran, whether such entities are located or incorporated inside or outside of Iran. Moreover, regardless of whether an entity is listed below, if the entity is owned or controlled by the Government of Iran, the prohibitions on engaging in transactions with the entity, wherever located worldwide, apply to the same extent they would apply if the entity were listed in this appendix. Note that the prohibitions in this part 560 also apply to transactions with entities located in Iran that are not owned or controlled by the Government of Iran. Finally, please be aware that certain entities listed in this appendix may be subject to further sanctions under other sanctions programs. * * * * * 19. NATIONAL IRANIAN OIL COMPANY, (a.k.a. NIOC) Hafez Crossing, Taleghani Avenue, P.O. Box 1863 and 2501, Tehran, Iran 20. NAFTIRAN INTERTRADE COMPANY LTD, (a.k.a. NICO); a.k.a. Naft Iran Intertrade Ltd, 22 Grenville St, St Helier, Jersey Channel Islands JE4 8PX, United Kingdom; 22 Grenville St, St Helier, Jersey, Channel Islands JE2 4UF, United Kingdom; 5th floor, Petro Pars Building, Saadat Abad Avenue, No. 35, Farhang Blvd, Tehran, Iran 21. NAFTIRAN INTERTRADE CO. (NICO) Sarl, 6, Avenue de la Tour Haldimand, 1009 Pully, VD, Switzerland * * * * * Barbara C. Hammerle, Acting Director, Office of Foreign Assets Control. [FR Doc. E8–28711 Filed 12–3–08; 8:45 am] BILLING CODE 4811–45–P 2. Amend Appendix A to Part 560 by revising the heading and introductory text, as well as redesignating paragraphs ■ VerDate Aug<31>2005 15:50 Dec 03, 2008 Jkt 217001 73789 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 40 CFR Parts 1045, 1054, and 1065 RIN 2060–AM34 Control of Emissions From Nonroad Spark-Ignition Engines and Equipment Correction In rule document E8–21093 beginning on page 59034 in the issue of Wednesday, October 8, 2008, make the following corrections: § 1045.205 [Corrected] 1. On page 59205, in the third column, in § 1045.205(q), in the fifth line, ‘‘CO2’’ should read ‘‘CO2’’. § 1045.315 [Corrected] 2. On page 59212, in the second column, in § 1045.315(b), the equation should read as follows: ‘‘Ci = Max [0 or Ci¥1 + Xi ¥ (STD + 0.25 × s)]’’ 3. On the same page, in the same column, in § 1045.315(f), in the fourth line, ‘‘5.0 x s’’ should read ‘‘5.0 × s’’. § 1054.112 [Corrected] 4. On page 59264, in the first column, in § 1054.112(b)(2), in the first line, ‘‘m2 day’’ should read ‘‘m2/day’’. § 1065.370 [Corrected] 5. On page 59329, in the first column, in § 1065.370(c), in the third line, ‘‘± 3% or less’’ should read ‘‘± 2% or less’’. [FR Doc. Z8–21093 Filed 12–3–08; 8:45 am] BILLING CODE 1505–01–D DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Part 3800 [LLWO32000.L13300000.PO0000.24–1A] RIN 1004–AE00 Mining Claims Under the General Mining Laws Bureau of Land Management, Interior. ACTION: Interim final rule. AGENCY: SUMMARY: The Bureau of Land Management (BLM) is issuing this interim final rule to amend the BLM’s regulations for Mining Claims under the General Mining Laws. The rule responds to a Federal district court decision that required the BLM to evaluate whether the regulations E:\FR\FM\04DER1.SGM 04DER1 73790 Federal Register / Vol. 73, No. 234 / Thursday, December 4, 2008 / Rules and Regulations comply with Congress’s policy goal for the United States to receive fair market value for the use of the public lands and their resources. The interim final rule makes it clear that, other than processing fees, location fees, and maintenance fees provided for in 43 CFR parts 3800 and 3830, the BLM does not require any other fees for surface use of the public lands for mining purposes. DATES: Effective date: The interim final rule is effective December 4, 2008. Comment deadline: You should submit your comments on the interim final rule on or before February 2, 2009. The BLM may not necessarily consider or include in the administrative record for the interim final rule comments that the BLM receives after the close of the comment period or comments delivered to an address other than those listed below (see ADDRESSES). ADDRESSES: Mail: Director (630), Bureau of Land Management, U.S. Department of the Interior, Mail Stop 401 LS, 1849 C St., NW., Washington, DC 20240, Attention: 1004–AD69. Personal or messenger delivery: 1620 L Street, NW., Washington, DC 20036. Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions at this Web site. FOR FURTHER INFORMATION CONTACT: Scott Haight at (406) 538–1930 for information relating to the surface management program or the substance of the notice, or Ted Hudson at (202) 452–5042 for information relating to the rulemaking process generally. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8330, 24 hours a day, seven days a week, to contact the above individuals. SUPPLEMENTARY INFORMATION: I. Public Comment Procedures II. Background III. Why We Are Publishing This Rule? IV. Section-by-Section Analysis V. Procedural Matters erowe on PROD1PC64 with RULES I. Public Comment Procedures A. How do I comment on the notice? If you wish to comment, you may submit your comments by any one of several methods: • You may mail comments to Director (630), Bureau of Land Management, Administrative Record, Room 401 LS, Director (630), Mail Stop 401 LS, Bureau of Land Management, U.S. Department of the Interior, 1849 C Street, NW., Washington, DC 20240, Attn: 1004– AD69. • You may deliver comments to Room 401, 1620 L Street, NW, Washington, DC 20036. VerDate Aug<31>2005 15:50 Dec 03, 2008 Jkt 217001 • You may access and comment on the notice at the Federal eRulemaking Portal by following the instructions at that site (see ADDRESSES). Written comments on the interim final rule should be specific, should be confined to issues pertinent to the interim final rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal which the comment is addressing. The BLM may not necessarily consider or include in the Administrative Record for the notice comments that we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES). B. May I review comments submitted by others? You may examine documents pertinent to this interim final rule as follows. Comments, including names and street addresses of respondents, will be available for public review at the address listed under ADDRESSES: ‘‘Personal or messenger delivery’’ during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays. They will also be available at the Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions at this Web site. C. Can my name and address be kept confidential? Before including your address, telephone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so. Mail your comment to: U.S. Department of the Interior, Director (630), Bureau of Land Management, Mail Stop 40l LS, 1849 C Street, NW., Attention: 1004–AD69, Washington, DC 20240. You may deliver comments to: Room 401, 1620 L St., NW., Washington, DC 20036. II. Background In 2003, a Federal district court substantially upheld the BLM’s surface management regulations in 43 CFR subpart 3809, but remanded them in part to the Department ‘‘for evaluation, in light of Congress’s expressed policy goal for the United States to ‘receive fair market value of the use of the public PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 lands and their resources.’ ’’ The district court concluded that ‘‘[o]perations neither conducted pursuant to valid mining claims nor otherwise explicitly protected by [the Federal Land Policy and Management Act of 1976 (FLPMA)] or the Mining Law (i.e., exploration activities, ingress and egress, and limited utilization of mill sites) must be evaluated in light of Congress’s expressed policy goal for the United States to ‘receive fair market value of the use of the public lands and their resources.’ ’’ Mineral Policy Center v. Norton, 292 F. Supp. 2d 30, 51 (D.D.C. 2003). The court remanded the regulations to the Department to evaluate the competing priorities set forth in FLPMA as applied to invalidly claimed or unclaimed lands ‘‘in light of Congress’s expressed policy goal for the United States to ‘receive fair market value of the use of public lands and their resources.’ ’’ Id. On February 23, 2007, the BLM published an advance notice of proposed rulemaking (ANPR) to assist the BLM in the evaluation ordered by the court (71 FR 8139). The ANPR requested public comments regarding whether any miners or mining companies in fact use unclaimed lands for such mining operations. The BLM asked for detailed examples of any such use so that it could determine whether it needed to conduct further evaluation of FLPMA’s competing priorities with regard to any mining operations that go beyond exploration activities on unclaimed lands. The absence of comments providing such examples suggests that the BLM’s belief is correct that no mining operations amounting to more than initial exploration activities occur on unclaimed Federal lands under the Mining Law. (The comments we received are discussed fully below.) Consequently, the BLM has determined that there is no use of the surface of invalidly claimed or unclaimed lands for mining purposes, amounting to more than initial exploration activities, for which BLM must consider charging fair market value. The BLM received 958 comments in response to the ANPR. The comments expressed opinions on whether the BLM had the authority to implement regulations to obtain fair market value for the use of unclaimed lands for mining purposes. The great majority of the comments appeared in identical form e-mails, and read as follows: ‘‘In 2003, a court ordered the Bureau of Land Management to require fair market value for operations conducted on lands not subject to valid claims or unclaimed lands. This would require mining companies to E:\FR\FM\04DER1.SGM 04DER1 Federal Register / Vol. 73, No. 234 / Thursday, December 4, 2008 / Rules and Regulations erowe on PROD1PC64 with RULES comply with the current mining law and demonstrate the validity of their mining claims. ‘‘In the advance notice of proposed rulemaking issued February 23, the BLM argued that it is not ‘practical’ to undertake claim validity examinations to determine whether or not a mining company has staked valid claims under the 1872 Mining Law. It appears the BLM plans to just ignore the fact that there may be mining companies that are violating the law by operating on unclaimed or invalidly claimed lands. ‘‘Please do not permit the BLM to allow mining companies to violate the 1872 Mining Law—an antiquated law that has already caused tremendous harm to western lands and water resources—instead of compelling mining companies to comply with the law and demonstrate the validity of their mining claims. ‘‘Instead of allowing mining companies to thwart the law, the BLM should do everything it can to make sure that all mining occurs on valid claims.’’ Most of the other comments presented variations on these positions, or general statements favoring or opposing the Mining Law. (The latter issue is beyond the scope of this rule.) Others opposed any imposition of fair market value charges on mining operations. As we stated in the ANPR, ‘‘[t]he court’s decision in Mineral Policy Center did not address the use of lands on which mining claims of unknown validity exist.’’ Nevertheless, we discussed in the ANPR and discuss in the next section of this preamble the budgetary and other practical reasons why the BLM does not routinely undertake validity examinations of all mining claims. Public lands are generally open to the operation of the Mining Law, unless they are statutorily or administratively withdrawn from such use. A mining claim on lands that are open to the operation of the Mining Law and that is determined invalid by the BLM remains open for relocation by the original claimant or another claimant. On the other hand, withdrawn lands are usually withdrawn subject to valid existing rights. Under the BLM’s regulations, a mining claim that was located before a withdrawal is automatically subject to a validity examination when the claimant files a plan of operations under 43 CFR 3809.11 or a notice under 43 CFR 3809.21. See 43 CFR 3809.100. A validity examination is also triggered when a mining claimant files a patent application under 43 CFR part 3860. See 43 CFR 3862.1–1. Also, when anyone attempts to use a mining claim for purposes not contemplated by the Mining Law, the BLM treats that use as a trespass and will conduct a validity examination of the mining claim. In VerDate Aug<31>2005 15:50 Dec 03, 2008 Jkt 217001 these ways, the BLM prevents abuse of the Mining Law. The ANPR specifically requested that comments provide examples of uses of unclaimed lands for mining operations that go beyond exploration activities on the public lands. None of the comments provided any past or current examples of miners or mining companies using unclaimed lands for such mining operations under the Mining Law. One comment purported to describe such an example, but upon further investigation the mining operation described did not occur on unclaimed lands. Other comments described activities in support of mining, such as access and storage. However, when these ancillary uses are conducted in relation to mining claims or mill sites, they need not be evaluated in light of FLPMA’s fair market policy. As noted in the ANPR, Judge Kennedy of the Federal district court concluded that the Mining Law authorizes operations, including possession, occupancy, and mineral extraction activities, without payment of fair market value for that use (292 F. Supp. 2d at pages 47 and 51). The court also concluded that the Mining Law authorizes exploration activities, mill site use, and ingress and egress to mining claims (id.). None of the comments presented factual scenarios in which such ancillary uses took place in association with operations on unclaimed lands that amount to more than initial exploration activities. The response to the ANPR with regard to the use of unclaimed lands for mining operations was consistent with the BLM’s expectations. The BLM is not aware of any miner or mining company that would be willing to invest money or resources in the development of a mine without some tenure in the land in the form of a mining claim or mill site. If a mining company were to file a plan of operations to extract minerals from unclaimed lands, a third party could easily locate mining claims over the area and assert adverse rights to the lands. Consequently, the fact that none of the handful of comments addressing the issues raised in the ANPR presented an example of an operator engaging in more than initial exploration on the public lands without a mining claim or mill site was not surprising. This is an interim final rule. Although the rule is effective upon publication, there is a 60-day comment period that starts on the date of publication. After the comment period, we will review the comments and may issue a further final rule with any necessary changes. Because this rule makes no substantive change in any rule or requirement, the BLM for good cause PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 73791 finds that notice and public comment are unnecessary and the rule may take effect upon publication pursuant to 5 U.S.C. 553(b)(B) and 553(d)(3). III. Why We Are Publishing This Rule As previously noted, the court concluded that the Mining Law authorizes operations, including possession, occupancy, and mineral extraction activities, on valid mining claims without payment of fair market value for that use (Mineral Policy Center, 292 F. Supp. 2d at page 51). The court instructed the BLM to evaluate whether the fair market value policy in FLPMA should be applied to ‘‘invalidly claimed or unclaimed lands.’’ The BLM is not aware of any mining operations taking place on ‘‘invalidly claimed’’ public lands (i.e., public lands where BLM has determined that the claims or sites are invalid) or unclaimed public lands (i.e., lands where there are no mining claims or mill sites). Because there are no mining operations occurring on unclaimed lands or lands determined to be invalidly claimed, the BLM concludes that there is nothing to evaluate in light of the fair market value policy. For mining operations occurring on claimed lands, the BLM is publishing this rule to make it clear that mine operators are not required to pay any fee to use the surface of public lands for mining operations conducted under the Mining Law, other than the fees that mining claimants already pay in the form of the maintenance fee, the claim location fee, and services charges for other transactions associated with mining claims (see 43 CFR 3830.21). As discussed above and in the ANPR, the BLM does not routinely undertake validity examinations for all mining claims located under the Mining Law. Even though the validity of most mining claims is unknown, the BLM treats all properly maintained mining claims as active claims. The BLM requires all mining claimants to comply with the statutory recording and maintenance requirements, as well as the prohibition against causing unnecessary or undue degradation of the public lands. The requirements to maintain a claim’s active status include timely payment of location fees and annual maintenance fees. By law, claimants must pay the fees without regard to whether the BLM has determined the underlying validity of the claims. Because Congress authorizes mining claimants to locate mining claims under the Mining Law and maintain them by making annual payments to the BLM while the validity of the claims is unknown or undetermined, the BLM E:\FR\FM\04DER1.SGM 04DER1 erowe on PROD1PC64 with RULES 73792 Federal Register / Vol. 73, No. 234 / Thursday, December 4, 2008 / Rules and Regulations has concluded that it may not apply FLPMA’s fair market value policy to approved mining operations that occur on mining claims of unknown validity. Likewise, the BLM has concluded that it may not apply FLPMA’s fair market value policy to approved mining operations that occur on mining claims of known validity. The BLM believes that its conclusions comport with the fair market value policy of FLPMA, which establishes a goal of receiving fair market value of the use of the public lands ‘‘unless otherwise provided by statute.’’ The Supreme Court has acknowledged that the Mining Law allows ‘‘citizens to go onto unappropriated, unreserved public land to prospect for and develop certain minerals.’’ United States v. Locke, 471 U.S. 84, 86 (1985). In particular, the Supreme Court has explained that the Mining Law ‘‘extends an express invitation to all qualified persons to explore the lands of the United States for valuable mineral deposits, and * * * [t]hose who, being qualified, proceed in good faith to make such explorations and enter peaceably upon vacant lands of the United States for that purpose are not treated as mere trespassers, but as licensees or tenants at will.’’ Union Oil Co. v. Smith, 249 U.S. 337, 346 (1919). The Ninth Circuit also has stated, ‘‘Under the wise and beneficent policy of the government of the United States, all its public lands were thrown open to its citizens, and those who had declared their intention to become such, for exploration for the precious minerals and development thereof.’’ Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 F. 4, 13 (9th Cir. 1901). The Mining Law has authorized public land use for mineral exploration and development without any requirement to pay fair market value for that use. Therefore, based on the express terms of FLPMA’s policy statement, that use is exempt from FLPMA’s fair market value policy and this rule adds a provision making it clear that, other than processing fees, location fees, and maintenance fees provided for in 43 CFR parts 3800, 3830, and 3834, the BLM does not require any other fees for surface use of the public lands for mining purposes. Moreover, FLPMA states that its policies will become effective ‘‘only as specific statutory authority for their implementation is enacted by [FLPMA] or by subsequent legislation and shall then be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law.’’ 43 U.S.C. 1701(b). FLPMA did not enact specific authority requiring fair market VerDate Aug<31>2005 15:50 Dec 03, 2008 Jkt 217001 value payments for mining uses of the public lands. However, Congress has enacted subsequent legislation that requires mining claimants to pay for the use of public lands encumbered with mining claims and mill sites through the maintenance fee. When Congress proposed the mining claim maintenance fee, the stated purpose was to generate some financial return to the public for use of Federal lands and the disposition of valuable mineral resources from those lands. See, e.g., 139 Cong. Rec. E 64 (Jan. 5, 1993). Since 1992, the BLM has collected over $300 million from mining claimants in maintenance fee payments for their use of the public lands for mining purposes. Congress has therefore addressed FLPMA’s fair market value policy through specific statutory authority requiring annual maintenance fee payments for mining claims and mill sites. IV. Section-by-Section Analysis Section 3800.6 Am I required to pay any fees to use the surface of public lands for mining purposes? This interim final rule adds section 3800.6, which states that anyone who is using the surface of public lands for mining purposes is not required to pay any fee for that use, other than the processing fees, location fees, and maintenance fees currently required. V. Procedural Matters Executive Order 12866, Regulatory Planning and Review This interim final rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget under Executive Order 12866. This interim final rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. This interim final rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This interim final rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor does it raise novel legal or policy issues. This rule makes no substantive change in any rule or requirement. It merely makes it clear that the BLM will not charge fair market value or any additional fee for mining or related use of public lands except as otherwise provided by statute or regulation. PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 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 this interim final rule easier to understand, including answers to questions such as the following: 1. Are the requirements in the interim final rule clearly stated? 2. Does the interim final rule contain technical language or jargon that interferes with its clarity? 3. Does the format of the interim final rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its 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 ‘‘§ ’’ and a numbered heading, for example § 3800.6. Am I required to pay any fees to use the surface of public lands for mining purposes?) 5. Is the description of the interim final rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the interim final rule? How could this description be more helpful in making the interim final rule 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 BLM has determined that this interim final rule, which makes it clear that the BLM will not charge fair market value or any additional fee for mining or related use of public lands except as otherwise provided by statute or regulation, is a regulation of an administrative, financial, legal, technical, or procedural nature. Therefore, it is categorically excluded from environmental review under Section 102(2)(C) of the National Environmental Policy Act, pursuant to 516 Departmental Manual (DM), Chapter 2, Appendix 1. In addition, the interim final rule does not meet any of the 10 criteria for exceptions to categorical exclusions listed in 516 DM, Chapter 2, Appendix 2. Pursuant to Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the Department of the Interior, the term ‘‘categorical exclusions’’ means a category of actions which do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures E:\FR\FM\04DER1.SGM 04DER1 Federal Register / Vol. 73, No. 234 / Thursday, December 4, 2008 / Rules and Regulations adopted by a Federal agency and for which neither an environmental assessment nor an environmental impact statement is required. Regulatory Flexibility Act Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601–612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This rule makes no substantive change in any rule or requirement. It merely makes it clear that the BLM will not charge fair market value or any additional fee for mining or related use of public lands except as otherwise expressly provided by statute or regulation. We have identified no entity that has carried out or proposes to carry out mining operations on unclaimed land. The rule affirms that the BLM will not charge fair market value for mining use of unclaimed land, use that does not occur because there are strong practical disincentives. Therefore, the BLM has determined under the RFA that this interim final rule would not have a significant economic impact on a substantial number of small entities. erowe on PROD1PC64 with RULES Small Business Regulatory Enforcement Fairness Act (SBREFA) This interim final rule is not a ‘‘major rule’’ as defined at 5 U.S.C. 804(2). That is, it would not have an annual effect on the economy of $100 million or more; it would not result in major cost or price increases for consumers, industries, government agencies, or regions; and it would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule makes no substantive change in any regulation or requirement. It merely makes it clear that the BLM will not charge fair market value or any additional fee for mining or related use of public lands except as otherwise expressly provided by statute or regulation. Unfunded Mandates Reform Act This interim final rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector, in the aggregate, of $100 million or more per year; nor does this interim final rule have a significant or unique effect on state, local, or tribal governments. The rule imposes no requirements on any of these entities. VerDate Aug<31>2005 15:50 Dec 03, 2008 Jkt 217001 We have already shown, in the previous paragraphs of this section of the preamble, that this interim final rule will not have effects approaching $100 million per year on the private sector. Therefore, the BLM does not need to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.). Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings) This interim final rule is not a government action capable of interfering with constitutionally protected property rights. This rule makes no substantive change in any regulatory provision or requirement. It merely makes it clear that the BLM will not charge fair market value or any additional fee for mining or related use of public lands except as otherwise expressly provided by statute or regulation. Therefore, the Department of the Interior has determined that the rule will not cause a taking of private property and does not require further discussion of takings implications under this Executive Order. Executive Order 13132, Federalism The interim final rule will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the levels of government. It does not apply to states or local governments or state or local governmental entities. Therefore, in accordance with Executive Order 13132, the BLM has determined that this interim final rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment. Executive Order 12988, Civil Justice Reform Under Executive Order 12988, we have determined that this interim final rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have found that this interim final rule does not include policies that have tribal implications. This rule makes no substantive change in any regulatory provision or requirement. It merely makes it clear that the BLM will not charge fair market value or any PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 73793 additional fee for mining or related use of public lands except as otherwise expressly provided by statute or regulation. Information Quality Act In developing this interim final/final rule, we did not conduct or use a study, experiment or survey requiring peer review under the Information Quality Act (section 515 of Public Law 106– 554). Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use In accordance with Executive Order 13211, the BLM has determined that the interim final rule will not have substantial direct effects on the energy supply, distribution or use, including a shortfall in supply or price increase. This rule makes no substantive change in any regulatory provision or requirement. It merely makes it clear that the BLM will not charge fair market value or any additional fee for mining or related use of public lands except as otherwise expressly provided by statute or regulation. Executive Order 13352—Facilitation of Cooperative Conservation In accordance with Executive Order 13352, the BLM has determined that this interim final rule does not impede facilitating cooperative conservation; takes appropriate account of and considers the interests of persons with ownership or other legally recognized interests in land or other natural resources; properly accommodates local participation in the Federal decisionmaking process; and provides that the programs, projects, and activities are consistent with protecting public health and safety. This rule makes no substantive change in any regulatory provision or requirement. It merely makes it clear that the BLM will not charge fair market value or any additional fee for mining or related use of public lands except as otherwise expressly provided by statute or regulation. Paperwork Reduction Act These regulations do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995. Author The principal author of this notice is Scott Haight of the Lewistown Field Office, Montana, assisted by Ted Hudson of the Division of Regulatory E:\FR\FM\04DER1.SGM 04DER1 73794 Federal Register / Vol. 73, No. 234 / Thursday, December 4, 2008 / Rules and Regulations Affairs, Washington Office, Bureau of Land Management, and the Office of the Solicitor, Department of the Interior. List of Subjects in 43 CFR Part 3800 Administrative practice and procedure; Environmental protection; Intergovernmental relations; Mines; Public lands—mineral resources; Reporting and recordkeeping requirements; Surety bonds; Wilderness areas. Dated: November 14, 2008. C. Stephen Allred, Assistant Secretary of the Interior, Land and Minerals Management. For the reasons stated in the Preamble, and under the authorities stated below, the BLM amends 43 CFR part 3800 as follows: ■ PART 3800—MINING CLAIMS UNDER THE GENERAL MINING LAWS 1. Revise the authority citation for part 3800 to read as follows: ■ Authority: 16 U.S.C. 3101 et seq.; 30 U.S.C. 22–42, 181 et seq., 301–306, 351–359, and 601 et seq.; 31 U.S.C. 9701; 40 U.S.C. 471 et seq.; 42 U.S.C. 6508; 43 U.S.C. 1701 et seq.; and Pub. L. No. 97–35, 95 Stat. 357. Subpart 3800—General ■ 2. Add § 3800.6 to read as follows: § 3800.6 Am I required to pay any fees to use the surface of public lands for mining purposes? You must pay all processing fees, location fees, and maintenance fees specified in 43 CFR parts 3800 and 3830. Other than the processing, location and maintenance fees, you are not required to pay any other fees to the BLM to use the surface of public lands for mining purposes. [FR Doc. E8–28741 Filed 12–3–08; 8:45 am] BILLING CODE 4310–84–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS–R1–ES–2007–0006; 92210–1117– 0000–B4] erowe on PROD1PC64 with RULES RIN 1018–AU93 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for 12 Species of Picture-Wing Flies From the Hawaiian Islands Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: VerDate Aug<31>2005 15:50 Dec 03, 2008 Jkt 217001 SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for 12 species of Hawaiian picture-wing flies (Drosophila aglaia, D. differens, D. hemipeza, D. heteroneura, D. montgomeryi, D. mulli, D. musaphilia, D. neoclavisetae, D. obatai, D. ochrobasis, D. substenoptera, and D. tarphytrichia) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 8,788 acres (ac) (3,556 hectares (ha)) fall within the boundaries of the final critical habitat designation. The critical habitat is located in four counties (City and County of Honolulu, Hawaii, Maui, and Kauai) in Hawaii. DATES: This final rule becomes effective on January 5, 2009. ADDRESSES: The final rule, final economic analysis, and map of critical habitat are available on the Internet at http://www.regulations.gov. Supporting documentation we used in preparing this final rule will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3–122, P.O. Box 50088, Honolulu, HI 96850; telephone 808–792–9400; facsimile 808–792–9580. FOR FURTHER INFORMATION CONTACT: Patrick Leonard, Field Supervisor, Pacific Islands Fish and Wildlife Office (see ADDRESSES); telephone 808–792– 9400; facsimile 808–792–9581. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this final rule. For additional information on the 12 Hawaiian picture-wing flies, refer to the final listing rule published in the Federal Register on May 9, 2006 (71 FR 26835), the revised proposed critical habitat rule published in the Federal Register on November 28, 2007 (72 FR 67428), and the recovery outline for the 12 Hawaiian picture-wing flies available on the Internet at http://www.fws.gov/ Pacific/ecoservices/endangered/ recovery/documents/ Drosophilarecoveryoutline-final.pdf. Previous Federal Actions On November 28, 2007, we published a revised proposed rule in the Federal Register to designate critical habitat for the 12 Hawaiian picture-wing flies (72 FR 67428). The publication of the PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 revised proposal opened a 60-day public comment period, which closed on January 28, 2008. On March 6, 2008, we published a document in the Federal Register announcing the reopening of the public comment period until April 25, 2008, and a notice of two public hearings (73 FR 12065). On April 4, 2008, we held a public hearing in Hilo, Hawaii, and on April 10, 2008, we held a public hearing in Honolulu, Hawaii. On August 12, 2008, we published a document in the Federal Register (73 FR 46860) announcing the availability of the draft economic analysis of the proposed critical habitat designation and reopening the public comment period until September 11, 2008. For more information on previous Federal actions concerning the 12 species of Hawaiian picture-wing flies, refer to the proposed designation of critical habitat published in the Federal Register on August 15, 2006 (71 FR 46994), and the final rule to list 11 picture-wing flies as endangered and one picture-wing fly as threatened published in the Federal Register on May 9, 2006 (71 FR 26835). Summary of Comments and Recommendations During the comment period that opened on November 28, 2007, and closed on January 28, 2008 (72 FR 67428), we received 10 comments, including 2 requests for public hearings. Three comments were from peer reviewers, three were from State of Hawaii agencies, and four were from nongovernmental organizations or individuals. During the comment period that opened on March 6, 2008, and closed on April 25, 2008 (73 FR 12065), we received nine comments from organizations or individuals. We also conducted public hearings in Hilo on the Island of Hawaii and in Honolulu on the Island of Oahu, Hawaii. During the comment period that opened on August 12, 2008, and closed on September 11, 2008 (73 FR 46860), we received seven comments. Three comments were from individuals (which includes two individuals that presented testimony at the public hearing in Honolulu, Hawaii on April 10, 2008), one comment was from the U.S. Navy, and three comments were received from the State of Hawaii Division of Forestry and Wildlife, Office of Hawaiian Affairs, and the State Historic Preservation Office. Twelve comments supported the designation of critical habitat for the Hawaiian picture-wing flies and four opposed the designation. Two comments were received from individuals expressing general views on the Endangered Species Act, but were unrelated to the proposed designation of E:\FR\FM\04DER1.SGM 04DER1

Agencies

[Federal Register Volume 73, Number 234 (Thursday, December 4, 2008)]
[Rules and Regulations]
[Pages 73789-73794]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28741]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[LLWO32000.L13300000.PO0000.24-1A]
RIN 1004-AE00


Mining Claims Under the General Mining Laws

AGENCY: Bureau of Land Management, Interior.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Land Management (BLM) is issuing this interim 
final rule to amend the BLM's regulations for Mining Claims under the 
General Mining Laws. The rule responds to a Federal district court 
decision that required the BLM to evaluate whether the regulations

[[Page 73790]]

comply with Congress's policy goal for the United States to receive 
fair market value for the use of the public lands and their resources. 
The interim final rule makes it clear that, other than processing fees, 
location fees, and maintenance fees provided for in 43 CFR parts 3800 
and 3830, the BLM does not require any other fees for surface use of 
the public lands for mining purposes.

DATES: Effective date: The interim final rule is effective December 4, 
2008.
    Comment deadline: You should submit your comments on the interim 
final rule on or before February 2, 2009. The BLM may not necessarily 
consider or include in the administrative record for the interim final 
rule comments that the BLM receives after the close of the comment 
period or comments delivered to an address other than those listed 
below (see ADDRESSES).

ADDRESSES: Mail: Director (630), Bureau of Land Management, U.S. 
Department of the Interior, Mail Stop 401 LS, 1849 C St., NW., 
Washington, DC 20240, Attention: 1004-AD69.
    Personal or messenger delivery: 1620 L Street, NW., Washington, DC 
20036.
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions at this Web site.

FOR FURTHER INFORMATION CONTACT: Scott Haight at (406) 538-1930 for 
information relating to the surface management program or the substance 
of the notice, or Ted Hudson at (202) 452-5042 for information relating 
to the rulemaking process generally. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8330, 24 hours a day, 
seven days a week, to contact the above individuals.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Why We Are Publishing This Rule?
IV. Section-by-Section Analysis
V. Procedural Matters

I. Public Comment Procedures

A. How do I comment on the notice?

    If you wish to comment, you may submit your comments by any one of 
several methods:
     You may mail comments to Director (630), Bureau of Land 
Management, Administrative Record, Room 401 LS, Director (630), Mail 
Stop 401 LS, Bureau of Land Management, U.S. Department of the 
Interior, 1849 C Street, NW., Washington, DC 20240, Attn: 1004-AD69.
     You may deliver comments to Room 401, 1620 L Street, NW, 
Washington, DC 20036.
     You may access and comment on the notice at the Federal 
eRulemaking Portal by following the instructions at that site (see 
ADDRESSES).
    Written comments on the interim final rule should be specific, 
should be confined to issues pertinent to the interim final rule, and 
should explain the reason for any recommended change. Where possible, 
comments should reference the specific section or paragraph of the 
proposal which the comment is addressing.
    The BLM may not necessarily consider or include in the 
Administrative Record for the notice comments that we receive after the 
close of the comment period (see DATES) or comments delivered to an 
address other than those listed above (see ADDRESSES).

B. May I review comments submitted by others?

    You may examine documents pertinent to this interim final rule as 
follows. Comments, including names and street addresses of respondents, 
will be available for public review at the address listed under 
ADDRESSES: ``Personal or messenger delivery'' during regular hours 
(7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays. They 
will also be available at the Federal eRulemaking Portal: http://
www.regulations.gov. Follow the instructions at this Web site.

C. Can my name and address be kept confidential?

    Before including your address, telephone number, e-mail address, or 
other personal identifying information in your comment, be advised that 
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask in your 
comment to withhold from public review your personal identifying 
information, we cannot guarantee that we will be able to do so. Mail 
your comment to: U.S. Department of the Interior, Director (630), 
Bureau of Land Management, Mail Stop 40l LS, 1849 C Street, NW., 
Attention: 1004-AD69, Washington, DC 20240.
    You may deliver comments to: Room 401, 1620 L St., NW., Washington, 
DC 20036.

II. Background

    In 2003, a Federal district court substantially upheld the BLM's 
surface management regulations in 43 CFR subpart 3809, but remanded 
them in part to the Department ``for evaluation, in light of Congress's 
expressed policy goal for the United States to `receive fair market 
value of the use of the public lands and their resources.' '' The 
district court concluded that ``[o]perations neither conducted pursuant 
to valid mining claims nor otherwise explicitly protected by [the 
Federal Land Policy and Management Act of 1976 (FLPMA)] or the Mining 
Law (i.e., exploration activities, ingress and egress, and limited 
utilization of mill sites) must be evaluated in light of Congress's 
expressed policy goal for the United States to `receive fair market 
value of the use of the public lands and their resources.' '' Mineral 
Policy Center v. Norton, 292 F. Supp. 2d 30, 51 (D.D.C. 2003). The 
court remanded the regulations to the Department to evaluate the 
competing priorities set forth in FLPMA as applied to invalidly claimed 
or unclaimed lands ``in light of Congress's expressed policy goal for 
the United States to `receive fair market value of the use of public 
lands and their resources.' '' Id.
    On February 23, 2007, the BLM published an advance notice of 
proposed rulemaking (ANPR) to assist the BLM in the evaluation ordered 
by the court (71 FR 8139). The ANPR requested public comments regarding 
whether any miners or mining companies in fact use unclaimed lands for 
such mining operations. The BLM asked for detailed examples of any such 
use so that it could determine whether it needed to conduct further 
evaluation of FLPMA's competing priorities with regard to any mining 
operations that go beyond exploration activities on unclaimed lands. 
The absence of comments providing such examples suggests that the BLM's 
belief is correct that no mining operations amounting to more than 
initial exploration activities occur on unclaimed Federal lands under 
the Mining Law. (The comments we received are discussed fully below.) 
Consequently, the BLM has determined that there is no use of the 
surface of invalidly claimed or unclaimed lands for mining purposes, 
amounting to more than initial exploration activities, for which BLM 
must consider charging fair market value.
    The BLM received 958 comments in response to the ANPR. The comments 
expressed opinions on whether the BLM had the authority to implement 
regulations to obtain fair market value for the use of unclaimed lands 
for mining purposes.
    The great majority of the comments appeared in identical form e-
mails, and read as follows:

    ``In 2003, a court ordered the Bureau of Land Management to 
require fair market value for operations conducted on lands not 
subject to valid claims or unclaimed lands. This would require 
mining companies to

[[Page 73791]]

comply with the current mining law and demonstrate the validity of 
their mining claims.
    ``In the advance notice of proposed rulemaking issued February 
23, the BLM argued that it is not `practical' to undertake claim 
validity examinations to determine whether or not a mining company 
has staked valid claims under the 1872 Mining Law. It appears the 
BLM plans to just ignore the fact that there may be mining companies 
that are violating the law by operating on unclaimed or invalidly 
claimed lands.
    ``Please do not permit the BLM to allow mining companies to 
violate the 1872 Mining Law--an antiquated law that has already 
caused tremendous harm to western lands and water resources--instead 
of compelling mining companies to comply with the law and 
demonstrate the validity of their mining claims.
    ``Instead of allowing mining companies to thwart the law, the 
BLM should do everything it can to make sure that all mining occurs 
on valid claims.''

    Most of the other comments presented variations on these positions, 
or general statements favoring or opposing the Mining Law. (The latter 
issue is beyond the scope of this rule.) Others opposed any imposition 
of fair market value charges on mining operations.
    As we stated in the ANPR, ``[t]he court's decision in Mineral 
Policy Center did not address the use of lands on which mining claims 
of unknown validity exist.'' Nevertheless, we discussed in the ANPR and 
discuss in the next section of this preamble the budgetary and other 
practical reasons why the BLM does not routinely undertake validity 
examinations of all mining claims.
    Public lands are generally open to the operation of the Mining Law, 
unless they are statutorily or administratively withdrawn from such 
use. A mining claim on lands that are open to the operation of the 
Mining Law and that is determined invalid by the BLM remains open for 
relocation by the original claimant or another claimant.
    On the other hand, withdrawn lands are usually withdrawn subject to 
valid existing rights. Under the BLM's regulations, a mining claim that 
was located before a withdrawal is automatically subject to a validity 
examination when the claimant files a plan of operations under 43 CFR 
3809.11 or a notice under 43 CFR 3809.21. See 43 CFR 3809.100. A 
validity examination is also triggered when a mining claimant files a 
patent application under 43 CFR part 3860. See 43 CFR 3862.1-1. Also, 
when anyone attempts to use a mining claim for purposes not 
contemplated by the Mining Law, the BLM treats that use as a trespass 
and will conduct a validity examination of the mining claim. In these 
ways, the BLM prevents abuse of the Mining Law.
    The ANPR specifically requested that comments provide examples of 
uses of unclaimed lands for mining operations that go beyond 
exploration activities on the public lands. None of the comments 
provided any past or current examples of miners or mining companies 
using unclaimed lands for such mining operations under the Mining Law. 
One comment purported to describe such an example, but upon further 
investigation the mining operation described did not occur on unclaimed 
lands. Other comments described activities in support of mining, such 
as access and storage. However, when these ancillary uses are conducted 
in relation to mining claims or mill sites, they need not be evaluated 
in light of FLPMA's fair market policy. As noted in the ANPR, Judge 
Kennedy of the Federal district court concluded that the Mining Law 
authorizes operations, including possession, occupancy, and mineral 
extraction activities, without payment of fair market value for that 
use (292 F. Supp. 2d at pages 47 and 51). The court also concluded that 
the Mining Law authorizes exploration activities, mill site use, and 
ingress and egress to mining claims (id.). None of the comments 
presented factual scenarios in which such ancillary uses took place in 
association with operations on unclaimed lands that amount to more than 
initial exploration activities.
    The response to the ANPR with regard to the use of unclaimed lands 
for mining operations was consistent with the BLM's expectations. The 
BLM is not aware of any miner or mining company that would be willing 
to invest money or resources in the development of a mine without some 
tenure in the land in the form of a mining claim or mill site. If a 
mining company were to file a plan of operations to extract minerals 
from unclaimed lands, a third party could easily locate mining claims 
over the area and assert adverse rights to the lands. Consequently, the 
fact that none of the handful of comments addressing the issues raised 
in the ANPR presented an example of an operator engaging in more than 
initial exploration on the public lands without a mining claim or mill 
site was not surprising.
    This is an interim final rule. Although the rule is effective upon 
publication, there is a 60-day comment period that starts on the date 
of publication. After the comment period, we will review the comments 
and may issue a further final rule with any necessary changes.
    Because this rule makes no substantive change in any rule or 
requirement, the BLM for good cause finds that notice and public 
comment are unnecessary and the rule may take effect upon publication 
pursuant to 5 U.S.C. 553(b)(B) and 553(d)(3).

III. Why We Are Publishing This Rule

    As previously noted, the court concluded that the Mining Law 
authorizes operations, including possession, occupancy, and mineral 
extraction activities, on valid mining claims without payment of fair 
market value for that use (Mineral Policy Center, 292 F. Supp. 2d at 
page 51). The court instructed the BLM to evaluate whether the fair 
market value policy in FLPMA should be applied to ``invalidly claimed 
or unclaimed lands.''
    The BLM is not aware of any mining operations taking place on 
``invalidly claimed'' public lands (i.e., public lands where BLM has 
determined that the claims or sites are invalid) or unclaimed public 
lands (i.e., lands where there are no mining claims or mill sites). 
Because there are no mining operations occurring on unclaimed lands or 
lands determined to be invalidly claimed, the BLM concludes that there 
is nothing to evaluate in light of the fair market value policy.
    For mining operations occurring on claimed lands, the BLM is 
publishing this rule to make it clear that mine operators are not 
required to pay any fee to use the surface of public lands for mining 
operations conducted under the Mining Law, other than the fees that 
mining claimants already pay in the form of the maintenance fee, the 
claim location fee, and services charges for other transactions 
associated with mining claims (see 43 CFR 3830.21).
    As discussed above and in the ANPR, the BLM does not routinely 
undertake validity examinations for all mining claims located under the 
Mining Law. Even though the validity of most mining claims is unknown, 
the BLM treats all properly maintained mining claims as active claims. 
The BLM requires all mining claimants to comply with the statutory 
recording and maintenance requirements, as well as the prohibition 
against causing unnecessary or undue degradation of the public lands. 
The requirements to maintain a claim's active status include timely 
payment of location fees and annual maintenance fees. By law, claimants 
must pay the fees without regard to whether the BLM has determined the 
underlying validity of the claims.
    Because Congress authorizes mining claimants to locate mining 
claims under the Mining Law and maintain them by making annual payments 
to the BLM while the validity of the claims is unknown or undetermined, 
the BLM

[[Page 73792]]

has concluded that it may not apply FLPMA's fair market value policy to 
approved mining operations that occur on mining claims of unknown 
validity. Likewise, the BLM has concluded that it may not apply FLPMA's 
fair market value policy to approved mining operations that occur on 
mining claims of known validity.
    The BLM believes that its conclusions comport with the fair market 
value policy of FLPMA, which establishes a goal of receiving fair 
market value of the use of the public lands ``unless otherwise provided 
by statute.'' The Supreme Court has acknowledged that the Mining Law 
allows ``citizens to go onto unappropriated, unreserved public land to 
prospect for and develop certain minerals.'' United States v. Locke, 
471 U.S. 84, 86 (1985). In particular, the Supreme Court has explained 
that the Mining Law ``extends an express invitation to all qualified 
persons to explore the lands of the United States for valuable mineral 
deposits, and * * * [t]hose who, being qualified, proceed in good faith 
to make such explorations and enter peaceably upon vacant lands of the 
United States for that purpose are not treated as mere trespassers, but 
as licensees or tenants at will.'' Union Oil Co. v. Smith, 249 U.S. 
337, 346 (1919). The Ninth Circuit also has stated, ``Under the wise 
and beneficent policy of the government of the United States, all its 
public lands were thrown open to its citizens, and those who had 
declared their intention to become such, for exploration for the 
precious minerals and development thereof.'' Cosmos Exploration Co. v. 
Gray Eagle Oil Co., 112 F. 4, 13 (9th Cir. 1901). The Mining Law has 
authorized public land use for mineral exploration and development 
without any requirement to pay fair market value for that use. 
Therefore, based on the express terms of FLPMA's policy statement, that 
use is exempt from FLPMA's fair market value policy and this rule adds 
a provision making it clear that, other than processing fees, location 
fees, and maintenance fees provided for in 43 CFR parts 3800, 3830, and 
3834, the BLM does not require any other fees for surface use of the 
public lands for mining purposes.
    Moreover, FLPMA states that its policies will become effective 
``only as specific statutory authority for their implementation is 
enacted by [FLPMA] or by subsequent legislation and shall then be 
construed as supplemental to and not in derogation of the purposes for 
which public lands are administered under other provisions of law.'' 43 
U.S.C. 1701(b). FLPMA did not enact specific authority requiring fair 
market value payments for mining uses of the public lands. However, 
Congress has enacted subsequent legislation that requires mining 
claimants to pay for the use of public lands encumbered with mining 
claims and mill sites through the maintenance fee. When Congress 
proposed the mining claim maintenance fee, the stated purpose was to 
generate some financial return to the public for use of Federal lands 
and the disposition of valuable mineral resources from those lands. 
See, e.g., 139 Cong. Rec. E 64 (Jan. 5, 1993). Since 1992, the BLM has 
collected over $300 million from mining claimants in maintenance fee 
payments for their use of the public lands for mining purposes. 
Congress has therefore addressed FLPMA's fair market value policy 
through specific statutory authority requiring annual maintenance fee 
payments for mining claims and mill sites.

IV. Section-by-Section Analysis

Section 3800.6 Am I required to pay any fees to use the surface of 
public lands for mining purposes?

    This interim final rule adds section 3800.6, which states that 
anyone who is using the surface of public lands for mining purposes is 
not required to pay any fee for that use, other than the processing 
fees, location fees, and maintenance fees currently required.

V. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

    This interim final rule is not a significant regulatory action and 
is not subject to review by the Office of Management and Budget under 
Executive Order 12866. This interim final rule will not have an effect 
of $100 million or more on the economy. It will not adversely affect in 
a material way the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local, or tribal 
governments or communities. This interim final rule does not create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency. This interim final rule does not alter the 
budgetary effects of entitlements, grants, user fees, or loan programs 
or the right or obligations of their recipients; nor does it raise 
novel legal or policy issues. This rule makes no substantive change in 
any rule or requirement. It merely makes it clear that the BLM will not 
charge fair market value or any additional fee for mining or related 
use of public lands except as otherwise provided by statute or 
regulation.

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 this interim final rule easier to understand, including answers 
to questions such as the following:
    1. Are the requirements in the interim final rule clearly stated?
    2. Does the interim final rule contain technical language or jargon 
that interferes with its clarity?
    3. Does the format of the interim final rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
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.  3800.6. Am I required to pay any fees to use 
the surface of public lands for mining purposes?)
    5. Is the description of the interim final rule in the 
SUPPLEMENTARY INFORMATION section of this preamble helpful in 
understanding the interim final rule? How could this description be 
more helpful in making the interim final rule 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 BLM has determined that this interim final rule, which makes it 
clear that the BLM will not charge fair market value or any additional 
fee for mining or related use of public lands except as otherwise 
provided by statute or regulation, is a regulation of an 
administrative, financial, legal, technical, or procedural nature. 
Therefore, it is categorically excluded from environmental review under 
Section 102(2)(C) of the National Environmental Policy Act, pursuant to 
516 Departmental Manual (DM), Chapter 2, Appendix 1. In addition, the 
interim final rule does not meet any of the 10 criteria for exceptions 
to categorical exclusions listed in 516 DM, Chapter 2, Appendix 2. 
Pursuant to Council on Environmental Quality regulations (40 CFR 
1508.4) and the environmental policies and procedures of the Department 
of the Interior, the term ``categorical exclusions'' means a category 
of actions which do not individually or cumulatively have a significant 
effect on the human environment and that have been found to have no 
such effect in procedures

[[Page 73793]]

adopted by a Federal agency and for which neither an environmental 
assessment nor an environmental impact statement is required.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as 
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory flexibility analysis if a rule would have a 
significant economic impact, either detrimental or beneficial, on a 
substantial number of small entities. This rule makes no substantive 
change in any rule or requirement. It merely makes it clear that the 
BLM will not charge fair market value or any additional fee for mining 
or related use of public lands except as otherwise expressly provided 
by statute or regulation. We have identified no entity that has carried 
out or proposes to carry out mining operations on unclaimed land. The 
rule affirms that the BLM will not charge fair market value for mining 
use of unclaimed land, use that does not occur because there are strong 
practical disincentives. Therefore, the BLM has determined under the 
RFA that this interim final rule would not have a significant economic 
impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This interim final rule is not a ``major rule'' as defined at 5 
U.S.C. 804(2). That is, it would not have an annual effect on the 
economy of $100 million or more; it would not result in major cost or 
price increases for consumers, industries, government agencies, or 
regions; and it would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This rule makes no substantive change in any regulation or 
requirement. It merely makes it clear that the BLM will not charge fair 
market value or any additional fee for mining or related use of public 
lands except as otherwise expressly provided by statute or regulation.

Unfunded Mandates Reform Act

    This interim final rule does not impose an unfunded mandate on 
state, local, or tribal governments or the private sector, in the 
aggregate, of $100 million or more per year; nor does this interim 
final rule have a significant or unique effect on state, local, or 
tribal governments. The rule imposes no requirements on any of these 
entities. We have already shown, in the previous paragraphs of this 
section of the preamble, that this interim final rule will not have 
effects approaching $100 million per year on the private sector. 
Therefore, the BLM does not need to prepare a statement containing the 
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 
et seq.).

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

    This interim final rule is not a government action capable of 
interfering with constitutionally protected property rights. This rule 
makes no substantive change in any regulatory provision or requirement. 
It merely makes it clear that the BLM will not charge fair market value 
or any additional fee for mining or related use of public lands except 
as otherwise expressly provided by statute or regulation. Therefore, 
the Department of the Interior has determined that the rule will not 
cause a taking of private property and does not require further 
discussion of takings implications under this Executive Order.

Executive Order 13132, Federalism

    The interim final rule will not have a substantial direct effect on 
the states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
levels of government. It does not apply to states or local governments 
or state or local governmental entities. Therefore, in accordance with 
Executive Order 13132, the BLM has determined that this interim final 
rule does not have sufficient Federalism implications to warrant 
preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    Under Executive Order 12988, we have determined that this interim 
final rule will not unduly burden the judicial system and that it meets 
the requirements of sections 3(a) and 3(b)(2) of the Order.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have found that this 
interim final rule does not include policies that have tribal 
implications. This rule makes no substantive change in any regulatory 
provision or requirement. It merely makes it clear that the BLM will 
not charge fair market value or any additional fee for mining or 
related use of public lands except as otherwise expressly provided by 
statute or regulation.

Information Quality Act

    In developing this interim final/final rule, we did not conduct or 
use a study, experiment or survey requiring peer review under the 
Information Quality Act (section 515 of Public Law 106-554).

Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, the BLM has determined 
that the interim final rule will not have substantial direct effects on 
the energy supply, distribution or use, including a shortfall in supply 
or price increase. This rule makes no substantive change in any 
regulatory provision or requirement. It merely makes it clear that the 
BLM will not charge fair market value or any additional fee for mining 
or related use of public lands except as otherwise expressly provided 
by statute or regulation.

Executive Order 13352--Facilitation of Cooperative Conservation

    In accordance with Executive Order 13352, the BLM has determined 
that this interim final rule does not impede facilitating cooperative 
conservation; takes appropriate account of and considers the interests 
of persons with ownership or other legally recognized interests in land 
or other natural resources; properly accommodates local participation 
in the Federal decision-making process; and provides that the programs, 
projects, and activities are consistent with protecting public health 
and safety. This rule makes no substantive change in any regulatory 
provision or requirement. It merely makes it clear that the BLM will 
not charge fair market value or any additional fee for mining or 
related use of public lands except as otherwise expressly provided by 
statute or regulation.

Paperwork Reduction Act

    These regulations do not contain information collection 
requirements that the Office of Management and Budget must approve 
under the Paperwork Reduction Act of 1995.

Author

    The principal author of this notice is Scott Haight of the 
Lewistown Field Office, Montana, assisted by Ted Hudson of the Division 
of Regulatory

[[Page 73794]]

Affairs, Washington Office, Bureau of Land Management, and the Office 
of the Solicitor, Department of the Interior.

List of Subjects in 43 CFR Part 3800

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

    Dated: November 14, 2008.
C. Stephen Allred,
Assistant Secretary of the Interior, Land and Minerals Management.

0
For the reasons stated in the Preamble, and under the authorities 
stated below, the BLM amends 43 CFR part 3800 as follows:

PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS

0
1. Revise the authority citation for part 3800 to read as follows:

    Authority: 16 U.S.C. 3101 et seq.; 30 U.S.C. 22-42, 181 et seq., 
301-306, 351-359, and 601 et seq.; 31 U.S.C. 9701; 40 U.S.C. 471 et 
seq.; 42 U.S.C. 6508; 43 U.S.C. 1701 et seq.; and Pub. L. No. 97-35, 
95 Stat. 357.

Subpart 3800--General

0
2. Add Sec.  3800.6 to read as follows:


Sec.  3800.6  Am I required to pay any fees to use the surface of 
public lands for mining purposes?

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

[FR Doc. E8-28741 Filed 12-3-08; 8:45 am]
BILLING CODE 4310-84-P