00-21039. Leasing of Solid Minerals Other Than Coal and Oil Shale

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Direct final rule.

SUMMARY:

On April 28, the Mineral Leasing Act was effectively amended to change the acreage limits on a Bureau of Land Management (BLM) customer who leases public lands and minerals to produce sodium. The new law increased the maximum number of acres a person can lease in any one state from 15,360 acres in any one state to 30,720 acres. This rule revises the regulations of the BLM to reflect the new law.

DATES:

This direct final rule is effective on October 17, 2000 without further notice, unless BLM receives adverse comment by September 18, 2000. If adverse comment is received, BLM will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

You may mail comments to Bureau of Land Management, Administrative Record, Room 401 LS, 1849 C Street, NW, Washington, D.C. 20240. You may also hand-deliver comments to BLM at Room 401, 1620 L Street, NW, Washington, D.C. For information about filing comments electronically, see the SUPPLEMENTARY INFORMATION section under “Electronic access and filing address.”

FOR FURTHER INFORMATION CONTACT:

Philip Allard, [phone], or Chris Fontecchio, [phone].

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures and Information

II. Background

III. Discussion of the Rule

IV. Procedural Matters

I. Public Comment Procedures

Electronic Access and Filing Address

You may view an electronic version of this direct final rule at BLM's Internet home page: www.blm.gov. You may also comment via the Internet to: [e-mail]. Please also include “Attention: AC-49” and your name and return address in your Internet message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at [phone].

Written Comments

Written comments on the direct final rule should be specific, should be confined to issues pertinent to the rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the rule which the commenter is addressing. BLM may not necessarily consider or include in the Administrative Record comments which BLM receives after the close of the comment period (See DATES) or comments delivered to an address other than those listed above (See ADDRESSES). Comments, including names, street addresses, and other contact information of respondents, will be available for public review at BLM's offices at 1620 L Street, NW., Washington, DC, during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal holidays. Individual respondents may request confidentiality. If you wish to request that BLM consider withholding your name, street address, and other contact information (such as: Internet address, FAX or phone number) from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comment. BLM will honor requests for confidentiality on a case-by-case basis to the extent allowed by law. BLM will make available for public inspection in their entirety all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses.

II. Background

On April 13, 2000, the United States Senate passed H.R. 3063, which was then signed into law by the President on April 28, 2000, as Public Law 106-191. This law amended the Mineral Leasing Act to increase the maximum acreage of Federal sodium leases that a person can lease in any one state from 15,360 acres to 30,720, in cases where BLM finds it is necessary to facilitate an economical mine. The acreage limit for sodium leases in all other cases remains 5,120 acres. According to the bill, existing leases for sodium (or trona) in southwestern Wyoming cover the largest deposits anywhere on public lands, and the acreage limitations are causing difficulty for three of the four major producers operating there. As Congress points out, the present acreage limitation of 15,360 acres has been in place since 1948, while acreage limits for other minerals have more recently been increased to much larger limits. For example, the single-state lease acreage limit for coal is 46,080 acres; 96,000 acres for potassium; and 246,080 acres for oil and gas.

Congress found that the increase in acreage to 30,720 is warranted by modern mine technology, changes in industry economics, greater global competition, and the need to conserve the Federal resource. Increased acreage limits will help existing sodium lessees avoid premature closure, make better long-term business decisions about infrastructure investments based on the potential for more available acreage, and otherwise maintain the vitality of the domestic sodium industry.

The primary product of trona mining is soda ash (sodium carbonate), a basic industrial chemical that is used for glass-making and a variety of consumer products, including baking soda, detergents, and pharmaceuticals.

III. Discussion of the Rule

The regulations governing solid mineral leasing for minerals other than coal or oil shale were substantially revised on October 1, 1999 (64 FR 53536). This action was taken to comply with President Clinton's government-wide regulatory reform initiative to eliminate unnecessary regulations, and streamline and rewrite necessary regulations in plain English. Under the previous rule each solid mineral commodity had its own separate regulations, much of which was repeated in each set of regulations. The new rule combined these solid minerals regulations into one set of regulations, streamlined, updated and re-written in plain English, and clarified the responsibilities of interested parties.

The new rule includes a chart at 43 CFR 3503.37 which displays all the acreage limitations for solid mineral leases, including the maximum acreage allowed under a single lease, the maximum acreage a person can lease in a single state, and the maximum acreage held by one person nationwide. Section 3503.38 explains how BLM calculates your acreage to see if it is within the limits. The limits themselves are generally set by statute, particularly by the Mineral Leasing Act.

The passing of Public Law 106-191 means this chart is no longer accurate. It presently reads that the state acreage limit for sodium is 5,120 acres, which may be increased to 15,360 acres in order to facilitate an economic mine. As discussed above, Congress has set the allowable limit at 30,720 acres.

If this rule is adopted, the chart would be revised to show that the state acreage limit for sodium is still 5,120 acres, but it may be increased to 30,720 to facilitate an economic mine. Where a lessee raises economic concerns, BLM could allow them to hold 30,720 acres. The current rule sets that limit at 15,360 acres where the lessee raises economic concerns.

We believe this change accurately captures the intent of Public Law 106-191. Congress has not declared that all operators must be allowed to increase their state holdings to 30,720. Rather, Congress said that where circumstances mean an operator cannot run an economically viable sodium operation on 5,120 acres of Federal leases in a single state, BLM may lease up to 30,720 acres to a single lessee to facilitate an economic mine. Retaining the general limit at 5,120 acres (as opposed to the maximum 30,720 acres) is required by law; Public Law 106-191 only amended the expandable limit in the case of economic concerns. Absent that concern, the limit is still set by law at 5,120 acres. See 30 U.S.C. 184(b)(1).

This rule is a direct final rule. This means, if BLM does not receive any substantive, adverse comments by September 18, 2000, the rule will become effective as a final rule on October 17, 2000 . However, if BLM receives any adverse comments expressing substantive concerns, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect, and we will issue a new proposal with a further comment period.

The Administrative Procedure Act (5 U.S.C. 551 et seq.), which governs how Federal agencies promulgate regulations, exempts certain regulations from the required notice and comment for “good cause” (5 U.S.C. 553). Many agencies find that, for noncontroversial rules, the public interest in efficiency satisfies the “good cause” exemption. To that end, the former Administrative Conference of the United States (ACUS) encouraged direct final rules as a fair method for making Federal rulemaking actions simpler and more efficient. In situations where an agency does not expect public concern, the agency can shorten the rulemaking process by issuing a rule that will be final unless a negative comment is received during a set period following publication. Thus, if the agency is wrong and there is public concern over the proposed action, the agency can then go through the more thorough process of proposing a rule and seeking public input. For more information, see ACUS Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, published in the Federal Register at 60 FR 43108 (Aug. 18, 1995).

We have chosen the direct final rule approach because Public Law 106-191 requires us to consider allowing persons to lease greater acres for sodium in a single state, and it is important to our customers that our regulations accurately reflect the law. Thus, we do not expect any opposition to this rule. As discussed above, Congress has already increased the acreage limitation, and BLM is already bound by law to consider leasing larger acreage to address the economic concerns in southwestern Wyoming and elsewhere. The direct final rule format is simply a more efficient way to accomplish this purpose.

IV. Procedural Matters

National Environmental Policy Act

BLM has prepared an environmental assessment (EA) and has found that this direct final rule would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). As discussed above, this rule would implement a change that has already been made by Congress. Therefore, a detailed statement under NEPA is not required. We have placed the EA and the Finding of No Significant Impact (FONSI) on file in our Administrative Record at the address specified in the ADDRESSES section. The public may review these documents, and anyone wishing to submit comments in response to the EA and FONSI may do so in accordance with the Written Comments section above.

Executive Order 12866, Regulatory Planning and Review

This direct final rule is not a significant regulatory action and is not subject to review by Office of Management and Budget under Executive Order 12866. Because this rule only changes our regulations to accurately reflect what the law already requires BLM to do, this rule itself will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule will not create any inconsistency or otherwise interfere with an action taken or planned by another agency. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor does it raise novel legal or policy issues.

Clarity of the Regulations

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the rule clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading.)

(5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand? Please send any comments you have on the clarity of the regulations to the address specified in the ADDRESSES section.

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This rule, as described above, merely implements a statutory change to the existing regulations which apply to leasing Federal sodium resources, and thus the rule change itself will not have a significant impact on any small entities. Rather, it is the legislation which affects these entities. The legislation affects all small entities active in leasing sodium from the Federal government. Those approximately 25 entities currently holding a Federal sodium lease and who qualify as individuals or small businesses may be affected by the legislation. However, this rule makes no substantive change beyond what Congress has already enacted. Therefore, BLM has determined under the RFA that this direct final rule would not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

This direct final rule is not a “major rule” as defined at 5 U.S.C. 804(2). This rule merely implements a change to the state acreage limits that has been amended by Congress. This rule is limited to making BLM's regulations consistent with the law.

Unfunded Mandates Reform Act

This direct final rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor does this direct final rule have a significant or unique effect on State, local, or tribal governments or the private sector. As discussed above, this rule merely changes BLM's sodium leasing regulations to comply with the new law. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)

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

This rule does not represent a government action capable of interfering with constitutionally protected property rights. The rule is limited to changes which reflect Congress's amendment to the acreage a person can lease for sodium in any one state. Therefore, the Department of the Interior has determined that the rule would not cause a taking of private property or require further discussion of takings implications under this Executive Order.

Executive Order 13132, Federalism

This 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. The rule is limited to changes which reflect Congress's amendment to the state acreage limits for sodium leases. Therefore, in accordance with Executive Order 13132, BLM has determined that this rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

Under Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

This rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

Government-to-Government Relationship with Tribes

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects on the tribes. Since this rule does not propose significant changes to BLM policy and does not specifically involve Indian reservation lands, we have determined that the government-to-government relationships should remain unaffected.

Author

The principal authors of this rule are Christopher Fontecchio of the Regulatory Affairs Group and Philip Allard of the Solid Minerals Group, Bureau of Land Management, Washington, DC.

List of Subjects in 43 CFR Part 3500

• Bonds
• Government contracts
• Mineral royalties
• Public lands-mineral resources
• Reporting and recordkeeping requirements

Accordingly, BLM is amending 43 CFR part 3500 as set forth below.

1. The authority citation for part 3500 continues to read as follows:

Authority: 5 U.S.C. 552; 30 U.S.C. 189 and 192c; 43 U.S.C. 1733 and 1740; and sec. 402, Reorganization Plan No. 3 of 1946 (5 U.S.C. app.).

2. Revise paragraph (b) in the table in § 3503.37 to read as follows:

§ 3503.37

Is there a limit to the acreage of lands I can hold under permits and leases?

* * * * *

Commodity	Maximum acreage for a permit or lease	Maximum acreage of permits and leases in any one state	Maximum acreage in permits and leases nationwide
*         *         *         *         *         *         *
(b)Sodium	2,560 acres	5,120 acres (may be increased to 30,720 acres to facilitate an economic mine)	None.

* * * * *

Dated: August 3, 2000.

Sylvia V. Baca,

Assistant Secretary, Land and Minerals Management.