[Federal Register: October 24, 2003 (Volume 68, Number 206)]
[Rules and Regulations]
[Page 61045-61081]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24oc03-19]
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Part II
Department of the Interior
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Bureau of Land Management
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43 CFR Parts 3710, 3730, et al.
Locating, Recording, and Maintaining Mining Claims or Sites; Final Rule
[[Page 61046]]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 3710, 3730, 3810, 3820, 3830-3840, and 3850
[WO-620-1430-00-24 1A]
RIN 1004-AD31
Locating, Recording, and Maintaining Mining Claims or Sites
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Land Management (BLM) is publishing this rule to
streamline the regulations on locating, filing, and maintaining mining
claims or sites by consolidating provisions that were scattered in
various portions of Groups 3700 and 3800 into ten consecutive parts
placing the provisions in logical order, clarifying conflicting
language, eliminating duplication, and removing obsolete provisions.
These revisions are part of BLM's overall effort to rewrite regulations
in plain language to make them easier for the public to use and
understand and to provide better customer service.
DATES: This final rule is effective November 24, 2003.
FOR FURTHER INFORMATION CONTACT: Roger Haskins in the Solid Minerals
Group at (202) 452-0355 or Ted Hudson in the Regulatory Affairs Group
at (202) 452-5042. For assistance in reaching the above contacts,
individuals who use a telecommunications device for the deaf (TDD) may
call the Federal Information Relay Service at 1 (800) 877-8339 at any
time.
SUPPLEMENTARY INFORMATION:
I. Background
BLM has primary responsibility for the administration of mining
claims and sites on Federal lands. At the end of fiscal year (FY) 2002,
there were 198,029 mining claims and sites maintained on the Federal
lands. During FY 2002, claimants recorded 15,407 new mining claims and
sites. In addition, BLM processed 6,249 waiver documents containing
21,334 mining claims and sites and processed 174,845 annual maintenance
fee transactions. BLM also collected a total of $19,410,375 in location
and maintenance fees. BLM pays these collected fees into a special
fund, and Congress appropriates the money to BLM to pay for the
personnel and operations of the Mining Law Administration program,
which includes, among other things--
[sbull] Recording and adjudicating mining claims and sites located
on the public lands,
[sbull] Processing patent applications, plans of operations and
notices,
[sbull] Inspecting operations, and
[sbull] generally enforcing the regulations.
A. Mining Claims or Sites
A mining claim, which can be either lode or placer, may be located
on Federal land and must contain a valuable mineral deposit. In
contrast, a mill site may be located on nonmineral land and must be
used to support a lode or placer mining claim operation or support
itself independent of a particular claim. A tunnel site contains a
tunnel to a lode mine or is used to discover previously unknown lode
mineral deposits.
B. Current Regulations
How Are Current Regulations Organized?
Regulations on locating, recording, and maintaining mining claims
or sites are currently scattered throughout 43 CFR Groups 3700 and
3800. BLM and the General Land Office (GLO), BLM's predecessor agency,
created them piece by piece since 1939, when the first Code of Federal
Regulations (CFR) was issued. Past practice of BLM and GLO was to
create a new subpart in the CFR if Congress amended the General Mining
Law or passed new laws affecting mining claims or sites. For this
reason, the regulations that this final rule replaces were disjointed
and contained conflicting, obsolete, expired, and duplicative
information. This rule is BLM's first attempt to consolidate, clarify,
and eliminate duplications in these regulations.
What Other Regulations Are Related to This Rule?
This rule concerns the location, recording, and maintenance of
mining claims and associated mineral rights on the Federal lands of the
United States that are subject to the General Mining Law. In order to
obtain permission to occupy or disturb the surface or subsurface of
your mining claims or sites, you must follow the Surface Management
regulations of the surface management agency.
[sbull] For BLM-administered lands, you must follow 43 CFR 3715,
3802, 3809, or 3814 as applicable.
[sbull] On National Forest lands, you must follow 36 CFR part 228.
[sbull] On National Park System lands, you must follow 36 CFR parts
6 and 9.
[sbull] In addition, most States require you to obtain mining and
reclamation permits before beginning surface disturbing operations on
Federal lands.
To apply for a mineral patent for your mining claim or mill site,
you must follow the regulations at 43 CFR parts 3860 and 3870. However,
due to a Congressional budget moratorium in effect since October 1,
1994, BLM will not accept any new mineral patent applications unless
and until Congress removes the moratorium.
What Previously Proposed Rules Relate to This Rule?
Since 1992, Congress has passed four short-term laws requiring
claimants to pay various fees when locating, recording, and maintaining
mining claims or sites. As the designated fee collector, BLM has
implemented each of these laws by amending its regulations. An
administrative final rule dated June 3, 2002 (67 FR 38203) implemented
the fourth of these short-term laws--the Interior and Related Agencies
Appropriation Act of November 5, 2001, for Fiscal Year 2001 (the Act)
(Title I of Pub. L. 107-63, 115 Stat. 414; 30 U.S.C. 28-28k) by
continuing to require claimants to pay location and maintenance fees on
unpatented mining claims or sites and to make annual maintenance fee
waivers available to small miners until September 30, 2003. BLM
collected these fees and provided for waivers under the existing
regulations based on a previous law that expired on September 30, 2001.
To implement the earlier Acts, BLM published rules amending 43 CFR
parts 3730, 3821, 3833, and 3850 at 59 FR 44857 and 64 FR 47201. This
final rule retains the changes made in the June 2002 administrative
final rule.
Statutory History
Originally, all commercially valuable minerals were locatable under
the General Mining Law. Congress has, over time, added minerals to or
removed them from the General Mining Law through amendments and the
enactment of laws such as the Mineral Leasing Act, the Geothermal Steam
Act, and the Surface Resources Act. As a result, whether minerals are
locatable is defined by the intersection of these statutes with the
General Mining Law. The Federal Land Policy and Management Act (FLPMA)
affects location, recording, and maintenance of mining claims or sites
through its broad directive to the Secretary of the Interior to manage
all public lands. In addition, Congress requires special procedures for
locating or maintaining claims or sites that fall under the
Stockraising
[[Page 61047]]
Homestead Act, the Mining Claim Rights Restoration Act, or the Energy
Policy Act.
1. The Federal Land Policy and Management Act
The Federal Land Policy and Management Act of 1976 (FLPMA) requires
the Secretary to manage all public lands under broad-ranging authority.
This Act resulted from Congress completely overhauling the entire
public land management system of the United States. Relevant sections
in FLPMA:
[sbull] Require recording and maintenance of all mining claims or
sites with BLM or they are forfeited (section 314, 43 U.S.C. 1744);
[sbull] Make knowing disregard or circumvention of any regulation
issued under the authority of FLPMA a Federal criminal offense (section
303, 43 U.S.C. 1733).
2. The General Mining Law
How Do I Locate Minerals Under the General Mining Laws?
The General Mining Laws, as amended, which generally comprise
chapters 2, 11, 12, 12A, 15, 16, and 20, and section 161 of title 30 of
the United States Code, are the primary statutes governing disposition
of minerals on Federal lands by location. Locating claims or sites has
four elements:
[sbull] Discovering a valuable mineral deposit (for claims)
[sbull] Locating mining claims or sites
[sbull] Recording mining claims or sites
[sbull] Maintaining mining claims or sites
Claimants who comply with these four elements gain a right of
possession to the deposit and a right to extract and develop the
minerals. This right includes the use of the surface for exploration,
mineral development, mineral extraction, and uses reasonably incident
to exploration, extraction, and development. This right is a real
property interest and may be bought, sold, transferred, leased, rented,
devised, or inherited. The United States retains ownership and title to
the land, even while a claimant is developing the mineral deposit. On
lands where the United States is not the owner of the surface estate,
which is the situation on Stockraising Homestead Act and Taylor Grazing
Act lands, the surface owner retains title to the surface of the land
and BLM administers the mineral estate reserved to the United States.
3. Mineral Leasing Act
The Mineral Leasing Act allows you to lease the Federal lands for
development of certain types of mineral. The Mineral Leasing Act made
several minerals that were once locatable and are now not available
under the General Mining Law leasable after February 25, 1920,
including:
[sbull] Oil and gas
[sbull] Coal
[sbull] Potassium, sodium, and phosphate
[sbull] Oil shale, tar sands, native asphalt, solid and semisolid
bitumen
[sbull] Oil recovered from oil sands after the deposit is mined or
quarried
[sbull] Sulphur in Louisiana and New Mexico that belongs to the United
States
These minerals are administered under 43 CFR Groups 3100, 3200, 3400,
and 3500.
4. Mineral Materials Act and Surface Resources Act
The Mineral Materials Act and the Surface Resources Act govern
sales of mineral materials on Federal land. These mineral materials
include petrified wood and common variety mineral materials. Common
variety mineral materials were locatable until July 23, 1955, when the
Surface Resources Act (30 U.S.C. 611-615) made all deposits of common
varieties of sand, stone, gravel, pumice, pumicite, cinders, and clay
salable and therefore no longer locatable. Uncommon varieties of
mineral materials, which have distinct and special value, are still
locatable under the General Mining Law. BLM administers mineral
materials under 43 CFR part 3600.
5. Stockraising Homestead Act and the Homestead Act
Claimants must follow additional procedures when seeking to locate
mining claims or sites on lands patented under the Stockraising
Homestead Act (SRHA) of 1916 (43 U.S.C. 291-299) or, in some instances,
the Homestead Act of 1862, as amended (43 U.S.C. 161-284). The United
States owns only the mineral estate in these lands.
Under the Homestead Act, the United States granted land patents (or
title) to homesteaders who wanted to enter and cultivate the land.
However, in some situations, particularly in the arid West, some land
was not suitable for traditional crop farming. The SRHA allowed
homesteaders to use the land for grazing, instead of traditional
farming. For those who already had an application (entry) under the
Homestead Act but could not meet the cultivation and irrigation
requirements, the SRHA permitted conversion of the Homestead entry into
an SRHA entry. The Government issued these converted patents under the
Homestead Act. However, unlike other Homestead Act patents that granted
title to both the surface and mineral estates, the converted entries
and patents conveyed title to the surface estate only and reserved the
mineral estate to the United States under the SRHA.
Thus, certain lands that appear to have been patented under the
authority of the Homestead Act after December 29, 1916, were patented
under the SRHA with a Federal mineral estate reservation. You may
locate mining claims or tunnel sites (but not mill sites) on these
reserved mineral estates under certain conditions. Congress enacted
amendments to the Stockraising Homestead Act in 1993 that impose
notification requirements on mining claimants other than the surface
owner who wants to enter Stockraising Homestead Act lands to explore
for minerals and locate mining claims. Act of April 16, 1993; Pub. L.
103-23; 43 U.S.C. 299(b); 43 CFR part 3838.
6. Energy Policy Act
The Energy Policy Act (30 U.S.C. 242) no longer requires assessment
work for oil shale placer claims, and instead requires payment of an
annual $550 fee for most oil shale claims, and also requires an annual
filing of a notice of intent to hold. In cases where $550 is due, the
claimant is not required to pay an additional maintenance fee.
7. Federal Oil and Gas Royalty Management Act
The Federal Oil and Gas Royalty Management Act of 1982 (30 U.S.C.
188(f)) provides that a mining claimant may seek to convert an oil
placer mining claim that was validly located before February 24, 1920,
to a non-competitive oil and gas lease as of the date the claimant
fails to comply with section 314 of FLPMA and the mining claim is
deemed abandoned and void. The claimant's failure must be inadvertent,
justifiable, or not due to lack of reasonable diligence on the part of
the claimant.
8. State Laws
Most states have passed their own laws about mining claim location,
recording, and annual maintenance as authorized by the General Mining
Law. In addition to following Federal regulations, each claimant must
follow all applicable state law requirements not in conflict with these
rules.
II. Discussion of Public Comments
A. General Discussion
We received 103 documents commenting on the proposed rule published
August 27, 1999 (64 FR
[[Page 61048]]
47023). These consisted of post cards, e-mail, regular mail, and legal
briefs. Several duplicates were received, as several persons sent us
both an e-mail and followed up with a paper copy by regular mail. In
terms of source, 62 documents were submitted by individuals, 13 by
businesses, 11 by industrial or trade associations, 15 by environmental
groups, and 2 by agencies of the Federal Government. Most documents had
more than one comment or suggestion concerning these regulations. We
will address the general comments here. Those that are specific to a
particular part or section will be discussed under the heading for the
appropriate part or section further below.
Legislative Repeal
Nine comments suggested we repeal the General Mining Law of 1872.
Laws may not be changed by rulemaking, but only by Act of Congress.
Therefore we cannot act upon this suggestion.
Waste on Mill Sites
Many comments requested that we not allow the dumping of mining
``waste'' on the public land upon mill sites. This is for the most part
an operational issue that is regulated by BLM under 43 CFR subparts
3715 and 3809 and not under these regulations, which only cover
locating, recording, and maintaining mining claims and sites.
Nevertheless, we have addressed this concern by requiring claimants to
locate only that amount of mill site acreage that is necessary to be
used or occupied for efficient and reasonably compact mining or milling
operations.
Mill Site Opinion
The Solicitor's Opinion of November 12, 1997, concerning the
allowable amount of mill site acreage per mining claim location
received 49 adverse comments, as did part 3832.32, in which we proposed
to implement the 1997 Opinion's conclusions. Deputy Solicitor Roderick
E. Walston issued a new opinion on October 7, 2003, that supercedes the
1997 Opinion. We discuss this further in the section-by-section
analysis below.
Scope, Form and Intent of This Final Rule
This rule is intended to:
(1) Consolidate in one series of parts (parts 3830--3839) all rules
and regulations concerning the location, holding, maintenance,
transfer, amendment, and recording of mining claims and sites that are
currently scattered in various parts of Groups 3700 and 3800;
(2) Remove all obsolete and expired provisions that have
legislatively sunset or that courts have rendered ineffective;
(3) Place into regulation the long standing case law elements of
the Department that affect the items in (2) above; and
(4) Complete the consolidation in plain language for ease of
understanding by our customers and the BLM staff.
``Revising the Mining Law by Regulation''
Several comments objected to BLM placing longstanding
administrative practice and rules established by case law into this
regulation and declared that this was essentially an attempt to revise
the law administratively to suit our purposes. BLM's position is that
by placing these longstanding administrative practices and judicial
holdings into these regulations, we are clarifying the applicable
requirements for our customers and our own personnel, thereby reducing
misunderstanding. We have modified the language in some sections from
the proposed rule so that they more closely match the language and
intent of applicable case law. For example, to define uncommon
varieties of mineral materials, we rely on the court's decision in
McClarty v. Secretary of the Interior, 408 F.2d 907 (9th Cir. 1969).
B. Section-by-Section Analysis
This section-by-section analysis will briefly outline how the final
regulations are organized and highlight any substantive changes. We
will also discuss comments we received addressing each section and our
responses.
The chart below provides a map of the final numbering changes to
help guide you through the new consolidated part. The column on the
left shows the section numbers in this rule, and the column on the
right shows the sections in the old regulations from which the
provisions are derived, or states that they are new. Sections ending in
``0'' are generally introductory sections leading into a series of
related substantive sections, and may not have equivalent sections
shown in the Existing Regulations column. Also, the final regulations
have more numbered parts, which did not have part equivalents in the
existing regulations. The table, modified from the table published in
the proposed rule of August 27, 1999 (64 FR 47023), shows both the
``cross walk'' of existing CFR sections and parts into the new part
3830 and the new language development for some of those proposed
sections.
------------------------------------------------------------------------
Final regulations Existing regulations
------------------------------------------------------------------------
Part 3830
------------------------------------------------------------------------
3830.1............................. New; 3833.0-1
3830.2............................. New; 3833.0-1;
3830.3............................. New; 3832
3830.5............................. New; 3833.0-5
3830.8............................. 3833.0-9
3830.9............................. 3833.5(g)
3830.10
3830.11............................ 3812.1
3830.12............................ New; 3711.1; 3811.1; 3812.1
3830.20
3830.21............................ New; 3833.1-1; 3833.1-4; 3833.1-5;
3852.2
3830.22............................ 3833.1-1
3830.23............................ 3833.1-3(a); 3833.1-4(f)-(g)
3830.24............................ 3833.1-3(a); 3833.0-5(m); 3833.1-
4(f)-(g)
3830.25............................ 3833.1-3(a); 3833.1-4(a)-(b)
3830.90
3830.91............................ New; 3833.4(a)-(b)
3830.92............................ 3833.4(f)
3830.93............................ New; 3833.4(b)
3830.94............................ New; 3833.4(b); 3833.4(c);
3833.5(d); 3833.5(f)
3830.95............................ New; 3833.1-3(b); 3833.4(a)
3830.96............................ 3833.1-3(b); 3833.4(b)
3830.97............................ 3833.1-2(c)(3)
3830.100........................... 3833.5(h)
------------------------------------
Part 3832
------------------------------------------------------------------------
3832.1............................. New; 3831.1
3832.10 ...................................
3832.11............................ 3831.1; 3833.1-2(b); 3841.4-4;
3841.4-5; 3841.4-6
3832.12............................ 3833.1-2(a)-(b); 3842.1-1 through
3842.1-5; 3841.4
3832.20 ...................................
3832.21............................ 3812.1; 3841.3; 3841.4; 3842.2;
3842.4
3832.22............................ 3841.4-1; 3841.4-2; 3842.1-2
3832.30 ...................................
3832.31............................ New; 3844
3832.32............................ New; 3844
3832.33............................ New; 3844
3832.34............................ New; 3844
3832.40
3832.41............................ New; 3843
3832.42............................ 3843
3832.43............................ 3843
3832.44............................ 3843.1
3832.45............................ New; 3843
3832.90
3832.91............................ New; 3833.0-5(p) & (r)
------------------------------------
Part 3833
------------------------------------------------------------------------
3833.1............................. New; 3833.4(a); 3833.4(d);
3833.5(a)-(c) & (e)
3833.10
3833.11............................ 3833.1-2(a); 3833.1-2(b)(1)-(4);
3833.5(c)
3833.20 ...................................
3833.21............................ New; 3833.0-5(p)
3833.22............................ New; 3833.0-5(p)
3833.30
3833.31............................ 3833.3
3833.32............................ New; 3833.3(c)
3833.33............................ 3833.3(a); 3842.1-1
3833.90 ...................................
3833.91............................ New; 3833.4(a); 3833.5(a) & (f);
3811.1
[[Page 61049]]
3833.92............................ New; 3833.4(c); 3833.5(d)
------------------------------------
Part 3834
------------------------------------------------------------------------
3834.10 ...................................
3834.11............................ 3833.1-5(b) & (e); 3833.1-4(b)
3834.12............................ 3833.1-5(a), (b), & (e)
3834.13............................ 3833.1-5(c)
3834.14............................ New; 3833.1-5(a) & (d); 3833.1-6
3834.20 ...................................
3834.21............................ 3833.1-5(h)
3834.22............................ 3833.1-5(h)(1)
3834.23............................ New; 3833.1-5(h)(2)
------------------------------------
Part 3835
------------------------------------------------------------------------
3835.1............................. New; 3833.1-5 & 3833.1-6
3835.10............................ 3833.1-6; 3833.1-7
3835.11............................ New; 3833.1-7(d)-(e); 3833.1-6(b) &
(d)
3835.12............................ New
3835.13............................ 3833.1-6(a)-(f); 3851.5; 3851.6(a)-
(b);
3835.14............................ New; 3833.1-6; 3833.1-7(d); 3833.2-
5; 3833.2-6; 3851.1(b)
3835.15............................ New; 3833.1-7(d); 3833.2-5; 3833.2-
6; 3851.1(b)
3835.16............................ New; 3833.1-6(b); 3833.2-2(c);
3851.1; 3851.3
3835.17............................ New; 3833.1-6(d); 3833.1-7; 3833.2
3835.17............................ 3833.2-1
3835.20............................ New; 3833.1-5(g)
3835.30 ...................................
3835.31............................ New; 3833.0-5(n); 3833.2-3(c);
3851.1
3835.32............................ 3833.2-4
3835.33............................ 3833.2-5;
3835.90 ...................................
3835.91............................ 3833.2-3(a) and (b); 3833.4(a)
3835.92............................ 3833.4(a)
3835.93............................ New; 3833.4-1
------------------------------------
Part 3836
------------------------------------------------------------------------
3836.10 ...................................
3836.11............................ 3851.1(b)-(c)
3836.12............................ New; 3851.1
3836.13............................ 3851.2
3836.14............................ New; 3851.2
3836.15............................ 3833.4(a); 3851.3
3836.20............................ New; 3852.5
3836.21............................ 3852.1; 3833.1-6(d)
3836.22............................ 3852.1; 3833.1-6(d); 3833.2-1
3836.23............................ 3852.2; 3852.3
3836.24............................ 3852.3
3836.25............................ 3833.1-6(e); 3852.5
3836.26............................ 3852.4
3836.27............................ 3852.5
------------------------------------
Part 3837
------------------------------------------------------------------------
3837.10 ...................................
3837.11............................ 3851.4(a) and (d)
3837.20 ...................................
3837.21............................ New; 3851.4(b)
3837.22............................ 3851.4(a)
3837.23............................ New; 3851.4(b)
3837.24............................ New; 3851.4
3837.30............................ New
------------------------------------
Part 3838
------------------------------------------------------------------------
3838.1............................. New
3838.2............................. New
3838.3............................. New
3838.10 ...................................
3838.11............................ New; 3833.0-3(g); 3833.1-2(c)&(d)
3838.12............................ New; 3833.1-2(c)-(d)
3838.13............................ New; 3833.1-2(c)-(d)
3838.14............................ 3833.0-3(g); 3833.1-2(c)
3838.15............................ 3833.0-3(g); 3833.1-2(c)
3838.16............................ 3833.1-2(d)(6)
3838.90 ...................................
3838.91............................ New; 3833.4(a)
------------------------------------------------------------------------
Part 3710--Public Law 167; Act of July 23, 1955
Subpart 3711--Common Varieties
In the proposed rule, the contents of this section were shown in
the ``crosswalk table'' as being moved to new part 3830, section
3830.12. However, in the proposed rule, we inadvertently neglected to
remove the old subpart 3711 from the text of the regulations. Since we
have moved all of the substantive material defining uncommon varieties
of mineral materials to the proposed and final section 3830.12, we are
removing the heading of subpart 3711 in this final rule as redundant.
Part 3730--Public Law 359; Mining in Powersite Withdrawals: General
We amended cross references in section 3734.1 to reflect the
reorganization of part 3830. No public comments addressed this part.
Part 3810--Lands and Minerals Subject to Location
Subpart 3812--Minerals Under the Mining Law
In the proposed rule, we removed this subpart describing minerals
that are subject to location. You will find this information in section
3830.11 ``Which minerals are locatable under the mining law?'' in the
final rule. A number of comments addressed this subject, but they were
directed at new section 3830.12. We will address them under that
heading.
Part 3820--Areas Subject to Special Mining Laws
Subpart 3821--O and C Lands
We amended cross references in sections 3821.2 and 3821.3 to
reflect the reorganization of part 3830. No comments addressed this
subpart.
Part 3830--Locating, Recording, and Maintaining Mining Claims or Sites;
General Provisions
Sections 3830.1 through 3830.94 of this final rule contain
provisions that generally apply to all the regulations in parts 3830
through 3839. You should refer back to these sections on general
policies and procedures when you follow regulations in the subsequent
parts.
Sections 3830.1, 3830.2, and 3830.3 outline the purpose, scope, and
authority for this part. Section 3830.5 contains definitions that are
important to understand in this series of parts. Section 3830.8
discusses information collection requirements. Section 3830.9 describes
the penalties for submitting a document to BLM that you know contains
false, erroneous, or fictitious information or statements.
Section 3830.11 and 3830.12 describe which minerals are locatable
under the mining law and subject to these regulations.
Sections 3830.20 through 3830.25 explain payment procedures for
various fees and service charges required in part 3830. Section 3830.21
contains a table describing the fees and service charges and when they
are due. Section 3830.22 describes when BLM will refund fees you have
paid. Section 3830.23 explains the forms of payment BLM will accept.
Section 3830.24 tells you how you can get your payments to BLM. Section
3830.25 explains when you should pay for a new location.
Sections 3830.91 through 3830.96 describe what happens if you fail
to comply with the regulations, the types of defects that may affect
claims and sites, and the procedures you must follow if you want to
cure defects. Section 3830.97 describes appeal procedures and includes
cross references to other regulations, including appeals regulations
found in parts 4 and 1840 of this title, that state procedures for
appealing to the Interior Board of Land Appeals.
In addition to this general section on defects, most parts also
contain sections xxxx.90 through xxxx.9x, which identify the types of
common errors that are specific to that part, and tell you whether you
can correct them and how to do so.
Subpart A--Introduction
Section 3830.1 What Is The Purpose of These Regulations?
We added language to paragraph (b) in the final rule to remind you
that to the extent a state law conflicts with these regulations, you
must comply with these regulations. We also recast
[[Page 61050]]
the opening paragraphs of this section in list form with handy cross-
references.
Section 3830.2 What Is The Scope of These Regulations?
We added paragraph (c) in the final rule, derived from old section
3833.0-1(e). It reminds you that BLM is not the official recording
office for ancillary documents related to mining claims, such as liens,
wills, judgments, grubstake contracts, or leases. You should file such
documents locally according to state law.
One comment suggested removing reference to units of the National
Park System, since National Park lands are included in Federal lands.
In response to the comment, we have amended the provision to make it
clear that these regulations do not authorize location of new mining
claims on any Federal lands withdrawn from the operation of the General
Mining Law.
Section 3830.3 Who May Locate Mining Claims?
One comment suggested combining proposed paragraphs (a) and (b). We
did not adopt the proposal, because we felt the section was clear as
written. Two comments suggested changes to clarify proposed paragraph
(c). We rewrote the paragraph to make it clear that various kinds of
business entities that have been organized under the laws of any state
may locate claims and sites.
Section 3830.5 Definitions.
Many comments addressed this section. The majority of them
suggested language changes in the proposed definitions. We adopted some
of these suggestions in order to clarify the meaning and intent of
certain definitions. Other suggestions we rejected, because the
definitions at issue have been established by longstanding practice and
case law. Several comments requested that we add new definitions to the
section. After careful consideration, we agreed to add several
definitions that we felt were necessary to the proper administration of
these regulations or to clarify certain concepts or requirements that
occur in these regulations. We added definitions for ``discovery,''
``final certificate,'' ``nonmineral land,'' and ``recording.''
One comment questioned the meaning of the term ``holder'' as used
in various provisions in the proposed rule. To avoid confusion, we have
substituted the defined term ``claimant'' in each such instance.
One comment suggested amending the definition of ``Federal lands''
by removing the exclusion of National Park System lands. We have
removed the exclusion, but have added a sentence to section 3830.3
stating that these regulations do not authorize the location of any
mining claims or sites on Federal lands that are closed to mineral
entry, including units of the National Park System.
One comment suggested that we add a provision to the definition of
``mineral materials'' to make it clear ``that mineral materials cannot
be sold from NPS lands'' by adding the phrase ``* * * from Forest
Service and BLM lands * * *'' to the definition. The change is not
necessary. The phrase ``sold under the Mineral Materials Act'' is
itself limiting, since that Act says that nothing in the Act applies to
lands in any national park or national monument. Further, expressly
stating such a limitation here would go beyond the scope of a
definition by including regulatory requirements.
One comment stated that we should amend the definition of
``patent'' as proposed to make it clear that issuing a patent does not
always convey full fee simple title. We agree that Congress requires
the surface of some lands to be reserved in mineral patents and have
revised the definition to reflect this possibility.
One comment suggested that we add a definition for ``withdrawn
lands'' to this section. The writer stated that such a definition would
be helpful because the term appears so often in the regulations, and
offered a definition. We have not adopted the suggestion in this final
rule because the rule text does not use the term. Instead, the rule
uses the phrase ``closed to mineral entry,'' which is defined.
One comment suggested adding definitions for ``monument'' and
``discovery monument,'' saying that the physical process of staking a
claim is not sufficiently described in these regulations. We have not
added this definition because the term ``discovery monument'' is used
only once in the rule and refers to a type of monument that may be used
to anchor metes and bounds descriptions of mining claims. Discovery
monuments are no longer required by many states to mark the position of
a claimant's discovery point. Parties who are interested in learning
more about the physical process for staking mining claims or sites
should consult applicable state law and may visit or contact a local
BLM office for further information.
One comment addressed the definitions of ``filed'' and ``filing
period,'' stating that they were internally inconsistent. We have
revised the definition of ``filed'' to include a postmark rule under
which BLM will accept a document as timely filed if the document you
mailed was postmarked before the due date and BLM received the document
within 15 days after the due date. Another comment questioned the
effect if a document is postmarked on time, but still not received by
15 days after you posted it because the BLM office was not open on the
15th day because of a holiday or other circumstance. In this case,
under 43 CFR 1822.14, the grace period ends on the next official
business day.
Several comments suggested removing the definition of ``filing
period'' because the term does not appear in the regulations. We have
removed the definition in the final rule, but explained the 15-day
grace period or postmark rule in the definition of ``filed.''
Several comments addressed the definition of ``segregation.'' One
suggested that we add that segregation ends when the land becomes open
to mineral entry. We have not adopted this change. Doing so would
merely describe the effect of ending segregation, not the event that
ends segregation. Another comment stated that the definition conflicts
with the regulations on segregating and opening public lands. We have
amended the definition to make it clear that segregation ends when the
statutory period of segregation ends or when BLM causes an
administrative segregation to end under section 2091.2-2. However, in
the case of Stockraising Homestead Act lands, we still use the notation
rule and so mark the official records as to when the land is closed and
opened.
One comment suggested that we amend the definition of ``control''
by removing language allowing BLM to consider facts other than whether
a person is an officer, director, or majority shareholder in
determining control. We have not adopted this recommendation. This
definition tracks the statutory definition in 30 U.S.C. 28f(d)(2). We
have removed from the definition of ``control'' the reference to
publicly traded companies or corporations (which did not appear in the
previous definition). The same principles of control apply to all
companies, whether publicly traded or not.
One comment recommended changes in the definition of ``copy of the
official record'' to make it cover documents that have not yet been
recorded in the local jurisdiction recording office. Other comments
preferred to remove the definition altogether, because the term appears
only once in the regulations and could be explained thoroughly in that
context. We have adopted this latter suggestion in the final rule. Our
[[Page 61051]]
rewritten version of section 3833.11(a) in fact does not use the term
at all, and we have removed the definition from the final rule.
Several comments criticized the definition of ``local recording
office'' for including the notion that claimants need to record
documents in the local recording office to make them effective. These
comments noted that such documents are binding between the parties
regardless of whether they are recorded. State law governs whether
documents must be recorded with the state in order to be effective.
Consequently, we have removed any reference to the legal effect of
recording with state offices from this definition.
Subpart B--Providing Information to BLM
Section 3830.8 How Will BLM Use the Information it Collects and What
Does it Estimate the Burden Is On the Public?
One comment stated that our estimate that a customer needs 8
minutes of time per document was low, but offered no explanation or
time estimate for BLM to work with. We have not made a change in the
final rule.
Subpart C--Mining Law Minerals
Section 3830.12 What Are Characteristics of a Locatable Mineral
Deposit?
We received a large number of comments adverse to proposed
paragraph 3830.12(a)(2), which stated that a characteristic of a
locatable mineral is that the mineral is found in a quantity and
quality to constitute a valuable mineral deposit. Paragraph
3830.12(a)(2) also defined ``valuable mineral deposit.'' Some of the
comments stated that our language imprecisely paraphrased the prudent
person test and that we proposed to change the law by saying that in
order for a mineral to be locatable it must first be found in
quantities and qualities to support a valuable or profitable mine. We
removed paragraph 3830.12(a)(2). The purpose of this section is to
describe characteristics of locatable minerals, not characteristics of
a validly-located mining claim. By removing this paragraph, we are not
suggesting that a discovery of a valuable mineral deposit is not
necessary to locate a valid mining claim.
In a similar manner, a number of comments opposed paragraph
3830.12(b), which we proposed to move from subpart 3711 and rewrote in
plain language. This section concerns the definition of an uncommon
variety of a mineral material under the Surface Resources Act (30
U.S.C. 611), subject to location under the General Mining Law. The
Federal 9th Circuit Court of Appeals in 1969 laid out five tests that a
mineral material must meet in order to qualify as uncommon and
therefore subject to location. See McClarty v. Secretary of the
Interior, 408 F.2d 907 (9th Cir. 1969). In the final rule, we replaced
the original language of proposed section 3830.12(b) paraphrasing the
holding of the McClarty Court with the five tests directly from the
decision to avoid ambiguity.
Subpart D--BLM Service Charge and Fee Requirements
Section 3830.21 What Are the Different Types of Service Charges and
Fees?
One comment, repeated by several others, stated that it was hard to
tell whether some of the charges and fees shown in the table in this
section applied on a per claim basis or per filing. It is not necessary
to amend the table in response to these comments. The column heading in
the table clearly says ``Amount due per mining claim or site.''
Section 3830.22 Will BLM Refund Service Charges or Fees?
One comment asked why oil shale claims are excluded from this
section. The Mineral Leasing Act prohibits locating oil shale claims
after February 25, 1920. Therefore, the location fees discussed in this
section do not apply to oil shale claims, and there is no need to
provide for their refund. Also, the Energy Policy Act of 1992
established separate fees for oil shale placer claims.
Another comment asked why we removed the previous provision on
applying overpayments of maintenance fees to years ahead. You may still
apply an overpayment to future fee requirements. We have restored this
provision in the final rule.
One comment stated that not refunding service charges is a change
from the existing regulations and suggested that the final rule allow
for refund of service charges. The previous regulations did provide for
service charge refunds if BLM found the claim to be void. However, BLM
has changed this practice because BLM spends the service charge funds
it receives in order to process the documents, even if the claim for
which the documents were filed turns out to be void. Therefore, the
final rule allows refunds of overpayments only.
Subpart E--Failure To Comply With These Regulations
Section 3830.91 What Happens if I Fail To Comply With These
Regulations?
Several comments addressed this section. One said the use of the
word ``defect'' was too broad. The term ``defect'' is intended to cover
a broad range of circumstances. BLM receives many documents and
payments that are incomplete in various ways. The purpose of this
regulation is to explain how claimants will be able to fix defects, to
the extent they are curable, and to caution claimants about defects
that cannot be cured.
Another questioned the Secretary's authority to cancel claims if
cancellation is not expressly provided for by statute. We have added a
list of ways in which you could forfeit your claims or sites by law or
regulation. In addition, under the authority of 43 U.S.C. 1201, you may
forfeit a claim or site if there is a defect in your compliance with
the regulations and you fail to remedy the defect after BLM notifies
you.
Another comment stated that an owner of a forfeited or canceled
claim should not be held responsible for reclamation of the claim. A
reclamation requirement is not new. Under the Federal Land Policy and
Management Act, the Secretary has the responsibility to prevent
unnecessary or undue degradation of the public lands. 43 U.S.C.
1732(b). You may learn more about your reclamation responsibilities in
43 CFR subpart 3809. You remain responsible for reclamation if you
forfeit a claim or site, regardless of the reason for the forfeiture.
Several comments stated that most of the language of proposed part
3830 is explanatory or factual, and did not impose requirements on
miners, and therefore that it would not be appropriate to impose
penalties, including forfeiture of mining claims, on persons who
violate the regulations in ``this part,'' part 3830. We have amended
the heading to make it clear that this section depicts the consequences
for failing to comply with the regulations in all the parts and
subparts from part 3830 through 3839.
Section 3830.93 When Are Defects Curable?
One comment specifically addressed paragraph (b) and asked for
examples of requirements imposed by regulation (curable) and not by
statute (incurable). We have added a list of the requirements that are
statutory in section 3830.91. The ways in which
[[Page 61052]]
claimants may fail to comply with regulatory requirements are
innumerable. BLM will notify you when they have determined that a
filing or payment you have submitted is defective, but curable. For
example, when recording a mining claim with BLM, FLPMA requires
claimants to include a description of the claim that allows BLM to find
the claim on the ground. 43 U.S.C. 1744(b). When you record a claim
with BLM, the regulations require that you file a map showing where the
claim is situated. If you omit a description altogether, you have
failed to record the claim as required by statute, so the failure to
include it is not curable, and BLM will reject the document. (In such a
case, you may re-file, but your claim will be subject to location by
other locators until you provide the description required by law.
However, if you include a description that is inadequate, BLM will
allow you to cure the defect, just as we would if you failed to provide
material required by regulation but not statute, without losing your
time advantage over competitors.) On the other hand, if you fail to
include a map as required by regulation, BLM will send a decision to
you, allowing you 30 days to send in the missing map. We encourage you
to contact the BLM State Office if you have questions about filing
requirements.
One comment suggested cross-referencing the sections of this rule
into two groups, one for curable defects and one for incurable defects.
We believe the existing organization is sufficiently clear. Another
comment suggested that we should provide a listing of the common errors
and defects a locator or claimant should avoid. We decline to do this,
because such a list would be extremely lengthy and, even then, likely
to have omissions. Such defects will become apparent if you read the
individual regulations pertaining to your specific activity.
Section 3830.95 What if I Pay Only Part of the Service Charges,
Location Fees, or First Year Maintenance Fees for Newly Filed Claims or
Sites?
and
Section 3830.96 What if I Pay Only Part of The Service Charges and Fees
for Oil Shale Claims or Previously-Filed Mining Claims or Sites?
Several comments said these sections proposed no cure for defects
in complying with requirements that are not statutory, a result they
say is inconsistent with section 3830.91. Section 3830.91 provides that
defects in complying with statutory requirements are not curable, while
defects in complying with regulatory requirements are curable. In fact,
sections 3830.95 and 3830.96 provide a means by which claimants may
cure defects in complying with regulatory requirements. Both sections
provide that BLM will notify you of such defects and give you 60 days
from the date you receive notification to remedy curable defects in
small miner waiver filings and 30 days from the date you receive
notification to remedy all other curable defects. The comments said
that the old regulations at section 3833.1-3 allowed claimants to cure
defective service charge payments when recording a new claim within 90
days of the location of the claim, but that the proposed rule allowed
no such cure. We reorganized sections 3830.95 and 3830.96 to make clear
that you may still cure defective fees and charges by resubmitting the
location with a complete payment of fees and charges within the 90-day
period that FLPMA provides for you to record a new mining claim or
site.
Also, in section 3830.96 in the proposed rule we inadvertently
omitted a provision that would allow claimants who own existing claims
or sites, including oil shale claims, to cure an incomplete service
charge payment by submitting the complete payment within 30 days after
receiving notice of the defect from BLM. We have corrected this
oversight in the final rule.
Part 3831--Mineral Lands Available for Locating Mining Claims or Sites
This part is reserved so that BLM may, at some future time,
consolidate the available information describing the public lands that
are open to mineral entry. This information is currently found in 43
CFR Group 2000, parts 3730, 3740, 3809, 3810, and 3820.
Part 3832--Locating Mining Claims or Sites
This part consolidates location requirements for lode and placer
mining claims and mill and tunnel sites, which were in 43 CFR subpart
3831 and part 3840 of the previous regulations.
Section 3832.1 describes what location is. Sections 3832.10 through
3832.12 describe general procedures for locating mining claims or
sites. Sections 3832.20 through 3832.22 provide specific requirements
for lode and placer mining claims.
Sections 3832.30 through 3832.34 contain specific requirements for
dependent and independent or custom mill sites (these terms are
explained in section 3832.31). Sections 3832.40 through 3832.45 contain
specific requirements for tunnel sites. Sections 3832.90 and 3832.91
specify when and how you can correct defects in your location of claims
or sites.
Subpart A--Locating Mining Claims and Sites
Section 3832.1 What Does It Mean To Locate Mining Claims or Sites?
Several comments asked whether a claimant must discover a valuable
mineral deposit before locating a mining claim or a mill site. While
you may locate and record a mining claim before discovering a valuable
mineral, your mining claim is not valid until you have made such a
discovery. In addition, you may locate and record mill sites only on
nonmineral lands. Therefore, in this final rule, we have removed
discovery as an element of locating mining claims.
Section 3832.11 How do I locate mining claims or sites? One comment
stated that the law does not require discovery before location and that
our regulations need to reflect this. We have amended this section to
recognize that claimants may locate mining claims before discovering a
valuable mineral deposit. However, we have added a provision that
states that the location is not valid until the claimant has discovered
a valuable mineral deposit. As the U.S. Supreme Court has recognized:
[I]t has come to be generally recognized that while discovery is
the indispensable fact and the marking and recording of the claim
dependent upon it, yet the order of time in which these acts occur
is not essential to the acquisition from the United States of the
exclusive right of possession of the discovered minerals or the
obtaining of a patent therefor, but that discovery may follow after
location and give validity to the claim as of the time of discovery,
provided no rights of third parties have intervened.
Union Oil Co. v. Smith, 249 U.S. 337, 347 (1919).
Several comments noted some lack of clarity in some of the language
in this section. We have made editorial changes to the text to clarify
our intent and the requirements in this section.
One comment suggested several additions to paragraph (b), stating
that we needed to emphasize that you can locate mining claims and sites
only on Federal lands, that you must comply with applicable state
monumenting requirements, and that the requirement for posting public
notice of the claim should include a statement of the name of the
claim. We have placed the necessary language to effect the first
addition in paragraph (b)(1) in the final rule. We believe that
paragraph (b)(5), which requires claimants to follow all relevant state
law requirements, would
[[Page 61053]]
include any applicable state monumenting requirements. We also added
paragraph (b)(3)(iv), which requires the posting to include the name or
number of the claim or site, or both, if the claim or site has both.
Another comment stated that the word ``public'' in section
3832.11(a)(3) did not properly describe ``notice of location on the
claim or site.'' We agree and have removed this word in the final rule.
Section 3832.12 When I File a Mining Claim or Site, How Do I Describe
the Lands I Have Claimed?
Several comments focused on the need to use the legal subdivision
(aliquot part) and lots in claim descriptions, and noted that they do
not apply per se to lode claims. Another comment asked about protracted
(unsurveyed) sections and their proper use for descriptive purposes.
We have amended section 3832.12 to clarify these issues and help
you describe your claim or site properly. Also, you may correct
erroneous descriptions. You may do this by filing an amended location
notice or certificate, regardless of who finds the error. Paragraph (a)
gives the general rule that you must follow in order for BLM to enter
the essential data into our computerized mining claim recording system.
Paragraph (b) expands on the specific descriptive requirements for lode
claims, and paragraph (c) does the same for placer mining claims.
Several comments objected to the requirement for a metes and bounds
description of a lode claim, saying that it would be unnecessary, not
required by law, and burdensome, especially if it made a survey
necessary. We have not changed the regulations in the final rule in
response to these comments. This is not a new requirement. Lode claims
cannot be described by aliquot part because of their parallelogram
shape. We have retained in paragraph (a)(2)(iv) the provision that
professional surveys are not necessary. We do not believe that it is
burdensome to provide a metes and bounds description. The previous
regulations at section 3841.4-5 required descriptions by courses and
distances from the discovery monument. Courses and distances are part
of a metes and bounds description, so we are merely correcting our
terminology. Since the monuments on the ground govern, the courses and
distances in the metes and bounds description need not be derived from
a professional survey, but must be sufficient to allow a surveyor to
identify the tract unambiguously on the ground if at some time in the
future you seek a patent. Of course, a mineral survey is a prerequisite
for a patent.
Several comments criticized section 3832.12(a) for requiring claim
descriptions to follow the public land survey system ``as much as
possible.'' They pointed out that lode claims are required by law to
follow the mineral vein, which usually does not follow surveyed section
lines. We have not made a substantive change in the final rule in
response to these comments. As paragraph (b), which specifically covers
lode claims, provides, you must describe your lode claims by metes and
bounds. Paragraph (a) is of general applicability, and you must follow
it unless paragraph (b) on lode claims or paragraph (c) on placer
claims provides differently. Paragraph (a) allows for this by saying
``as much as possible.'' We never intended that lode claims must follow
the rectangular survey system. However, since this provision caused so
much confusion on the part of knowledgeable readers, we added an
introductory phrase to paragraph (a) in the final rule clarifying this
intent.
A couple of comments pointed out a typographical error in the first
sentence of paragraph (a)(1). As the comment suggested, we added the
word ``and'' to show that aliquot parts are used to describe land
within quarter sections.
Section 3832.21 How do I Locate a Lode or Placer Mining Claim?
Several comments addressed this section, especially the
descriptions of what minerals are generally locatable as lode deposits
and which are locatable as placer deposits. Some comments asked for
more extensive lists of minerals that are locatable. In both cases,
lode and placer, the lists are not comprehensive. We have taken them
from the general case law and the statute itself. BLM recognizes that
there are always exceptions to the general rule, but we will decide
these on a case-by-case basis through a mineral examination and/or
contest action as necessary.
One comment asked for a definition of ``mineral-bearing brine'' as
used in paragraph (b)(3)(v), stating that we need to differentiate
brine or saline water from ``fresh water and the minerals therein.'' We
have added explanation of what is a mineral-bearing brine in this
section. The principal distinction is that a mineral-bearing brine is
locatable if it contains an extractable locatable mineral that is the
principal object of the mining operation. However, if you are mining
the brine primarily for the leasable salt(s) content, and are also
extracting locatable minerals, BLM considers those minerals co-products
under the Mineral Leasing Act, and you must obtain a lease and pay
royalties under 43 CFR part 3500.
Some comments raised the issue of discovery, that is, whether the
miner needs to discover a valuable mineral deposit before locating a
claim. We moved the discovery reference to a separate paragraph that
states that your lode claim is not valid until you discover a valuable
mineral deposit. In this way, the discovery requirement is not among
the location requirements but the regulation nevertheless makes clear
that the location is not a valid mining claim until you make a
discovery.
One comment objected to the word ``similar'' in the phrase ``gold,
silver, cinnabar, lead, tin, copper, zinc, fluorite, barite, or other
similar valuable mineral'' in paragraph (a)(2)(ii). It stated that
there is no justification for limiting the types of minerals that are
subject to location under the Mining Law to those minerals that are
similar to the minerals listed in this paragraph. We have amended this
paragraph by removing the word ``similar'' and conforming the provision
more closely with the Mining Law and case law.
Some comments stated that paragraph (a)(3) misstates the
requirements for establishing extralateral rights to a lode. We have
revised the paragraph to correct a drafting error and clarify the
requirements. This paragraph describes how your claim must be situated
for you to follow a vein, lode, or ledge underground beyond the long-
side boundaries of your rectangular lode claim:
[sbull] The top of the deposit must be within your claim, whether
on the surface or below it;
[sbull] The long-side boundaries of your claim must be
substantially parallel to the direction of the lode, vein, or ledge
deposit.
You do not have extralateral rights to follow a deposit beyond the
end lines of your lode claim.
Several comments addressed paragraph (a)(4), questioning the
requirement in this paragraph of the proposed rule that you expose the
vein, lode, or ledge by tracing the vein or lode on the surface or by
drilling or tunneling to a sufficient depth. The comments stated that
this should not be a requirement for locating a lode, but only a
requirement for claiming the full extent of extralateral rights. The
comments are correct. We have amended this provision in the final rule
to clarify what you have to do to establish extralateral rights.
Another group of comments stated that the language in this section
was ambiguous and could lead to multiple interpretations. We have
amended the
[[Page 61054]]
language to clarify areas that we agree seemed ambiguous.
Section 3832.22 How Much Land May I Include in My Mining Claim?
One comment stated that a lode claim may only extend the exposed
length of the lode or vein claimed, or 1,500 feet, whichever comes
first. If the exposed vein is 1,000 feet long, and you have reason to
believe, from the geology, that the vein or lode is 1,500 feet or
longer, you may take up the entire 1,500 allowed by law. The comment
urged that this section be amended to provide that lode claims may
extend to 1,500 feet along the course of the vein, lode, or ledge only
if the lode, vein, or ledge also extends that far. The comment said
that there is no guaranteed right to possession of the statutorily
defined maximum size lode claim without proof of valuable
mineralization underlying the entire length of the claim, and that to
the extent the land covered by the claim does not also contain valuable
minerals or lie within 300 feet on either side of a vein or lode, the
Mining Law grants no rights to make use of those lands for any purpose.
The question is whether the statutory language ``along the vein or
lode'' means that the center line of the claim must track the vein or
lode precisely, and if the lode stops the claim must also stop. We have
found no case law that supports this interpretation. The common
definition of ``along'' is ``in a line parallel with the length or
direction of.'' We have not adopted the comment in the final rule.
Several comments stated that this section, in providing that the
claim is limited to 300 feet on either side of the middle of a vein,
lode, or ledge, follows an obsolete 1879 regulation that has since been
modified by Solicitor's Opinions and court decisions. The comments said
that there is no requirement in the Mining Law that a claim be laid
along the course of the vein. The Mining Law at 30 U.S.C. 23 limits the
claim to ``three hundred feet on each side of the middle of the vein at
the surface.'' The comment is correct. However, to protect your
extralateral rights, you should lay out your claim along the course of
the lode, vein, or ledge. We have amended this provision in the final
rule to make this clear.
Section 3832.30 Mill Sites
During the comment period, we received 49 comments addressing the
series of mill site sections beginning with section 3832.30. Since the
comment period closed, the Secretary and the Solicitor have continued
to receive correspondence regarding these sections, including from
Congress.
The General Mining Law allows miners to locate and patent
nonmineral lands in association with mining claims. However, under the
5-acre mill site provision, 30 U.S.C. 42, no location of these
nonmineral lands, called mill sites, may exceed 5 acres.
In 1997, former Solicitor John Leshy issued an opinion entitled
``Limitations on Patenting Millsites under the Mining Law of 1872,'' M-
36988 (``1997 Opinion''). The opinion stated that under the 5-acre mill
site provision of the Mining Law, an applicant may patent only up to 5
mill site acres per mining claim. In addition, the opinion stated that
BLM should not ``approve plans of operations which rely on a greater
number of mill sites than the number of associated claims being
developed unless the use of additional lands is obtained through other
means.'' As a consequence, the proposed rule that BLM published in 1999
sought to limit the amount of mill site acreage claimants could locate
per mining claim, in a manner that also sought to prevent claimants
from subdividing their mining claims to obtain the rights to more mill
sites.
Deputy Solicitor Roderick E. Walston has reviewed the Mining Law,
its legislative history, pertinent case law, and the Department's prior
written guidance and prevalent practice regarding the 5-acre mill site
provision. On October 7, 2003, Deputy Solicitor Walston issued an
opinion entitled ``Mill Site Location and Patenting under the 1872
Mining Law,'' M-37010. (``2003 Opinion''). In the 2003 Opinion, the
Deputy Solicitor determined that:
[sbull] Before the 1997 Opinion, Interior's prevalent practice and
interpretation was to view the 5-acre mill site provision as limiting
the size of individual mill sites, not the number of mill sites per
mining claim.
[sbull] Interior consistently followed this practice and
interpretation for at least 50 years immediately preceding the 1997
Opinion under the pre-existing regulations.
[sbull] The 1997 Opinion significantly departed from this 50-year
practice and interpretation.
[sbull] Interior's pre-1997 practice and interpretation was
consistent with Supreme Court precedent interpreting the statutory size
limitations for lode and placer claims.
[sbull] Interior's pre-1997 practice and interpretation was
consistent with Congress's goal in the Mining Law to promote mineral
development on the public lands.
[sbull] Another clause of the mill site provision effectively
limits the mill sites a claimant may locate and patent to the number
used or occupied for mining or milling purposes.
Congress twice prohibited by law the Department from applying the
1997 Opinion. The conference report for the first law stated that the
1997 Opinion was ``particularly troubling because both the Bureau of
Land Management and the Forest Service have been approving patents with
more than one 5-acre millsite per patent based on procedures outlined
in their operations manuals.'' H.R. Conf. Rep. No. 106-143, at 90
(1999).
Therefore, instead of changing the Department's past prevalent
practice and interpretation of the mill site provision, BLM has decided
to withdraw the proposed amendment to the mill site regulations and
continue its prevailing practice and interpretation that the Department
followed for a half century before the 1997 Opinion. That practice and
interpretation, as described by the 2003 Opinion, is set forth in
section 3832.32. This action does not change BLM's practice regarding
mill site locations. Before former Solicitor Leshy issued his 1997 mill
site opinion, BLM viewed the 5-acre mill site provision as a limit on
the size of individual mill sites, not a limit on the allowable mill
site acreage per mining claim. Deputy Solicitor Walston describes BLM's
consistently-held written guidance in this way:
For nearly a half century, the BLM's written guidance has
reflected the view that the mill site provision does not
categorically limit the number of mill sites that may be located and
patented for each mining claim. The BLM Manual, adopted in 1954,
sets forth three requirements for mill sites to qualify for
patenting: (1) the lands must be nonmineral in character, (2) the
mill site cannot be contiguous to a vein or lode, and (3) ``[t]he
mill site does not include an area exceeding 5 acres.'' BLM Manual,
ch. 3.3.2 (Apr. 20, 1954). The 1954 BLM Manual contained no
restriction on the number of mill sites that may be located for a
mining claim. Additionally, the BLM in 1954 issued a document
entitled ``Mining Locations, Entries and Patents,'' which stated, on
page 28, that ``[i]t has been held that more than one mill site may
be embraced in an application for a patent, provided each such
tracts [sic] keep within the restriction of 5 acres of non-mineral
land and that each is needed and used for mill site purposes.''
Similarly, a BLM Manual issued in 1958 stated, ``More than one
millsite may be located, provided each tract is of no more than 5
acres of nonmineral land and that each is needed and used for
millsite purposes.'' Id. ch. 5.2.15 B. (Nov. 19, 1958). Thus, the
BLM guidance and accompanying documents made clear that the Mining
Law imposes no categorical restrictions on the number of mill sites
that may be located and patented for each mining claim.
[[Page 61055]]
The BLM continued to adhere to this view. In 1966, a BLM
minerals specialist prepared a summary of mill site requirements.
Under the topic heading ``Number of Millsites,'' the minerals
specialist stated, ``Although there is no number specified, it has
been held that as many millsites as are actually needed for the
operation can be located. There must be a clear showing of need and
use if more than one millsite is taken. This also applies to custom
mills.'' Memorandum from Minerals Specialist, PSC, to Chief, Mining
Staff, Washington Office, BLM 1 (May 11, 1966). In another 1966
document entitled ``Mineral Patents--Information Relative to the
Procedure for Obtaining Patent to a Mining Claim,'' the BLM stated,
``Lands entered as mill sites may be for an area of not more than 5
acres for each mill site and must be shown to be nonmineral in
character and not contiguous to a vein, lode, or placer.'' Mineral
Patents-Information Relative to the Procedure for Obtaining Patent
to a Mining Claim 13 (1966). These documents support the view that
the five-acre mill site provision defines the size of individual
mill sites but does not limit their number.
In 1976, the BLM Manual stated that a mineral examiner, in
conducting a field examination, must make certain determinations
regarding mill sites: (1) the lands must be nonmineral in character,
(2) the claim must be occupied and used for mining or milling
purposes; and (3) there must be a quartz mill or reduction works on
the claim if for custom mill. BLM Manual Sec. 3930.14 C (Oct. 8,
1976). The BLM Manual also stated, ``The maximum size of a mill site
claim is 5 acres. However, several mill site claims may be embraced
in a single application, provided the total acreage does not exceed
5 acres per mill site.'' Id. Sec. 3864.11 B (Oct. 6, 1976). Again,
the BLM Manual articulated limitations on the size of mill sites but
not their number, except to the extent it applied the use-or-
occupancy requirement.
In 1980, the BLM Washington Office issued a ``Mineral Survey
Procedures Guide'' that stated, on page 26, ``There is no limit to
the number of mill sites that may be located, so long as they are
necessary for the operation of a mine or mill.'' Today, BLM's
Handbook for Mineral Examiners provides that ``[a]ny number of
millsites may be located but each must be used in connection with
the mining or milling operation.'' BLM Handbook for Mineral
Examiners, H-3890-1, Ch. III Sec. 8 (Mar. 17, 1989). Additionally,
the BLM Manual states that ``[a] mill site cannot exceed 5 acres in
size. There is no limit to the number of mill sites that can be held
by a single claimant.'' BLM Manual Sec. 3864.11 B (1991).
Thus, the BLM has, through its written guidance, consistently
interpreted the five-acre mill site provision as limiting the size
of individual mill sites but not as precluding claimants from
locating and patenting multiple mill sites in association with a
single mining claim.
2003 Opinion, at 24-25.
In addition, in 1996, BLM's Deputy Director asked all BLM State
Offices to describe state office practice regarding patenting and
approving plans of operations involving more than one 5-acre mill site
per mining claim. Memorandum from Mat Millenbach, Deputy Director, BLM,
to Assistant Directors and State Directors, BLM (Mar. 5, 1996). The
state office responses support the conclusion that BLM's consistently-
held practice was to treat the 5-acre mill site provision as a limit on
the size of individual mill sites. The survey responses also show that
BLM's primary determination regarding mill site validity is to
determine whether claimants are using or occupying each mill site for
mining or milling purposes. See 2003 Opinion Appendix.
After former Solicitor Leshy issued his mill site opinion in 1997,
BLM's practice effectively did not change. The Department of the
Interior attempted to deny a proposed plan of operations for the Crown
Jewel mine in Washington State, in part, based on the interpretation of
the 5-acre mill site provision described in the 1997 Opinion. However,
Congress quickly enacted a provision disallowing the Department from
applying the 1997 Opinion to the Crown Jewel mine or any other patent
or proposed plan of operations that was filed before the provision's
date of enactment. Pub. L. 106-31, 113 Stat. 90-91 (1999).
Thereafter, Congress enacted a second law, the FY 2001
Appropriations Act for the Department of the Interior and Related
Agencies, prohibiting the Department from applying the 1997 mill site
opinion. Pub. L. 106-291, 144 Stat. 922 (Oct. 11, 2000). As a
consequence, beyond the unsuccessful denial of the Crown Jewel plan of
operations, the Department has not applied the 1997 Opinion to any
other proposed plans of operations or patents. Because of these
intervening laws, the Department effectively has not departed in
practice from its earlier consistently-held interpretation of the 5-
acre mill site provision. In addition, because the proposed rule
published on August 27, 1999, was never finalized, the Department has
not departed by regulation from its earlier interpretation of the 5-
acre mill site provision. Thus, the language of this rule does not
change BLM's prevalent practice and interpretation regarding mill site
locations; rather, it confirms the practice and interpretation that
existed before Solicitor Leshy's 1997 Opinion, as well as the effective
practice following the 1997 Opinion.
In response to comments on the initial proposed rule and in
accordance with the 2003 Opinion, we are adopting mill site regulations
that continue the Department's past prevalent practice and
interpretation under the pre-existing regulations and that make clear
that the 5-acre mill site provision in the Mining Law is a limit on the
size of individual mill sites and not a limit on the allowable mill
site acreage per mining claim. That is, the final rule maintains BLM's
past practice regarding the 5-acre mill site provision.
Section 3832.31 What Is a Mill Site?
One comment recommended that we state the limitation, if any, on
the acreage of independent or custom mill sites that you can locate.
Section 3832.32 addresses the size limitations of all mill sites,
including independent or custom mill sites. The maximum size of
individual mill sites is 5 acres.
Section 3832.32 How Much Land May I Include In My Mill Site?
As discussed above, we have withdrawn the proposed amendment to
this section in response to comments and the 2003 Opinion and have
conformed the rule to the Department's prevalent practice under the
pre-existing regulations as described in the 2003 Opinion.
Comments from various mining industry groups and mining companies
stated that the Department's prevalent practice for at least the past
fifty years has not required a one-to-one ratio between mill sites and
lode (or placer) claims, let alone a 5-to-20 acre ratio, as provided in
the proposed rule.
Comments from environmental interests supported the limits on mill
sites in the proposed rule, saying they were necessary to prevent
improper waste dumping on the public lands. We have addressed this
concern by requiring claimants to locate only that amount of mill site
acreage that is necessary to be used or occupied for efficient and
reasonably compact mining or milling operations. This is a new
regulatory requirement, which BLM will implement by applying this
standard in its review of proposed plans of operations under 43 CFR
subpart 3809. In addition, the regulations at 43 CFR subparts 3715 and
3809 prohibit the unauthorized placement of waste rock, tailings, or
other mining materials.
Section 3832.34 How May I Use My Mill Site?
Several comments addressed permitting requirements for mill site
use. One comment asked for language limiting the use of National Park
System lands for rock and soil dumps. In response to this comment, we
added language to advise a mill site owner to comply with the
regulations of the
[[Page 61056]]
surface management agency before beginning operations.
One comment suggested that we remove paragraph (a)(6), because
miners should be able to use mill sites for mine closure operations.
The case law rejects this idea. Mill sites may not be located or
patented for closure operations alone. You may only locate or patent
mill sites for the support of a mining operation. You may use a mill
site for the storage of top soil and materials that you removed in
initial mine stripping that you will later replace on the mine site for
reclamation. Of course, you may reclaim a mill site and, indeed, must
do so upon termination of your operation. See United States v. Utah
International, Inc., 45 IBLA 73 (1980).
We have amended this section to describe separately the types of
uses allowed for independent or custom mill sites.
Section 3832.44 What Rights do I Have to Minerals Within my Tunnel
Site?
We revised paragraph (c) of this section for the sake of clarity.
Although no one commented on this provision, on reviewing it while
drafting the final rule, we found its wording in the proposed rule
somewhat inaccurate. The intent of this paragraph is that, to maintain
your right to possess all unknown, undiscovered veins, lodes, or ledges
that your tunnel may intersect as you develop it, you must perform at
least some work on the tunnel within every consecutive 6-month period.
Subpart E--Defective Locations
Section 3832.91 How Do I Amend a Mining Claim or Site Location if it
Exceeds the Size Limitations?
Numerous industry comments objected to the provision in paragraph
(a) that you would forfeit a claim or site if it were oversized by more
than 10 percent, and said that any forfeiture should only cover the
excess acreage. After further consideration, BLM agrees and has removed
the language in the final rule. If a claim is oversize, BLM will issue
a decision, notify you, and direct you to file an amended location
certificate correcting the matter within 30 days.
Part 3833--Recording Mining Claims or Sites [Added]
This part walks you through the Federal process for recording a
mining claim or site.
Section 3833.1 describes what it means to record mining claims and
sites and why you must record your mining claims and sites. The
recording process provides BLM with a record of claims and sites, as
required by FLPMA.
Sections 3833.10 and 3833.11 outline the procedures for recording
mining claims and sites. Specifically, section 3833.11 describes how
you record mining claims and sites. Some of this information may be the
same information that you used to locate your claim under part 3832.
Sections 3833.20 through 3833.23 describe when and how you may
amend the record of a previously located mining claim or site. Sections
3833.30 through 3833.35 cover transfers of mining claims or sites.
Finally, sections 3833.90 through 3833.93 describe how to cure
certain defects in your recording of mining claims or sites.
Section 3833.1 Why Must I Record Mining Claims and Sites?
A comment suggested that BLM use the term ``record'' in these
regulations to refer to the county recorder's office and the term
``file or filing'' to refer to documents given to BLM. We did not adopt
this comment because the term file or filing as applied to a notice of
location can be confused with the other types of filings claimants make
with BLM. In addition, the heading for the section in FLPMA that
requires claimants to file a copy of the notice of location with the
state and BLM is ``Recordation of Mining Claims and Abandonment.'' We
have added a definition of the term ``recording'' to make clear that
recording applies only to filing of notices or certificates of
location.
A comment, repeated in numerous letters, stated that we should add
language to the rule at this point requiring demonstration of discovery
before mining activity can occur, saying that staking a claim does not
guarantee discovery. We have addressed this concern in earlier sections
in which we state that a mining claim is not valid until the claimant
discovers a valuable mineral deposit.
Another comment noted we did not state that the 90-day recording
requirement of section 314(b) of FLPMA also applies to county
recordings. We have added language to paragraph (a) to correct this
oversight.
For paragraph (b), another comment requested that this section
include a list of items that would cause a claim to become invalid,
void, or without effect. We have provided a list of defects that are
not curable in section 3830.91 and will lead to a forfeiture of your
claim. Other failures may mean that you have not established a valid
mining claim. For example, your mining claim is not valid if you have
not discovered a valuable mineral deposit. Because overall mining claim
validity depends on so many factors that are case specific, we have not
adopted this suggestion in the final rule.
We also removed from the final rule the last sentence of paragraph
(b) as proposed, which provided that recording a claim does not in and
of itself establish property rights in the land. That sentence was
redundant to the first sentence in paragraph (b).
Section 3833.11 How Do I Record Mining Claims and Sites?
One comment asked for an explanation of ``O and C Lands'' as used
in paragraph (d). ``O and C Lands'' refers to Oregon and California
Railroad and Reconveyed Coos Bay Wagon Road Grant Lands in Oregon.
These are explained in 43 CFR subpart 3821.
Several comments stated that the wording of paragraph (a) was
internally inconsistent, requiring the claimant to record with the
county a copy of the document he or she already recorded with the
county. We have corrected this problem in the final rule.
One comment asked that we identify which among those items that
paragraph (b) requires to be in the notice or certificate of location,
if omitted, would be--
[sbull] A curable defect, or
[sbull] An incurable defect causing forfeiture of the mining claim.
We believe that such a list is unnecessary in light of the
explanation of when and how to amend locations in section 3833.20 et
seq.
Subpart B--Amending Mining Claims and Sites
Section 3833.21 When May I Amend a Notice or Certificate of Location?
Several comments disputed paragraph (b)(4) of this section, which
provides that you cannot enlarge a claim by amendment. The comments
stated that state laws and case law allow enlargement of undersized
claims so long as there are no intervening rights. The cases and other
authorities cited in the comments do not support this position.
The general rule is that you may not enlarge an existing mining
claim or site by amendment. The Interior Board of Land Appeals (IBLA)
has held that such an attempted amendment is a re-location of the
original claim (see Junior L. Dennis, 133 IBLA 239 (1995) and cases
cited therein).
You may reposition lode claims at a later date, in the absence of
intervening rights, by amendment for proper alignment along a vein or
lode as work progresses, in order to secure your
[[Page 61057]]
extralateral rights. See II Lindley on Mines Sec. 339, 3rd ed. 1916.
The cases cited in the comments also state this rule, but do not
address the issue of enlargement of claims by amendment.
Several comments suggested that the regulations should allow other
amendments after land is withdrawn other than reducing acreage. The
available case law does not permit other kinds of amendments of the
claim itself. We have amended this section to make it clear that you
may correct clerical errors in your filings, such as mistakes in your
land descriptions or in other filing documentation, but that you may
change the actual boundaries or move the monuments of your claim on
withdrawn land only to reduce the size of the claim or site.
Section 3833.22 How Do I Amend My Location?
Several comments questioned BLM's authority to void claims if the
claimants did not record completed amendments within 90 days after
recording the amendment in the local recording office. Upon
reconsideration, we have removed this provision and restored the
provision from the old regulations, which says that we will not
recognize the changes in your claim (just the original location
documents) until you file them properly.
Subpart C--Filing Transfers of Interest
Section 3833.31 What Is a Transfer of Interest?
Several comments addressed the applicability of community property
rights to unpatented mining claims. Upon further analysis, we have
removed this provision; as proposed, it only applied to the patenting
process, which is not the subject of this regulation.
Another comment asked if we intended this section to apply to
mortgages, liens, leases, etc. The answer is no, as explained
previously in the preamble discussion of section 3830.2.
Section 3833.32 How Do I Transfer a Mining Claim or Site?
Several comments noted that the legal effects of recordings and
filings of legal documents (deed, grants, etc.) are a state law issue.
We agree and have rewritten this section (as paragraph (a) of a section
combining sections 3833.32 and 3833.33 of the proposed rule) to provide
that state law governs transfers of mining claims and sites and
determines the effective date of a transfer.
Subpart D--Defective Filings
Section 3833.91 What Defects Cannot Be Cured Under This Part?
We removed paragraph (d), which provided that you cannot forfeit a
claim already void or forfeited, because it merely repeated section
3833.21(b)(2).
Several comments objected to paragraph (e), which would void a
claim that is more than 10 percent larger than the statutory maximum
size. We have removed this provision from the final rule.
Part 3834--Required Fees for Mining Claims or Sites
This part guides you through annual maintenance of your claims or
sites. It describes what you must do each year to maintain your mining
claims or sites properly to avoid forfeiting them. Section 3834.11
describes the location fee, initial maintenance fee, annual $100
maintenance fee, and oil shale placer claim fee.
Sections 3834.12 through 3834.14 go through the procedures for and
effects of paying the maintenance fee.
Sections 3834.20 through 3834.23 outline when and how the Secretary
may adjust the amount of the maintenance and location fees.
Subpart A--Fee Payment
Section 3834.11 Which Fees Must I Pay to Maintain a Mining Claim or
Site and When Do I Pay Them?
Several comments found the language in paragraphs (a) and (b) to be
imprecise and ambiguous, especially as to what period of time the
annual maintenance fee covers. They suggested alternative phrasing in
some places. After careful analysis, BLM has amended paragraphs (a) and
(b), in some cases adopting the suggested phrasing, to make this
section more clear.
Section 3834.12 How Will BLM Know Which Mining Claims or Sites I am
Paying the Fees For?
Several comments pointed out that the claimant does not always have
the serial number when it is time to pay the annual maintenance fee. We
amended this provision to say that your list of claims for which you
are paying must include the serial numbers of the claims if BLM has
informed you that we have assigned serial numbers.
Section 3834.13 Will BLM Prorate Annual Maintenance or Oil Shale Fees?
One comment suggested rephrasing this provision to emphasize that
the full annual maintenance fee is required even if the claimant held
the claim for only one day in the assessment year. We adopted this
suggestion in the final rule.
Section 3834.14 May I Obtain a Waiver From These Fees?
One comment objected to a lack of waiver rights for oil shale
mining claims. This is a statutory requirement over which BLM has no
discretion. Unless you filed a patent application and received a first
half of mineral entry final certificate before October 24, 1992, the
Energy Policy Act of 1992 (30 U.S.C. 242) requires the payment of an
annual $550 fee and a FLPMA filing of a notice of intent to hold. The
comment also asked whether, after a mineral patent is issued, an oil
shale mining claim is still subject to the annual fee. The answer is
no.
Section 3834.23 When Do I Start Paying The Adjusted Fees?
One comment addressed the timing of fee adjustments. We have not
made any changes to this section because it reflects the statutory
language.
Part 3835--Waivers From Annual Maintenance Fees
Section 3835.1 provides general information about fee waivers and
their applicability. Sections 3835.10 through 3835.11 address general
filing requirements for waivers, while section 3835.13 lists specific
types of waivers, their duration, and how you should renew them. Five
types of waivers are available to claimants who are--
[sbull] Small miners,
[sbull] Military personnel under the Soldiers and Sailors' Relief
Act,
[sbull] Performing reclamation,
[sbull] Denied access, or
[sbull] Mineral patent applicants, under certain circumstances.
Sections 3835.14 through 3835.17 establish the conditions and the
process--
[sbull] For obtaining a small miner waiver in the assessment year
following the assessment year of location,
[sbull] For filing a waiver one year and paying the maintenance fee
the next,
[sbull] For paying the maintenance fee one year and filing a waiver
the next assessment year, and
[sbull] For obtaining a waiver for claims or sites on National Park
System lands.
Section 3835.20 addresses whether waivers continue when a claim is
transferred. It explains that a waiver is still effective if the
transferee also qualifies for the waiver. If not, the required
maintenance fees are due by the September 1st following the date of
transfer.
Sections 3835.30 through 3835.34 describe annual FLPMA documents
and
[[Page 61058]]
when they are required to be filed. Annual FLPMA documents include
affidavits of assessment work when required as a condition of a waiver,
or notices of intent to hold the claim when an affidavit of assessment
work cannot be filed.
As in the earlier parts, sections 3835.90 through 3835.93 describe
the procedures to cure certain defects if you have any in your waiver
request.
Subpart A--Filing Requirements
Upon reviewing the public comments, and after carefully reviewing
this subpart, we reorganized it somewhat in the final rule, and
replaced proposed section 3835.1 with the table explaining waiver
qualification requirements from proposed section 3835.12.
Section 3835.10 How Do I File for a Waiver?
This section appeared as section 3835.11 in the proposed rule.
Comments suggested modifications in this section to make it read more
clearly, particularly as to what assessment year is covered by a waiver
request, and who must sign the request if an agent submits it. BLM has
amended this section by adding language making it clear that the waiver
request maintains the claim for the assessment year that begins on the
date the waiver request is due and stating that a request submitted by
an agent must include the agent's original signature, not necessarily
that of the claimant.
Another comment asked whether BLM would provide forms that
claimants must use to request a waiver. BLM makes BLM form number 3830-
2 (Small Miner Waivers) available in all of its state offices, and its
use is required in order to request a waiver from payment of annual
maintenance fees.
Sections 3835.11 What Special Filing and Reporting Requirements Pertain
to the Different Types of Waivers?
This section appeared as section 3835.12 in the proposed rule, in
tabular form. In the final rule, we present this provision in the form
of text; the table added little to aid understanding. Several comments
addressed this section, seeking clarity as to what year the waiver
request must cover, and stating that assessment work is not required in
every year of the life of a mining claim. For example, assessment work
is not required in the year of location. We have amended the language
in light of these suggestions, using the term ``the applicable
assessment year'' and adding the qualification ``required by the Mining
Law of 1872'' to the provision for what assessment work must be
certified in your small miner waiver request.
Section 3835.12 What Are My Obligations Once I Receive a Waiver?
This section is new in the final rule, based on comments that the
FLPMA filing requirements are very confusing and should not be
summarily dealt with in a section on waiver requirements. This section
provides the necessary cross-references to the annual filing procedures
you must follow to maintain claims for which you have a waiver from the
maintenance fee.
The waiver qualification table in this section in the proposed rule
now appears in section 3835.1 in the final rule.
Section 3835.13 How Long Do the Waivers Last and How do I Renew Them?
One comment pointed out a drafting error in the table in this
section, where we inadvertently switched the renewal requirements for
two of the waiver types. We have corrected the error in the final rule.
Section 3835.14 How Do I File for a Small Miner Waiver for Newly-
Recorded Mining Claims?
Comments found this section confusing, especially in light of
provisions later in this subpart. We have removed redundant provisions
from this section, and added a cross-reference to sections 3835.31
through 3835.34, to make it clear when you must make filings under
Section 314 of FLPMA for a newly-located claim or site if you have also
submitted a waiver request at the time of recording the claim or site.
Section 3835.15 If I Qualify as a Small Miner, How Do I Apply for a
Waiver if I Paid the Maintenance Fee in the Last Assessment Year?
Some of the comments on this section betrayed such a lack of
understanding of its meaning that it became clear to us that it was
confusing and we needed to clarify the section. Following a suggestion
in one comment, we added introductory text (1) telling you that you
must submit a waiver request, and (2) cross-referring to the
appropriate regulatory guidance for doing so. We also reworded the rest
of the section to try to make it clearer. The section should not be
read, as one comment interpreted it (perhaps with tongue in cheek), to
require you to do ``twice the normal amount of assessment work during
the first assessment year for which your maintenance fee was waived.''
Section 3835.16 If I Am a Qualified Small Miner, and I Obtained a
Waiver in One Assessment Year, What Must I Do if I Want To Pay the
Maintenance Fee for the Following Assessment Year?
One comment said that this section was incorrect, that it should
have required you to do the assessment work for the year before the
year for which you obtained a waiver, rather than the year for which
you obtained a waiver. While it is true that you must do assessment
work for the year before you obtain a waiver, you must obtain a new
waiver each year, having done the assessment work during each preceding
assessment year as you go along. Of course, this amounts to a
requirement that during every year covered by a waiver you must do
assessment work, plus the year before your initial waiver request.
Thus, if, for whatever reason, you wish to or are required to pay the
maintenance fee in a subsequent year, the present year must necessarily
be covered by a waiver, and you must do the assessment work for that
year, ``the assessment year for which the fee was waived.'' We made no
substantive change in this provision. The following table shows how the
provision works, based on four possible scenarios that may describe the
affected miner's situation; in the table, ``xx'' refers to the current
calendar year:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Assessment year Assessment year FLPMA filing Assessment year FLPMA filing
Assessment year end FLPMA filing due end FLPMA filing due end due end due
--------------------------------------------------------------------------------------------------------------------------------------------------------
9/1/xx 12/30/xx........ 9/1/xx+1........ 12/30/xx+1...... 9/1/xx+2........ 12/30/xx+2..... 9/1/xx+3....... 12/30/xx+3
------------------------------
If you paid the maintenance No FLPMA filing If you asserted You must file If you asserted You must file If you asserted You must file
fee. necessary. small-miner Notice of small-miner Proof of Labor small-miner Proof of Labor
waiver. Intent to Hold waiver. for assessment waiver. for assessment
your claim or year Sept. year Sept.
site. xx+1 to Sept. xx+2 to Sept.
xx+2. xx+3.
If you asserted small-miner You must file If you paid the You must file If you paid the No FLPMA filing If you paid the No FLPMA filing
waiver. Proof of Labor maintenance fee. Proof of Labor maintenance fee. necessary. maintenance necessary.
for assessment for assessment fee.
year Sept. xx-1 year Sept. xx
to Sept. xx. to Sept. xx+1.
[[Page 61059]]
If you paid the maintenance No FLPMA filing If you asserted You must file If you paid the You must file If you asserted You must file
fee. necessary. small-miner Notice of maintenance fee. Proof of Labor small-miner Notice of
waiver. Intent to Hold for assessment waiver. Intent to Hold
your claim or year Sept. your claim or
site. xx+1 to Sept. site.
xx+2.
If you asserted small-miner You must file If you paid the You must file If you asserted You must file If you the paid You must file
waiver. Proof of Labor maintenance fee. Proof of Labor small-miner Notice of the Proof of Labor
for assessment for assessment waiver. Intent to Hold maintenance for assessment
year Sept. xx-1 year Sept. xx your claim or fee. year Sept.
to Sept. xx. to Sept. xx+1. site. xx+2 to Sept.
xx+3.
Section 3835.17 What Additional Requirements Must I Fulfill To Obtain a
Small Miner Waiver for My Mining Claims or Sites on National Park
System Lands?
A comment from the National Park Service asked that we add
provisions instructing miners how to comply with waiver and assessment
work requirements for mining claims on NPS lands, and provided language
to serve that purpose. We have substantially adopted the recommended
language. Your plan of operations must be approved by the NPS before
you can begin, and your assessment work must further the goal of
developing the mineral deposit. If NPS does not approve the plan in
time to qualify for a small miner waiver, the final rule gives you
three options: pay the maintenance fees; petition for a deferment of
assessment work; or file for a lack of access waiver.
Subpart B--Conveying Mining Claims or Sites Under Waiver
Section 3835.20 Transferring, Selling, Inheriting, or Otherwise
Conveying Mining Claims or Sites Already Subject to a Waiver.
This section explains whether BLM will continue to apply a waiver
to a mining claim after the person who first qualified for the waiver
transfers it to another claimant. One comment stated that if a miner
with a small miner waiver performs the required assessment work and
then transfers a claim to a miner who does not qualify for a waiver,
the second miner should not have to pay the maintenance fee. The
argument is that the work done on the claim should have been effective
for the whole assessment year and therefore should have excused the
claim from the maintenance fee requirement.
When a small miner conveys a claim to a claimant who does not
qualify for a small miner waiver, the status of the claim changes
immediately upon the transfer, and the waiver no longer applies. To
retain the claim for the current assessment year, the transferee must
pay the maintenance fee for the newly acquired claim. Under this
scenario, assessment work previously done to hold the claim is not an
acceptable alternative to paying the maintenance fee, as the comment
seems to be saying. Doing assessment work is never an optional
alternative to paying the maintenance fee for claimants who own more
than 10 claims or sites.
Another comment found paragraph (b) as proposed to be confusing. We
have amended the paragraph to explain to claimants who do not qualify
for a waiver what they must do to maintain a claim that they obtain
from someone who did qualify for a waiver.
Subpart C--Annual FLPMA Filings
Section 3835.31 When Do I File an Annual FLPMA Document?
Several comments stated that the proposed language of sections
3835.31 and 3835.32 was ambiguous and confusing. Some offered
substitute language. They stated that we omitted crucial information
that claims could be forfeited if the claimant did not record an
affidavit of assessment work or notice of intention to hold in the
local recording office before the statutory deadline. They also
criticized some imprecise wording as to where annual FLPMA filings must
be filed, and what year is meant by ``December 30th of the calendar
year in which the assessment year ends.'' They questioned the meaning
of ``current assessment year'' in paragraph (c). They disputed a
statement in paragraph (a) that you must submit a FLPMA filing by
December 30th of the calendar year in which the assessment year ends,
saying that this contradicted the statutory provision that paying the
maintenance fee satisfies the FLPMA filing requirement.
We have combined sections 3835.31 and 3835.32 in the final rule to
clarify when you must make filings and what filing is required under
various circumstances. We have also amended the table that describes
the filing requirements and deadlines.
One comment suggested adding a ``situation'' to the table now in
paragraph (d) of this section. It would describe what happens if you
have a deferment of assessment work: the regulations would not require
an affidavit of assessment work, but you would have to file a notice of
intent to hold. We have added this situation to the table, with a
reference to paragraph (c) of this section, which describes this
situation and the actions you must take.
One comment stated that paragraph (h) in the table was inaccurate
because it did not account for the fact that most claimants would be
paying the maintenance fee. The comment suggested that the provision
should merely state BLM does not require an affidavit or notice after
you obtain the mineral entry final certificate. We have amended
paragraph (h) as suggested by the comment.
Section 3835.32 What Should I Include When I Submit an Affidavit of
Assessment Work?
This section appeared as section 3835.33 in the proposed rule.
Several comments stated that the regulatory text was not specific and
clear enough in this section as to what form and type of assessment
work documents have to be filed. The comments focused on what we meant
by evidence of assessment work, by a copy of the surveys that you must
file with BLM, and what documents need to be recorded in the local
recording office, and offered alternative language. We have revised the
section to be even more specific. We make it clear that FLPMA allows
you to submit a detailed report of geological, geochemical, and
geophysical surveys and reports, as provided in 30 U.S.C. 28-1, in lieu
of an affidavit of assessment work.
Section 3835.33 What Should I Include When I Submit a Notice of Intent
To Hold?
This section appeared as section 3835.34 in the proposed rule. Two
comments addressing the section noted that FLPMA does not require the
signatures of all claim holders on a Notice of Intent to Hold (NOI), as
required in the proposed rule. The comment is correct and the language
has been revised to require that one or more co-owners must sign the
NOI to make it effective.
The comments also stated that the regulations did not clearly
include the FLPMA requirement that the document you file with BLM must
be a copy of the
[[Page 61060]]
document you filed with the local recording office. We have amended
paragraph (a) of this section to make it clear that you must file with
BLM a copy of the notice of intent to hold that you have recorded or
will record with the county.
Subpart D--Defective Waivers and FLPMA Filings
Sections 3835.91-3835.93.
Numerous Comments stated that some provisions in these sections
were ambiguous as proposed. Some comments included alternative
language. After a careful analysis, BLM has amended these sections to
include plainer identification of the possible defects, the penalties,
and the remedies available.
Section 3835.91 What If I Fail To File Annual FLPMA Documents?
One comment stated that ``on time'' was insufficiently specific as
a standard for making annual FLPMA filings, and requested a specific
date instead. We amended this section to provide the specific annual
deadline of December 30.
Section 3835.92 What If I Fail To Submit a Qualified Waiver Request?
One comment asked that we amend this section to--
[sbull] Define the term ``qualified waiver request'';
[sbull] Define ``on time''; and
[sbull] Clarify the difference between ``defective waiver'' and
``non-qualified waiver.''
We amended this section in the final rule by adding a cross-
reference to an explanation of qualifying for a waiver, and by stating
the actual deadline rather than saying ``on time.'' In this section, we
no longer refer to ``qualified waiver requests'' or ``qualified
waivers.''
These comments also stated that paragraph (d) must be amended to
make it clear that it is only in the case where a miner has filed a
waiver request but does not pay the maintenance fee that a co-owner's
failure to qualify as a small miner will invalidate the claim. We have
amended paragraph (d) to clarify that if you, a co-claimant, or any
related parties file small miner waivers for more than 10 mining claims
or sites and also fail to pay the maintenance fee for each claim or
site, the claims and sites will be forfeited. We have also added
language that states that you may be subject to criminal penalties if
you attempt to obtain a small miner waiver for more than 10 mining
claims or sites.
Part 3836--Annual Assessment Work Requirements for Mining Claims
This part consolidates the provisions of current part 3851 on
performing and recording assessment work, which is sometimes a
condition for a maintenance fee waiver. Sections 3836.10 through
3836.15 identify the types of work that qualify as assessment work, and
tell you how to record the work. Section 3836.16 discusses what happens
if you fail to perform assessment work. If you are a qualified small
miner, and you have been denied access to your claims, you may petition
BLM to defer assessment work as outlined in sections 3836.20 through
3836.25.
Subpart A--Performing Assessment Work
Section 3836.11 What Are the General Requirements for Performing
Assessment Work?
Several comments addressed this section. One comment stated that
paragraph (a) should say that assessment work must be done before the
small miner waiver deadline in order to qualify for the waiver. The
comment is correct. We have amended the rule accordingly.
Another comment pointed out that the requirement in paragraph (a)
to do assessment work for every claim every year does not recognize
that you need not perform assessment work in the assessment year during
which you locate a new claim. We have amended this provision in light
of the comment.
Several comments stated that our interpretation in paragraph (b) of
the assessment provision of the General Mining Law is erroneous. A
comment also challenged the ``on claim'' provision, stating that some
work can be performed off site and still qualify. We are not aware of
any case law that would disallow BLM's longstanding practice of
allowing claimants to comply with the assessment work requirement by
conducting work on a group of contiguous claims that cover the same
deposit. In addition, the Supreme Court in St. Louis Smelting &
Refining Co. v. Kemp, 104 U.S. 636 (1881), held that off site work
qualifies as assessment work so long as it supports development of the
claim. BLM therefore has amended this provision in the final rule
accordingly.
Some of these comments said that this paragraph was not clearly
worded. We have amended the language to try to make it more clear.
Section 3836.14 What Other Requirements Must Geological, Geochemical,
or Geophysical Surveys Meet to Qualify As Assessment Work?
One comment questioned the term ``local district recording
office'', which was a typographical error in the proposed rule. The
term ``local recording office'' replaces it in the final rule.
Subpart B--Deferment of Assessment Work
Section 3836.21 How Do I Qualify for a Deferment of Assessment Work on
My Mining Claims?
One comment stated that this provision in the proposed rule seemed
garbled, and left incomplete the reasons allowed for obtaining a
deferment of assessment work. The comment stated that it did not
specifically allow for deferment when a unit of government has issued a
declaration of taking. We have revised this paragraph in light of the
comment.
Section 3836.22 How Do I Qualify for a Deferment of Assessment Work on
My Mining Claims That Are on National Park System (NPS) Lands?
We have added this section in the final rule in response to a
public comment. A comment addressed the issue of deferments and
documentation on Nation Park System lands, stating that the rule should
explain the procedure for obtaining a deferment of assessment work for
claims situated on National Park System land. The comment suggested
language to fix the problem. We accepted this recommendation and
created a new section 3836.22, renumbering proposed section 3836.22 as
3836.23.
Section 3836.23 How Do I Petition for Deferment?
Several comments asked why a petition for deferment must be
submitted in duplicate. The requirement is obsolete, a holdover from
old General Land Office regulations promulgated when photocopy machines
could have appeared only in science fiction. It is clearly no longer
necessary, and we have removed it in the final rule.
These comments also suggested the following amendments to clarify
this section--
[sbull] Amend paragraph (a)(4) to make it clear that you must meet
its requirements only if the provisions of the paragraph apply to your
situation. We have amended the paragraph to make clear that you must
file a statement that you plan to submit a small miner waiver form on
or before
[[Page 61061]]
September 1st, since you need not conduct assessment work unless you
are going to file for a small miner waiver from the $100 maintenance
fee;
[sbull] In paragraph (b)(1), clarify the meaning of ``nature of the
land'' (which must be described by applicants for a right-of-way to a
claim). We have added words to clarify what you must describe in your
petition;
[sbull] In paragraph (c), add references to declarations and
notices of taking. We have added a provision at section 3836.21(b) in
the final rule adding these to the circumstances qualifying you for a
deferment of assessment work.
Part 3837--Acquiring a Delinquent Co-Claimant's Interests in a Mining
Claim or Site
This part consolidates the procedures in current subpart 3851 and
30 U.S.C. 28 for acquiring the interests of a delinquent co-claimant in
a mining claim or site when the co-claimant has failed to contribute a
proportionate share of the assessment work, expenditures, or
maintenance fees. Sections 3837.10 and 3837.11 state the conditions for
acquisition and sections 3837.20 through 3837.24 lay out the steps for
acquisition. Section 3837.30 provides guidance in the event of a
dispute between co-claimants.
Subpart A--Conditions for Acquiring a Delinquent Co-Claimant's
Interests in a Mining Claim or Site
Section 3737.11 When May I Acquire a Delinquent Co-Claimant's Interests
In a Mining Claim Or Site?
One comment found the opening sentence of paragraph (a)(4) somewhat
unclear and suggested that we lay out the timing of the notice and the
co-claimants' acquisition of the delinquent's rights more clearly. We
have adopted language suggested in the comment. The delinquent co-
claimant has 90 days from the date the claimant received actual notice
or 90 days from the date the publication period ended in which to carry
out a proportionate share of the assessment work or to pay a
proportionate share of expenditures or maintenance fees or forfeit all
interest in the claim to the other co-claimants.
In this final rule, we amended the title of this section by
changing the first word from ``how'' to ``when.''
Subpart B--Acquisition Procedures
Section 3737.21 How Do I Notify the Delinquent Co-Claimant That I Want
To Acquire His or Her Interests?
and
Section 3737.23 How Do I Notify BLM That I Have Acquired a Delinquent
Co-Claimant's Interests In a Mining Claim or Site?
Several comments objected to the requirement that a co-claimant
conduct a diligent search to locate a missing co-locator before we
allow publication of a notice and potential loss of ownership interest.
The comments questioned our authority to require this procedure, saying
that 30 U.S.C. 28 ``simply give the option of personal notice in
writing or notice by publication.'' The Secretary has such authority
under 43 U.S.C. 1201 to establish, by regulation, such rules and
procedures as she deems necessary for the orderly conduct of business
on the public lands. Over the last 10 years, BLM has seen instances in
which this provision is used inequitably. For example, some claimants
who know how to contact a co-claimant have instead published notice in
a newspaper, hoping that the co-claimant would not see the notice. In
order to protect the rights of all claimants, we have amended the
regulations to establish a simple sequence of steps that the other co-
claimants must follow before being allowed to deprive a delinquent co-
claimant of an interest in the claim or site.
Part 3838--Special Procedures for Locating and Recording Mining Claims
and Tunnel Sites on Stockraising Homestead Act Lands
This part contains special procedures for exploring for minerals
and locating, recording, and maintaining mining claims or tunnel sites
located on or under Stockraising Homestead Act (SRHA) lands. If you
want to locate mining claims on SRHA lands, you must take these special
steps before locating, recording, and maintaining mining claims or
tunnel sites under this part. These procedures are required by the Act
of April 16, 1993; Public Law 103-23; 43 U.S.C. 299(b). The Act took
effect on October 13, 1993.
Sections 3838.1 and 3838.2 describe what SRHA lands are, and why
claims or sites on them require special procedures. Sections 3838.10
through 3838.14 and section 3838.16 discuss the procedures for
exploring for minerals and locating mining claims on SRHA lands.
Specifically, you must record a notice of intent to locate mining
claims (NOITL) with BLM, and serve a copy of the NOITL on the surface
owners. You must then wait 30 days before entering the lands to explore
for minerals or locate any mining claims. Section 3838.15 describes the
benefits you receive when you file a NOITL, while sections 3838.90 and
3838.91 state the consequences of failing to file a NOITL.
Subpart B--Locating and Recording Mining Claims and Tunnel Sites on
SRHA Lands
Section 3838.12 What Must I Include In a NOITL on SRHA Lands?
We revised this section to improve clarity, based on our own review
of the proposed rule. We have made it clear that a duly-authorized
agent may file the NOITL on behalf of claimants. We have also expanded
the list of evidence that you may submit to show surface ownership to
include tax assessments and receipts, and title insurance
documentation.
Section 3838.13 What Restrictions Are There On Recording a NOITL on
SRHA Lands?
One comment, supported by two others, stated that BLM lacked
statutory authority, in paragraph (d), to impose a 30 day waiting
period after the expiration of a NOITL before the same claimant may
file a new NOITL. As noted above, under 43 U.S.C. 1201, BLM has such
authority. We drafted this provision to correct abuses of the system
whereby certain individuals were filing a new NOITL every 90 days over
the same land and never locating mining claims. Their purpose was to
keep other potential claimants out.
Section 3838.15 How Do I Benefit From Properly Filing a NOITL on SRHA
Lands?
One comment, supported by two others, stated that the period during
which a claimant may enter lands covered by a NOITL does not begin when
BLM accepts the NOITL, but 30 days after notice is provided under 43
U.S.C. 299(b)(3). It went on to state that the exploration period
``ends 90 days after the NOITL was filed with BLM.'' The comment
correctly states the law and we have revised the introductory text of
paragraph (a) accordingly. In order to maximize the 90-day time period
after you file a NOITL with BLM, you may give the surface owner notice
30 days before you plan to file the NOITL with BLM. If you give the
surface owner notice at the same time you file a NOITL with BLM, the
90-day exploration and location period will be effectively diminished
by the 30 days you must wait after you give the surface owner notice.
Part 3839--Special Laws, in Addition to FLPMA, That Require Recording
or Notice
We are reserving this part for future consolidation of regulations
about
[[Page 61062]]
recording and notice requirements and contest procedures under certain
special laws. The current regulations are found in 43 CFR parts 3710,
3730, 3740, 3810, and 3820. These parts cover surface rights
determinations under the Surface Resources Act of 1955; permission to
use or occupy placer mining claims located in power site withdrawals
under the Mining Claim Rights Restoration Act of 1955; conflict
resolution between mining claims and mineral leases under the Multiple
Mineral Development Act of 1954; and timber use on O. and C. lands
(Revested Oregon and California Railroad and Reconveyed Coos Bay Wagon
Road Grant Lands) in Oregon by mining claimants.
Part 3840--Nature and Classes of Mining Claims
BLM has moved the provisions of part 3840, which describes the
types of claims or sites and how to locate and record them, to parts
3832 and 3833. See the conversion chart earlier in this preamble.
Part 3850--Assessment Work
BLM has moved the provisions of part 3850, which describes
assessment work requirements, to part 3836.
III. Procedural Matters
Executive Order 12866, Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this rule
is a significant regulatory action. The Office of Management and Budget
(OMB) makes the final determination under Executive Order 12866.
[sbull] The rule will not have an annual effect on the economy of
$100 million or more or adversely affect in a material way the economy,
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local, or tribal
governments or communities. These changes do not significantly change
the substance of current mining claim administration within BLM. The
annual revenue received from the collection of the congressionally
mandated oil shale, maintenance, and location fees has averaged $24
million since 1999. This rule does not change the fee amounts and thus
will not have a significant impact on fees collected.
[sbull] This rule will not create inconsistencies with other
agencies' actions. It does not change the relationships of BLM to other
agencies and their actions.
[sbull] This rule will not materially affect entitlements, grants,
loan programs, or the rights and obligations of their recipients. The
rule does not address any of these programs.
[sbull] This rule will not raise novel legal issues. It makes no
major substantive changes in the regulations. The Constitutionality of
the rental and maintenance fees has been challenged in the Federal
Courts. The Courts have consistently upheld the previous 1992, 1993,
and 1998 Acts, which provided for the maintenance and location fees,
and their implementing regulations.
[sbull] The proposed rule raised a novel policy issue regarding the
number of millsites that the Mining Law allows per mining claim. This
final rule, although it reverses this policy proposal from the proposed
rule, will likely continue to be controversial as to this matter. We
have amended the final rule, as discussed earlier in this Preamble, to
adopt previous prevalent practice as the standard in this connection.
Regulatory Flexibility Act
We certify that this rule will not have a significant economic
effect on a substantial number of small entities as defined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) The rule will not
have an impact because the fees paid by small entities will not change.
A final Regulatory Flexibility Analysis is not required, and a Small
Entity Compliance Guide is not required.
For the purposes of this section a ``small entity'' is an
individual, limited partnership, or small company, at ``arm's length''
from the control of any parent companies, with fewer than 500 employees
or less than $5 million in revenue. This definition accords with Small
Business Administration regulations at 13 CFR 121.201.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
[sbull] Does not have an annual effect on the economy of $100
million or more. As explained in section 1 above, the revised
regulations will not materially alter current BLM policy or the fees
paid by mining claimants. Under this rule claimants will pay about $20
million annually.
[sbull] Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, state, or local government
agencies, or geographic regions. The changes implemented by this rule
are likely to leave all other economic aspects of BLM unaffected.
[sbull] Does 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.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
[sbull] This rule will not ``significantly or uniquely'' affect
small governments. A Small Government Agency Plan is unnecessary.
[sbull] This rule will not produce a Federal mandate of $100
million or greater in any year. It is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The changes
implemented in this rule do not require anything of any non-Federal
governmental entity.
Executive Order 12630, Takings
In accordance with Executive Order 12630, the rule does not have
takings implications. A takings implication assessment is not required.
This rule does not substantially change BLM policy. Nothing in this
rule constitutes a taking. The Federal Courts have heard a number of
suits challenging the imposition of the rental and maintenance fees as
a taking of a right, or, alternatively, as an unconstitutional tax. The
Courts have upheld the previous 1992, 1993, and 1998 Acts and the BLM
rules thereunder as a proper exercise of Congressional and Executive
authorities.
Executive Order 13132, Federalism
In accordance with Executive Order 12612, BLM finds that the rule
does not have significant Federalism effects. A Federalism assessment
is not required. This rule does not change the role or responsibilities
between Federal, state, and local governmental entities, nor does it
relate to the structure and role of states or have direct, substantive,
or significant effects on states.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
In accordance with E.O. 13175, we have found that this final rule
does not include policies that have tribal implications. Because this
rule does not specifically involve Indian reservation lands (which are
closed to the operation of the general mining law), we believe that
relations with Indians, Indian tribes, and tribal governments will
remain unaffected.
Executive Order 12988, Civil Justice Reform
In