Mining Claims Under the General Mining Laws, 73789-73794 [E8-28741]
Download as PDF
<![CDATA[
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: https://
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: https://
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
https://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 https://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]
=======================================================================
-----------------------------------------------------------------------
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: https://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: https://
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
