58854 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Parts 3000, 3100, 3110, 3120, 

3130, 3200, 3470, 3500, 3600, 3800, 

3830, 3833, 3835, 3836, 3860, and 3870 

[WO–610–4111–02–24 1A] 

RIN 1004–AC64 

Oil and Gas Leasing; Geothermal 

Resources Leasing; Coal Management; 

Management of Solid Minerals Other 

Than Coal; Mineral Materials Disposal; 

and Mining Claims Under the General 

Mining Laws 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Final rule. 

SUMMARY: The Bureau of Land 

Management (BLM) is issuing this final 

rule to amend its mineral resources 

regulations to increase certain fees and 

to impose new fees to cover BLM’s costs 

of processing documents relating to its 

minerals programs. The new fees 

include costs of actions such as 

environmental studies performed by 

BLM, lease applications, name changes, 

corporate mergers, lease consolidations 

and reinstatements, and other 

processing-related costs. BLM 

established some fixed fees and some 

fees on a case-by-case basis. BLM based 

these fee changes on statutory 

authorities, which authorize us to 

charge for our processing costs, and on 

policy guidance from the Office of 

Management and Budget (OMB) and the 

Department of the Interior (DOI) 

requiring BLM to charge these fees. This 

rule also responds to recommendations 

issued in audit reports by the DOI’s 

Office of Inspector General (OIG). The 

final rule also reflects changes to the 

proposed rule required by the Energy 

Policy Act of 2005. 

DATES: This rule is effective November 

7, 2005. 

ADDRESSES: You may mail suggestions 

or inquiries to Bureau of Land 

Management, Minerals Group, Room 

501 LS 1849 C Street, NW., Washington, 

DC 20240–0001. 

FOR FURTHER INFORMATION CONTACT: Tim 

Spisak, Fluid Minerals Group Manager 

(202) 452–5061 or Ted Murphy, Solid 

Minerals Group Manager (202) 452– 

0351, for issues related to BLM’s 

minerals programs, or Cynthia Ellis, 

Regulatory Affairs Group (202) 452– 

5012, for regulatory process issues. 

Persons who use a telecommunications 

device for the deaf may contact these 

individuals through the Federal 

Information Relay Service at 1–800– 

877–8339, 24 hours a day, 7 days a 

week. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Procedural Background 

B. Authority for This Rule 

C. Continuation of Rulemaking 

II. How Does the Final Rule Differ From the 

Proposed Rule? 

III. Responses to Comments on the December 

2000 and July 2005 Proposed Rules 

A. General Comments 

B. Comments on Oil and Gas Leasing Cost 

Recovery 

C. Comments on Geothermal Leasing Cost 

Recovery 

D. Comments on Coal Leasing Cost 

Recovery 

E. Comments on Cost Recovery for Leasing 

of Solid Minerals Other Than Coal 

F. Comments on Cost Recovery for Mineral 

Materials Sales 

G. Comments on Cost Recovery for Mining 

Law Administration 

IV. Procedural Matters 

I. Background 

A. Procedural Background 

On December 15, 2000, BLM 

published a proposed rule to amend our 

mineral resource regulations to increase 

many fees and to impose new fees to 

cover our costs of processing certain 

documents relating to our mineral 

programs (65 FR 78440). The fee 

changes were BLM’s response to 

recommendations made in a 1988 OIG 

report (No. 89–25). That report was part 

of a 1980s Presidential initiative that 

called for all Federal agencies to charge 

appropriate user fees, consistent with 

the law, for agency services. The OIG 

recommended that BLM collect fees for 

processing mineral-related documents 

whenever possible. 

On July 19, 2005, BLM reissued the 

proposed rule (70 FR 41532), and added 

the following fees that were not 

included in the 2000 proposed rule: 

1. A processing fee for oil and gas 

applications for permit to drill (APDs), 

2. A processing fee for geothermal 

permits to drill (GPDs), 

3. A processing fee for geothermal 

exploration permits, and 

4. A processing fee for renewing 

mineral materials competitive contracts. 

The 2005 proposed rule also included 

a fixed fee for the processing of oil and 

gas geophysical exploration permits, 

instead of the case-by-case fee that we 

proposed in 2000. 

This final rule adopts many 

provisions of the July 19, 2005 proposal. 

We discuss below changes we have 

made from that proposal. The rationale 

for most of this final rule was set forth 

in the July 2005 preamble and BLM 

continues to rely on the discussions 

contained therein. 

B. Authority for This Rule 

Federal agencies are authorized to 

charge processing costs by the 

Independent Offices Appropriation Act 

of 1952 (IOAA), 31 U.S.C. 9701. BLM 

also has specific authority to charge fees 

for processing applications and other 

documents relating to public lands 

under Section 304 of the Federal Land 

Policy and Management Act of 1976 

(FLPMA), 43 U.S.C. 1734. This section 

was discussed in greater detail in the 

July 2005 preamble. In FLPMA, public 

land means all lands or interests in land 

owned by the United States and 

administered by BLM, excluding outer 

continental shelf lands and Native 

American lands (43 U.S.C. 1702(e)). 

This includes Federal mineral lands 

with private or state surface as well as 

lands where the United States owns 

both the surface and mineral rights. A 

mineral lease or mineral materials 

disposal administered by BLM, and a 

mining claim (for which BLM 

determines validity), even in land where 

another agency administers the surface, 

are ‘‘interests in land’’ for the purposes 

of FLPMA. 

The IOAA and Section 304 of FLPMA 

authorize BLM to charge applicants for 

the cost of processing documents by 

issuing regulations, which BLM is doing 

in this rule. The IOAA also states that 

these charges should pay for the agency 

services, as much as possible. 

Cost recovery policies are explained 

in OMB Circular No. A–25 (Revised) 

(Circular A–25), entitled ‘‘User 

Charges.’’ Part 346 of the Departmental 

Manual (DM) also provides guidance. 

The general Federal policy as stated in 

Circular A–25 is that a charge will be 

assessed against each identifiable 

recipient for special benefits derived 

from Federal activities beyond those 

received by the public. The Circular 

establishes Federal policy regarding fees 

assessed for government services and for 

sales or use of government goods or 

resources. It provides information on 

the scope and types of activities subject 

to user charges and the basis upon 

which agencies set user charges. Finally, 

Circular A–25 guides agency 

implementation of charges and the 

disposition of collections. 

Section 365 of the Energy Policy Act 

of 2005 (Pub. L. 109–58) authorized a 

pilot project to improve Federal permit 

coordination, and directed in subsection 

(i) that ‘‘the Secretary shall not 

implement a rulemaking that would 

enable an increase in fees to recover 

additional costs related to processing 

drilling-related permit applications and 

use authorizations.’’ The provisions of 

the proposed rule related to drillingVerDate Aug<31>2005 14:53 Oct 06, 2005 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\07OCR4.SGM 07OCR4
Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58855 

related permit applications and use 

authorizations are those that would 

have required cost recovery for oil and 

gas and geothermal permits to drill 

(APDs and GPDs), and geophysical and 

geothermal exploration permits. 

Therefore, we have removed all 

provisions regarding APDs, GPDs, and 

geophysical and geothermal exploration 

permits that appeared in the proposed 

rule from this final rule. The remainder 

of the 2005 proposed rule was not 

affected by the Energy Policy Act and 

may be finalized. 

C. Continuation of Rulemaking 

In the preamble to the July 19, 2005, 

proposed rule, we explained that in the 

final rule we might provide that BLM 

would recover costs of validity 

examinations and reports performed in 

connection with plan of operations 

(PoO) applications submitted under 

parts of the Code of Federal Regulations 

other than 43 CFR part 3800, such as 

those submitted under 36 CFR part 9, 

which implements the Mining in the 

Parks Act. (See 70 FR 41538.) The 

National Park Service (NPS) submitted a 

comment urging BLM to include in the 

final rule recovery of such costs for 

applications submitted pursuant to NPS 

regulations. At this time, BLM has not 

made a final decision whether to extend 

the rule to cover such other costs. Thus, 

BLM is including in this final rule the 

provision as proposed, but is continuing 

the rulemaking on the issue of whether 

it will revise the provision to include 

recovery of costs of validity 

examinations and reports associated 

with PoOs submitted under other parts 

of the CFR. BLM may issue a further 

final rule to address this issue. If BLM 

decides to promulgate a final rule that 

would recover such costs, the next final 

rule would likely contain conforming 

amendments to such other parts to 

notify affected applicants of the 

applicability of the cost recovery 

provisions of this rule. 

II. How Does the Final Rule Differ From 

the Proposed Rule? 

As stated earlier, in response to 

Congress’s direction in the Energy 

Policy Act, BLM is not implementing 

cost recovery fees for APDs, GPDs, and 

geophysical and geothermal exploration 

permits. 

Other changes we made are: 

1. We adjusted the fees proposed in 

2000 by using the Implicit Price Deflator 

for 4th Quarter 2004 (110.077) (IPD), 

rounded to the nearest $5.00. For 

example, for an oil and gas lease 

reinstatement, the cost recovery fee 

proposed in 2000 was $60. Applying the 

IPD, the equivalent cost recovery fee for 

the 4th Quarter 2004 would be $66.05. 

For this final rule, we rounded this 

figure to $65. 

2. We amended the coal lease by 

application regulations. The proposed 

rule did not adequately account for 

case-by-case fee situations where the 

successful bidder is an entity other than 

the original applicant. The final coal 

leasing regulations at 43 CFR 3473.2 

provide that the applicant who 

nominates a tract will pay BLM the 

processing costs that we incur up to the 

publication of the competitive lease sale 

notice. That fee amount will be 

included in the notice itself, and the 

successful bidder, if someone other than 

the original applicant, will be 

responsible for paying that amount to 

BLM. In such circumstances, BLM will 

refund the fees the original applicant 

paid to BLM. If there is no successful 

bidder, the applicant will remain 

responsible for processing fees and there 

will be no refund. It should be noted 

that an applicant will not be reimbursed 

for moneys the applicant (and not BLM) 

may pay directly to third persons to 

perform studies, because it is not clear 

that FLPMA Section 304 applies in that 

situation. 

Because persons other than the 

applicant could also be a successful 

bidder under BLM’s other programs, we 

have made similar changes to the 

regulations at 43 CFR part 3500 

applicable to the leasing of solid 

minerals other than coal, and to the 

mineral materials sales regulations at 43 

CFR part 3600. 

3. We amended the mining claim 

patent application adjudication fee so 

that patent applications covering 10 or 

fewer claims will be charged only half 

the cost recovery fee that applications 

with more than 10 claims will be 

charged. This change was made in 

response to comments expressing 

concern that the proposed fee would be 

too burdensome on claimants who 

submit patent applications for only a 

few claims. We selected the 10-claim 

threshold because that is the number 

Congress chose to define the class of 

miners who may perform assessment 

work in lieu of paying the claim 

maintenance fee. The adjudication fee 

in the proposed rule was a fixed fee 

based on a weighted average of BLM’s 

adjudication costs. We believe that the 

commenters may have a valid concern 

and that it may be more reasonable to 

base the adjudication fees on the per 

claim costs depending on how many 

claims are included in an application. 

BLM plans to reassess its costs of 

adjudication and may propose a 

revision to this fee in the future. In this 

final rule, we decided that it was 

reasonable to phase in the adjudication 

fee for patent applications that contain 

10 or fewer claims. A discussion of 

phasing in fees is contained in the 

preamble to the proposed rule. 70 FR 

41533. This rule contains the first step 

of this phasing-in process. 

4. The final rule adds language at 

section 3000.11 to clarify that a decision 

of BLM to change a fixed fee to a caseby-case fee may be appealed to the 

Interior Board of Land Appeals. 

5. In response to comments objecting 

to the applicability of the fee provisions 

to applications pending when this rule 

is made final, we have revised the rule 

to make the fee provisions of the final 

rule applicable only to documents BLM 

receives after the effective date of this 

rule. Section 3000.10(d) has been 

restructured to clarify the timing of the 

applicability of both fixed and case-bycase fees established by this rule. 

Because both the new fixed and case-bycase fee provisions apply only to 

documents received after the effective 

date of this rule, proposed section 

3000.11(c), which would have 

addressed how to treat costs of pending 

documents, is not necessary and has not 

been included in the final rule. Also, 

rather than include in section 3000.10(a) 

a statement that required fees must be 

included with documents that are filed, 

we moved the statement to section 

3000.12(a) of this chapter to make it 

clear that such a requirement applies 

only to fixed fees. We have also 

amended paragraphs (d)(1) and (d)(2) of 

section 3000.10 to make it clear that the 

documents for which BLM will begin to 

charge the new fees are those that BLM 

receives on or after November 7, 2005. 

The proposed rule referred to 

documents that BLM ‘‘accepted.’’ We 

have amended this language to avoid 

confusion. The date of receipt may be 

easily evidenced by a log-in date on the 

document or by a receipt given to an 

applicant by BLM. 

6. We amended the language of 

section 3000.11(b)(4)(i) to clarify that we 

will not stop ongoing processing if we 

re-estimate the costs associated with a 

case-by-case document. (This issue is 

further discussed in the preamble under 

III.A. General Comments.) We also 

moved the last sentence of section 

3000.11(b)(4)(ii) regarding refunds into a 

new paragraph (b)(4)(iii) to make it clear 

that whenever money paid as a case-bycase fee was not spent on processing 

costs, BLM will refund that money once 

processing is complete. 

We wish to make one further 

clarification with regard to section 

3000.11, relating to the charging of 

processing fees on a case-by-case basis. 

Under paragraph (a), if at any time BLM 

58856 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

decides that a particular document 

designated for a fixed fee will have a 

unique processing cost, such as an 

Environmental Impact Statement, we 

may set the fee under the case-by-case 

procedures. BLM intends to recover on 

a case-by-case basis those costs that 

BLM incurs following the decision that 

the document processing will have a 

unique processing cost. BLM will not 

charge for costs that BLM incurred 

before that decision was made. The 

applicant will receive a credit for any 

fixed fee already paid against the caseby-case fees that are billed. 

7. We have clarified the final 

regulatory text for section 3800.5 as it 

relates to the applicability of case-bycase cost processing for validity 

examinations and common variety 

determinations associated with mining 

notices, applications for PoOs, and 

applications for patents. We divided 

proposed paragraph (b) into final 

paragraphs (b) and (c). Revised 

paragraph (b) relates to mining notices 

and plans of operation and redesignated 

paragraph (c) applies to patent 

applications. 

Revised paragraph (b) makes it clear 

that a notice level operation or an 

applicant for a plan of operations for 

which a mineral examination, including 

a validity examination or a common 

variety determination, and associated 

reports, are performed and prepared 

under 43 CFR 3809.100 or 3809.101, 

must pay a processing fee on a case-bycase basis. It was not BLM’s intent to 

include validity examinations BLM may 

perform on its own volition that are not 

performed under sections 3809.100 or 

3809.101. This change is in response to 

comments that the regulatory text 

contained in the July 2005 proposed 

rule was confusing. It also should be 

noted that the cost recovery provisions 

are not intended to modify BLM policy 

as to when mineral examinations are 

performed. 

Final paragraph (c) provides that an 

applicant for a mineral patent under 43 

CFR subpart 3860 must pay a processing 

fee on a case-by-case basis as described 

in section 3000.11 for any validity 

examination and report prepared in 

connection with the application. This 

includes any analyses performed in 

connection with the validity 

examination and report, such as 

common variety determinations. 

Although contained in a new paragraph, 

this is not a substantive change from the 

July 2005 proposed rule. 43 CFR subpart 

3860 applies to all mineral patent 

applications that BLM processes, 

regardless of the agency with surface 

management responsibility for the lands 

covered by the patent applications. 

Thus, case-by-case cost recovery will 

occur for validity examinations 

associated with BLM processing of 

mineral patent applications, whether 

the surface is administered by BLM, the 

U.S. Forest Service, NPS, or other 

agencies. 

BLM wishes to make one further 

clarification with regard to section 

3800.5(a), relating to the case-by-case 

cost recovery for the processing of PoOs 

requiring the preparation of an 

environmental impact statement. Under 

paragraph (a), an applicant for a PoO 

under 43 CFR part 3800 must pay a 

processing fee on a case-by-case basis as 

described in 43 CFR 3000.11 whenever 

BLM decides that consideration of the 

PoO requires the preparation of an 

Environmental Impact Statement (EIS). 

The costs that BLM intends to recover 

on a case-by-case basis under the final 

rule are those costs BLM incurs 

following the decision that an EIS is 

necessary, not costs that BLM may have 

incurred before that decision. 

8. As a conforming amendment, we 

added language revising section 

3835.32(c) so that it refers to a 

processing fee rather than a nonrefundable service charge. Paragraph (c) 

includes a cross-reference to the table in 

section 3830.21 on service charges and 

fees, which BLM considered for 

amendment in the proposed rule. This 

conforming amendment to section 

3835.32 was inadvertently omitted in 

the proposed rule. 

The rule also contains other technical 

conforming and editorial changes. 

Today’s rule adopts both fixed fees 

and case-by-case fees. The table below 

sets forth the final fees that are imposed 

by this rule, compared to the fees as 

proposed in 2000 and 2005. 

TABLE 1.—FEES FOR FY 2006 

[Note that fees will be adjusted annually for changes in the IPD–GDP, published in the Federal Register, and posted on BLM’s website. Revised 

fees are effective each October 1.] 

Document/action Existing fee Proposed fee in 2000 

rule 

Proposed fee in 2005 

rule 1 Final fee 2

Oil and Gas (Part 3100, 3110, 3120, 3130): 

Noncompetitive lease application ........... $75 ............................. $305 ........................... $324 ........................... $335 

Competitive lease application ................. $75 ............................. $120 ........................... $127 ........................... $130 

Assignment and transfer ......................... $25 ............................. $70 ............................. $74 ............................. $75 

Overriding royalty transfer, payment out 

of production.

$25 ............................. $9 ............................... $10 ............................. $10 

Name change, corporate merger or 

transfer to heir/devisee.

$0 ............................... $160 ........................... $170 ........................... $175 

Leases consolidation .............................. $0 ............................... $335 ........................... $356 ........................... $370 

Lease renewal or exchange ................... $75 ............................. $305 ........................... $324 ........................... $335 

Lease reinstatement, Class I .................. $25 ............................. $60 ............................. $64 ............................. $65 

Leasing under right-of-way ..................... $75 ............................. $305 ........................... $324 ........................... $335 

Geophysical exploration notice of intent—outside Alaska.$0 ............................... Case-by-case ............. $500 ........................... $0 

Geophysical exploration permit application—Alaska.$25 ............................. Case-by-case ............. $500 ........................... $25 

Application for Permit to Drill (AP) .......... $0 ............................... Not included ............... $1600 ......................... $0 

Geothermal (Group 3200): 

Noncompetitive lease application ........... $75 ............................. $305 ........................... $324 ........................... $335 

Competitive lease application ................. $0 ............................... $120 ........................... $127 ........................... $130 

Assignment and transfer of record title 

or operating right.

$50 ............................. $70 ............................. $74 ............................. $75 

Name change, corporate merger or 

transfer to heir/devisee.

$0 ............................... $160 ........................... $170 ........................... $175 

Lease consolidation ................................ $0 ............................... $335 ........................... $356 ........................... $370 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58857 

TABLE 1.—FEES FOR FY 2006—Continued 

[Note that fees will be adjusted annually for changes in the IPD–GDP, published in the Federal Register, and posted on BLM’s website. Revised 

fees are effective each October 1.] 

Document/action Existing fee Proposed fee in 2000 

rule 

Proposed fee in 2005 

rule 1 Final fee 2

Lease reinstatement ............................... $0 ............................... $60 ............................. $64 ............................. $65 

Exploration operations permit application $0 ............................... Not included ............... $500 ........................... $0 

Geothermal Permit to Drill (GPD) ........... $0 ............................... Not included ............... $1600 ......................... $0 

Coal (Group 3400): 

License to mine application .................... $10 ............................. $10 ............................. $11 ............................. $10 

Exploration license application ............... $250 ........................... $250 ........................... $266 ........................... $275 

Lease or lease interest transfer .............. $50 ............................. $50 ............................. $53 ............................. $55 

Competitive coal lease ............................ $250 ........................... Case-by-case ............. Case-by-case ............. Case-by-case 

Coal lease modification ........................... $250 ........................... Case-by-case ............. Case-by-case ............. Case-by-case 

Logical mining unit formation or modification.$0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Royalty reduction application .................. $0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Nonenergy Leasable (Group 3500): 

Applications other than those listed 

below.

$25 ............................. $25 ............................. $27 ............................. $30 

Prospecting permit application amendment.$0 ............................... $50 ............................. $53 ............................. $55 

Extension of prospecting permit ............. $25 ............................. $80 ............................. $85 ............................. $90 

Lease renewal ......................................... $25 ............................. $390 ........................... $414 ........................... $430 

Prospecting permit application ................ $25 ............................. Case-by-case ............. Case-by-case ............. Case-by-case 

Preference right lease application .......... $0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Successful competitive lease .................. $0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Application to suspend, waive or reduce 

your rental, minimum royalty, production royalty or royalty rate.

$0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Future or fractional interest lease application.$25 ............................. Case-by-case ............. Case-by-case ............. Case-by-case 

Mineral Materials Disposal (Group 3600): 

Noncompetitive sale (excluding sales 

from community pits or common use 

areas).

$0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Competitive sale ..................................... $0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Competitive contract renewal ................. $0 ............................... N/A ............................. Case-by-case ............. Case-by-case 

Mining Law Administration (Group 3800): 

Notice of Location 3 ................................. $10 ............................. $15 ............................. $16 ............................. $15 

Amendment of location ........................... $5 ............................... $10 ............................. $11 ............................. $10 

Transfer of mining claim/site ................... $5 ............................... $10 ............................. $11 ............................. $10 

Recording an annual FLPMA filing 

§ 3835.30).

$5 ............................... $10 ............................. $11 ............................. $10 

Deferment of Assessment ...................... $25 ............................. $80 ............................. $85 ............................. $90 

Mineral Patent Adjudication .................... 1st claim—$250 Each 

additional claim $50.

$2,290 ........................ $2,433 ........................ $2,520 (>10 claims) 

$1,260 4 (10 or fewer 

claims) 

Adverse claim ......................................... $10 ............................. $80 ............................. $85 ............................. $90 

Protest ..................................................... $10 ............................. $50 ............................. $53 ............................. $55 

Plan of Operations with EIS ................... $0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

Validity and Mineral Examinations and 

Reports performed in connection with 

a Patent Application, 43 CFR 

3809.100 or 43 CFR 3809.101.

$0 ............................... Case-by-case ............. Case-by-case ............. Case-by-case 

1The fees proposed in July 2005 adjusted the fees proposed in 2000 by using the Implicit Price Deflator 4th Quarter 2003 (106.244) and 

rounding to the nearest dollar. 2The fees in this final rule adjusted the fees proposed in 2000 by using the Implicit Price Deflator for 4th Quarter 2004 (110.077), then rounding to the nearest $5.00. 3The existing fee for recording a mining claim or site location (43 CFR 3833) is a total of $165. This includes the initial maintenance fee of 

$125 and one time $30 location fee required by statute and the $10 service charge shown in the table. The service charge becomes a $15 processing fee in this final rule, making the total fee $170. 4 In this final rule, the fixed fee for adjudication of mineral patents has been modified in response to comments received. Applications with 10 

or fewer claims will be charged a fixed fee of $1,260. Where the mineral patent application includes more than 10 claims, the fee will be $2,520. 

III. Responses to Comments on the 

December 2000 and July 2005 Proposed 

Rules 

In this section of the preamble, we 

respond to the substantive comments 

that we received on the December 15, 

2000, proposed rule (65 FR 78440) and 

on the proposed rule published in the 

Federal Register on July 19, 2005 (70 FR 

41532). In response to the December 15, 

2000, proposed rule (65 FR 78440), BLM 

received approximately 136 comments. 

In response to the 2005 re-proposed rule 

(70 FR 41532), BLM received 

approximately 43 comments. 

A. General Comments 

Although BLM received some 

comments in support of the rule, the 

majority of comments generally opposed 

58858 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

any fee increases in BLM Mineral 

Programs. The commenters expressed 

many reasons for opposing the rule. 

Some commenters said that BLM 

appeared to have based the fee changes 

on out-of-date data from fiscal years 

1988 to 1990. Similarly, a commenter 

said that BLM used cost recovery data 

from a period of low activity, resulting 

in an inaccurate fee structure. 

The commenters are incorrect in 

asserting that BLM based the fees solely 

on data from fiscal years 1988 to 1990. 

In the mid-1990s, BLM reanalyzed the 

data and conducted spot checks to 

verify their continued validity as 

explained in more detail in the 

preamble to the proposed rule (70 FR 

41534). BLM’s processes covered by this 

rule have not changed significantly 

since that time. Moreover, we have 

adjusted the fees using the Implicit 

Price Deflator for 4th Quarter 2004 to 

reflect current costs. Accordingly, we 

believe that the fees in this final rule are 

not out of date. Moreover, the period for 

which BLM collected data was not a 

period of particularly low activity. 

Some commenters asserted that the 

cost recovery fees are equivalent to a tax 

on producers. The commenters also 

objected to the proposed rule because 

operators already pay for the services 

provided by BLM through taxes. They 

recommended that operators be given a 

tax incentive or tax credit to offset the 

cost of these higher fees. 

We disagree. The fees in this rule are 

not a tax. The fees are charged for 

special benefits received by identifiable 

beneficiaries and are intended to 

reimburse the agency for the costs of 

processing the various energy and 

minerals related filings. Creating tax 

incentives and tax credits to offset the 

cost to the operator of these fees is not 

part of this rule, and it is outside BLM’s 

or DOI’s jurisdiction or authority to 

initiate such a rule. 

Some commenters asserted that the 

fees in this rule are unjustified in light 

of the fact that the government receives 

other revenues such as royalties, bonus 

bids, and rentals for the mineral 

activities covered by these fees, which 

in their view should cover processing 

costs. A commenter recommended that 

BLM deduct the costs of processing 

minerals and energy documents from 

the royalties that BLM is already paid. 

As an example, a commenter stated that 

the public receives ‘‘the vast portion of 

the revenues from the proceeds from the 

federal coal lease’’ but has no overhead 

costs or investment risks. 

We disagree. Royalties, rents, and 

bonus bids reflect the value of the 

resource to the lessor. Congress 

authorized BLM to recover processing 

costs, and did so fully aware that BLM 

was already collecting bonuses, rents, 

and royalties, so there cannot have been 

any legislative intent that one fee should 

offset another. 

BLM charges processing fees pursuant 

to its authorities under the Independent 

Offices Appropriation Act, as amended, 

31 U.S.C. 9701 (IOAA); Section 304(a) of 

FLPMA; Circular A–25; DOI Manual 346 

DM 1.2 A; and case law (also see the 

preamble to the proposed rule at 70 FR 

41533 and Solicitor’s Opinion M–36987 

(December 5, 1996)). Congress clearly 

intended for agencies to recover 

processing costs in addition to bonuses, 

rents, and royalties. 

The IOAA states that Federal agencies 

should be ‘‘self-sustaining to the extent 

possible,’’ and authorizes agency heads 

to ‘‘prescribe regulations establishing 

the charge for a service or thing of value 

provided by the agency.’’ Section 304(a) 

of FLPMA specifically authorizes the 

Secretary of the Interior to ‘‘establish 

reasonable filing and service fees and 

reasonable charges and commissions 

with respect to applications and other 

documents relating to the public lands.’’

Circular A–25 sets forth a general policy 

that a user charge will be assessed 

against each identifiable recipient for 

special benefits derived from Federal 

activities beyond those received by the 

general public. 

A commenter said that other public 

land users who do not pay royalties 

should also pay processing costs. 

BLM has implemented or is 

considering implementing cost recovery 

for other programs that it administers. 

One commenter stated that, because 

much of the processing fees go toward 

satisfying other government regulations, 

as additional regulatory requirements 

are imposed and become part of BLM’s 

processing, costs would continue to 

increase. 

We appreciate the commenter’s 

concern. In the short term, potential 

new requirements would not affect 

BLM’s fixed fees. Over the longer term, 

BLM may have to reassess the fixed fees 

if our processing costs change 

significantly. Although we do not 

foresee increased regulatory burdens 

that would significantly affect 

processing costs, case-by-case fees 

would include any such increases. It is 

important to note, however, that as 

technology and automation improve, 

our document processing costs may 

decrease, which will be reflected in 

reduced case-by-case fees. 

Some commenters asserted that caseby-case fees are open-ended and contain 

no cap, which makes it difficult to plan 

for future costs. Some of these 

commenters asked how an applicant 

would know in advance whether they 

could afford to submit an application. 

Although case-by-case fees do not 

contain a prescribed cap, the process 

that BLM has established for case-bycase fees provides that cost estimates be 

given to applicants before processing 

begins. In advance of an application 

being submitted to BLM, an operator 

may also discuss the project with BLM 

and ask for cost projections. We expect 

that with time and experience, case-bycase fees will become more predictable. 

Some commenters are concerned that 

the rule provisions give BLM too much 

authority to convert fixed fees into caseby-case fees under the provision that 

allows BLM to change a document 

designated for a fixed fee to a case-bycase fee if BLM decides that it will have 

a unique processing cost. The 

commenters said that BLM might 

arbitrarily change the designation 

during processing and set a higher fee 

under the case-by-case procedures. A 

commenter requested that, if possible, 

BLM identify fixed fees that will not be 

subject to case-by-case cost recovery. 

We do not agree that the rule gives 

BLM unlimited discretion to convert 

fixed fees into case-by-case fees. By 

‘‘unique processing costs,’’ BLM means 

costs associated with a processing step 

that would result in significantly higher 

costs than are customary for that fixedfee category. When applied to certain 

fixed-fee categories, costs of efforts such 

as EISs, cultural resource surveys, or 

threatened or endangered species 

consultations and studies, may be 

considered unique because they are not 

usually required for actions in those 

categories. Although most fixed fees are 

not of a type that could incur unique 

processing costs, BLM cannot guarantee 

that any particular transaction cannot 

give rise to unique circumstances that 

would warrant case-by-case processing. 

However, BLM has guidelines for 

determining when it takes actions such 

as those referenced above and will not 

decide that a document will require 

such processing steps unless those 

guidelines are satisfied. 

If the applicant disagrees with BLM’s 

determination that the application 

merits a case-by-case fee, the applicant 

may appeal that determination to IBLA 

under BLM’s appeals process at 43 CFR 

part 4, subpart E, when it receives the 

cost estimate from BLM. In response to 

the commenters’ concern, we have 

added language to the rule text 

clarifying that such a determination may 

be appealed. If the applicant prevails, 

BLM will refund the disputed fee and 

charge only the fixed fee. 

A commenter stated that, although 

estimated processing costs can be 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58859 

appealed, he has no confidence in the 

ability of IBLA to process those cases 

expeditiously. The comment concluded 

that there is apparently no motivation 

for BLM or IBLA to move quickly on 

any appeals. 

With respect to appeals, there is little 

BLM can do to shorten the period 

between when an appeal is filed and 

when an appeal is resolved. However, 

the regulations provide that an 

applicant can ensure that BLM will 

continue processing the document and 

issue a decision while an appeal is 

pending by paying the disputed fee 

under protest. 

Some commenters contended that the 

fees would have a negative impact on 

small operators or miners. Some 

commenters said the proposed rule 

would have a negative impact on the 

national and local economies, especially 

as it relates to exploration, and will 

result in an increase in the number of 

energy and mineral projects being 

abandoned. They generally stated that 

higher fees would adversely affect 

mining industry ability to compete. 

The Record of Compliance that BLM 

prepared for the 2005 proposed rule 

concluded that, when mineral industry 

revenues are compared with the cost 

increases in this rule, the projected 

annual total for these increases amounts 

to less than one percent of sales. Even 

if the entire amount of the increases 

were to be borne by small business 

entities, the effects would be minimal. 

For example, under this rule, we project 

that small oil and gas operators will pay 

an additional $2 million annually, 

approximately, while generating sales of 

about $1 billion annually from 

operations on Federal lands. As a matter 

of prudence, operators will factor these 

fees into their business decisions before 

pursuing on-the-ground operations. In 

addition, for competitive leasing, these 

higher costs may be reflected in the 

successful bid. 

The increases in the fees paid by the 

applicants represent the direct 

economic impact of complying with the 

final rule. We estimate the cost of the 

rule, in the form of higher fees, will be 

approximately $7 million annually. We 

do not anticipate any measurable 

reduction in economic activity due to 

these fees. 

Several commenters said that BLM 

did not adequately consider the FLPMA 

factors when calculating the proposed 

fee increases, and challenged BLM’s 

statement that the projects for which 

fees are charged in this rule usually 

provide little or no service to the public. 

A commenter stated that developers are 

involved in tremendous financial risks 

in producing minerals, and urged that 

the rule should consider the financial 

risks involved and potential positive 

benefits to the general public. 

Commenters stated that we did not 

consider various benefits of mining, 

including improved grazing land, 

improved wildlife habitat on reclaimed 

mine lands, and maintenance of trails 

that benefit recreational and subsistence 

users. Some commenters asserted 

providing heat and electricity to homes 

and businesses and other mineral uses 

are an obvious service and benefit to the 

public. A few commented that BLM 

should give applicants a credit for the 

data they produce, or reimburse them 

for providing it. A commenter 

concluded that BLM should include 

discussion of how these factors were 

considered in the final decision-making 

process on the fee procedures. 

A commenter also discussed the 

importance of coal production and 

contended that because coal resources 

from Federal leases are vital to 

supplying electricity at a reasonable 

price and in an environmentally sound 

manner, BLM should not charge 

additional document processing costs. 

The commenter contended that a 

FLPMA factor mandates that BLM not 

impose additional processing costs for 

leasable minerals because the public 

receives significant benefit from lease 

revenues. 

BLM agrees that the domestic mining 

industry is vital to the American 

economy and provides immense 

benefits to the public. However, the 

FLPMA factor of ‘‘service to the public’’

concerns whether the applicant’s project 

itself provides some significant direct 

service or benefit to the general public, 

not the fact that members of the public 

are the ultimate consumers of mineral 

resources extracted from the public 

lands (which is true of virtually all 

public land resources). Companies 

extracting resources from the public 

lands do not necessarily engage in 

extraction operations for the benefit of 

the public, but are for-profit enterprises. 

There is thus no basis for using the 

public’s ultimate consumption of the 

resource as a reason for reducing 

processing fees below BLM’s actual 

processing costs. 

BLM agrees that there are times when 

the applicant’s project itself does result 

in tangible benefits to the public, such 

as the identification of cultural and 

archaeological sites in resource surveys, 

trail maintenance, and others mentioned 

above. For documents processed on a 

case-by-case fee basis, BLM will 

consider each of the FLPMA factors as 

it relates to that individual project. For 

the fixed fee documents, we considered 

the likelihood of activities in those 

categories providing substantial direct 

benefits to the public. We concluded 

that such potential benefits from 

transactions in the fixed fee categories 

are too speculative to warrant charging 

less than BLM’s actual costs of 

processing, particularly when weighed 

against the monetary value of the project 

to the applicant. 

With regard to operators’ financial 

risks, such investment risks and 

overhead costs of a for-profit entity 

operating on public land are normal 

costs of doing business and should not 

be a reason for BLM to collect less than 

its actual processing costs under the 

FLPMA reasonableness factors. 

Some commenters asserted that 

BLM’s processing activities provide 

benefits to the general public such that 

BLM should charge less than its actual 

costs of processing. Some commenters 

also objected that many of BLM’s 

processing activities benefit only the 

public and not the applicant. 

BLM disagrees. The processing fees 

charged in this rule are for the 

documents that an applicant must 

submit to satisfy various statutory and 

regulatory requirements pertaining to 

the various minerals programs that BLM 

administers. The processing of an 

application necessarily benefits the 

applicant. See 70 FR 41541. BLM 

considered the potential benefits to the 

public of its processing of the fixed fee 

documents in this rule and concluded 

that the monetary value to the applicant 

outweighs the possible benefit to the 

public. 

Several commenters were unclear 

how the fees relate to situations where 

the applicant directly pays a third party 

to perform required studies. Some 

commenters suggested that because they 

often pay third party contractors to 

perform required environmental studies, 

BLM should credit those costs by 

reducing the fees BLM charges. 

A credit is inappropriate because the 

fees in this rule do not include any costs 

that an applicant pays directly to a third 

party. For third party contracts, BLM’s 

cost recovery is restricted to recovering 

the costs of its own activities, such as 

supervising the contractor, reviewing 

and approving the final document. If 

BLM pays for environmental studies in 

connection with its document 

processing, it will include those costs in 

its fee. 

Some commenters said that because 

the industry already pays for the 

privilege of operating on public lands by 

performing many studies and 

inventories, and compiling National 

Environmental Policy Act (NEPA) 

documents, the Federal Government 

58860 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

should consider reimbursing industry 

for performing these undertakings. 

BLM will not be reimbursing 

operators for studies they perform in 

compliance with various laws, 

mandates, and policies. All such costs 

are borne by the operator. The operator 

conducts these studies for their own 

benefit because an operator cannot 

receive a permit or authorization to 

extract resources from public lands until 

all required studies are completed. The 

operator does have the option of paying 

a BLM-permitted contractor to conduct 

these studies or they can ask BLM to 

conduct them at a charge to the 

operator. 

Some commenters contended that 

BLM must ensure efficient and timely 

processing and provide time frames 

within which it will complete 

processing. A commenter suggested that 

BLM undertake an independent review 

of the processes that are funded by these 

increased fees before they are 

implemented in the final rule. 

BLM recognizes that we have a 

responsibility to administer our 

programs in an efficient and effective 

manner, and review our procedures for 

processing applications to ensure their 

efficiency on an on-going basis. 

However, this is not a basis for delaying 

the implementation of this rule. Setting 

time frames for BLM processing is not 

part of this cost recovery rulemaking. 

A few commenters asked BLM to hold 

public meetings before finalizing any fee 

increases. Several commenters asked 

that we extend the comment period. 

Another commenter asked BLM to 

develop regulations governing minerals 

management programs with more 

industry involvement. 

BLM believes that adequate public 

involvement has occurred with respect 

to this rule. The original proposal, in 

December 2000, was very similar to this 

final rule, and the comment period at 

that time was open for over six months. 

We also provided a 30-day comment 

period for the July 2005 proposal. 

Some commenters said that BLM’s 

current fees are much higher than those 

charged by local governments and 

private industry for similar services. 

BLM bases its fees on its own 

processing costs in conjunction with its 

consideration of the FLPMA 

reasonableness factors. Neither the 

states nor private industry has the same 

statutory responsibilities, as does BLM. 

A commenter said that use of a 

weighted average creates a situation 

where they are charged more than is 

necessary and that they should not be 

penalized if a BLM office is less cost 

efficient than another one. A commenter 

requested that BLM define ‘‘weighted 

average’’ and said that this 

mathematical cost basing leads to 

unequal application under the law and 

creates a cost structure slanted toward 

higher than necessary fees. A 

commenter asked what authority gives 

BLM the means to use a ‘‘weighted 

average’’ instead of the actual or average 

cost. 

BLM relied on its regulatory authority 

in FLPMA (43 U.S.C. 1740) to determine 

the proper method of analysis. BLM 

used a weighted average for fixed fees 

to incorporate economies of scale 

achieved by offices that process many 

more documents than those with less 

active oil and gas (or other mineral) 

programs. The processing cost fees in 

this rule are based on a weighted 

average, rather than a simple average, of 

BLM-wide processing costs for each 

type of document. This method gave 

greater weight to the processing cost 

data from field offices having a heavy 

workload, and thus more expertise, in 

processing a particular type of 

document. Offices that process a greater 

number of a particular type of document 

generally have a lower processing cost 

per document of that type. We first 

estimated the actual cost for a type of 

document and then considered each of 

the FLPMA factors to see if any of them 

might cause a fee to be set at less than 

actual cost. We then decided the 

amount of the fee, which cannot be 

more than our processing cost. 

A commenter said that BLM failed to 

set reasonable ground rules like limits 

on dollars per hour for BLM staff to 

work on administering the project. 

BLM will base case-by-case fees on 

the actual costs incurred in processing 

the application. Before processing 

begins, BLM will provide the applicant 

with an estimate of BLM’s costs and its 

key components. The applicant will 

have an opportunity to object if it 

believes the estimated costs are 

excessive. 

A commenter asked why there are 

differences in costs among BLM State 

Offices for the same program elements 

and services. Another commenter asked 

how BLM’s processes can be 

‘‘reasonably efficient’’ when BLM’s 

preliminary review of the data showed 

large cost differences among BLM 

offices for processing certain types of 

documents as well as large numbers of 

documents filed and processed. 

As stated in the proposed rule 

preamble, BLM determined that the 

differences in costs cited by the 

commenters were attributable to site-or 

sale-specific factors or economies of 

scale. 

Some commenters said that BLM was 

attempting to circumvent the budgeting 

process by burdening industry with 

additional fees and increasing existing 

fees as much as 15 times the current fee. 

BLM is not circumventing the 

budgeting process. Congress authorized 

BLM to recover processing costs under 

the IOAA and FLPMA, and OMB 

directives require us to do so. The IOAA 

states that Federal agencies should be 

self-sustaining to the extent possible 

and authorizes agency heads to 

‘‘prescribe regulations establishing the 

charge for a service or thing of value 

provided by the agency.’’ Section 304(a) 

of FLPMA specifically authorizes the 

Secretary of the Interior to ‘‘establish 

reasonable filing and service fees and 

reasonable charges and commissions 

with respect to applications and other 

documents related to the public lands.’’

The IOAA and FLPMA give BLM 

authority to charge fees for processing 

applications. Moreover, Circular A–25 

provides that the general Federal policy 

is that a charge will be assessed against 

each identifiable recipient for special 

benefits derived from Federal activities 

beyond those received by the public. 

A commenter stated that BLM went 

too far beyond what is reasonable in 

setting the proposed fees beyond the 

fees established in previous regulations. 

BLM disagrees. The prior filing fees 

were more in the nature of a recordation 

fee, and were not intended to recover 

BLM’s processing costs. 

Several commenters argued that 

BLM’s proposed cost recovery 

regulations are flawed because they rely 

on an incorrect legal conclusion in 

Solicitor’s Opinion M–36987 (December 

5, 1996) that cost recovery is mandatory 

under FLPMA and the IOAA. 

The commenters are mistaken. The 

Solicitor’s Opinion did not conclude 

that those statutes require cost recovery, 

nor did BLM’s preamble to the proposed 

rule characterize the Opinion’s 

conclusion as such. Solicitor’s Opinion 

M–36987 concluded that ‘‘BLM has 

authority under applicable statutory and 

case law to recover costs of minerals 

document processing * * *. Because it 

has this authority and because the 

Departmental Manual and OMB policy 

require that costs be recovered where 

possible, BLM should take steps to 

initiate cost recovery * * *.’’

Commenters also maintained that the 

Department mistakenly relies on the 

BLM Manual to create a mandatory cost 

recovery obligation. 

By ‘‘BLM Manual,’’ we assume the 

commenters meant to refer to the 

Departmental Manual, which was cited 

in both the Solicitor’s Opinion and the 

proposed rule preamble. The 

commenters’ objection that the Manual 

does not have the force or effect of law 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58861 

and cannot override a Federal statute 

misses the point. As explained in the 

preamble to the proposed rule, Congress 

has authorized cost recovery in both the 

IOAA and FLPMA. The executive 

branch, through Circular A–25, has 

stated the general Federal policy to be 

that charges will be assessed against 

identifiable recipients of special 

benefits. The Secretary of the Interior, in 

the Departmental Manual, has 

instructed bureaus and offices within 

DOI to recover costs that they are 

authorized to recover. There is no issue 

here of a conflict between the 

Departmental Manual and statutory 

authority—the Manual, the OMB 

guidance, and the statutes are all in 

accord. Nor is there any issue, as the 

commenters assert, of BLM interpreting 

the Manual as directing it to disregard 

one of the FLPMA factors. As explained 

in the preamble to the proposed rule, 

BLM carefully considered each of the 

FLPMA factors in setting the proposed 

fees. 

One commenter asserted that BLM 

appears to rid itself of its responsibility 

to prepare any special studies as 

outlined in NEPA and stated that BLM 

must maintain the necessary staff and 

resources to perform NEPA 

requirements. 

BLM recognizes that it has continuing 

responsibilities to satisfy its 

requirements under NEPA. The 

provision in section 3000.11(b) simply 

allows the applicant to ask BLM’s 

approval to do studies or other 

activities, under BLM supervision and 

to BLM standards, on a voluntary basis. 

If the applicant chooses not to do the 

work, BLM will perform the work and 

include the cost in the case-by-case fee. 

Nothing in these regulations relieves 

BLM from fulfilling any of its statutory 

responsibilities. 

One commenter expressed concern 

that the fee increases will adversely 

affect academic interests involved in 

fossil research. 

The cost recovery provisions apply to 

applications for certain commercial 

activities. Academic interests involved 

in fossil research, including collectors of 

petrified wood under 43 CFR subpart 

3622 and other kinds of researchers 

under 43 CFR part 2930, will not be 

affected by this rule. 

A few commenters stated that BLM 

should not be pursuing a prior 

administration’s agenda or initiative. 

The changes in this final rule do not 

represent the agenda of any particular 

administration. BLM’s efforts to recover 

costs were initiated in response to 

recommendations from the OIG in 1988, 

as part of a 1980s Presidential initiative 

calling for all Federal agencies to charge 

appropriate user fees for agency 

services. 

A commenter asked if BLM had 

considered implementing electronic 

filings of ownership transfers before 

implementing a new fee schedule. 

BLM intends ultimately to implement 

electronic filings for title transfers. We 

will then review the processing costs 

and adjust them as necessary. This is 

not a reason to delay implementation of 

this rule. 

A commenter said that the rule could 

be abused in its implementation by BLM 

offices seeking to delay or deny permit 

applications, including those that state 

regulatory agencies handle 

expeditiously. 

The comment is speculative. We have 

carefully explained how the fees will be 

implemented in accordance with 

applicable authority. These fees will not 

be used to delay any BLM action 

unnecessarily. 

A commenter said it is unclear what, 

if any, BLM costs other than land use 

plan studies and programmatic 

environmental assessments (EAs) were 

exempted from the rule. 

BLM intends this rule to provide for 

the collection of document-specific 

costs rather than programmatic costs. 

A commenter said that if BLM 

proceeds with this rule, it must ensure 

that all management overhead is 

excluded, citing Nevada Power Co. v. 

Watt, 711 F.2d 913, 931 (10th Cir. 1983). 

BLM’s actual costs are the sum of both 

direct and indirect costs. However, 

under FLPMA, BLM cannot recover the 

costs of management overhead. We have 

interpreted this to mean the costs of 

BLM State Directors and Washington 

Office staff, except when a member of 

this group works on a specific 

authorization such as a lease. We have 

not excluded the costs of Deputy State 

Directors or other supervisory staff 

because they are typically involved in 

day-to-day decision making. BLM’s cost 

accounting system is intended to reflect 

this distinction. 

One commenter noted that it 

appeared that BLM was attempting to 

‘‘double-dip’’ by assessing both an 

application fee and a filing fee. Another 

commenter noted that BLM was only 

assessing application and filing fees for 

some actions and questioned why BLM 

was not collecting the processing fee for 

those same actions. 

Some commenters seem to have 

misunderstood how BLM structured the 

fixed fees. Some fixed fees were alreadyexisting, nominal filing fees that we did 

not propose to change. Filing fees serve 

to limit filing to serious applicants and 

are not intended to reimburse 

processing costs. This rule adds certain 

fixed fees for other documents based on 

BLM’s processing costs. Each action for 

which this rule charges a fee has either 

a filing fee or a processing fee. No action 

has both a filing fee and a cost recovery 

processing fee. We may in the future 

change some filing fees to processing 

fees. As explained in the preamble to 

the proposed rule, BLM intends to 

continue to work on establishing and 

collecting fees for other documents (70 

FR 41533). 

Some commenters stated that these 

provisions appear to create further 

delays in an already time consuming set 

of procedures. A commenter stated that 

at a minimum the final regulations 

should include provisions to establish 

an escrow-type account that BLM can 

access. A commenter recommended that 

BLM add the following language to 

proposed section 3000.11: ‘‘You may 

elect to establish a standing contingency 

fund to be accessed and utilized by BLM 

in case of shortfall, to assure that 

processing continues. Provisions for 

appeals and fees paid under protest in 

subsection (c)(6) will apply equally to 

any funds utilized from such an 

account.’’

This rule does not provide for escrow 

or contingency accounts to facilitate 

payments of case-by-case fees. However, 

based on these comments, we have 

amended the language of section 

3000.11(b)(4)(i) to clarify that we will 

not stop ongoing processing if we reestimate the costs associated with a 

case-by-case document. This revision 

should reduce potential delays 

associated with re-estimation of costs. 

The commenter also asked BLM to 

consider that cost recovery should be 

limited to the costs of the actual hours 

that BLM staff worked directly on the 

project being charged and specifically 

should exclude any staff training. 

The preamble to the proposed rule 

explained what costs BLM includes in 

determining its fees in this rule. Both 

direct and indirect costs are included. 

Training is only included to the extent 

that it is allowable as indirect costs. 

One commenter asked that BLM 

consider dedicating funds collected 

from increased fees to paying personnel 

who process the permits for which the 

fees are levied. The commenter said that 

BLM staff that is responsible for the 

minerals permitting process should not 

have other assignments within their 

respective offices. 

BLM intends to structure its budget 

processes to return fees collected to the 

BLM office which processes the actions. 

BLM staff workload is determined by 

the needs of individual BLM offices. 

One commenter asked for further 

explanation of the relationship between 

58862 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

existing Federal fees, assessments, and 

levies and the proposed charges, 

asserting that existing fees already cover 

certain BLM document processing costs. 

Specifically, the commenter contended 

that net smelter royalties, other Mining 

Law Administration Program (MLAP) 

funds, and bonus bid payments that 

cover document processing costs should 

essentially be counted as document 

processing fees, and that BLM should 

not seek additional revenue from 

applicants if double recovery of such 

fees would occur. 

As discussed earlier in this preamble, 

we have addressed the relationship 

between royalties, bonus bids, rents, 

and the processing fees in this rule. We 

address here the relationship between 

the processing fees and Mining Law 

fees, such as the annual maintenance fee 

on unpatented mining claims and the 

location fee on new claims. 

Moneys that Congress has directed 

BLM to collect as location and 

maintenance fees are deposited directly 

to the Treasury and are to be used as an 

offset to BLM’s appropriation, up to a 

certain ceiling. The purpose for the 

maintenance fee is to replace the $100 

assessment work requirement in the 

Mining Law. The assessment work 

requirement was intended to show a 

mining claimant’s bona fides in 

exploring for or developing minerals. 

Similarly, the location fee is intended to 

discourage speculative filings of mining 

claims. Consequently, the fundamental 

purpose for those fees is not for cost 

recovery. 

The Interior Department’s 

appropriation act specifies two purposes 

for which BLM can use mining claim 

fees. First, Congress has directed that a 

set amount of mining claim fees be used 

to cover the costs of administering the 

mining claim fee program. The mining 

claim fee program is the program under 

which BLM collects and processes the 

$125 claim maintenance fee and the 

location fee. We did not propose and 

have not adopted any additional 

processing fee for collecting and 

processing the statutory mining claim 

fees. Although the terminology may 

appear similar (the word ‘‘location’’ is 

used in both), the fee this rule imposes 

for processing location notices is 

intended to cover BLM’s processing 

costs related to the statutory filing 

requirement imposed by FLPMA 

Section 314 (43 U.S.C. 1744), and is 

unrelated to the collection of the 

statutorily imposed location fee. 

Second, Congress has directed that 

the bulk of the appropriation that is 

offset by mining claim fees be used for 

the MLAP generally This appropriation 

has averaged approximately $34 million 

a year for the past few years, and is used 

for the entire range of administrative 

costs incurred by the MLAP; it has 

historically been inadequate to operate 

all aspects of the program. In the past, 

BLM has used appropriated funds to 

cover the processing costs of documents 

when no processing fees were being 

charged. The fact that general Mining 

Law Program funds were used to cover 

these costs in the past, however, does 

not mean that these costs ‘‘should’’ be 

funded from those collections, or that 

BLM cannot now exercise its statutory 

authority to charge a specific processing 

fee to cover certain document 

processing costs. When general Mining 

Law Program funds no longer have to be 

directed to cover all processing costs, 

they can and will be directed to cover 

other aspects of the program. 

The commenter also stated that 

because claim maintenance fees and 

location fees generate millions of 

dollars, which will increase as fees are 

increased, BLM should re-evaluate the 

need to impose additional processing 

fees. 

As is the case with royalties, bonus 

bids, and rents, Congress imposes claim 

maintenance and location fees for 

purposes different from covering the 

costs of document processing. BLM 

cannot predict how much money will be 

collected from these statutory fees or the 

size of future Congressional 

appropriations for Mining Law 

administration. In the IOAA and 

FLPMA, Congress has also separately 

authorized the collection of fees to cover 

the costs of document processing. Those 

fees are the ones that will be collected 

under this rule. 

One commenter objected to BLM 

charging for pending documents where 

processing has already begun. The 

commenter asserted that charging new 

fees on pending documents would 

constitute an unlawful retroactive 

application of new requirements. The 

commenter also asserted that equitable 

concerns arise regarding such charges 

since the charges could not have been 

anticipated and planned for in the 

planning phase of the action. In 

addition, the commenter stated that 

often the applicant has no control over 

the pace of document processing, and 

thus would be unfairly punished due to 

BLM’s processing backlogs. 

As discussed earlier in this preamble, 

BLM will apply both fixed and case-bycase fee provisions in this final rule to 

applications submitted after the 

effective date of this rule, and not to 

applications pending on that date. 

Although BLM disagrees with the 

characterization of the proposed 

regulations as retroactive, BLM is 

sensitive to practical concerns relating 

to applying this rule to pending 

applications, as well as perceived 

inequities, and has revised the rule 

accordingly. 

Another commenter stated that any 

cost reimbursement policy should 

prohibit the imposition of significant 

new processing fees upon the lessee or 

operator of an existing lease, other than 

future minor filing fees, for specific 

actions such as processing right-of-way 

applications. The commenter asserted 

that at the time existing leases were bid 

upon and issued, BLM represented by 

implication and conduct that fees would 

be imposed under existing law and 

regulation only for certain activities, 

such as rights-of-way, and that other 

administrative costs associated with 

existing leases were reasonably 

expected to be borne by BLM. The 

commenter concluded that lessees’ bids 

reflected those assumptions. 

BLM rejects the comment. The 

commenter’s assertions are based on 

speculation, not fact. Existing lessees do 

not have any contractual or other basis 

to be exempt from BLM cost recovery 

assessments. To the contrary, BLM 

leases typically contain a condition that 

lessees must comply with present and 

future BLM regulations. The recovery of 

processing costs by government 

agencies is not a new phenomenon, and 

BLM’s doing so under existing 

authorities could have been anticipated 

by lessees at the time of lease 

acquisition. 

Some commenters stated that 

deadlines are particularly important for 

documents where fees are collected on 

a case-by-case basis, and should be 

established preliminarily through 

negotiations between the applicant and 

BLM during the time period when they 

would be working together on the cost 

estimate. 

This rule does not establish 

mandatory timelines for processing 

documents. BLM agrees, however, that 

it would be helpful to all persons if 

BLM and an applicant reach a common 

understanding as to the estimated time 

when various steps will be achieved. 

B. Comments on Oil and Gas Leasing 

Cost Recovery 

A commenter said that BLM’s added 

costs do not address any improvement 

in services to industry. The commenter 

stated that by increasing fees BLM is 

attempting to drive up the cost of doing 

business on Federal lands and 

discourage companies from exploration 

and development of oil and gas. 

A commenter said that poor customer 

service and long periods to process 

documents by BLM have been longVerDate Aug<31>2005 14:53 Oct 06, 2005 Jkt 208001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\07OCR4.SGM 07OCR4
Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58863 

standing industry concerns, and that 

BLM’s budget and staffing have not kept 

up with increasing industry activity. 

The comment continued that this has 

created delays and permit backlogs. The 

commenter said these issues are more 

important than ‘‘incremental cost 

recovery.’’

Several commenters stated that if the 

price of energy decreases they would 

still be required to pay higher fees for 

reduced service from BLM and less 

commodity. Several commenters said 

they had concerns with BLM’s quality of 

‘‘customer service.’’ Others stated that 

the proposed cost recovery rule is 

contrary to the new National Energy 

Plan; and an impediment to domestic 

oil and gas exploration and 

development. 

BLM takes seriously its customer 

service obligations, and is constantly 

looking to improve the means by which 

it addresses permit processing and its 

other program responsibilities. To the 

extent moneys recovered from 

processing fees are directed back to the 

offices from which they were collected, 

we hope this will serve to maintain or 

enhance the level of service that BLM 

provides. 

We disagree that processing fees 

should decrease if the price of energy 

decreases. A processing fee covers the 

cost of a service that provides a benefit 

to the applicant and should be 

considered by the applicant as 

equivalent to any other cost of doing 

business. BLM’s costs to process 

documents submitted by an applicant 

are unrelated to market fluctuations. 

Just as fees will not increase due to 

market upswings, they will not decrease 

due to market declines. BLM’s economic 

analysis indicates that the new fees will 

not be an impediment to domestic oil 

and gas or other mineral development. 

The fees are minor in the context of the 

overall energy market. 

Some commenters stated that these 

fee increases could result in operators 

not filing assignments and transfers 

with BLM. Another commenter said that 

the current fees are considerably higher 

when compared to those charged by 

local governments and private industry 

for similar services, and in order for 

operators to have good title to any oil 

and gas lease, the leases and transfers 

must be recorded in the county. The 

commenter continued that, because 

BLM requires a second set of records on 

BLM-prescribed forms to be filed with 

field offices, operators must undertake 

expensive curative title work when BLM 

records do not match the county 

records. 

BLM disagrees that an increase in fees 

would result in operators not filing 

assignments and transfers with BLM. In 

accordance with statutory requirements, 

including the MLA, BLM must approve 

title transfers and, until they are 

approved, the transfer is not effective 

regardless of any private agreements 

between parties. While we appreciate 

the commenters’ concern about a second 

set of title records, this is required by 

statute. Earlier in this preamble we have 

addressed the relationship between 

BLM fees and state and local fees. 

A commenter said that BLM must set 

minimum fees that reflect the lesser of 

the reasonable or actual BLM 

administrative costs to conduct a prelease EA and promptly issue the lease. 

The commenter urged that any cost 

recovery program provide the lessee 

with a schedule of maximum fees and 

a time period for payment. 

We agree that under FLPMA, BLM’s 

fees must be based on the lesser of 

reasonable or actual costs. The fees in 

this rule were determined after a 

consideration of all of the FLPMA 

factors and reflect BLM’s reasonable 

costs. As explained in the preamble to 

the proposed rule (70 FR 41540), the 

fixed fees for oil and gas leasing in this 

rule do not include the steps required to 

prepare an individual sale parcel before 

preparing the sale notice, such as earlier 

NEPA costs, even though such costs are 

recoverable. The fees are based on costs 

that BLM incurs from the point of 

preparing the sale notice. Unless there 

is a unique cost that would cause the 

conversion of the fixed fee to a case-bycase fee, the fees are established in the 

schedule in this rule. 

A commenter asked BLM to return a 

portion of all revenues back to BLM 

districts based on the level of oil and gas 

activities in the district. 

BLM is establishing a procedure 

through which the fees collected will go 

back to the office from which they were 

generated. 

Some commenters asked BLM to 

abandon all case-by-case fees for oil and 

gas operations on Federal land. 

BLM proposed case-by-case fees for 

certain oil and gas transactions in the 

2000 proposed rule on cost recovery. 

However, they were not in the 2005 

proposed rule, and they are not in this 

final rule. 

Another commenter stated that the fee 

increases would be acceptable if the fees 

covered expenses that the operator has 

incurred. However, according to the 

commenter, many environmental, 

social, and economic issues have to be 

reviewed before land is listed in public 

auctions. The commenter said that these 

reviews are for the benefit of the public, 

and that it would be unfair to pass these 

costs on to the user and accuse users of 

causing this expense. 

The fees in this final rule for BLM’s 

oil and gas program do not include the 

environmental, social, and economic 

costs that BLM incurs before land is 

listed in public auctions. As was stated 

in the preambles to both the 2000 and 

2005 proposed rules, we may propose in 

future rulemaking to recover those costs. 

As explained earlier in this preamble, 

these reviews are associated with a 

special benefit to an identifiable 

beneficiary and are recoverable under 

FLPMA and the IOAA. 

A commenter stated that BLM’s 

authority to impose cost recovery is 

discretionary, not required by statute. 

The commenter said that previous 

administrations chose not to impose this 

cost recovery proposal on oil and gas 

operators and lessees for sound public 

policy reasons and urged BLM to 

continue this policy and reconsider the 

proposed rule in its entirety. 

Under the Administrative Procedure 

Act, an agency may change its policy if 

such changes have a rational basis and 

are supported by law. BLM has 

explained both its basis and purpose 

and the legal authority supporting this 

rule. 

A commenter said that the transfer-ofoperating-rights fees are inappropriate 

because the documents are not 

adjudicated, but only filed. 

While operating rights transfers do 

not involve the same adjudicative 

processing steps as other documents, 

BLM must still review these documents 

for legal adequacy, and the cost recovery 

fee is appropriate. 

C. Comments on Geothermal Leasing 

Cost Recovery 

A commenter asked if we have 

considered fee increases from a national 

strategic energy viewpoint. For example, 

according to the comment, increased 

geothermal production from Federal 

lands would address the local energy 

shortages in the West in an 

environmentally benign way. The 

commenter therefore questions whether 

BLM should increase such fees. 

As mentioned earlier in this 

preamble, this final rule does not 

include processing fees for geothermal 

permits to drill or geothermal 

exploration permits. Any remaining 

geothermal fees established by this rule 

will not hinder geothermal 

development. 

D. Comments on Coal Leasing Cost 

Recovery 

A commenter suggested that BLM 

offset the processing fees for a 

competitive coal lease by an equivalent 

58864 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

reduction in the fair market value bid 

for the lease. 

Prospective bidders independently 

determine what they consider the fair 

market value of a coal lease to be. 

Companies will take all costs, including 

processing costs, into account when 

bidding. BLM will do the same when it 

makes its pre-lease determination of a 

minimum acceptable bid. Fair market 

value cannot be further reduced by the 

amount of processing costs, since those 

were already taken into account by the 

market. Also, Congress authorized the 

recovery of both fair market value and 

processing fees. 

A commenter stated that BLM did not 

consider how the final rule would 

determine fees when the same or similar 

activity has been undertaken by another 

Federal or state agency with regard to 

the same transaction. The commenter 

stated that BLM should withdraw the 

rule until this issue is addressed. 

To the greatest extent possible, BLM 

and other Federal agencies make 

diligent efforts to reduce or eliminate 

duplicative Federal or state 

requirements. This reduces the work 

burden for the agencies and provides 

better service to our customers. BLM 

and the Office of Surface Mining (OSM) 

have eliminated as many duplications of 

effort as possible. Moreover, in 

determining the fixed fees in this rule, 

we averaged our processing costs based 

on a survey of our actual costs (which 

included only our review time) plus 

consideration of the reasonableness 

factors. For the case-by-case fees, we 

will charge only for the time it actually 

takes BLM to process the document. 

The commenter raised an issue about 

Resource Recovery and Protection Plans 

(R2P2). There are no fees currently 

assessed or proposed to be assessed for 

BLM to process an R2P2 for a Federal 

lease. 

As stated in the preamble to the 2005 

proposed rule at 70 FR 41536, at the 

time BLM was preparing the proposed 

rule for publication, BLM became aware 

that the case-by-case procedures 

outlined in proposed section 3000.11 

were not appropriate for fees charged to 

the successful bidder in a lease sale or 

mineral materials sale context. Because 

a competitive sale requires BLM to 

perform work before conducting the 

sale, and BLM has the ability to track 

associated processing costs, the 

preamble to the 2005 proposed rule 

stated that it is our intent to include in 

the final rule a different set of 

procedures for charging a case-by-case 

fee to the successful bidder in the 

context of coal lease sales, solid mineral 

lease sales, and competitive mineral 

materials sales. Although the 2005 

proposed rule contained revisions to 

sections 3473.2, 3508.21, and 3602.44, 

the proposed revisions did not address 

procedures for charging case-by-case 

fees to successful bidders, including 

situations in which the applicant is not 

the successful bidder. The final rule 

provides more extensive revisions to 

those sections as well as to related 

sections. These changes are described in 

an earlier section of this preamble. 

One commenter suggested that BLM 

provide a mechanism whereby an 

unsuccessful bidder for a coal lease is 

not assessed any of the processing fees 

for the lease sale. 

BLM agrees. As described above, the 

final rule requires the successful bidder 

to pay lease sale processing costs that 

BLM incurs. 

A commenter asked BLM to clarify 

what happens when proprietary data is 

collected through activities that are 

covered by cost recovery. The 

commenter asked that BLM consider 

revising the regulation by incorporating 

mechanisms to ensure that any baseline 

data or information collected or 

contracted for collection by the 

applicant that is in excess of that 

information specifically required for 

applications would remain the property 

of the applicant, regardless of the 

outcome of the application process. 

BLM will protect proprietary 

information in its possession to the 

extent provided under applicable law. 

One commenter asserted that having 

an open-ended case-by-case cost 

recovery determination with no cap 

could easily create a disincentive to the 

coal lease modification process. The 

commenter stated that coal lease 

modifications are designed to maximize 

the recovery of the coal resources by 

allowing for a quick process and 

procedure to incorporate coal that 

cannot or will not be mined by anyone 

else into an existing coal lease. The 

commenter stated that BLM should 

encourage this practice, and that, in 

most instances, the additional royalties 

and bonus bids received more than 

offset the cost of processing these lease 

modifications. 

BLM disagrees with this comment. 

We do not view a case-by-case fee as 

opposed to a fixed fee as a disincentive 

to filing an application for a coal lease 

modification. A lease modification is 

intended to provide the lessee an 

opportunity to obtain non-competitively 

adjoining tracts of coal that would 

otherwise be bypassed and that are not 

independently commercially viable. 

Other than not requiring a competitive 

lease sale and related public hearings on 

fair market value and maximum 

economic recovery, processing a lease 

modification application mirrors the 

processing steps associated with a 

competitive lease sale. The distinction 

between royalties and bonuses on the 

one hand and processing costs on the 

other was discussed earlier in this 

preamble. See also the earlier comment 

response in this preamble regarding the 

amounts and procedures related to caseby-case fees. 

One commenter stated that a royalty 

rate reduction is an important 

component if a company reaches a 

critical financial or operational stage of 

their operation, and that if an operation 

is losing money and potentially facing 

closure of the property, then the Federal 

Government is also at risk of losing 

Federal mineral royalty income. The 

commenter stated that an open-ended 

case-by-case cost recovery process with 

no cap could be a big disincentive for 

a struggling company to overcome. 

BLM disagrees with this comment. 

The commenter speculates as to the 

impact of the cost recovery process on 

a company requesting a royalty rate 

reduction. If a company requesting a 

royalty rate reduction objects to the cost 

estimate that BLM provides in a case-bycase cost recovery situation, it may 

appeal. BLM will apply the FLPMA 

reasonableness factors in setting cost 

recovery fees in case-by-case situations, 

as it applied them in setting the fixed 

fees in this rule. The authority for a 

royalty rate reduction (30 U.S.C. 209) 

does not address processing the royalty 

rate reduction applications. The MLA 

provides no authority to waive, 

suspend, or reduce recovery of 

processing costs. BLM will, of course, in 

its application of the FLPMA 

reasonableness factors, consider the 

facts that were presented in support of 

a royalty rate reduction. 

One commenter stated that the 

proposed rule fails to recognize that 

applicants sometimes voluntarily pay 

for approved third-party contractors to 

perform studies to avoid certain delays 

associated with BLM processing of these 

documents. For example, the 

commenter stated, many applicants 

operating under the MLA pay BLMapproved third-party contractors to 

prepare the EISs associated with their 

leasing application. 

BLM acknowledges that applicants 

have voluntarily paid for the 

preparation of an EIS for many actions 

to expedite the processing of that action. 

We anticipate that a similar process may 

continue under these regulations. Under 

this rule, if BLM pays for the 

preparation of studies such as an EIS, 

BLM’s preparation costs will be 

included in the costs charged for caseby-case processing. If the coal lease 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58865 

applicant pays a third party directly for 

the preparation of an EIS, for instance, 

these regulations do not provide that the 

applicant will be reimbursed if the 

applicant is not the successful bidder. 

The coal lease applicant will have the 

choice whether to pay a third party 

directly for the preparation of the 

environmental study or to have BLM 

fund the study, the cost of which, 

including BLM contracting costs, will be 

part of the fee charged to the successful 

bidder. 

E. Comments on Cost Recovery for 

Leasing of Solid Minerals Other Than 

Coal 

Comments received regarding leasing 

solid minerals other than coal were 

general in nature and have been 

addressed in the General Comments 

section earlier in this preamble. 

F. Comments on Cost Recovery for 

Mineral Materials Sales 

Most comments received regarding 

mineral materials sales were general in 

nature and have been addressed in the 

General Comments section earlier in 

this preamble. 

One commenter inquired as to 

whether mineral materials free use 

permits will be subject to cost recovery 

fees. 

Under this final rule, processing fees 

do not apply to free use permits issued 

under 43 CFR subpart 3604. 

G. Comments on Cost Recovery for 

Mining Law Administration 

A commenter suggested that the fees 

under part 3860 be dropped in the final 

rule and that if and when patents are 

allowed in the future BLM should 

consider cost recovery fees at that time. 

BLM has established the fees relating 

to mineral patent applications so that 

they will be in place if Congress chooses 

to lift the current moratorium on issuing 

mineral patents. 

Some commenters said they opposed 

the proposed fee changes because 

mining claimants have a stake in the 

patent process and, therefore, those who 

have paid for the patent process should 

not be charged additional fees. 

BLM disagrees that steps that an 

applicant must take to qualify for a 

patent can substitute for BLM’s recovery 

of its processing costs. 

A commenter said the proposed rule 

conflicts with BLM’s published policy 

on when and under what circumstances 

a validity or common variety mineral 

examination will be required. 

This rule does not change the existing 

published policy concerning when 

mineral examinations are performed. It 

only requires that cost recovery be 

initiated if a validity or common variety 

mineral examination is performed under 

43 CFR 3809.100 and 3809.101. 

A commenter noted that BLM recently 

reported to Congress that BLM processes 

most PoOs within six months, with 

some plans taking longer to process. The 

commenter suggested that, because BLM 

thus processes most PoOs in an efficient 

manner, it is not justified in imposing 

cost recovery fees. It also suggested that 

if BLM had needed additional funds to 

process PoOs, it would have mentioned 

that in its report. The commenter 

suggested that because most PoOs are 

processed within six months, it would 

be reasonable and more efficient for 

BLM to establish a fixed processing fee 

for PoOs. Based on BLM’s report that it 

processes most PoOs within six months 

and the failure of the report to express 

a need for additional funds, the 

commenter contended that it is 

inappropriate for BLM to assert in the 

July 2005 proposed rule a need to 

increase fees. Another commenter 

suggested that the BLM be required to 

demonstrate that the currently available 

fee and other subsidies are insufficient. 

BLM disagrees with the commenters. 

The fact that BLM reported that it 

processes most PoOs within six months 

has no bearing on whether BLM 

recovers its processing costs. Whether or 

not a report to Congress stated that BLM 

‘‘needs’’ additional funds in order to 

efficiently process PoOs is also not a 

determining factor in BLM’s cost 

recovery effort. The report was prepared 

in response to a Congressional directive 

to create a PoO tracking system, report 

on how long it took BLM to process 

PoOs, and describe ways in which 

BLM’s processing time could improve. It 

was not intended to address BLM’s cost 

recovery efforts. As explained in the 

preamble to the proposed rule, the 

Department’s OIG has determined that 

BLM should be recovering the costs 

included in this rule, and both the 

OMB, in Circular A–25, and the 

Secretary of the Interior, in the 

Departmental Manual, have directed 

that BLM should assess charges against 

identifiable recipients for special 

benefits. That is what BLM is doing in 

this rule. It needs to be recognized that 

PoOs that are processed within six 

months are those that require only an 

EA, not those that require an EIS. BLM 

agrees that it may be reasonable and 

efficient to set a fixed fee for PoOs that 

are authorized under an EA. However, 

in this rule BLM is not charging any fee 

for PoOs that are authorized under an 

EA. The rule imposes a fee, on a caseby-case basis, only for PoOs that require 

the preparation of an EIS. Case-by-case 

fees are appropriate for PoOs that 

require an EIS because of the significant 

variability in costs that may occur in the 

preparation of EISs and associated 

studies. We will consider whether to 

propose fees for PoOs that are 

authorized under an EA, and may 

propose a future rule on the subject. 

Commenters also asserted that 

applicants for PoOs and other types of 

applications already typically pay 

significant costs by hiring third-party 

contractors to prepare the NEPA 

documentation, and often subsidize a 

BLM employee or retain a contractor to 

work as a project coordinator. In light of 

these costs already often borne by 

applicants, commenters contend that 

companies should not be required to 

subsidize additional costs, and that any 

additional costs should be covered by 

claim location and maintenance fees. 

BLM recognizes that many companies 

have incurred financial expenditures 

related to processing PoOs. Such 

payments to third parties will not be 

included in BLM’s case-by-case fees. 

The fee will only include costs that 

BLM incurs. BLM statutory 

responsibilities require that it 

independently review any analysis 

performed by an outside contractor. 

This review is an integral part of the 

processing required before BLM can act 

on an application. It is therefore 

reasonable and necessary that BLM 

consider the review costs in calculating 

its costs for processing a document, 

notwithstanding that a company may 

have incurred other expenses related to 

processing. We have addressed earlier 

in this preamble the relationship 

between claim location and 

maintenance fees and processing costs. 

Another commenter was concerned 

that the procedure in proposed section 

3000.11(b)(2) under which BLM will not 

process documents until BLM gives the 

applicant a written estimate of costs will 

not work in situations where BLM has 

to begin processing an application in 

order to decide whether a case-by-case 

fee will be imposed. The commenter 

used as an example that when BLM 

receives a mining PoO application, it 

must begin processing to determine 

whether an EIS is required. 

The estimate that BLM provides 

under section 3000.11(b) precedes any 

case processing. However, if the initial 

estimate under section 3000.11(b)(4) 

needs to be revised, the rule provides 

that BLM will re-estimate its reasonable 

processing costs under section 

3000.11(b)(4)(i). There is no fee in this 

rule for BLM’s processing of a PoO that 

does not require an EIS. Therefore, the 

processing that BLM performs up to the 

point where a decision is made that an 

EIS will or will not be required is not 

58866 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

charged to the applicant. In response to 

this and other comments, we have 

stated earlier in this preamble that when 

a determination is made during the 

processing of a PoO that an EIS is 

required, the processing costs will be 

tracked and charged to the applicant on 

a case-by-case basis only from that point 

forward. This same principle applies 

when a fixed fee is changed to a caseby-case fee under section 3000.11(a). 

A commenter said that third parties 

should not be permitted to appeal a 

BLM cost estimate because this could be 

used by opponents of the project as a 

delaying tactic. 

It is clear from the context of the 

regulatory text at section 3000.11(b)(7), 

and confirmed by the preamble 

discussion in the proposed rule at 70 FR 

41536–37, that only applicants may 

appeal a BLM cost estimate made under 

section 3000.11(b)(4). 

Several commenters expressed 

opposition to BLM’s proposed case-bycase fees because activities associated 

with case-by-case fee processing will 

add costs, especially when BLM has to 

re-evaluate cost estimates. 

BLM appreciates the commenters’

concern. However, we have not made 

changes to the final rule based on this 

comment. Means exist to keep costs 

down. For instance, an applicant should 

submit an application as complete as 

possible to allow BLM to provide an 

accurate initial cost estimate and to 

reduce BLM’s processing costs. BLM 

already uses an automatic accounting 

system to streamline this process. 

Commenters stated that a paying party 

should be permitted to audit BLM’s 

accounting in case-by-case situations. 

BLM disagrees that a paying party 

needs to audit BLM’s accounting in 

case-by-case situations. The process has 

been set up to provide estimates as close 

as possible to actual costs, with reestimates if BLM encounters higher or 

lower costs than anticipated. The 

applicant may appeal BLM’s estimates. 

The process provides that the applicant 

may comment on BLM’s written 

estimate of costs before BLM provides a 

final estimate. 

A commenter stated that section 

3800.5 contains provisions requiring 

applicants to pay for EISs and validity 

examinations if the Field Office requires 

them, and asserted that if the 

application is for a simple PoO, BLM 

has enough control to prevent severe 

environmental degradation. 

It appears that this comment 

addresses PoOs that do not require an 

EIS. This rule does not impose cost 

recovery for processing PoOs that do not 

require an EIS. We note that validity 

examinations are not directly related to 

preventing severe environmental 

degradation. 

A commenter stated that the proposed 

rule is inconsistent with the Mining and 

Mineral Policy Act of 1970, and that 

BLM should demonstrate that the 

proposed rule is consistent with the Act. 

The Mining and Mineral Policy Act of 

1970 (30 U.S.C. 21a) is a statement of 

Congressional policy relating to the 

benefits of mineral production to our 

society. BLM continues to support a 

healthy domestic mining industry. This 

rule is not expected to affect the nation’s 

domestic mining industry adversely. 

A commenter raised the findings of a 

2001 General Accounting Office (now 

the Government Accountability Office—

GAO) Report titled ‘‘Improper Charges 

Made to the Mining Law Administration 

Program’’ (GAO–010356), which stated 

BLM employees had improperly coded 

various activities to the MLAP, 

potentially resulting in an overcharge of 

about $1.2 million. The commenter 

asked BLM to withdraw the fee 

proposals until BLM implements 

appropriate training programs and 

provides detailed guidance. 

BLM has remedied the problems the 

commenter identified. In fiscal year 

2002, BLM removed all pertinent 

moneys from the State Offices that had 

miscoded the funds and placed these 

moneys into a central BLM account. 

BLM modernized its computer system 

for the field offices to use specifically 

for the surface management program 

and provided additional training 

courses at BLM’s National Training 

Center for its mineral specialists that 

work in the surface management and 

mineral examination programs. In the 

same manner, additional training 

courses were held for BLM’s 

adjudication staff that process mining 

claim documents and files. 

A commenter recommended that the 

GAO evaluate BLM’s need for cost 

recovery. 

As explained in the preamble to the 

proposed rule, OIG reports in the 1980s 

and 1990s examined BLM’s need for 

cost recovery for processing mineralsrelated documents. The OIG 

recommended that BLM establish and 

collect processing fees for all nonexempt types of documents. We believe 

this independent OIG report provides a 

sufficient audit of BLM activities related 

to minerals cost recovery. We do not 

believe any further audits are necessary 

before BLM goes forward with this rule. 

A commenter said that an $80.00 

processing fee to file a petition for 

deferment is inappropriate for the time 

required to determine whether an 

application is valid. 

We disagree with the commenter’s 

view of the work involved in 

determining whether a petition meets 

the regulatory requirements. Processing 

a petition for a deferment is timeconsuming, as there are several steps 

involved in processing the document, 

including verifying the reason for the 

deferment. BLM must issue a formal 

decision and properly note the official 

records, costing the BLM both staff time 

and expenditure of operations funds. 

A commenter opposed the proposed 

fees for non-patent validity exams, 

stating that these reports are being 

initiated by the agency to challenge the 

validity of the claim. 

It is BLM’s responsibility under its 

regulations to confirm the validity of a 

claim, including making a common 

variety determination, before allowing 

operations to proceed on withdrawn or 

segregated land, and in circumstances 

where the mineral claimed may not be 

locatable. See 43 CFR sections 3809.100 

and 3809.101. The mining claimant is 

the beneficiary, as the examination 

enables BLM to act on the application. 

A commenter expressed concern that 

the proposed rule indicates that BLM is 

going to perform mineral validity exams 

for most PoOs and Notices. 

As discussed earlier in this preamble, 

we have clarified section 3800.5 to 

address this concern. Nothing in this 

rule changes BLM’s policies on when it 

conducts a mineral examination. 

A commenter noted that DOI 

published new policies on NEPA 

recently. They stated that in view of 

these policies and procedures, if BLM 

proceeds with this proposal for case-bycase fees for processing PoOs requiring 

preparation of an EIS, BLM needs to 

ensure that it will comply with its own 

policies and procedures implementing 

NEPA. 

This rule does not affect BLM’s 

obligation to comply with NEPA. BLM’s 

policies concerning NEPA compliance 

are controlled by the regulations and 

guidelines issued by the Council on 

Environmental Quality, applicable 

Departmental policy, and other 

applicable law. 

A commenter questioned the 

interplay between the proposed rule at 

section 3800.5(b) and the current 

regulations at section 3809.101. The 

commenter stated that under the 

proposed rule, if the applicant believes 

that uncommon variety minerals exist 

on its claim, it must first pay a case-bycase processing fee to conduct a validity 

examination as well as pay a processing 

fee on a case-by-case basis for 

processing a PoO. The commenter stated 

that discovery of minerals falling 

outside the ‘‘common variety mineral’’

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58867 

classification should exempt the 

claimant from the requirement of a 

validity examination, and that the final 

rule should clarify this situation. 

This rule does not impose a fee for 

processing PoOs that do not require an 

EIS. BLM would require the applicant to 

pay a case-by-case fee for a common 

variety determination under 43 CFR 

3809.101 only when a question exists as 

to whether the mineral to be extracted 

is locatable under the Mining Law of 

1872. If the claimant submits sufficient 

information to BLM that the mineral 

material is uncommon or that there is 

clearly a discovery of a valuable mineral 

deposit upon the claims, then the issue 

may be resolved without proceeding to 

a formal mineral examination. In this 

instance, the case-by-case cost will be 

minimal. 

A commenter asked BLM to provide 

assurances that we will not decide that 

all PoOs require an EIS merely to allow 

BLM to recoup all its processing costs. 

BLM is not revising the existing 

procedures and protocols for 

determining if an EIS is needed. 

Existing Council on Environmental 

Quality, DOI, and BLM guidance 

determines when an EIS is required. 

A commenter stated that BLM might 

use these new fees as an administrative 

tool to drive out holders of valid 

existing rights under the Mining Law. 

BLM does not believe this rule will 

adversely affect those who hold valid 

existing rights to any significant degree. 

The rule is not intended to deny or 

extinguish prior existing rights. These 

fees are set at reasonable levels based on 

the FLPMA Section 304(b) factors as 

explained in the preamble of the 

proposed rule. (70 FR 41537–41543). 

For a discussion of the possible impact 

of this rule on the validity of mining 

claims, see 70 FR 41538. 

A commenter stated that imposing a 

mineral patent adjudication fee of 

$2,290 where none had been required is 

not reasonable. Several other 

commenters objected to the fee structure 

proposed for mineral patent 

applications, saying that a fixed fee for 

a patent application regardless of the 

number of claims is unfair to smaller 

operations involving fewer than 40 

claims. Likewise, they contended that it 

unfairly benefits large operators that 

apply for patents on large claim blocks. 

The comment concluded that BLM 

should retain the current ‘‘sliding scale’’

fee. 

In response to these comments, we 

amended the mining claim patent 

application adjudication fee so that 

patent applications covering 10 or fewer 

claims will be charged only half the cost 

recovery fee that applications with more 

than 10 claims will be charged. We 

selected the 10-claim threshold because 

that is the number Congress chose to 

define the class of miners who may 

perform assessment work in lieu of 

paying the claim maintenance fee. The 

adjudication fee in the proposed rule 

was a fixed fee based on a weighted 

average of BLM’s adjudication costs. We 

believe that the commenters may have 

a valid concern and that it may be more 

reasonable to base the adjudication fees 

on the per claim costs depending on 

how many claims are included in an 

application. BLM plans to reassess its 

costs of adjudication and may propose 

a revision to this fee in the future. In 

this final rule, we decided that it was 

reasonable to phase in the adjudication 

fee for patent applications that contain 

10 or fewer claims. A discussion of 

phasing in fees is contained in the 

preamble to the proposed rule at 70 FR 

41533. This rule contains the first step 

of this phased-in fee. 

A commenter said the fact that 

acquiring a patent is voluntary and not 

required by law does not justify 

imposing a fee. 

We agree that the mere fact that 

acquiring a patent is voluntary is not a 

justification for requiring a processing 

fee. All processing fees in this rule, 

including those related to patent 

applications, are based on special 

benefits to identifiable beneficiaries 

beyond those provided to the general 

public. BLM’s review of a patent 

application provides a special benefit to 

the applicant. 

The commenter asked that the final 

rule clarify whether subpart 3809 

notices are exempt from fees because 

they are not Federal actions. 

Under this final rule, we are not 

charging fees for reviewing notices 

except where a validity examination is 

performed. As explained in Solicitor’s 

Opinion M–36987 (Dec. 5, 1996) at page 

25, ‘‘[f]iling a notice under this section 

triggers agency review, which provides 

a special benefit to an identifiable 

recipient. BLM thus has authority to 

recover the agency costs of processing 

notices * * *.’’ However, under section 

3800.5(b) of the final rule, we are only 

exercising this authority in the limited 

context of validity examinations 

performed in connection with notices. 

A commenter said that BLM’s 

proposed fixed fees, such as $2,290 for 

Mineral Patent Adjudication, that are 

not appealable violate their right to due 

process, and non-appealable fees must 

be set at a low and reasonable amount. 

BLM disagrees that the fixed fees 

violate due process. The fees were 

published in a proposed rule that 

allowed for public comment, and this 

final rule, including the fixed fees, is 

subject to challenge. The fee for a 

mineral patent adjudication is based on 

BLM’s average costs. In the preamble to 

the proposed rule, we listed the 

processing steps involved in a mineral 

patent adjudication (70 FR 41539). As 

explained earlier in this preamble, in 

response to other comments, we have 

revised the final rule to phase in the 

processing fee for mineral patent 

adjudications that include 10 or fewer 

claims. 

One commenter raised a question 

regarding how BLM should proceed in 

a specific situation in which an escrow 

account was set up under 43 CFR part 

3809. 

The comment addressed a 

hypothetical factual dispute following a 

specific IBLA decision and was not 

directly related to the processing fees 

imposed by this rule. 

A commenter stated that the cost 

recovery regulations would result in 

sanctions or penalties on persons who 

propose mining operations rather than 

charging mineral claimants for special 

benefits. 

The fees in this rule are not penalties. 

They are intended to recover BLM’s 

reasonable costs of processing 

associated with special benefits to 

identifiable beneficiaries and are 

recoverable under FLPMA and the 

IOAA. 

A commenter stated that most of the 

costs the rule would recover are the 

result of laws and regulations 

specifically created to protect the 

public. Therefore, according to the 

commenter, the public should be paying 

these costs with their tax dollars. 

As discussed earlier in this preamble, 

the actions for which BLM will recover 

costs under this rule are undertaken as 

a direct result of an application that will 

provide a special benefit to the 

applicant. Any incidental benefit that 

BLM’s processing actions may also 

provide to the public was considered as 

part of BLM’s consideration of the 

FLPMA reasonableness factors for the 

fixed fees, and will be considered on an 

individual basis for the case-by-case 

fees. 

One commenter supported fee 

increases, saying that taxpayers should 

not subsidize mining and mineral 

companies. The commenter also 

asserted that the 1872 Mining Law 

should be replaced with new provisions 

requiring mining companies to pay the 

full cost of associated expenses when 

they benefit from mining activity. 

This rule implements recovery of 

some of the costs of processing 

documents associated with mineral 

activities on the public lands. It is not 

58868 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

necessary to change the 1872 Mining 

Law to implement these cost recovery 

fees. 

A commenter stated that BLM should 

remove section 3000.11, asserting that 

the inadequacy of BLM’s funding 

should not prevent an applicant’s 

document from being processed. 

The commenter appears to have 

misinterpreted section 3000.11(b)(4)(ii), 

which provides that if BLM determines 

that a case-by-case fee will be set at an 

amount less than BLM’s actual costs due 

to the FLPMA reasonableness factors, 

and BLM does not have sufficient 

appropriated funds available to process 

the document immediately, an applicant 

has the option of paying BLM’s actual 

costs (unreduced by FLPMA factor 

considerations), which would enable 

BLM to process the document without 

waiting for additional appropriated 

funds. If an applicant does not wish to 

pay actual costs, BLM will process the 

document as soon as it is able. We do 

not expect that this situation will arise 

often. Many companies now pay actual 

costs for the preparation of 

environmental studies in connection 

with an application. We included this 

option to allow applicants to continue 

that practice if they wish to do so. 

IV. Procedural Matters 

Executive Order 12866, Regulatory 

Planning and Review 

OMB has determined that this final 

rule is a significant regulatory action 

under Executive Order 12866. BLM has 

determined that the rule will not have 

an annual effect on the economy of $100 

million or more. It will not 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. 

This determination is based on the 

analysis that BLM prepared in 

conjunction with this rule. For 

instructions on how to view a copy of 

the analysis, please contact one of the 

persons list under FOR FURTHER

INFORMATION CONTACT. 

This rule will not create 

inconsistencies or otherwise interfere 

with an action taken or planned by 

another agency. This rule does not 

change the relationships of the onshore 

minerals programs with other agencies’

actions. These relationships are 

included in agreements and memoranda 

of understanding that would not change 

with this rule. 

In addition, this final rule does not 

materially affect the budgetary impact of 

entitlements, grants, loan programs, or 

the rights and obligations of their 

recipients. However, this rule does 

propose to increase existing fees, and 

create new fees, for processing 

documents associated with the onshore 

minerals programs. This occurs because 

of recommendations made by the OIG 

(Report Nos. 89–25, 92–I–828, 95–I–379, 

and 97–I–1300) as well as the IOAA, 31 

U.S.C. 9701, and FLPMA, 43 U.S.C. 

1734. As stated earlier in this preamble, 

the IOAA and Section 304 of FLPMA 

authorize BLM to charge applicants the 

cost of processing documents. In 

addition, the IOAA states that these 

charges should cover the agency’s costs 

for these services to the degree 

practicable. 

The OIG reports documented the 

budgetary impact of delaying collection 

of fees to reimburse agency costs, and 

strongly admonished BLM to collect the 

fees in this final rule. Finally, this rule 

will not raise novel legal issues. The 

minerals industry may object, but the 

legal issues are not novel. Circular A–

25 and the Departmental Manual require 

the collection of processing fees. The 

rule does implement new policy for the 

minerals programs. 

A commenter stated that the proposed 

rule violates Executive Order 12866 by 

ignoring the ‘‘costs and benefits’’ of 

mineral development, such as the huge 

financial risk to the developer and huge 

benefits these minerals provide to 

society. 

We disagree that BLM ignored the 

costs and benefits of this rule. We have 

estimated the cost of the rule, in the 

form of higher fees, to be approximately 

$7 million annually. BLM has also 

concluded that there would be no 

measurable reduction in economic 

activity due to these fees. BLM also 

noted that by instituting cost recovery, 

the rule ensures that the applicants bear 

the cost of processing applications, 

rather than the general public. The 

preamble to the proposed rule explained 

that waiving or reducing these fees 

would simply mean that United States 

taxpayers would bear the costs that the 

applicant who directly benefits was not 

bearing. The benefits to the taxpaying 

public that underlie the statutory 

authorizations and policy mandates for 

cost recovery, weighed against the costs 

to the applicants who benefit from the 

processing activities, in light of BLM’s 

determination that the fees would cause 

no measurable reduction in economic 

activity, support this final rule. 

Regulatory Flexibility Act 

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.). A Regulatory Flexibility 

Analysis was not required. Accordingly, 

a Small Entity Compliance Guide is not 

required. 

For the purposes of this discussion, a 

small entity is defined by the Small 

Business Administration (SBA) for 

mining (broadly inclusive of metal 

mining, coal mining, oil and gas 

extraction, and the mining and 

quarrying of nonmetallic minerals) as an 

individual, limited partnership, or small 

company considered to be at arm’s 

length from the control of any parent 

companies, with fewer than 500 

employees. The SBA defines a small 

entity differently, however, for leasing 

Federal land for coal mining: a coal 

lessor is a small entity if it employs not 

more than 250 people, including people 

working for its affiliates. The SBA 

would consider most of the operators 

that BLM works with in the onshore 

minerals programs to be small entities. 

BLM notes that this rule does not apply 

to service industries, for which the SBA 

has a different definition of ‘‘small 

entity.’’

BLM is aware that this rule will affect 

a large number of small entities since 

nearly all of them will face fee increases 

for activities on public lands. However, 

we have concluded that the effects will 

not be significant. As presented in the 

analysis prepared by BLM, and available 

as an attachment to the Record of 

Compliance for this final rule, except for 

mineral materials, when the total fee 

increases paid by these entities are 

expressed as a percentage of their sales 

value, it is clear that the relative size 

and effect of the fees are very small and 

that the increases will have no 

measurable effect on these entities. We 

completed a threshold analysis, which 

is available for public review at the 

address stated under ADDRESSES. The 

Threshold Analysis BLM prepared for 

the proposed rule of July 19, 2005, has 

been updated to reflect changes made in 

this final rule. These included adjusting 

the fixed fees and estimated case-bycase costs for inflation, and 

incorporating more current firm and 

receipt data published by the U.S. 

Bureau of Census, U.S. Minerals 

Management Service, and BLM into the 

analysis. 

In the area of mineral materials, the 

fee increases only apply to exclusive 

mineral materials sales. The fee 

increases do not apply to nonexclusive 

sale applications (community pits and 

common use areas) or to free use permit 

applications. The fee increases are 

estimated to be 12.82 percent of the 

reported production value for exclusive 

mineral materials sales. (In the analysis 

conducted for the proposed rule, we 

reported the fee increases for exclusive 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58869 

mineral materials sales to be 25.65 

percent of the reported production data 

for 1997. For the revised analysis for the 

final rule, we were able to obtain 2002 

production data. This dramatic 

reduction to 12.82 percent is due to the 

significant increase in mineral materials 

production value coming from Federal 

lands. In 1997, mineral material 

production value from Federal lands 

was approximately $3.6 million. For 

2002, the reported production value was 

over $7.4 million.) Without further 

analysis, this percentage might suggest 

the potential of a significant impact on 

operators, including small entities, 

operating on Federal lands. However, a 

number of factors mitigate this potential 

impact. 

The most significant factor in 

mitigating the potential impact of the 

fee increases is that mineral materials 

are sold for fair market value. To the 

extent the fees in the final rule increases 

the cost of obtaining mineral materials 

from BLM, the appraised value will 

reflect these higher costs. Any fee 

increases will be offset by lower 

appraised values potentially resulting in 

no effect on operators, including small 

entities, on Federal lands. 

We note that in all areas, most of the 

fees are charged only once and, 

generally, the impact is spread over 

several years of industry production. 

This has the effect of lessening the 

impact even further. In addition, as with 

mineral materials, lease sales are for fair 

market value, so we can expect bonus 

bids to reflect the new or increased 

costs. 

For many document types, BLM will 

establish charges on a case-by-case 

basis. In these situations, the applicant/ 

operator has the opportunity to present 

data to BLM on the reasonableness of 

the fees using the FLPMA factors. If, for 

example, the entity is small and has a 

small operation, the monetary value 

factor may cause BLM to reduce the 

fee(s). 

One commenter asserted that BLM’s 

Threshold Analysis should have looked 

at Internal Revenue Service (IRS) data to 

determine the profit margin for different 

mineral sectors, which could be used to 

determine the ability of small entities to 

pay the new fees and thus whether the 

rule would have a significant impact on 

small entities. The commenter requested 

that BLM withdraw the proposed rule 

and re-conduct its Threshold Analysis. 

In response to this comment, between 

the publication of the proposed rule and 

the publication of this final rule, BLM 

reviewed the most recent IRS tax return 

information for corporations operating 

within the mining sector. The IRS data 

was not broken down by number of 

employees and thus could not be 

exactly correlated with the SBA 

definition of small entities. The data 

could, however, be analyzed on the 

basis of reported assets, and we 

therefore evaluated that data and 

compared the fee increases to reported 

net income by groupings based on dollar 

value of assets. 

The analysis we originally performed, 

based on a comparison of fee increases 

to receipts, showed that, for all minerals 

areas except mineral materials, the fee 

increases in this rule are less than 1% 

of receipts from Federal lands. The more 

recent review, based on similar IRS 

data, corroborates our conclusion that 

fees will not have a significant impact 

on a substantial number of small 

entities. The complete Threshold 

Analysis is available for public review 

at the address stated under ADDRESSES. 

Some commenters expressed their 

opposition to the proposed rule because 

they asserted that it would place an 

unfair regulatory and financial burden 

on small miners. Some commenters 

asserted that BLM’s conclusion that the 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities was 

based on an inadequate, incomplete, 

and flawed Threshold Analysis, and 

therefore a Regulatory Flexibility 

Analysis is required. 

We have analyzed the impact of this 

rule on small miners involved in the 

exploration and development of energy 

and mineral resources on Federal lands 

based on the Small Business 

Administration’s (SBA) guidance, 

including SBA’s definition of small 

entities. In the analysis we first 

identified number of firms and reported 

receipts by firm size (based on number 

of employees) for entities involved in 

the exploration and extraction of energy 

and mineral resources in the United 

States. This data enabled us to identify 

the number of firms that qualify as small 

entities under the SBA definition and 

the receipts of those firms. This national 

data was obtained from the most recent 

industrial statistical data available from 

the U.S. Census Bureau (http:// 

www.census.gov/csd/susb). 

Next, we identified receipts generated 

from energy and mineral extraction from 

Federal lands. Receipt data for leasable 

resources (oil, gas, geothermal, coal, and 

other non-energy resources) was 

obtained from the U.S. Department of 

the Interior, Minerals Management 

Service, Minerals Revenue 2000, Report 

of Receipts from Federal and Indian 

Leases (http://www.mrm.mms.gov/ 

Stats/mr.htm), and Reported Royalty 

Revenue Statistics for Fiscal Years 2001 

through 2004. Mineral materials sales 

data was obtained from the U.S. 

Department of the Interior, Bureau of 

Land Management, Public Land 

Statistics, 2002, Disposition of Mineral 

Materials (http://www.blm.gov/natacq/ 

pls02/). BLM does not systematically 

collect production or production value 

information for mining activity 

authorized under the Mining Law of 

1872. Thus, we relied on estimates of 

production value for locatable minerals 

in our analysis. 

Based on the national numbers of 

entities involved in the mining sector 

and the number of those that would be 

classified as small entities by SBA, we 

projected the percentage of revenue that 

would be attributable to small entities 

operating on Federal lands. To measure 

the annual total fee increase of the fees 

we relied on the increases in the fixed 

fees, estimated increases for the case-bycase fees, and projections of the annual 

number of filings of each type of 

application. Finally, we compared these 

total fee increases to the receipt 

information for small mining entities 

operating on Federal lands. 

Based on this analysis, we concluded 

that the impact of this rule will not be 

disproportionately borne by small 

entities, including small miners, and the 

impact of fees on small entities, as 

defined by the SBA, will not have a 

significant impact on a substantial 

number of small businesses. In addition, 

the economic impact of the rule is not 

expected to be significant. We estimate 

the cost of the rule, in the form of higher 

fees, will be approximately $7 million 

annually. Because BLM has determined 

and certified that the rule will not 

significantly affect a substantial number 

of small entities, it is not necessary to 

conduct a Regulatory Flexibility 

Analysis. 

One commenter urged BLM to 

establish limits on fees based on the size 

of the company. 

BLM’s Regulatory Flexibility Analysis 

examined the impact of fees on small 

businesses as defined by the SBA and 

concluded that they will not have a 

significant impact on a substantial 

number of small businesses. Therefore, 

BLM sees no need to institute separate 

fees based on the size of the company. 

However, the fees with the highest 

increases are generally those determined 

on a case-by-case basis. If an entity 

proposes an operation that will be 

subject to a case-by-case fee, the 

applicant will have the opportunity to 

request that BLM consider a lower fee 

based on the applicable FLPMA factors. 

In addition, for fees established on a 

case-by-case basis, the applicant may 

appeal BLM’s decision concerning the 

58870 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

fee amount if the applicant thinks it is 

unreasonable. 

A commenter opposed BLM’s 

statement in the preamble that ‘‘[t]he 

smaller the entity, the more likely it is 

that the application will seek to patent 

fewer mining claims, reducing the time 

needed for BLM’s mineral 

examination.’’ (70 FR 41544) The 

comment stated that this indicates that 

BLM still does not understand the 

requirements of the RFA and SBRFA, 

and questioned the validity of the RFA. 

The statement cited in the comment 

was not part of BLM’s Regulatory 

Flexibility Act Threshold Analysis, but 

was included in the preamble to the 

2005 proposed rule. The statement was 

intended to express the logical 

assumption that patent applications 

containing fewer claims will most likely 

require less time for BLM to conduct the 

mineral examination, resulting in lower 

mineral examination costs. 

A commenter observed that the 

Threshold Analysis states that 

‘‘significance must be determined on a 

case-by-case basis. Significance should 

not be viewed in absolute terms, but 

should be seen as relative to the size of 

the business, the size of the competitor’s 

business, and the impact the regulation 

has on larger competitors.’’ The 

commenter submitted that BLM ignored 

this statement in preparing its RFA 

Threshold Analysis and reached the 

incorrect conclusion that a Regulatory 

Flexibility Analysis is not required. The 

commenter believes BLM’s use of 

production value to measure 

‘‘significance’’ leads to a flawed 

analysis, because all the fees in the 

proposed rule would be imposed and 

collected many years before a small 

entity would realize production value 

from a mine. Thus, according to the 

commenter, production value is an 

inappropriate measure of significance, 

and using production value as a 

‘‘proxy’’ for a small entity’s ability to 

pay skews the analysis toward a finding 

of ‘‘no significant impact.’’

The Threshold Analysis prepared by 

BLM to assess the significance of the 

rule on small entities does not rely on 

absolute terms or values. We did 

estimate the fee increases in absolute 

terms. However, we also compared 

those absolute fee increases to the firms’

reported production values. By viewing 

the fee increases in relation to reported 

production values, by entity size, we 

were able to arrive at a measure of the 

relative significance of the effect of the 

fee increases on different size business 

entities. 

We believe that production value is a 

reasonable measure of the significance 

of the impact on small miners. Revenue 

generated from the production of 

discovered resources is ultimately the 

source of income for any entity to cover 

all of its costs, including processing 

fees. While the commenter is correct 

that many fees must be paid well in 

advance of production, in this regard 

fees are no different from other costs 

that an entity incurs well in advance of 

production, such as exploration costs 

and many capital costs. 

A commenter stated that many 

individual miners or companies have 

significantly fewer than 500 employees, 

and that BLM did not analyze the 

impact of its proposed rule on what 

amounts to a significant population of 

the U.S. mining community. 

As discussed above, the Threshold 

Analysis differentiated between receipt 

information reported for entities with 

fewer than 500 employees and those 

entities with 500 or more employees. 

This is the SBA definition of a small 

entity, which is the definition that BLM 

is required to use in its analysis. At the 

recommendation of a commenter, we 

also reviewed IRS net income 

information in the revised analysis. 

However, as discussed earlier, the 

additional analysis is based on entities’

assets, not number of employees as 

required by SBA, because of the way the 

IRS data was broken down. However, 

the subgroup of entities with less than 

$500,000 in assets is likely to be the 

smallest of those entities that would be 

classified as small entities by SBA. The 

analysis of this subgroup corroborated 

our conclusion that fees will not have a 

significant impact on a substantial 

number of small entities. 

A commenter suggested that BLM 

needs to include copper, silver, lead, 

zinc, bentonite, and other locatable 

minerals in its Threshold Analysis. 

In our analysis, we included all 

locatable minerals. We did not 

differentiate between industrial 

locatable minerals and metallic 

locatable minerals, or by specific 

mineral or commodity. The commenter 

may have been confused because we 

used an example that mentioned gold. 

All firms exploring and developing 

locatable minerals will be subject to the 

same fees, regardless of the mineral 

located. 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) 

This final rule is not a ‘‘major rule’’

as defined at 5 U.S.C. 804(2). The rule: 

• Will not have an annual effect on 

the economy greater than $100 million; 

• Will not result in major cost or 

price increases for consumers, 

industries, government agencies, or 

regions; 

• Does not have a significant adverse 

effect on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

BLM completed a Threshold Analysis 

for this rule, which is available for 

public review at the address stated 

under ADDRESSES. 

Unfunded Mandates Reform Act 

BLM has determined that this final 

rule is not significant under the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1532, because it will not 

result in state, local, private sector, or 

Tribal government expenditures of $100 

million or more in any one year. This 

rule will not significantly or uniquely 

affect small governments. Therefore, 

BLM is not required to prepare a 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1501 et seq.) 

Executive Order 12630, Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights (Takings) 

The final rule does not represent a 

government action capable of interfering 

with constitutionally protected property 

rights. The rule has no bearing on 

property rights, but only concerns 

recovery of government processing costs 

for actions that benefit certain entities 

that acquire rights and extract publicly 

owned resources. Therefore, the DOI 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 

In accordance with Executive Order 

13132, the rule does not have significant 

effects on federalism, and therefore a 

federalism assessment is not required. 

The rule does not change the role or 

responsibilities between Federal, state, 

and local government entities. The rule 

does not relate to the structure and role 

of states and will not have direct, 

substantive, or significant effects on 

states. It may result in a slight decrease 

in bonus bids, which BLM shares with 

the states and other revenue recipients. 

However, the effect would be negligible 

over the life of a lease. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, BLM has determined that this 

final rule does not include policies that 

have Tribal implications. A key factor is 

whether the rule has substantial direct 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58871 

effects on one or more Indian Tribes. 

BLM has not found any substantial 

direct effects. Consequently, BLM did 

not utilize the consultation process set 

forth in section 5 of the Executive 

Order. 

Executive Order 12988, Civil Justice 

Reform 

In accordance with Executive Order 

12988, BLM finds that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

A few commenters expressed concern 

that the rule will unduly burden the 

judicial system contrary to Executive 

Order 12988. They said there would be 

an increase in IBLA appeals based on 

the increased case-by-case fees, such as 

fees associated with validity exams. 

Executive Order 12988 does not apply 

to administrative appeals to the IBLA. 

Moreover, BLM does not believe that the 

rule will result in a significant increased 

burden on the judicial system. Although 

there is the possibility that appeals to 

IBLA will increase, especially during 

early implementation of the final rule, 

the potential number of administrative 

appeals does not justify removing caseby-case fees from the rule. 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

OMB must approve at this time under 

the Paperwork Reduction Act of 1995, 

44 U.S.C. 3501 et seq. This rule 

potentially affects the following 

information requirements approved 

under the provisions of the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501 

et seq.: 

1004–0025, Mineral Surveys, Mineral 

Patent Applications, Adverse Claims, 

Protests, and Contests; 

1004–0034, Oil and Gas Lease 

Transfers; 

1004–0073, Coal Management; 

1004–0074, Oil and Gas and 

Geothermal Resources Leasing; 

1004–0103, Mineral Materials 

Disposal; 

1004–0114, Payment and Recordation 

of Location Notices and Annual Filings 

for Mining Claims, Mill Sites, Tunnel 

Sites; 

1004–0121, Leasing of Solid Minerals 

Other Than Coal and Oil Shale; 

1004–0132, Geothermal Leasing 

Reports and Resources Leasing and 

Drilling Operations; 

1004–0137, Requirements for 

Operating Rights Owners and Operators; 

1004–0169, Use and Occupancy; 

1004–0185, Oil and Gas Exploration, 

Leasing, and Drainage Operations; and 

1004–0194, Surface Management 

Activities Under the General Mining 

Law. 

This rule affects the information 

collections just listed not by decreasing 

or increasing the information 

requirements described in these 

collections, but by establishing or 

changing the costs of filing the 

applications and reports included in 

these collections. BLM will file change 

notices with OMB to reflect the new or 

changed fees established by the final 

rule. 

National Environmental Policy Act 

BLM has determined that this rule is 

administrative and involves only 

procedural changes addressing fee 

requirements. Therefore, it is 

categorically excluded from 

environmental review under Section 

102(2)(C) of NEPA, pursuant to 516 

Departmental Manual (DM) 2.3A and 

516 DM 2, Appendix 1, Item 1.10. 

In addition, the rule does not meet 

any of the 10 criteria for exceptions to 

categorical exclusions listed in 516 DM 

2, Appendix 2. Pursuant to Council on 

Environmental Quality regulations (40 

CFR 1508.4) and the environmental 

policies and procedures of DOI, the term 

‘‘categorical exclusions’’ means 

categories of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment and which have been 

found to have no such effect in 

procedures adopted by a Federal agency 

and therefore require neither an EA nor 

an EIS. 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

In accordance with Executive Order 

13211, BLM finds that this final rule is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. The distribution of or use of 

energy would not be unduly affected by 

this rule. 

Several commenters asserted that the 

proposed regulation is contrary to 

Executive Order 13211 because the 

added financial disincentives could 

severely affect the supply and 

distribution of oil and gas, coal, and 

other energy resources. Some 

commenters said the proposed rule 

conflicts with E.O. 13211 because 

implementing these fee increases would 

delay energy projects. Another 

commenter said that E.O. 13211 requires 

BLM to prepare statements of Adverse 

Energy Effects. 

BLM disagrees. E.O. 13211 requires a 

Statement of Energy Effects for those 

matters identified as significant energy 

actions. The Order defines a significant 

energy action as one that is (1) both a 

significant regulatory action under E.O. 

12866 and likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy, or (2) 

designated by the Administrator of the 

Office of Information and Regulatory 

Affairs (OIRA) as a significant energy 

action. 

This rule meets neither of those 

criteria. It has not been designated by 

OIRA as a significant energy action. Nor 

is it likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. As discussed earlier in this 

preamble and in greater detail in the 

Regulatory Flexibility Act Threshold 

Analysis prepared in connection with 

this rule, any financial disincentives 

from this rule will be very small. Given 

the relatively high economic value 

associated with the various energy and 

mineral filings affected by this rule, we 

do not expect that the fees in this rule 

will cause an entity to cease or 

significantly alter its operations. Nor do 

we expect the fees to delay energy 

projects. The procedures in the rule for 

case-by-case fees provide that projects 

can move forward even while a fee is 

being revised or appealed. 

Executive Order 13352, Facilitation of 

Cooperative Conservation 

In accordance with E.O. 13352, BLM 

has determined that this rule is purely 

administrative and does not affect 

cooperative conservation. This rule 

takes appropriate account of and 

considers the interests of persons with 

ownership or other legally recognized 

interests in land or other natural 

resources because it does not interfere 

with such interests. It is solely a Federal 

responsibility not involving state or 

local participation, and has no impact 

on public health and safety. 

Authors 

The principal authors of this final rule 

are: William Gewecke, Gordon Hansen, 

Paul McNutt, Roger Haskins, and 

Stephen Salzman of the Fluid and Solid 

Minerals Groups, assisted by the 

Regulatory Affairs Group, Bureau of 

Land Management, DOI, and the Office 

of the Solicitor, DOI. 

List of Subjects 

43 CFR Part 3000 

Public lands—mineral resources, 

Reporting and recordkeeping 

requirements. 

43 CFR Part 3100 

Government contracts, Mineral 

royalties, Oil and gas exploration, 

58872 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

Public lands—mineral resources, 

Reporting and recordkeeping 

requirements, Surety bonds. 

43 CFR Part 3110 

Government contracts, Oil and gas 

exploration, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements. 

43 CFR Part 3120 

Government contracts, Mineral 

royalties, Oil and gas exploration, 

Public lands—mineral resources, 

Reporting and recordkeeping 

requirements. 

43 CFR Part 3130 

Alaska, Government contracts, Oil 

and gas exploration, Oil and gas 

reserves, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements, Surety bonds. 

43 CFR Part 3200 

Environmental protection, 

Geothermal energy, Government 

contracts, Mineral royalties, Public 

lands—mineral resources, Reporting 

and recordkeeping requirements, Surety 

bonds. 

43 CFR Part 3470 

Coal, Government contracts, Mineral 

royalties, Mines, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements, Surety bonds. 

43 CFR Part 3500 

Government contracts, Hydrocarbons, 

Mineral royalties, Mines, Phosphate, 

Potassium, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements, Sodium, Sulfur, Surety 

bonds. 

43 CFR Part 3600 

Public lands—mineral resources, 

Reporting and recordkeeping 

requirements. 

43 CFR Part 3800 

Administrative practice and 

procedure, Environmental protection, 

Intergovernmental relations, Mines, 

Public lands—mineral resources, 

Reporting and recordkeeping 

requirements, Surety bonds, Wilderness 

areas. 

43 CFR Part 3830 

Mineral royalties, Mines, Public 

lands—mineral resources, Reporting 

and recordkeeping requirements. 

43 CFR Part 3833 

Mines, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements. 

43 CFR Part 3835 

Mines, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements. 

43 CFR Part 3836 

Mines, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements. 

43 CFR Part 3860 

Mines, Public lands—mineral 

resources, Reporting and recordkeeping 

requirements. 

43 CFR Part 3870 

Public lands—mineral resources, 

Adverse claims, Reporting and 

recordkeeping requirements. 

Dated: September 15, 2005. 

Chad Calvert, 

Acting Assistant Secretary, Land and 

Minerals Management. 

■ Accordingly, for the reasons stated in 

the preamble and the authorities stated 

below BLM amends parts 3000, 3100, 

3110, 3120, 3130, 3200, 3470, 3500, 

3600, 3800, 3830, 3833, 3835, 3836, 

3860, and 3870 of Title 43 of the Code 

of Federal Regulations as set forth 

below: 

Subchapter C—Minerals Management 

(3000) 

PART 3000—MINERALS 

MANAGEMENT GENERAL 

■ 1. Revise the authority citation for part 

3000 to read as follows: 

Authority: 16 U.S.C. 3101 et seq.; 30 U.S.C. 

181 et seq., 301–306, 351–359, and 601 et 

seq.; 31 U.S.C. 9701; 40 U.S.C. 471 et seq.; 

42 U.S.C. 6508; 43 U.S.C. 1701 et seq.; and 

Pub. L. 97–35, 95 Stat. 357. 

Subpart 3000—General 

■ 2. Add § 3000.10 to read as follows: 

§ 3000.10 What do I need to know about 

fees in general? 

(a) Setting fees. Fees may be 

statutorily set fees, relatively nominal 

filing fees, or processing fees intended 

to reimburse BLM for its reasonable 

processing costs. For processing fees, 

BLM takes into account the factors in 

Section 304 (b) of the Federal Land 

Policy and Management Act of 1976 

(FLPMA) (43 U.S.C. 1734(b)) before 

deciding a fee. BLM considers the 

factors for each type of document when 

the processing fee is a fixed fee and for 

each individual document when the fee 

is decided on a case-by-case basis, as 

explained in § 3000.11. 

(b) Conditions for filing. BLM will not 

accept a document that you submit 

without the proper filing or processing 

fee amounts except for documents 

where BLM sets the fee on a case-bycase basis. Fees are not refundable 

except as provided for case-by-case fees 

in § 3000.11. BLM will keep your fixed 

filing or processing fee as a service 

charge even if we do not approve your 

application or you withdraw it 

completely or partially. 

(c) Periodic adjustment. We will 

periodically adjust fees established in 

this subchapter according to change in 

the Implicit Price Deflator for Gross 

Domestic Product, which is published 

annually by the U.S. Department of 

Commerce for the previous year. 

Because the fee recalculations are 

simply based on a mathematical 

formula, we will change the fees in final 

rules without opportunity for notice and 

comment. 

(d) Timing of fee applicability. (1) For 

a document BLM receives before 

November 7, 2005, we will not charge 

a fixed fee or a case-by-case fee under 

this subchapter for processing that 

document, except for fees applicable 

under then-existing regulations. 

(2) For a document BLM receives on 

or after November 7, 2005, you must 

include required fixed fees with 

documents you file, as provided in 

§ 3000.12(a) of this chapter, and you are 

subject to case-by-case processing fees 

as provided in § 3000.11 of this chapter 

and under other provisions of this 

chapter. 

■ 3. Add § 3000.11 to read as follows: 

§ 3000.11 When and how does BLM charge 

me processing fees on a case-by-case 

basis? 

(a) Fees in this subchapter are 

designated either as case-by-case fees or 

as fixed fees. The fixed fees are 

established in this subchapter for 

specified types of documents. However, 

if BLM decides at any time that a 

particular document designated for a 

fixed fee will have a unique processing 

cost, such as the preparation of an 

Environmental Impact Statement, we 

may set the fee under the case-by-case 

procedures in this section. 

(b) For case-by-case fees, BLM 

measures the ongoing processing cost 

for each individual document and 

considers the factors in Section 304(b) 

of FLPMA on a case-by-case basis 

according to the following procedures: 

(1) You may ask BLM’s approval to do 

all or part of any study or other activity 

according to standards BLM specifies, 

thereby reducing BLM’s costs for 

processing your document. 

(2) Before performing any case 

processing, we will give you a written 

estimate of the proposed fee for 

reasonable processing costs after we 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58873 

consider the FLPMA Section 304(b) 

factors. 

(3) You may comment on the 

proposed fee. 

(4) We will then give you the final 

estimate of the processing fee amount 

after considering your comments and 

any BLM-approved work you will do. 

(i) If we encounter higher or lower 

processing costs than anticipated, we 

will re-estimate our reasonable 

processing costs following the 

procedure in paragraphs (b)(1), (b)(2), 

(b)(3) and (b)(4) of this section, but we 

will not stop ongoing processing unless 

you do not pay in accordance with 

paragraph (b)(5) of this section. 

(ii) If the fee you would pay under 

this paragraph (b)(4) is less than BLM’s 

actual costs as a result of consideration 

of the FLPMA Section 304(b) factors, 

and we are not able to process your 

document promptly because of the 

unavailability of funding or other 

resources, you will have the option to 

pay BLM’s actual costs to process your 

document. This will enable BLM to 

process your document sooner. 

(iii) Once processing is complete, we 

will refund to you any money that we 

did not spend on processing costs. 

(5)(i) We will periodically estimate 

what our reasonable processing costs 

will be for a specific period and will bill 

you for that period. Payment is due to 

BLM 30 days after you receive your bill. 

BLM will stop processing your 

document if you do not pay the bill by 

the date payment is due. 

(ii) If a periodic payment turns out to 

be more or less than BLM’s reasonable 

processing costs for the period, we will 

adjust the next billing accordingly or 

make a refund. Do not deduct any 

amount from a payment without our 

prior written approval. 

(6) You must pay the entire fee before 

we will issue the final document. 

(7) You may appeal BLM’s estimated 

processing costs in accordance with the 

regulations in part 4, subpart E, of this 

title. You may also appeal any 

determination BLM makes under 

paragraph (a) of this section that a 

document designated for a fixed fee will 

be processed as a case-by-case fee. We 

will not process the document further 

until the appeal is resolved, in 

accordance with paragraph (b)(5)(i) of 

this section, unless you pay the fee 

under protest while the appeal is 

pending. If the appeal results in a 

decision changing the proposed fee, we 

will adjust the fee in accordance with 

paragraph (b)(5)(ii) of this section. 

■ 4. Add § 3000.12 to read as follows: 

§ 3000.12 What is the fee schedule for 

fixed fees? 

(a) The table in this section shows the 

fixed fees that you must pay to BLM for 

the services listed for Fiscal Year 2006. 

These fees are nonrefundable and must 

be included with documents you file 

under this chapter. Fees will be adjusted 

annually according to the change in the 

Implicit Price Deflator for Gross 

Domestic Product (IPD–GDP) by way of 

publication of a final rule in the Federal 

Register, and will subsequently be 

posted on the BLM Web site (http:// 

www.blm.gov) before October 1 each 

year. Revised fees are effective each year 

on October 1. 

FY 2006 PROCESSING FEE TABLE

Document/action Fee 

Oil and Gas (Parts 3100, 3110, 3120, 3130): 

Noncompetitive lease application ............................................................................................................... $335 

Competitive lease application ..................................................................................................................... 130 

Assignment and transfer ............................................................................................................................. 75 

Overriding royalty transfer, payment out of production .............................................................................. 10 

Name change, corporate merger, or transfer to heir/devisee .................................................................... 175 

Leases consolidation .................................................................................................................................. 370 

Lease renewal or exchange ....................................................................................................................... 335 

Lease reinstatement, Class I ...................................................................................................................... 65 

Leasing under right-of-way ......................................................................................................................... 335 

Geothermal (Part 3200): 

Noncompetitive lease application ............................................................................................................... 335 

Competitive lease application ..................................................................................................................... 130 

Assignment and transfer of record title or operating right .......................................................................... 75 

Name change, corporate merger or transfer to heir/devisee ..................................................................... 175 

Lease consolidation .................................................................................................................................... 370 

Lease reinstatement ................................................................................................................................... 65 

Coal (Parts 3400, 3470): 

License to mine application ........................................................................................................................ 10 

Exploration license application ................................................................................................................... 275 

Lease or lease interest transfer .................................................................................................................. 55 

Leasing of Solid Minerals Other Than Coal and Oil Shale (Part 3500): 

Applications other than those listed below ................................................................................................. 30 

Prospecting permit application amendment ............................................................................................... 55 

Extension of prospecting permit ................................................................................................................. 90 

Lease renewal ............................................................................................................................................. 430 

Mining Law Administration (Parts 3800, 3830, 3850, 3860, 3870) 

Notice of Location * .................................................................................................................................... 15 

Amendment of location ............................................................................................................................... 10 

Transfer of mining claim/site ....................................................................................................................... 10 

Recording an annual FLPMA filing (§ 3835.30) .......................................................................................... 10 

Deferment of Assessment Work ................................................................................................................. 90 

Mineral Patent Adjudication ........................................................................................................................ 2,520 (more than 10 claims) 

..................................................................................................................................................................... 1,260 (10 or fewer claims) 

Adverse claim ............................................................................................................................................. 90 

Protest ......................................................................................................................................................... 55 

* The existing fee for recording a mining claim or site location (43 CFR 3833) is a total of $165. This includes the initial maintenance fee of 

$125 and one-time $30 location fee required by Statute and a $10 service charge. The service charge would become a processing fee and 

would increase to $15 under in the final rule making the total fee $170. 

58874 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

(b) The amount of a fixed fee is not 

subject to appeal to the Interior Board of 

Land Appeals pursuant to part 4, 

subpart E, of this title. 

PART 3100—OIL AND GAS LEASING 

■ 5. Revise the authority citation for part 

3100 to read as follows: 

Authority: 30 U.S.C. 181 et seq. and 351–

359; and 43 U.S.C. 1701 et seq. 

Subpart 3105—Cooperative 

Conservation Provisions 

■ 6. Amend § 3105.6 by revising the first 

sentence and adding a new sentence 

after the first sentence to read as 

follows: 

§ 3105.6 Consolidation of leases. 

BLM may approve consolidation of 

leases if we determine that there is 

sufficient justification and it is in the 

public interest. Each application for a 

consolidation of leases must include 

payment of the processing fee found in 

the fee schedule in § 3000.12 of this 

chapter. * * * 

Subpart 3106—Transfers by 

Assignment, Sublease, or Otherwise 

■ 7. Revise § 3106.3 to read as follows: 

§ 3106.3 Fees. 

Each transfer of record title or of 

operating rights (sublease) for each lease 

must include payment of the processing 

fee for assignments and transfers found 

in the fee schedule in § 3000.12 of this 

chapter. Each request for a transfer to an 

heir or devisee, request for a change of 

name, or notification of a corporate 

merger under § 3106.8, must include 

payment of the processing fee for name 

changes, corporate mergers or transfers 

to heir/devisee found in the fee 

schedule in § 3000.12 of this chapter. 

Each transfer of overriding royalty or 

payment out of production must include 

payment of the processing fee for 

overriding royalty transfers or payments 

out of productions found in the fee 

schedule in § 3000.12 of this chapter for 

each lease to which it applies. 

■ 8. Amend § 3106.4–3 by revising 

paragraph (d) to read as follows: 

§ 3106.4–3 Mass transfers. 

* * * * * 

(d) Include with your mass transfer 

the processing fee for assignments and 

transfers found in the fee schedule in 

§ 3000.12 of this chapter for each such 

interest transferred for each lease. 

■ 9. Amend § 3106.8–1(a) by removing 

the second sentence ‘‘No filing fee is 

required.’’ and adding in its place a new 

sentence to read as follows: 

§ 3106.8–1 Heirs and devisees. 

(a) * * * Include the processing fee 

for transfers to heir/devisee found in the 

fee schedule in § 3000.12 of this chapter 

with your request to transfer lease 

rights. * * * 

* * * * * 

■ 10. Amend § 3106.8–2 by removing 

the second sentence ‘‘No filing fee is 

required.’’ and adding in its place a new 

sentence to read as follows: 

§ 3106.8–2 Change of name. 

* * * Include the processing fee for 

name change found in the fee schedule 

in § 3000.12 of this chapter with your 

notice of name change. * * * 

■ 11. Amend § 3106.8–3 by removing 

the third sentence ‘‘No filing fee is 

required.’’ and adding in its place a new 

sentence to read as follows: 

§ 3106.8–3 Corporate merger. 

* * * Include the processing fee for 

corporate merger found in the fee 

schedule in § 3000.12 of this chapter 

with your notification of a corporate 

merger.* * * 

Subpart 3107—Continuation, 

Extension or Renewal 

■ 12. Amend § 3107.7 by removing the 

third sentence and adding in its place 

two new sentences to read as follows: 

§ 3107.7 Exchange leases: 20-year term. 

* * * The lessee must file an 

application to exchange a lease for a 

new lease, in triplicate, at the proper 

BLM office. The application must show 

full compliance by the applicant with 

the terms of the lease and applicable 

regulations, and must include payment 

of the processing fee for lease renewal 

or exchange found in the fee schedule 

in § 3000.12 of this chapter. * * * 

■ 13. Revise § 3107.8–2 to read as 

follows: 

§ 3107.8–2 Application. 

File your application to renew your 

lease in triplicate in the proper BLM 

office at least 90 days, but not more than 

6 months, before your lease expires. 

Include the processing fee for lease 

renewal or exchange found in the fee 

schedule in § 3000.12 of this chapter. 

Subpart 3108—Relinquishment, 

Termination, Cancellation 

■ 14. Amend § 3108.2–2(a) by revising 

the first sentence of paragraph (a) (3) to 

read as follows: 

§ 3108.2–2 Reinstatement at existing rental 

and royalty rates: Class I reinstatements. 

(a) * * * 

(3) A petition for reinstatement, the 

processing fee for lease reinstatement, 

Class I, found in the fee schedule in 

§ 3000.12 of this chapter, and the 

required rental, including any back 

rental that has accrued from the date of 

the termination of the lease, are filed 

with the proper BLM office within 60 

days after receipt of Notice of 

Termination of Lease due to late 

payment of rental. * * * 

* * * * * 

Subpart 3109—Leasing Under Special 

Acts 

■ 15. Revise § 3109.1–2 by removing the 

first three sentences and adding in their 

place four new sentences to read as 

follows: 

§ 3109.1–2 Application. 

No approved form is required for an 

application to lease oil and gas deposits 

underlying a right-of-way. The right-ofway owner or his/her transferee must 

file the application in the proper BLM 

office. Include the processing fee for 

leasing under right-of-way found in the 

fee schedule in § 3000.12 of this 

chapter. If the transferee files an 

application, it must also include an 

executed transfer of the right to obtain 

a lease. * * * 

PART 3110—NONCOMPETITIVE 

LEASES 

■ 16. Revise the authority citation for 

part 3110 to read as follows: 

Authority: 16 U.S.C. 3101 et seq.; 30 U.S.C. 

181 et seq. and 351–359; 31 U.S.C. 9701; 43 

U.S.C. 1701 et seq.; and Pub. L. 97–35, 95 

Stat. 357. 

Subpart 3110—Noncompetitive Leases 

■ 17. Amend § 3110.4(a) by revising the 

fourth and sixth sentences to read as 

follows: 

§ 3110.4 Requirements for offer. 

(a) * * * The original copy of each 

offer must be typed or printed plainly in 

ink, signed in ink and dated by the 

offeror or an authorized agent, and must 

include payment of the first year’s rental 

and the processing fee for 

noncompetitive lease applications 

found in the fee schedule in § 3000.12 

of this chapter. 

* * * A noncompetitive offer to lease 

a future interest applied for under 

§ 3110.9 must include the processing fee 

for noncompetitive lease applications 

found in the fee schedule in § 3000.12 

of this chapter. * * * 

* * * * * 

PART 3120—COMPETITIVE LEASES 

■ 18. Revise the authority citation for 

part 3120 to read as follows: 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58875 

Authority: 16 U.S.C. 3101 et seq.; 30 U.S.C. 

181 et seq. and 351–359; 40 U.S.C. 471 et 

seq.; 43 U.S.C. 1701 et seq.; and the Attorney 

General’s Opinion of April 2, 1941 (40 Op. 

Atty. Gen. 41). 

■ 19. Amend § 3120.5–2 by revising 

paragraph (b)(3) to read as follows: 

§ 3120.5–2 Payments required. 

* * * * * 

(b) * * * 

(3) The processing fee for competitive 

lease applications found in the fee 

schedule in § 3000.12 of this chapter for 

each parcel. 

* * * * * 

PART 3130—OIL AND GAS LEASING; 

NATIONAL PETROLEUM RESERVE, 

ALASKA 

■ 20. Revise the authority citation for 

part 3130 to read as follows: 

Authority: 42 U.S.C. 6508 and 43 

U.S.C.1701 et seq. 

■ 21. Amend § 3132.3(a) by revising the 

first sentence and adding a new 

sentence after the first sentence to read 

as follows: 

§ 3132.3 Payments. 

(a) Make payments of bonuses, 

including deferred bonuses, first year’s 

rental, other payments due upon lease 

issuance, and fees, to BLM’s Alaska 

State Office. Before we issue a lease, the 

highest bidder must pay the processing 

fee for competitive lease applications 

found in the fee schedule in § 3000.12 

of this chapter in addition to other 

remaining bonus and rental payments. 

* * * 

* * * * * 

Subpart 3135—Transfers, Extensions, 

Consolidations, and Suspensions 

■ 22. Amend § 3135.1–2(a) (2) by 

revising the first two sentences to read 

as follows: 

§ 3135.1–2 Requirements for filing of 

transfers. 

* * * * * 

(a)(1) * * * 

(2) An application for approval of any 

instrument that the regulations require 

you to file must include the processing 

fee for assignments and transfers found 

in the fee schedule in § 3000.12 of this 

chapter. Any document that the 

regulations in this part do not require 

you to file, but that you submit for 

record purposes, must also include the 

processing fee for assignments and 

transfers found in the fee schedule in 

§ 3000.12 of this chapter for each lease 

affected. * * * 

* * * * * 

■ 23. Amend § 3135.1–6(a) by adding a 

sentence at the end to read as follows: 

§ 3135.1–6 Consolidation of leases. 

(a) * * * Include with each request 

for a consolidation of leases the 

processing fee found in the fee schedule 

in § 3000.12 of this chapter. 

* * * * * 

PART 3200—GEOTHERMAL 

RESOURCE LEASING 

■ 24. Revise the authority citation for 

part 3200 to read as follows: 

Authority: 30 U.S.C. 1001–1028; and 43 

U.S.C. 1701 et seq. 

Subpart 3204—Noncompetitive 

Leasing 

■ 25. Amend § 3204.12 by revising the 

first sentence to read as follows: 

§ 3204.12 What fees must I pay with my 

lease offer? 

Submit the processing fee for 

noncompetitive lease applications 

found in the fee schedule in § 3000.12 

of this chapter for each lease offer, and 

an advance rent in the amount of $1 per 

acre (or fraction of an acre). * * * 

Subpart 3205—Competitive Leasing 

■ 26. Amend § 3205.16(a) by removing 

the word ‘‘and’’ at the end of paragraph 

(a)(3), redesignating paragraph (a)(4) as 

paragraph (a)(5), and adding a new 

paragraph (a)(4) to read as follows: 

§ 3205.16 How will I know whether my bid 

is accepted? 

(a) * * * 

(3) The first year’s advance rent; 

(4) The processing fee for competitive 

lease applications found in the fee 

schedule in § 3000.12 of this chapter; 

and 

* * * * * 

Subpart 3210—Additional Lease 

Information 

■ 27. Amend § 3210.12 by adding a new 

sentence at the end of the section to 

read as follows: 

§ 3210.12 May I consolidate leases? 

* * * You must include the 

processing fee for lease consolidations 

found in the fee schedule in § 3000.12 

of this chapter with your request to 

consolidate leases. 

Subpart 3211—Fees, Rent, and 

Royalties 

■ 28. Amend § 3211.10 by: 

■ A. Revising the section heading; 

■ B. Revising paragraph (b) introductory 

text; 

■ C. Revising paragraph (b) table 

heading and entries (1) and (3); 

■ D. In paragraph (b), redesignate the 

table entries (4) through (9) as (5) 

through (10); and add a new table entry 

(4). 

The revisions and addition read as 

follows: 

§ 3211.10 What are the fees, rent, and 

minimum royalties for leases? 

* * * * * 

(b) Use the following table to 

determine the fees, rents, and minimum 

royalties owed for your lease: 

FEES, RENT, AND ROYALTIES

Type Competitive leases Noncompetitive leases 

1. Lease Application Processing fee ................ As found in the the fee schedule in § 3000.12 

of this chapter.

As found in the fee schedule in § 3000.12 of 

this chapter. (includes future interest leases) 

* * * * * * * 

3. Transfer of Record Title or Operating Rights As found in the fee schedule in § 3000.12 of 

this chapter.

As found in the fee schedule in § 3000.12 of 

this chapter. 

4. Transfer of Interest to Heir or Devisee, 

Name Change, or Notification Corporate 

Merger.

As found in the fee schedule in § 3000.12 of 

this chapter.

As found in the fee schedule in § 3000.12 of 

this chapter. 

58876 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

* * * * * 

Subpart 3213—Relinquishment, 

Termination, Cancellation, and 

Expiration 

■ 29. Revise § 3213.19 to read as 

follows: 

§ 3213.19 What must I do to have my lease 

reinstated? 

Send BLM a petition requesting 

reinstatement. Your petition must 

include the serial number for each lease 

and an explanation of why the delay in 

payment was justifiable. Lack of 

diligence on your part is not a 

justification for delaying payment. In 

addition to your petition, you must also 

include any past rent owed, any rent 

that has accrued from the termination 

date, and the processing fee for lease 

reinstatement found in the fee schedule 

in § 3000.12 of this chapter. 

Subpart 3216—Transfers 

■ 30. Revise § 3216.14 to read as 

follows: 

§ 3216.14 What fees and forms does a 

transfer require? 

With each transfer request send us the 

correct form, if required, and pay the 

transfer processing fee found in the fee 

schedule in § 3000.12 of this chapter. 

When you calculate your fee, make sure 

it covers the full amount. For example, 

if you are transferring record title for 

three leases, submit 3 times the listed 

fee with the application. Use the 

following chart to determine forms and 

fees: 

Type of form 

Specific 

form 

required 

Form No. Number of copies Transfer fee (per lease) 

(a) Record title ................................... Yes ........ 3000–3 2 executed copies .............................. As found in the fee schedule in 

§ 3000.12 of this chapter. 

(b) Operating rights ............................ Yes ......... 3000–3(a) 2 executed copies .............................. As found in the fee schedule in 

§ 3000.12 of this chapter. 

(c) Estate transfers ............................. No .......... N/A 1 List of Leases ................................. As found in the fee schedule in 

§ 3000.12 of this chapter. 

(d) Corporate mergers ....................... No .......... N/A 1 List of Leases ................................. As found in the fee schedule in 

§ 3000.12 of this chapter. 

(e) Name changes ............................. No .......... N/A 1 List of Leases ................................. As found in the fee schedule in 

§ 3000.12 of this chapter. 

Group 3400—Coal Management 

PART 3470—COAL MANAGEMENT 

PROVISIONS AND LIMITATIONS 

■ 31. Revise the authority citation for 

part 3470 to read as follows: 

Authority: 30 U.S.C. 189 and 359; and 43 

U.S.C. 1701 et seq. 

Subpart 3473—Fees, Rentals, and 

Royalties 

■ 32. Revise § 3473.2 to read as follows: 

§ 3473.2 Fees. 

(a) An application for a license to 

mine must include payment of the filing 

fee found in the fee schedule in 

§ 3000.12 of this chapter. BLM may 

waive the filing fee for applications filed 

by relief agencies as provided in 

§ 3440.1–1(b) of this chapter. 

(b) An application for an exploration 

license must include payment of the 

filing fee found in the fee schedule in 

§ 3000.12 of this chapter. 

(c) An instrument of transfer of a lease 

or an interest in a lease must include 

payment of the filing fee found in the 

fee schedule in § 3000.12 of this 

chapter. 

(d) BLM will charge applicants for a 

royalty rate reduction a processing fee 

on a case-by-case basis as described in 

§ 3000.11 of this chapter. 

(e) BLM will charge applicants for 

logical mining unit formation or 

modification a processing fee on a caseby-case basis as described in § 3000.11 

of this chapter. 

(f) The applicant who nominates a 

tract for a competitive lease sale must 

pay a processing fee on a case-by-case 

basis as described in § 3000.11 of this 

chapter as modified by the provisions 

below. BLM will include in the sale 

notice under § 3422.2(b)(9) of this 

chapter a statement of the total cost 

recovery fee paid to BLM by the 

applicant up to 30 days before the 

competitive lease sale. The cost 

recovery process for a competitive coal 

lease follows: 

(1) The applicant nominating the tract 

for competitive leasing must pay the 

cost recovery amount before BLM will 

publish a notice of the competitive lease 

sale; 

(2) Before the lease is issued: 

(i) The successful bidder, if someone 

other than the applicant, must pay to 

BLM the cost recovery amount specified 

in the sale notice; and 

(ii) The successful bidder must pay all 

processing costs BLM incurs after the 

date of the sale notice; 

(3) If the successful bidder is someone 

other than the applicant, BLM will 

refund to the applicant the amount paid 

under paragraph (f)(1) of this section; 

and 

(4) If there is no successful bidder, the 

applicant remains responsible for all 

processing fees. 

(g) BLM will charge applicants for 

modification of a coal lease a processing 

fee on a case-by-case basis as described 

in § 3000.11 of this chapter. 

§§ 3473.2–1 and 3473.2–2 [Removed] 

■ 33. Remove §§ 3473.2–1 and 3473.2–

2. 

PART 3500—LEASING OF SOLID 

MINERALS OTHER THAN COAL AND 

OIL SHALE 

■ 34. Revise the authority citation for 

part 3500 to read as follows: 

Authority: 5 U.S.C. 552; 30 U.S.C. 189 and 

192c; 43 U.S.C. 1701 et seq.; and sec. 402, 

Reorganization Plan No. 3 of 1946 (5 U.S.C. 

appendix). 

Subpart 3501—Leasing of Solid 

Minerals Other Than Coal and Oil 

Shale: General 

■ 34. Amend § 3501.1(e) by adding a 

new first sentence to read as follows: 

§ 3501.1 What is the authority for this 

part? 

* * * * * 

(e) * * * Section 304 of FLPMA (43 

U.S.C. 1734) authorizes the Secretary to 

establish reasonable filing and service 

fees for applications and other 

documents relating to the public lands. 

* * * 

* * * * * 

Subpart 3504—Fees, Rental, Royalty, 

and Bonds 

■ 35. Add § 3504.10 to read as follows: 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58877 

§ 3504.10 What fees must I pay? 

(a) Filing fees. Include the filing fee 

for ‘‘applications other than those listed 

below’’ found in the fee schedule in 

§ 3000.12 of this chapter with each 

application you submit to BLM that is 

not charged a processing fee as 

described in paragraph (b) of this 

section (for example, transfers, 

assignments, and subleases). Fees for 

exploration licenses are not 

administered under this section, but are 

administered under part 2920 of this 

chapter. 

(b) Processing fees. The following 

table shows processing fees for various 

documents. 

Document Processing fee 

(1) Prospecting permit application ............................................................ Case-by-case basis as described in Sec. 3000.11 of this chapter. 

(2) Prospecting permit application amendment ....................................... As found in the fee schedule in § 3000.12 of this chapter. 

(3) Prospecting permit extension ............................................................. As found in the fee schedule in § 3000.12 of this chapter. 

(4) Preference rigth lease application ...................................................... Case-by-case basis as described in § 3000.11 of this chapter. 

(5) Successful competitive lease application ........................................... Case-by-case basis as described in § 3000.11 of this chapter, and 

modified by §§ 3508.14 and 3508.21. 

(6) Lease renewal application .................................................................. As found in the fee schedule in § 3000.12 of this chapter. 

(7) Application to waive, suspend, or reduce your rental, minimum royalty, or royalty rate.Case-by-case basis as described in § 3000.11 of this chapter. 

(8) Future or fractional interest lease application .................................... Case-by-case basis as described in § 3000.11 of this chapter. 

■ 36. Amend § 3504.12 by revising the 

heading and paragraph (a) to read as 

follows: 

§ 3504.12 What payments do I submit to 

BLM and what payments do I submit to 

MMS? 

(a) Fees and rentals. (1) Pay all filing 

and processing fees, all first-year 

rentals, and all bonus bids for leases to 

the BLM State Office that manages the 

lands you are interested in. Make your 

instruments payable to the U.S. 

Department of the Interior—Bureau of 

Land Management. 

(2) Pay all second-year and 

subsequent rentals and all other 

payments for leases to the Minerals 

Management Service (MMS). See 30 

CFR part 218 for MMS’s payment 

procedures. 

* * * * * 

Subpart 3505—Prospecting Permits 

■ 37. Revise § 3505.12 to read as 

follows: 

§ 3505.12 How do I obtain a prospecting 

permit? 

Deliver 3 copies of the BLM 

application form to the BLM office with 

jurisdiction over the lands you are 

interested in. Include the first year’s 

rental with your application. You will 

also be charged a processing fee, which 

BLM will determine on a case-by-case 

basis as described in § 3000.11 of this 

chapter. For more information on fees 

and rentals, see subpart 3504 of this 

part. 

■ 38. Amend § 3505.30 by removing the 

last sentence and by revising the third 

sentence to read as follows: 

§ 3505.30 May I amend or change my 

application after I file it? 

* * * You must include the rental for 

any added lands and the processing fee 

for prospecting permit application 

amendments found in the fee schedule 

in § 3000.12 of this chapter with your 

amended application. 

■ 39. Amend § 3505.31 by revising the 

last sentence to read as follows: 

§ 3505.31 May I withdraw my application 

after I file it? 

* * * BLM will retain any fees 

already paid for processing the 

application. 

■ 40. Amend § 3505.50 by redesignating 

paragraphs (a), (b), and (c) as paragraphs 

(1), (2), and (3), respectively, 

redesignating the introductory text as 

paragraph (a), and adding paragraph (b) 

to read as follows: 

§ 3505.50 How will I know if BLM has 

approved or rejected my application? 

* * * * * 

(b) If we do not accept your 

application, we will refund your rental 

payment. We will retain any fees 

already paid for processing the 

application. 

§ 3505.51 [Removed] 

■ 41. Section 3505.51 is removed. 

■ 42. Amend § 3505.64 by revising the 

last sentence to read as follows: 

§ 3505.64 How do I apply for an extension? 

* * * Include the processing fee for 

extensions of prospecting permits found 

in the fee schedule in § 3000.12 of this 

chapter and the first year’s rental in 

accordance with §§ 3504.10, 3504.15, 

and 3504.16 of this part. 

Subpart 3507—Preference Right Lease 

Applications 

■ 43. Revise § 3507.16 to read as 

follows: 

§ 3507.16 Is there a fee or payment 

required with my application? 

Yes. You must submit the first year’s 

rental with your application according 

to the provisions in § 3504.15 of this 

part. BLM will also charge a processing 

fee on a case-by-case basis as described 

in § 3000.11 of this chapter. 

Subpart 3508—Competitive Lease 

Applications 

■ 44. Amend § 3508.12 by redesignating 

paragraphs (b) and (c) as paragraphs (c) 

and (d) and adding a new paragraph (b) 

as follows: 

§ 3508.12 How do I get a competitive 

lease? 

* * * * * 

(b) Before BLM publishes a notice of 

lease sale, pay a processing fee on a 

case-by-case basis as described in 

§ 3000.11 of this chapter as modified by 

§§ 3508.14 and 3508.21. If someone else 

is the successful bidder, BLM will 

refund you the amount you paid under 

this paragraph. If there is no successful 

bidder, you remain responsible for all 

processing fees. 

* * * * * 

■ 45. Amend § 3508.14 by adding a new 

paragraph (b)(7) to read as follows: 

§ 3508.14 How will BLM publish the notice 

of lease sale? 

* * * * * 

(b) * * * 

(7) If the tract being offered for 

competitive sale was nominated by an 

applicant, a statement of the total cost 

recovery fee paid to BLM by the 

applicant under § 3508.12 up to 30 days 

before the competitive lease sale. 

■ 46. Amend § 3508.21 by removing the 

word ‘‘and’’ at the end of paragraph 

(a)(4), by removing the period and 

adding in its place a semi-colon at the 

end of paragraph (a)(5), and adding new 

paragraphs (a)(6) and (a)(7) to read as 

follows: 

58878 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

§ 3508.21 What happens if I am the 

successful bidder? 

(a) * * * 

(6) If you were not the applicant, pay 

the cost recovery fee specified in the 

lease sale notice; and 

(7) Pay all processing costs BLM 

incurs after the date of the sale notice. 

* * * * * 

Subpart 3509—Fractional and Future 

Interest Lease Applications 

■ 47. Amend § 3509.16 by removing the 

second sentence and adding a new 

sentence at the end to read as follows: 

§ 3509.16 How do I apply for a future 

interest lease? 

* * * BLM will charge you a 

processing fee on a case-by-case basis as 

described in § 3000.11 of this chapter. 

■ 48. Amend § 3509.30 by revising the 

last sentence to read as follows: 

§ 3509.30 May I withdraw my application 

for a future interest lease? 

* * * BLM will retain any fees 

already paid for processing the 

application. 

■ 49. Amend § 3509.46 by removing the 

second sentence and adding a new 

sentence at the end to read as follows: 

§ 3509.46 How do I apply for a fractional 

interest prospecting permit or lease? 

* * * BLM will charge you a 

processing fee on a case-by-case basis as 

described in § 3000.11 of this chapter. 

■ 50. Amend § 3509.51 by revising the 

last sentence to read as follows: 

§ 3509.51 May I withdraw my application 

for a fractional interest prospecting permit 

or lease? 

* * * BLM will retain any fees 

already paid for processing the 

application. 

Subpart 3511—Lease Terms and 

Conditions 

■ 51. Amend § 3511.27 by revising the 

last sentence to read as follows: 

§ 3511.27 How do I renew my lease? 

* * * Send us 3 copies of your 

application together with the processing 

fee for lease renewal found in the fee 

schedule in § 3000.12 of this chapter 

and an advance rental payment of $1 

per acre or fraction of an acre. 

Subpart 3513—Waiver, Suspension or 

Reduction of Rental and Minimum 

Royalties 

■ 52. Add § 3513.16 to read as follows: 

§ 3513.16 Do I have to pay a fee when I 

apply for a waiver, suspension, or reduction 

of rental, minimum royalty, production 

royalty, or minimum production? 

Yes. BLM will charge you a 

processing fee on a case-by-case basis, 

as described in § 3000.11 of this chapter. 

Group 3600—Mineral Materials 

Disposal 

PART 3600—MINERAL MATERIALS 

DISPOSAL 

■ 53. Revise the authority citation for 

part 3600 to read as follows: 

Authority: 30 U.S.C. 601 et seq.; 43 U.S.C. 

1201, 1701 et seq.; Sec. 2, Act of September 

28, 1962 (Pub. L. 87–713, 76 Stat. 652). 

■ 54. Amend § 3602.11 by adding 

paragraph (c) to read as follows: 

§ 3602.11 How do I request a sale of 

mineral materials? 

* * * * * 

(c) You must pay a processing fee as 

provided in § 3602.31(a) and 

§ 3602.44(f). If the request is for mineral 

materials that are from a community pit 

or common use area this requirement 

does not apply. 

■ 55. Amend § 3602.31 by: 

■ A. Revising the section heading; 

■ B. Redesignating paragraphs (b) 

through (d) as paragraphs (c) through 

(e), respectively; and 

■ C. Adding new paragraph (b) to read 

as follows: 

§ 3602.31 What volume limitations and 

fees generally apply to noncompetitive 

mineral materials sales? 

* * * * * 

(b) BLM will charge the purchaser a 

processing fee on a case-by-case basis as 

described in § 3000.11 of this chapter. 

* * * * * 

■ 56. Amend § 3602.42 by redesignating 

paragraphs (b)(8) through (b)(15) as 

paragraphs (b)(9) through (b)(16), 

respectively, and adding a new 

paragraph (b)(8) to read as follows: 

§ 3602.42 How does BLM publicize 

competitive mineral materials sales? 

* * * * * 

(b) * * * 

(8) If the sale is by request, the total 

cost recovery fee paid to BLM by the 

applicant up to 21 days before the sale; 

* * * * * 

■ 57. Amend § 3602.43 by redesignating 

paragraphs (a) and (b) as paragraphs (b) 

and (c), respectively, and adding a new 

paragraph (a) to read: 

§ 3602.43 How does BLM conduct 

competitive mineral materials sales? 

(a) The applicant requesting a mineral 

materials sale must pay a processing fee 

on a case-by-case basis as described in 

§ 3000.11 of this chapter as modified by 

the provisions in this section and in 

§ 3602.42(b)(8). The cost recovery 

process for a competitive mineral 

materials sale follows: 

(1) The applicant requesting the sale 

must pay the cost recovery fee amount 

before BLM will publish a sale notice. 

(2) Before the contract is issued: 

(i) The successful bidder, if someone 

other than the applicant, must pay to 

BLM the cost recovery amount specified 

in the sale notice; and 

(ii) The successful bidder must pay all 

processing costs BLM incurs after the 

date of the sale notice. 

(3) If the successful bidder is someone 

other than the applicant, BLM will 

refund to the applicant the amount paid 

under paragraph (a)(1) of this section. 

* * * * * 

■ 58. Amend § 3602.44 by adding 

paragraph (f) to read as follows: 

§ 3602.44 How do I make a bid deposit? 

* * * * * 

(f) BLM will charge the successful 

bidder a processing fee on a case-bycase basis as described in § 3000.11 of 

this chapter and § 3602.43. 

■ 59. Amend § 3602.47 by revising the 

section heading and adding a new 

paragraph (e) to read as follows: 

§ 3602.47 When and how may I renew my 

competitive contract and what is the fee? 

* * * * * 

(e) Fee. BLM will charge a processing 

fee on a case-by-case basis as described 

in § 3000.11 of this chapter. 

Group 3800—Mining Claims Under the 

General Mining Laws 

PART 3800—MINING CLAIMS UNDER 

THE GENERAL MINING LAWS 

■ 60. Revise the authority citation for 

part 3800 to read as follows: 

Authority: 16 U.S.C. 351 and 460y–4; 30 

U.S.C. 22 and 28k; 31 U.S.C. 9701; 43 U.S.C. 

1201 and 43 U.S.C. 1701 et seq. 

■ 61. Add a new subpart 3800, 

consisting of § 3800.5, to read as 

follows: 

Subpart 3800—General 

§ 3800.5 Fees. 

(a) An applicant for a plan of 

operations under this part must pay a 

processing fee on a case-by-case basis as 

described in § 3000.11 of this chapter 

whenever BLM determines that 

consideration of the plan of operations 

requires the preparation of an 

Environmental Impact Statement. 

(b) An applicant for any action for 

which a mineral examination, including 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58879 

a validity examination or a common 

variety determination, and their 

associated reports, is performed under 

§ 3809.100 or § 3809.101 of this part 

must pay a processing fee on a case-bycase basis as described in section 

3000.11 of this chapter for such 

examination and report. 

(c) An applicant for a mineral patent 

under part 3860 of this chapter must 

pay a processing fee on a case-by-case 

basis as described in § 3000.11 of this 

chapter for any validity examination 

and report prepared in connection with 

the application. 

(d) An applicant for a mineral patent 

also is required to pay a processing fee 

under § 3860.1 of this chapter. 

PART 3830—LOCATING, RECORDING, 

AND MAINTAINING MINING CLAIMS 

OR SITES; GENERAL PROVISIONS 

■ 62. Revise the authority citation for 

part 3830 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. 

■ 63. Revise entries (a), (b), (c), (e), and 

(f) in the table at § 3830.21 to read as 

follows: 

§ 3830.21 What are the different types of 

service charges and fees? 

* * * * * 

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 (i) the processing fee for notices of location found in the fee schedule in § 3000.12 of 

this chapter.

No. 

(ii) A one-time $30 location fee ............................................... No. 

(iii) An initial $125 maintenance fee ....................................... No. 

(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. 

* * * * * * * 

(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. 

* * * * * * * 

PART 3833—RECORDING MINING 

CLAIMS AND SITES 

■ 64. Revise the authority citation for 

part 3833 to read as follows: 

Authority: 30 U.S.C. 22 et seq., 621–625; 

43 U.S.C. 2, 1201, 1457, 1701 et seq.; 62 Stat. 

162; 115 Stat. 414. 

■ 65. Revise § 3833.11(c) to read as 

follows: 

§ 3833.11 How do I record mining claims 

and sites? 

* * * * * 

(c) When you record a notice or 

certificate of location, you must pay a 

processing fee, location fee, and initial 

maintenance fee as provided in 

§ 3830.21 of this chapter. 

* * * * * 

■ 66. Revise § 3833.22(b) to read as 

follows: 

§ 3833.22 How do I amend my location? 

* * * * * 

(b) You must pay a processing fee for 

each claim or site you amend. See the 

table of fees and service charges in 

§ 3830.21 of this chapter. 

* * * * * 

■ 67. Revise § 3833.32(c) to read as 

follows: 

§ 3833.32 How do I transfer a mining claim 

or site? 

* * * * * 

(c) For each mining claim or site 

transferred, each transferee must pay the 

full processing fee specified in the table 

of service charges and fees in § 3830.21 

of this chapter. 

* * * * * 

PART 3835—WAIVERS FROM ANNUAL 

MAINTENANCE FEES 

■ 68. Revise the authority citation for 

part 3835 to read as follows: 

Authority: 30 U.S.C. 22, 28, 28f–28k; 43 

U.S.C. 2, 1201, 1457, 1701 et seq.; 50 U.S.C. 

App. 501, 565; 115 Stat. 414. 

■ 69. Revise § 3835.32(c) to read as 

follows: 

§ 3835.32 What should I include when I 

submit an affidavit of assessment work? 

* * * * * 

(c) A processing fee for each mining 

claim affected. (See the table of service 

charges and fees in § 3830.21 of this 

chapter); and 

* * * * * 

■ 70. Revise § 3835.33(e) to read as 

follows: 

§ 3835.33 What should I include when I 

submit a notice of intent to hold? 

* * * * * 

(e) A processing fee for each mining 

claim or site affected. (See the table of 

service charges and fees in § 3830.21 of 

this chapter.) 

PART 3836—ANNUAL ASSESSMENT 

WORK REQUIREMENTS FOR MINING 

CLAIMS 

■ 71. Revise the authority citation for 

part 3836 to read as follows: 

Authority: 30 U.S.C. 22, 28, 28b–28e; 43 

U.S.C. 2, 1201, 1457, 1701 et seq.; 50 U.S.C. 

App. 501, 565. 

■ 72. Amend § 3836.23 by revising 

paragraph (g) to read as follows: 

§ 3836.23 How do I petition for deferment 

of assessment work? 

* * * * * 

(g) You must pay a processing fee 

with each petition. (See the table of 

service charges and fees in § 3830.21 of 

this chapter.) 

PART 3860—MINERAL PATENT 

APPLICATIONS 

■ 73. Revise the authority citation for 

part 3860 to read as follows: 

Authority: 30 U.S.C. 22 et seq.; 31 U.S.C. 

9701; 43 U.S.C. 1701 et seq. 

■ 74. Amend part 3860 by adding new 

subpart 3860, consisting of § 3860.1, to 

read as follows: 

58880 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

Subpart 3860—General 

§ 3860.1 Fees. 

(a) Each mineral patent application 

must include the processing fee found 

in the fee schedule in § 3000.12 of this 

chapter to cover BLM’s adjudication 

costs for the application. 

(b) As provided at § 3800.5 of this 

chapter, BLM will charge a separate 

processing fee on a case-by-case basis as 

described in § 3000.11 of this chapter to 

cover its costs for conducting and 

preparing the validity examination and 

report. 

Subpart 3862—Lode Mining Claim 

Patent Applications 

■ 75. Revise § 3862.1–2 to read as 

follows: 

§ 3862.1–2 Fees. 

An applicant for a lode mining claim 

patent must pay fees as described in 

§ 3860.1. 

Subpart 3863—Placer Mining Claim 

Patent Applications 

■ 76. Amend § 3863.1 by adding new 

paragraph (c) to read as follows: 

§ 3863.1 Placer mining claim patent 

applications: General. 

* * * * * 

(c) An applicant for a placer mining 

claim patent must pay fees as described 

in § 3860.1. 

Subpart 3864—Millsite Patents 

■ 77. Add § 3864.1–5 to read as follows: 

§ 3864.1–5 Fees. 

An applicant for a millsite patent 

must pay fees as described in § 3860.1. 

PART 3870—ADVERSE CLAIMS, 

PROTESTS, AND CONFLICTS 

■ 78. Add an authority citation for part 

3870 to read as follows: 

Authority: 30 U.S.C. 30; 43 U.S.C. 1201, 

1457, 1701 et seq. 

Subpart 3871—Adverse Claims 

■ 79. Amend § 3871.1 by revising 

paragraph (d) as follows: 

§ 3871.1 Filing of claim. 

* * * * * 

(d) Each adverse claim filed must 

include the processing fee for adverse 

claims found in the fee schedule in 

§ 3000.12 of this chapter. 

Subpart 3872—Protests, Contests, and 

Conflicts 

■ 80. Amend § 3872.1 by revising 

paragraph (b) to read as follows: 

§ 3872.1 Protest against mineral 

applications. 

* * * * * 

(b) A protest by any party, except a 

Federal agency, must include the 

processing fee for protests found in the 

fee schedule in § 3000.12 of this 

chapter. 

[FR Doc. 05–19851 Filed 10–6–05; 8:45 am] 

BILLING CODE 4310–84–P