E9-15248. Required Fees for Mining Claims or Sites

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Final rule.

SUMMARY:

The Bureau of Land Management (BLM) is promulgating this final rule to make statutorily authorized adjustments to its location and maintenance fees for unpatented mining claims, mill sites, and tunnel sites. These adjustments reflect changes in the Consumer Price Index (CPI), which is published by the Bureau of Labor Statistics.

DATES:

The final rule is effective June 29, 2009.

ADDRESSES:

You may mail inquiries to the Bureau of Land Management—Solid Minerals Division, Room 501 LS, 1849 C Street, NW., Washington, DC 20240-0001.

FOR FURTHER INFORMATION CONTACT:

Rick Deery in the Solid Minerals Division at [phone]. For assistance in reaching Mr. Deery, persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service at 1 [phone], 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

I. Background

II. Discussion of the Final Rule

III. Procedural Matters

I. Background

The Mining Law of 1872 allows individuals and corporations to prospect for mineral deposits in public lands, and stake (or “locate”) a claim on the deposits discovered. Historically, annual assessment work and related filings have been required by statute in order to maintain an unpatented mining claim or site. 30 U.S.C. 28-28e; 43 U.S.C. 1744(a) and (c).

Beginning in fiscal year 1993, mining claimants have been required to pay an annual “maintenance” fee in lieu of performing annual assessment work and making annual filings. Mining claimants locating new claims or sites must also pay a one-time location fee. See 30 U.S.C. 28f-28k.

This rule implements 30 U.S.C. 28j(c), which authorizes adjustments to the location and annual maintenance fees “to reflect changes in the Consumer Price Index published by the Bureau of Labor Statistics of the Department of Labor every 5 years after August 10, 1993, or more frequently if the Secretary determines an adjustment to be reasonable.” Section 28j(c) also requires that mining claimants be provided “notice of any adjustment made under this subsection not later than July 1 of any year in which the adjustment is made,” and that any fee adjustment “shall begin to apply the first assessment year which begins after adjustment is made.”

As enacted in 1993, the one-time location fee was $25, and the annual maintenance fee was $100 per mining claim or site. In 2004, the BLM increased the amount of the location and maintenance fees to $30 and $125 respectively, based on the change in the CPI from September 1, 1993 to December 31, 2003. 69 FR 40294-40296 (July 1, 2004). The BLM has not adjusted the location and maintenance fees since 2004, but has promulgated two rules that have affected other aspects of the table of charges and fees at 43 CFR 3830.21, the regulation that is amended in this rule. For example, a new regulation issued in 2005 (43 CFR 3000.12) provides for a variety of processing fees, some of which are included in the table at section 3830.21. 70 FR 58873 (Oct. 7, 2005); see also 72 FR 50882 (Sept. 5, 2007).

The adjustments made in this rule are based upon the change in the CPI from December 31, 2003 to December 31, 2008, as reported by the Bureau of Labor Statistics in the CPI Detailed Report, Data for December 2008, Table 24C. Historical Chained Consumer Price Index for All Urban Consumers (C-CP-U): U.S. city average, all items (http://www.bls.gov/​cpi/​cpid0812.pdf). The calculated change is 11.93 percent from December 31, 2003 through December 31, 2008. A calculated value for the fees was obtained by inflating the location and maintenance fees established in the 2004 rulemaking by 11.93 percent.

The new location fee is $34, and the new maintenance fee is $140 per mining claim or site. The new location fee is based on rounding the calculated value to the nearest $1. The maintenance fee is based on rounding the calculated value to the nearest $5.

Mining claimants must pay the new location fee for any mining claim or site located after the effective date of this final rule. Mining claimants must pay the new maintenance fee to maintain mining claims and sites starting from the 2010 maintenance year. These fees are due on or before September 1, 2009. Under 43 CFR 3834.23, mining claimants who have already submitted maintenance fees for the 2010 maintenance year will be given an opportunity to pay the additional amount without penalty upon notice from BLM.

II. Discussion of the Final Rule

The BLM is adopting this final rule solely to adjust the location and maintenance fee amounts in section 3830.21. The BLM for good cause finds under 5 U.S.C. 553(b)(3)(B) that notice and an opportunity for public comment for this rule are unnecessary, and that this rule may properly take effect upon publication. The reason is that this rule implements a statutory requirement to adjust the location and annual maintenance fees at least every 5 years, and the last adjustment was made in 2004. The statute specifies the method of calculation of the fee adjustments and prescribes the form and manner of notice of the fee adjustment. The BLM has no discretion to exercise in complying with this statutory mandate. The BLM also determines under 5 U.S.C. 553(d) that there is good cause to place the rule into effect on the date of publication, because the adjustments made in the rule are explicitly authorized by statute.

This final rule contains only the specific amendments necessary to conform to the requirements of the statute. The amendments appear as modifications of the fee transaction table at 43 CFR 3830.21 to change the amount of the location and annual maintenance fees required to be paid for each mining claim, mill site, or tunnel site.

III. Procedural Matters

Executive Order 12866, Regulatory Planning and Review

In accordance with the criteria in Executive Order 12866, BLM has determined that this rule is not a significant regulatory action.

• 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. The fee adjustment does not change the substance of current mining claim administration within the BLM. The total amount of fees to be collected, including the effects of the adjustment, is estimated to be $61 million annually, of which approximately $7 million will be attributable to the adjustments made in this rule.
• This rule will not create inconsistencies with other agencies' actions. It does not change the relationships of the BLM to other agencies and their actions.
• 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.
• This rule will not raise novel legal or policy issues because it makes no major substantive changes in the regulations. The Constitutionality of the location and maintenance fees has been challenged in the Federal courts. The courts have consistently upheld the fee legislation and implementing regulations.

Regulatory Flexibility Act

The BLM certifies 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 have a minor impact because the fees paid by small entities will be adjusted. However, the fee adjustment is authorized by statute and the BLM has no discretion in the form or manner of making the adjustments. 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 for business concerns engaged in mining or less than $7 million in revenue for business concerns providing support activities for mining. 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:

• Will not have an annual effect on the economy of $100 million or more. The revised regulation will not materially alter current BLM policy. The fee adjustments are authorized by statute. The total amount of fees collected, including the effects of the adjustment, is estimated to be $61 million annually, of which $7 million is attributable to the adjustments made in this rule.
• Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
• Will 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.):

• This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is unnecessary.
• 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 BLM finds that 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 fee legislation and the BLM regulations as a proper exercise of Congressional and Executive authorities.

Executive Order 13132, Federalism

The final rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the BLM has determined that the final rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

In accordance with Executive Order 12988, the BLM has determined that the rule does not unduly burden the judicial system and therefore meets the requirements of sections 3(a) and 3(b)(2) of the Order. The BLM consulted with the Department of the Interior's Office of the Solicitor during the drafting process.

Paperwork Reduction Act

The Office of Management and Budget has approved the information collection requirements in the regulation that this final rule is amending, under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., and has assigned clearance number 1004-0114.

National Environmental Policy Act

The BLM has determined that this final rule is of a procedural nature, and part of the routine administration of the fee legislation. Therefore, this rule is categorically excluded from environmental review under Section 102(2)(C) of the National Environmental Policy Act, pursuant to 43 CFR 46.210(i). In addition, this rule does not present any of the 12 extraordinary circumstances listed in 43 CFR 46.215. Pursuant to the Council on Environmental Quality regulations (40 CFR 1508.4) and 43 CFR 46.205, the term “categorical exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency and for which neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have considered the impact of this rule on the interests of Tribal governments. Because this rule does not specifically involve Indian reservation lands, government-to-government relationships will remain unaffected.

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

This rule is not a significant energy action. It will not have an adverse effect on energy supplies. To the extent that the rule affects the mining of energy minerals (i.e., uranium and other fissionable metals), the rule applies only a statutory adjustment of the mining claim location and maintenance fees that the BLM has been collecting for many years. It will not significantly change financial obligations of the mining industry.

Authors

The principal author of this final rule is Rick Deery in the Solid Minerals Division, Washington Office, BLM, assisted by Jean Sonneman in the Regulatory Affairs Division, Washington Office, BLM.

List of Subjects in 43 CFR Part 3830

• Land Management Bureau
• Mineral royalties
• Mines
• Public lands—mineral resources
• Reporting and recordkeeping requirements
• Maintenance fees

For the reasons stated in the preamble, and under the authority of 30 U.S.C. 28f-28k, as amended by Public Law 110-161, Division F, part 3830, Group 3800, Subchapter C, Chapter II of Title 43 of the Code of Federal Regulations is amended as follows:

PART 3830—LOCATION OF MINING CLAIMS

1. The authority citation for part 3830 continues to read as follows:

Authority: 18 U.S.C. 1001, 3571; 30 U.S.C. 22 et seq., 242, 611; 31 U.S.C. 9701; 43 U.S.C. 2, 1201, 1212, 1457, 1474, 1701 et seq.; 44 U.S.C. 3501 et seq.; 115 Stat. 414.

Subpart D—BLM Service Charge and Fee Requirements

2. Revise § 3830.21 to read as follows:

§ 3830.21

What are the different types of service charges and fees?

The following table lists service charges, maintenance fees, location fees, and oil shale fees (all cross-references refer to this chapter):

Transaction	Amount due per mining claim or site	Waiver available
(a) Recording a mining claim or site location (part 3833)	(1) A total sum which includes	No.
	(i) the processing fee for notices of location found in the fee schedule in § 3000.12 of this chapter
	(ii) A one-time $34 location fee
	(iii) An initial $140 maintenance fee
(b) Amending a mining claim or site location (§ 3833.20)	The processing fee for amendment of location found in the fee schedule in § 3000.12 of this chapter	No.
(c) Transferring a mining claim or site (§ 3833.30)	The processing fee for transfer of mining claim/site found in the fee schedule in § 3000.12 of this chapter	No.
(d) Maintaining a mining claim or site for one assessment year (part 3834)	A $140 annual maintenance fee	Yes, see part 3835.
(e) Recording an annual FLPMA filing (§ 3835.30)	The processing fee for recording an annual FLPMA filing found in the fee schedule in § 3000.12 of this chapter	No .
(f) Submitting a petition for deferment of assessment work (§ 3836.20)	The processing fee for deferment of assessment work found in the fee schedule in § 3000.12 of this chapter	No.
(g) Maintaining an oil shale placer mining claim (§ 3834.11(b))	An annual $550 fee	No.
(h) Recording a notice of intent to locate mining claims on Stockraising Homestead Act Lands (part 3838)	The filing fee for recording a notice of intent to locate mining claims on Stock Raising Homestead Act Lands found in the fee schedule in § 3000.12 of this chapter	No.

Dated: June 18, 2009.

Ned Farquhar,

Acting Assistant Secretary of the Interior, Land and Minerals Management.