[Federal Register Volume 59, Number 167 (Tuesday, August 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21388]
[[Page Unknown]]
[Federal Register: August 30, 1994]
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Part IV
Department of the Interior
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Bureau of Land Management
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43 CFR Part 3720, et al.
Mining Claims; Final Rule
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 3720, 3730, 3800, 3810, 3820, 3830, and 3850
[WO-660-4191-02-24 1A; Circular No. 2657]
RIN 1004-AC17
Mining Claims; Maintenance and Location Fees; Lands Open to
Location, National Parks, King Range National Conservation Area, Indian
Reservations, Surface Management; Removal of Obsolete or Expired
Regulations, Consolidation of Remaining Sections
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule implements provisions of the Omnibus Budget
Reconciliation Act of 1993 (the Act) that require a $25 location fee
and a $100 annual maintenance fee for each mining claim and site
located and held under the general mining laws. The fee requirements
remain in effect through 1998, and apply to the assessment years 1994-
95 through 1998-99. The final rule establishes the procedures for
paying and administering the required annual maintenance and location
fees, puts into regulation the statute's mandatory payment deadlines
and its mandatory provision that failure to pay the fees on time
constitutes abandonment of the claim or site, amends the recording and
assessment work regulations to conform to the requirements of the Act,
and establishes procedures by which small miners may obtain a waiver
from payment of the maintenance fee. The final rule also implements the
new location and recording requirements for mining claims located on
Stockraising Homestead Act lands. These requirements are contained in
the Act of April 16, 1993 (107 Stat. 60). It also removes obsolete or
expired provisions, and consolidates provisions that are still in force
and effect in the regulations concerning location and entry of mining
claims and sites on coal bearing lands, National Park System units, the
King Range Conservation Area, and Indian reservations.
EFFECTIVE DATE: August 30, 1994.
ADDRESSES: Any suggestions or inquiries should be sent to: Director
(660), Mail Stop 501, Bureau of Land Management, 1849 C Street, N.W.,
Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Frank Bruno or Roger Haskins at (202)
452-0350.
SUPPLEMENTARY INFORMATION: A proposed rule amending certain sections of
the regulations at 43 CFR parts 3720, 3730, 3800, 3810, 3820, 3830, and
3850 was published in the Federal Register on May 11, 1994 (59 FR
24572). There were 25 comments received regarding the proposal. Six
comments were received from Bureau of Land Management (BLM) State
Offices, 4 comments were received from private attorneys, 3 comments
were received from individuals not connected with the mining industry,
3 comments were received from mining claimants, 3 comments were
received from mining industry organizations, 1 comment was received
from an individual in a mining-related business, 1 comment was received
from a county government, 1 comment was received from an environmental
group, 1 comment was received from a mining company, 1 comment was
received from a Forest Service employee, and 1 comment was received
from an individual BLM employee.
The Department of the Interior, in accordance with 5 U.S.C. 553(d),
for good cause finds that it would not be in the public interest to
delay the effective date until 30 days after publication. The deadline
for payment of the annual maintenance fee is August 31, 1994. The
mining industry needs as much time as possible to comply with the rule,
and the BLM State Offices will not be able to accept filing and
payments, or to assist the public in other ways, until the rule is
effective.
General Comments
The proposed rule contained several references to the Act of
October 5, 1992, which established the mining claim rental fee that has
been in effect since the date of its enactment and which will expire on
September 30, 1994. For the sake of simplicity, and because (1) The
maintenance fee essentially replaces the original rental fee, (2) the
rental fee statute will expire on September 30, and (3) any remaining
issues regarding the rental fee can be dealt with using the regulations
that implemented the October 5, 1992, Act, which were codified in the
1993 Code of Federal Regulations (CFR), all references to the 1992 Act
have been removed from this final rule, including references to rental
fees.
The comments addressed all aspects of the proposed rule. They were
all given careful consideration and are addressed in this preamble.
One comment asked whether the $10 service charge for recording
notices of location was being eliminated. The answer is no, because it
is required for cost recovery purposes. The service charge requirement
is retained in Sec. 3833.1-4(a).
One comment expressed uncertainty as to when the new maintenance
fee was to be effective. The maintenance fee for existing claims is
first due to be filed on or before August 31, 1994, to hold the claim
for the 1994-1995 assessment year.
One comment stated that the maintenance fee should not be subject
to increases tied to the consumer price index and that such increases
would put the fee out of sight for small miners. The comment further
stated that these increases should not apply to those holding 10 or
fewer claims. The provision to adjust maintenance fees to reflect
changes in the consumer price index is statutory and cannot be changed
in this rule. However, it would not affect small miners who file a
valid waiver certification statement. Such individuals would not have
to pay the maintenance fee, but would continue to perform $100 worth of
assessment work as required by the Mining Law of 1872.
One comment stated that this rule and other unspecified changes in
the Mining Law were being done without congressional authorization and
are putting the mining industry out of business. The rule is being
promulgated and is explicitly required by Section 10106 of the Omnibus
Budget Reconciliation Act of 1993 (107 Stat. 407), as enacted by
Congress. Despite the reduction in active mining claims on Federal
lands since $100 fees were first required in the 1992-93 assessment
year, there is no substantial evidence to suggest that the fee is
driving the bona fide mining industry out of business.
One comment objected to the short notice given in the proposed rule
on May 11, 1994, that assessment work to hold the claim for those
claimants qualifying as small miners for the assessment year beginning
on September 1, 1994, must be completed in the assessment year ending
on that date. However, enactment of the Omnibus Budget Reconciliation
Act on August 10, 1993, predated the beginning of the assessment year
ending on September 1, 1994, and served as ample notice for those
claimants seeking to qualify as small miners under the new legislation.
One comment objected to any change in the Mining Law. Since the
Congress has amended the Mining Law to require a maintenance fee, no
changes in the rule are warranted as a result of this comment.
Two comments stated that references to the due date for payment of
the initial maintenance fee, which is made at recordation of the notice
of location and within 90 days after location, were ambiguous. The
comment identified the problem as a possible conflict between the
location date on the notice of location and the location date under
State law. However, pursuant to 30 U.S.C. 28, the date of the location
of the mining claim is fixed under State law, and that is the date used
by BLM to determine the 90-day period under the Federal Land Policy and
Management Act of 1976 (FLPMA) (43 U.S.C. 1701 et seq.).
One comment from a county government stated that the removal of the
requirement to file assessment work with BLM for those who pay the
maintenance fee will cause the same problems as those that occurred
under the rental fee requirements imposed by the Interior Department
and Related Agencies Appropriations Act of 1993. The comment stated
that because the Federal requirement to record annual labor with BLM
had been lifted, filings were not being made with county recorders,
affecting the record title history as well as State tax collections.
Filings may still be required under State law. If State law does not
require filing with county recorders, then State law could be amended
to remedy the problem. Also, miners may risk losing their claims to
third parties if they do not record with county recorders, and are
urged to comply with State and Federal mining laws.
One comment stated that there was some confusion with the term
``record'' as used in the proposed rule. The comment said that the term
should be defined to apply only to county recordings and never to BLM
``filings.'' The term ``record'' has been used to refer to certain BLM
filings for many years. Any reference to BLM recordation in the
regulations clearly refers only to BLM requirements for filings in the
proper BLM office. It is inappropriate to provide for exclusive
application of the term to county recordings.
One comment stated that a notarized signature from each owner on a
new notice of location should be required for State and Federal tax
purposes. The addition of this requirement would be of no value to BLM,
because BLM is not the official repository of mining claim ownership
records. The States should ensure that their laws are adequate to trace
ownership for tax purposes.
One comment stated that the rule should require a notice of
intention to hold to be filed in the local State jurisdiction in
certain circumstances. No such requirements can be added to this rule,
because the 1993 Act does not impose a filing requirement equivalent to
the filing requirements in Section 314 of FLPMA. It is therefore up to
the States to impose such requirements as long as the 1993 Act remains
in effect.
One comment stated that the rule should require that
relinquishments contain notarized signatures of every owner in order to
protect all owners from having their interests voided without their
consent. This is not necessary because relinquishments relate only to
the claimant making the relinquishment, and only his or her interest
would be dropped, not the interests of other claimants.
One comment stated that it is unclear who is required to submit
changes of address to BLM and pay the service charges. It is the
owner's responsibility, not a lessee's. The owner is also referred to
as the mining claimant. A transferee could also be an owner or a
claimant. However, while BLM does not adjudicate who pays the fee for a
mining claim, it holds the mining claimant responsible if the fee is
not paid.
One comment asked whether the purpose for filing changes of address
as requested in the rule is to help ensure that claimants receive
proper notice regarding their claims. The answer is yes.
One comment asked why the rental fee is now called the maintenance
fee. The October 1992 statute used the term rental fee, and the August
1993 statute used the term maintenance fee. The second term more
accurately reflects the nature of the fee, since it is not considered
rent, a service charge, or a tax. It is a payment required to maintain
the mining claim in good standing.
43 CFR 3833.0-3
One comment stated that it would not be proper to file a notice of
intention to hold a mining claim pursuant to Sec. 3833.0-3(a) if a
waiver is filed. This is true. The waiver for a mining claim can only
be allowed if assessment work is done.
One comment suggested a rewording of paragraph (g)(1)(i) for
clarity. This modification has been made to make it clear that it is
the mining claimant who files the notice of intent to locate a claim.
43 CFR 3833.0-5
One comment stated that paragraph (e), the definition of ``owner or
claimant,'' should not require the name and address of all owners on
documents referred to in the subpart, but should only require the
filer's name and address. This requirement exists largely to protect
each claimant's interest in being served in the event of an appeal or
other need for communication. Therefore, it will be retained.
Three comments asked whether paragraph (m), the definition of
``file'' or ``filed,'' was intended to allow notices of location or
certificates of location to be subject to the postmark rule. The answer
is yes, and the paragraph has been further amended in the final rule to
make it clear that, in addition, location notices and certificates of
location also will be accepted if postmarked by the end of the 90-day
filing period. In response to a comment, the paragraph now refers to
the filing of a maintenance fee waiver certification statement rather
than the filing of a maintenance fee waiver: the former is a more
accurate term.
One comment asked whether paragraph (m) was intended to allow $100
fee and waiver filings to be accepted if postmarked by August 31 and
received in the proper BLM office within 15 days of that date. The
answer is yes.
Two comments said that new location notices should not be subject
to the postmark rule pursuant to paragraph (m). All other filings are
similarly subject to the postmark rule. The comments give no reason for
location notices to be treated differently.
One comment questioned whether BLM has the authority to extend the
postmark rule to filings under the Act of August 10, 1993, since the
Act specifically states that annual fee filings must be made by each
August 31. The best precedent for this is the longstanding
administrative practice for annual filings under Section 314(a) of
FLPMA. Section 314(a) states that annual filings shall be made prior to
December 31 yearly. However, the postmark rule has been applied to
these filings for years by regulation as a practical way of treating
such filings received through the postal system, and it has been upheld
by the Interior Board of Land Appeals. The same practical consideration
applies here.
One comment asked whether paragraph (m) is in conflict with
Sec. 1821.2-2(f), which does not recognize the postmark rule except in
certain instances. Section 1821.2-2(f) applies to the filing of
applications only, and paragraph (m) applies to filing notices of
locations and payment of fees. No conflict exists between the two
sections.
One comment stated that paragraph (m) meant that if a claimant's
maintenance fee filing was postmarked on August 16 or before that the
claims would be forfeited. This is not true. The filing can be
postmarked any time on or before August 31, as long as it is received
in the proper BLM office no later than 15 days after August 31.
One comment asked whether paragraph (m) was meant to allow
postmarks that fall on holidays and weekends. Deadlines that fall on a
day the BLM office is closed are carried over to the next working day.
One comment asked whether paragraph (m) was restricted to mailings
postmarked by the U.S. Postal Service. This paragraph has been amended
to include other mail delivery systems that are independent of the
claimant and for which the date of filing with the system can be
verified.
Paragraph (o)(1) is amended to state clearly that the FLPMA filing
due on December 30, 1999, is the last FLPMA filing affected by the Act
of August 10, 1993.
Paragraph (o)(2) is removed in the final rule because it duplicates
Sec. 3833.1-7(d). A comment received concerning the wording of this
paragraph is therefore moot.
Paragraph (o)(3) is removed because it duplicates Sec. 3833.1-5(b)
as it is revised in this final rule. Thus, the concerns raised in two
comments that referred to the conflicting wording of these sections
have been addressed.
Because of the removal of paragraphs (o) (2) and (3), paragraph
(o)(1) is merged into the introductory text of paragraph (o).
Paragraph (w) has been simplified to remove information provided
elsewhere in the rule.
Paragraphs (bb) and (cc) are amended to reference Sec. 3833.1-1,
which is the final rule redesignation of Sec. 3833.1-8 of the proposed
rule.
One comment suggested that paragraph (cc) should provide that
refunds of payments made by credit card will be made as a credit to the
card account. This suggestion has been adopted in the final rule.
43 CFR 3833.1-1
Although it was not addressed in the proposed rule, the existing
language of this section is removed in its entirety and replaced with
Sec. 3833.1-8 of the proposed rule. The old section is being removed
administratively in this final rule because it deals with obsolete
requirements. Because this amendment is an administrative action to
remove obsolete provisions, it has been determined that it has no
impacts on the public. The Department of the Interior, therefore, for
good cause finds under 5 U.S.C. 553(b)(B) and 553(d)(3) that notice and
public procedure thereon are unnecessary and that this amendment may
take effect upon publication.
43 CFR 3833.1-2
In the proposed rule published on May 11, 1994, a paragraph (c) was
added to Sec. 3833.1-2 to establish a basic process for compliance with
Public Law 103-23 of April 16, 1993. This Act (107 Stat. 60) amended
the Stockraising Homestead Act of 1916 (43 U.S.C. 299) by establishing
new mining claim location and surface operations requirements for lands
patented under the Stockraising Homestead with a reservation of the
mineral estate to the United States. The Act became effective on
October 13, 1993. To implement the Act of April 16, 1993, the
Department has begun formulating regulations on locating claims and
obtaining permission for exploration and mining on lands patented under
the Stockraising Homestead Act. These regulations will be proposed as
additions to 43 CFR subpart 3814.
A Departmental review demonstrates a need to have a basic location,
recording, and notification procedure put into place as soon as
possible in order to avoid legal problems between surface owners,
mining claimants, and the Department over rights of location and entry
on Stockraising Homestead lands under the Act of April 16, 1993.
Therefore, as a logical outgrowth of the language included in the
proposed rule, a new paragraph (d) is added to section 3833.1-2 to
explain more fully the basic procedural requirements for locating and
entering mining claims on Stockraising Homestead Act lands. This
language reiterates, to a large degree, the language of the statute.
One comment requested that paragraph (c)(3) of the proposed rule be
reworded for clarity. The final rule has been amended to make it clear
that mining claims located on lands patented under the Stockraising
Homestead Act, as amended, will not be recorded unless the claimant
complies with the requirements in Sec. 3833.1-2.
43 CFR 3833.1-3
Paragraph (c)(3) has been removed because the information appears
elsewhere in the section.
Two comments said that Sec. 3833.1-3 was confusing. The statute
establishes payment deadlines for some types of fees, but allows
payment deficiencies in other types of fee situations to be curable.
The comments suggested that this section be made uniformly curable or
non-curable to promote ease of administration. This section was
developed in an effort to strike a balance among ease of
administration, public service, and consistency with the law. Because
of the statutory nature of the maintenance fee, it is not possible to
make nonpayment of that fee curable. The fact that this deadline is
firm is not an adequate basis for making other fee payment deficiencies
non-curable.
One comment said that Sec. 3833.1-3 ought to allow the claimant a
chance to choose which mining claims should have partial payments
applied to them before BLM imposes its system for making this
determination. This amendment has been added in this final rule.
One comment said that the proposed rule was not clear about the
treatment of insufficient maintenance fees paid for new locations. The
requirements for this situation are explained in paragraph (b)(1).
One comment stated that a phrase in paragraph (b)(2), which
provides that new claims rejected for insufficient service charges will
be returned to the claimant/owner unprocessed, should be replaced by
language requiring that a rejection decision be sent after the claims
are serialized (given BLM identification numbers). Claims for which
service charges have not been paid cannot be serialized because the
missing or insufficient service charges are supposed to pay for such
processing. Therefore, absent service charges, there is no
serialization, and thus no claims of record, and there cannot be a
formal decision on the disposition of the claims.
One comment said that paragraph (b)(2) is too complicated and
suggested that missing service charges be made a non-curable defect.
Making this change would not remove any administrative costs and would
create the possibility of rigid and unfair application. For instance, a
claimant could file $250 to cover two claims, rather than the proper
$270 (which includes two $10 service charges, two $100 maintenance
fees, and two $25 location fees). Under the scenario envisioned in the
comment, BLM would have to apply $135 to one claim and then have the
expense of refunding $115 and returning the second claim or writing a
decision if the maintenance fee deadline had passed. The BLM prefers to
apply the $250 to each claim ($125 each), and call for the additional
$20 in service charges to complete the recording process.
Pursuant to a comment, paragraph (b)(2) has been reworded to
eliminate confusion as to which of two apparent deadlines for paying a
service charge applies. New paragraph (b)(3) has been added in the
final rule to address the consequences of partial payment of service
charges.
One comment asked that the policy on treatment of payment of
insufficient mandatory fees be clarified. (The comment referred to the
required $100 maintenance and $25 location fees.) This policy will not
be put in the rule, but will be included in the BLM Manual. When the
payment submitted does not cover all of the fees due, the BLM will
apply all fees sequentially beginning with the first numbered claim of
that claimant and to as many thereafter as the paid funds allow. For
instance, if a claimant submits $200 for two new locations, BLM would
not consider this complete payment of maintenance fees for two claims,
leaving the location fees and service charges unpaid for both, but
would apply the payment entirely to the first claim before applying any
money to the second. Thus, BLM would apply $125 ($100 for the
maintenance fee and $25 for the location fee) initially toward the
first claim. Because the remaining $75 would be insufficient to cover
the mandatory fees on the second claim, the second claim would be
voided for failure to pay the required fees. A portion of the remaining
funds would then be applied toward the first claim for the $10 service
charge. If the claimant submits other instructions on how to apply the
fees, such instructions will be followed, if possible.
One comment asked whether paragraph (c)(2) meant to allow a
claimant to choose which claims or sites will be dropped if the
maintenance fee payment is not sufficient for all of their claims. The
answer is yes. However, if the claimant does not notify BLM of the
preference, then BLM will apply the fees to those claims in ascending
numerical order of serialization.
One comment requested that cross references to Secs. 3833.1-4 and
3833.1-5, provisions on service charges and maintenance fees, be added
in paragraph (c)(2). This did not seem necessary, in part due to the
physical proximity of the provisions.
One comment said that paragraph (c)(3) should be changed to remove
the phrase ``* * * existing recorded and serialized mining claims and
sites* * *'' and to substitute the phrase ``* * * the list of claims
submitted by the claimant * * *.'' This change has not been made, but
rather, the paragraph has been removed from the final rule because it
largely repeats provisions of paragraph (c)(2).
43 CFR 3833.1-4
One comment stated that paragraph (b) was unclear in its reference
to ``recording.'' This paragraph has been amended to make it clear that
the reference is to recordation with BLM.
One comment said that the reference in paragraph (f) to facsimile
authorizations may cause problems, because some have been misdirected
in the past. A misdirected facsimile would not be considered a filing
in the proper office; no filing or payment is complete or proper until
it is received in the appropriate office.
One comment suggested that paragraph (g) should allow overpayments
to be credited to declining deposit accounts. This amendment has been
made to the final rule.
43 CFR 3833.1-5
The introduction to this section has been simplified to remove
information that is provided elsewhere in the regulations. The sentence
referring to the application of paid rental fees to the maintenance fee
was removed, because it confused the two fees and erroneously applied
the succeeding statutes. There is no possibility under either statute
that the rental fees covering 1992-93 and 1993-94 could be applied to
the maintenance fees covering assessment years beginning with 1994-95.
Also, the reference to Sec. 3833.1-8 has been changed to Sec. 3833.1-1
because of a redesignation in the final rule.
Paragraph (h)(2)(i) is removed in the final rule because it
contains information provided elsewhere in the regulations.
Three comments questioned whether it was correct to say that the
assessment years covered under the Act of August 10, 1993, end on
September 1, 1999. It is correct because a maintenance fee paid on or
before August 31, 1998, will hold the claim through September 1, 1999.
One comment questioned whether this section allows claimants to
have more than 10 claims waived. The answer is no. The language clearly
refers to Sec. 3833.1-6, which explains that the waiver can apply only
to those with 10 claims or fewer.
One comment said that the reference in the first sentence of this
section to Sec. 3833.1-8 in the proposed rule was incorrect because
Sec. 3833.1-8 did not make an exception from payment of the maintenance
fee. This first sentence refers to Sec. 3833.1-8 in the proposed rule,
redesignated as Sec. 3833.1-1 in the final rule, because the section
referred to provides for refunds in certain cases. Therefore, the
reference is necessary because it shows that the maintenance fee is not
always nonrefundable, not because the section referred to provides for
some exception to the payment requirement.
One comment asked whether maintenance fees can be paid for years in
the future despite the fact that assessment work always has had to be
performed annually. The answer is yes because the maintenance fee has
only to be paid on or before the August 31 deadlines, so that a
claimant could pay $500 to hold a claim through September 1999. In the
event, however, that the fee is adjusted pursuant to Section 10105(c)
of the Act, reconciliation payments or refunds may be necessary.
Assessment work requirements for small miners remain the same.
One comment stated that paragraph (a)(1) was unclear in its
reference to the ``time of recording.'' The final rule has been amended
to make it clear that this refers to filing with BLM.
One comment said that it was incorrect for paragraph (a)(2) to
allow no waiver for the initial claim maintenance fee due upon
recordation of a new claim. The small miner waiver is a discretionary
waiver. A waiver of the initial maintenance fee for small miners would
be unnecessarily difficult to administer and impossible to apply
equally to all miners. Varying filing requirements arise when miners
perform assessment work at different times during the assessment year,
and, in some instances, new locations could change the status of some
small miners. As a matter of discretion, therefore, BLM will not allow
a waiver for the initial maintenance fee required upon location of a
new claim.
Several comments stated that paragraph (a)(1) does not account for
the situation where the August 31 filing deadline falls within a new
location's 90-day recording period. Language similar to that in the
rental fee regulations has been added in paragraph (a) to cover this
situation.
One comment requested that a requirement be added to paragraph (b)
in which the claimant would indicate for which year a submitted
maintenance fee is intended. This extra requirement was not added
because in almost all cases it will be apparent which year the fee is
intended.
One comment said that paragraph (g) should be removed because a
small miner who transfers a claim has complied with the Act, but would
have to sell the claim for $100 less to a non-small miner transferee.
The comment stated that this would effectively take away the small
miner's waiver. Such a result in claim transfer negotiations is not
certain. In addition, this provision cannot be changed because the
statute is very explicit that a claimant who has more than 10 claims is
required to pay the fee. The purchase price that is negotiated could be
any amount decided by the two parties and by no means has to reflect
the maintenance fee to be paid by the non-small miner transferee.
Two comments addressing paragraph (g) asked what would happen if
only a percentage of the interest in a claim subject to a waiver,
rather than the whole interest, was transferred to a party not entitled
to a waiver. Because a response to this question depends on whether the
parties are related, a general answer cannot be given here. However,
the paragraph is amended to add the phrase ``or in part.''
Two comments asked what would happen if, unlike the situation
described in paragraph (g), a waived mining claim was transferred to
someone who qualified for a waiver. In such a case the claim would be
waived as long as the new owner still qualified for the waiver with the
addition of the new claim.
One comment stated that the reference in paragraph (g) to the
``time of filing'' the transfer of interest should be changed to the
effective date under State law. This is correct and the amendment has
been made in the final rule.
One comment stated that paragraph (g) should not allow payments
after the applicable August 31 deadline in cases where claims are
transferred to an entity not entitled to a waiver, because there is no
statutory authority for such extensions. This is correct and the final
rule has been amended accordingly.
One comment asked whether paragraph (h) will cause claimants who
had already paid under the old rate to have to make additional partial
payments. For purposes of clarification, paragraph (h)(2) has been
amended in the final rule to eliminate the possibility of second
payments being required in any given year as a result of an increase.
If payments are made in advance of the year in which the fee is due,
additional partial payments would be required if the fee is adjusted
upward for that year.
One comment stated that the public notice provided for in paragraph
(h)(1) should be done by letter to each individual miner. No decision
has been made on how public notice under this paragraph will be
accomplished, but it will be within the guidelines of the
Administrative Procedure Act, which controls all such methods of
official notification, and applicable case law.
One comment asked whether a possible upward adjustment of the
maintenance fee per paragraph (h)(2) would mean that the small miner
would have to do assessment work of an increased value as well. The
answer is no. The amount of assessment work to be performed is
established in the Mining Law of 1872. The maintenance fee is in lieu
of assessment work required, the value of which has not been amended.
No further clarification is necessary in the regulations on this point.
One comment questioned some of the references in paragraph (i).
This paragraph has been removed in the final rule, because its contents
are stated elsewhere in Secs. 3833.1-5 and 3833.1-6.
43 CFR 3833.1-6
Paragraph (a)(1) was amended to make it clear that for purposes of
obtaining the small miner waiver, the claimant is required to certify
that he or she owns 10 claims or fewer on the date payment is due,
which is August 31 of each year the Act of August 10, 1993, remains in
effect.
Two comments challenged this section of the proposed rule,
correctly observing that the Secretary is not required to offer a small
miner waiver under the Act of August 10, 1993. One comment stated that
the Secretary also had the choice of not offering the waiver or
offering some other kind, such as a one-claim waiver. The comment went
on to ask about the analysis that went into the decision to offer the
10-claim waiver and pointed out the administrative costs and loss of
revenue to the government in offering it (the other comment was also
concerned with administrative costs). It further asked what percentage
of claims of record are owned by those with 10 or fewer claims. It also
said that the National Performance Review requested by the President
states that the Government should get a fair return for Federal
resources and the waiver runs counter to this idea. There is nothing to
suggest that Congress intended anything other than for the Secretary to
decide whether to offer the 10-claim waiver as outlined in the Act, or
not to offer it at all. The statute allows the Secretary discretion to
offer the waiver to small miners, but defines small miners very
specifically. Also, the Act essentially extends the previous rental fee
statute, which offered a similar 10-claim exemption. Therefore, no
other types of waivers such as a one-claim waiver were considered. The
choice to offer the 10-claim waiver was made primarily because the fact
that Congress included the waiver in the legislation, although within
the Secretary's discretion, and included specific criteria for
implementing it, suggests that Congress believed that allowing the
waiver is appropriate in certain circumstances, which the statute
proceeds to lay out in detail. It is true that there is an
administrative cost and a loss of revenue to the Government because of
the waiver. It was determined, however, that these costs are justified.
The decision to offer the waiver does not conflict with the National
Performance Review, because the Administration's position concerning a
fair return for resources must be applied in light of the particular
facts involved, including other Administration positions, such as the
policy of helping small business. Additionally, it is the
Administration's position that a royalty on production should be
instituted in separate Mining Law reform legislation, which would also
apply to small miners. This is where the return for resources is more
fairly applied. Only approximately 10 percent of all active mining
claims on Federal land are eligible to be excused from the maintenance
fee, so the vast majority of claims will be subject to maintenance fees
paid by the claimants.
One comment stated that paragraph (a) should not allow mill and
tunnel sites to be waived if listed on a small miner waiver
certification. Such sites will be eligible for waiver, because the Act
of August 10, 1993, specifically allows a waiver of the maintenance fee
required for mining claims and mill or tunnel sites.
One comment objected to paragraph (a)(1), which allows a small
miner to pay the fee as well as file for a waiver if so desired. The
comment stated that this is misleading because the fee is nonrefundable
and the fee waiver would become moot. The comment suggested that in
such a case as this the fee should be refunded if a small miner waiver
is found to be valid. The purpose of this paragraph, which is similar
to language which implemented the rental fee, is to make clear that
there is no penalty for both paying the fee and filing the waiver. The
BLM has had a policy of not offering refunds in cases such as this
because of the significant costs associated with processing refunds,
and because a decision to pay the fee and file the waiver is entirely
within the discretion of the claimant. It has been determined that such
costs go beyond basic public service and represent a burden on the
taxpayer. However, the regulation provides at Sec. 3833.1-1(d) that in
such a case the claimant could apply the payment to a subsequent year
if the most current claim fee is waived through the small miner
certification process.
Two comments asked whether paragraph (a)(1) allows for claimants to
pay the fee for some claims and get the waiver for some if they have 10
or fewer total. The answer is no because the statute requires that if
eligible claimants decide to apply for the small miner waiver they must
do so for all their claims. This paragraph does allow for a claimant to
both pay and file for a small miner waiver for all or some of his or
her claims, but all of the claims count in deciding whether the
claimant is qualified for the small miner waiver.
One comment stated that paragraph (a)(1) should provide that if
only one co-owner has more than 10 claims that only his or her interest
in the claims will be forfeited in the event of non-payment under
Sec. 3833.4. This depends on the relationship between the parties. If
the co-owners are not related parties as defined in the law and this
rule, the claim would be void as to the non-small miner co-owner only.
Regarding paragraph (a)(3) one comment asked how a claimant makes a
certification for mill and tunnel sites when assessment work is not
required for sites. Simply listing sites on the small miner waiver form
will act as a notice of intention to hold and will suffice for
certification.
One comment asked whether, pursuant to paragraph (a)(3), a small
miner who owned only mill or tunnel sites could get a waiver. The
answer is yes.
One comment said that paragraph (a)(3) should state that mill and
tunnel sites are required to be active for the fee to be waived. The
maintenance fee is collected only in lieu of the assessment work
requirement, 30 U.S.C. 28-28e. No activity level is specified for mill
sites in those sections of the Mining Law. Therefore, no such
requirement has been added to this rule. The validity of millsites may,
nevertheless, still be challenged based on the requirements in 30
U.S.C. 42.
One comment asked if paragraph (a)(3) meant that if mill sites are
listed on a small miner certification, this would constitute a filing
of a notice of intention to hold. The answer is yes, and this is
further clarified in Sec. 3833.1-7(c).
One comment asked whether paragraph (b) required that a reclamation
plan be approved before the claimant can file the certification
statement, whether a closure date is required under the certification,
and whether a statement will have to be filed every year until closure.
The comment also pointed out that notice-level reclamation work does
not need to be approved by the authorized officer. Another comment
questioned the procedure to be followed on lands where the surface is
not managed by BLM. Unless only notice-level activities are being
conducted on the mining claim, a reclamation plan is required to be
approved before a certification statement can be filed. This paragraph
has been amended to add ``in consultation with'' the authorized officer
to cover notice-level operators who describe such reclamation plans in
their notice, but are not required to have them approved. Such
reclamation plans, whether a part of notice- or plan-level operations,
are always required to be on file prior to any August 31 deadline. No
closure date is required as a part of the certification statement, and
such statement will have to be filed every year until closure. This
paragraph also has been amended to clarify the process for claims for
which the surface is not managed by BLM.
Two comments urged removal of paragraph (b), with one comment
inquiring as to its statutory authority, its legal effect, and the
effect of failure to follow it. It further questioned whether this
amounted to paying miners for doing what they were already obligated to
do under the law. Another comment questioned this paragraph as well.
Section 10106 of the 1993 Act directs the Secretary to promulgate
regulations implementing the maintenance and location fee requirements.
This authority is applied here to exempt from the maintenance fee
claims being reclaimed after mining. A valid mining claim need not be
maintained in order for reclamation work to proceed. There is little
incentive for claimants to maintain claims in which the minerals have
been exhausted. It is in the Department's interest to encourage
claimants to retain a mining claim until reclamation is complete.
Excusing a miner from the maintenance fee during reclamation does not
in any way release the miner from the obligation to reclaim, which
remains as before. Release of the bond serves as incentive for
reclamation. If the claimant is found to have filed a false
certification, then appropriate action, including penalties under 18
U.S.C 1001, may be instituted. Any failure to reclaim will be dealt
with under applicable regulations.
Paragraph (d) has been amended to make it clear that an agency
other than the National Park Service may deny access to a claimant's
mining claim. All such denials may be grounds for a waiver under this
paragraph. A new subordinate paragraph (3) has been added for the
purpose of clarity to provide that the certification filed under
paragraph (d) may serve as notice of intention to hold under Section
314 of FLPMA.
Two comments stated that paragraph (e), dealing with deferments, is
inconsistent with the maintenance fee statute, which requires payment
of the fee at specified times. One comment also stated that the fee
cannot be deferred if, as in the case of the non-small miner, no
assessment work is required. The language in this paragraph is similar
to language in the rental fee regulations. The plain language of the
Act of August 10, 1993, states that the fee is to be paid in lieu of
the assessment work when it is required. When the assessment work is
deferred, the maintenance fee may also be deferred. When a deferment
ends, for the period in which the assessment work requirement was
replaced by the maintenance fee, the deferred maintenance fee must then
be paid. One comment referred to this section as providing for granting
a waiver, but this is not correct. It provides for a deferment of fees
that will have to be paid at the termination of the deferment.
Two comments stated that paragraph (e) conflicts with the Interior
Board of Land Appeals decision Clay Worst, 128 IBLA 165. This decision
found that only those claimants with 10 or fewer claims can obtain a
deferment of assessment work. That decision was based on the previous
rule, implementing the rental fee requirements, which is being replaced
by this rule. It was not the intent of the Department to limit
deferments to small miners in the last rule and it is not the intent in
this rule. Deferments under this paragraph may be obtained for any
number of claims. The Worst decision, which is based on the old
regulation, does not affect this final rule because this rule
implements a new statute.
One comment stated that paragraph (e)(1)(ii), redesignated (e)(2)
in the final rule, departed from current policy. This paragraph is
basically the same as the paragraph that applied to deferments in the
rental fee regulations. It has never been the policy of BLM for claims
to be automatically forfeited if a deferment is denied and the August
31 deadline has passed. In the current regulations, as well as under
this rule, a 30-day period from the receipt of a deferment petition
denial is allowed before payment of the fee is due. Spurious filings
merely to delay payment of the fee have not been and should not be a
problem, because fee payment is only potentially delayed, but not
excused, in the case of a deferment denial.
Regarding paragraph (f), one comment asked whether claims or sites
under a mineral patent application for which mineral entry has not been
allowed will be forfeited if no maintenance fee payment or waiver
certification is received. The answer is yes.
One comment requested clarification of paragraph (e)(1). Under this
paragraph it is possible for a small miner who is exempt from payment
of the $100 fee to have his or her assessment work deferred. A small
miner who is also applying for a deferment should certify as part of
the waiver statement due on August 31 that assessment work that would
otherwise have been done within the subject assessment year will be
done after the expiration of the deferment. This paragraph has been
amended in the final rule to make this requirement clear.
43 CFR 3833.1-7
One comment asked whether a claimant who paid a rental fee by
August 31, 1993, for the 1993-1994 assessment year must now do
assessment work in the 1993-1994 assessment year to obtain a waiver and
hold the claim for the 1994-1995 assessment year, and certify to such
by August 31, 1994, in order to qualify for a small-miner waiver. The
answer is yes, because if the requirement were interpreted otherwise,
the one fee payment made in 1993 would hold the claim for 2 years
rather than 1.
One comment stated that BLM's fee waivers for small miners are not
noted on the land records. The comment noted that when the fee is paid,
it is shown on the record, which therefore clearly shows good standing
for the claim. It is true that the BLM will not formally note
acceptance of the waiver application on the land records. The BLM does
not take formal action to grant waivers, but anyone inspecting BLM
records will see whether an abandoned and void decision was issued and
therefore whether a waiver application was rejected. It is also not
true that a record showing a fee payment means that the claim has
definitely been deemed in good standing for another year. For instance,
if the fee payment is by a check that is returned unpaid by the bank,
such payment will be judged to not have occurred and the claims will be
declared void if the payment deadline has already passed.
Paragraph (a) was amended to insert the word ``filing'' to make
clear that what is described in the paragraph is a proper certification
filing. However, this does not mean that the claimant will
automatically receive a waiver; the certification filed is required to
be consistent with the small miner's actual situation as of August 31,
1994, as determined by BLM.
Three comments asked for clarification of paragraph (a). A valid
exemption application having been filed by August 31, 1993, does not
guarantee that the small miner's claim maintenance fee will be waived
for the 1994-1995 assessment year. This will only happen if all the
same elements that existed in the 1993 filing exist on August 31, 1994,
the most obvious being the same number of mining claims. Otherwise the
claimant will have to file a new waiver statement by August 31, 1994,
or at least a supplemental statement. However, claimants whose
situations have not changed since the 1993 filing need not file another
certification.
Paragraph (c) has been amended to make it clear that the assessment
year beginning on September 1, 1994, is the year for which a claim is
held when the small miner certifies to assessment work done in the
1993-1994 assessment year by August 31, 1994. Also, a sentence
repeating information existing in other sections has been removed.
Paragraph (d)(3) has been amended to make it clear that, for the
purposes of obtaining the small miner waiver, the claimant is required
to certify that the assessment work has been performed or will be
performed by the date the payment is due, which is August 31 for each
year the Act of August 10, 1993, is in effect.
One comment correctly observed that no waiver can be granted until
after August 31 because the Act requires that the small miner have 10
or fewer claims on that date.
One comment asked whether paragraph (a) was correct in allowing an
exemption filed under the rental fee statute by August 31, 1993,
certifying that assessment work has been done in the 1993-1994
assessment year, to constitute a proper filing for the waiver statement
due on August 31, 1994, under the maintenance fee statute. The answer
is yes. The rental fee statute required that claimants filing for the
small miner exemption certify by August 31, 1993, that they would
perform $100 worth of assessment work during the 1993-1994 assessment
year. The maintenance fee statute requires that claimants filing for
the small miner waiver certify by August 31, 1994, that they have
performed the $100 worth of assessment work for the same 1993-1994
assessment year. Because in such a case the $100 worth of work had
already been certified to under the old law, it was determined that the
new law did not require a doubling of assessment work, but that the
same $100 worth of work could be used. To require $200 worth of work in
the same year would be in conflict with the Mining Law of 1872, which
requires only $100. This situation came about because the two laws
overlap for the 1993-1994 assessment year as to the assessment work
requirement for qualified small miners. The old rental fee statute will
expire in 1994, and there is no further overlap of laws. Therefore, a
small miner who qualified as such in 1993 need not take any action on
August 31, 1994, if his or her situation has not changed since August
31, 1993.
One comment requested that pursuant to paragraph (a) claimants in
this category should make filings by means of a new ``renewal'' form to
be created. This would be more complicated than the process envisioned
in this paragraph of the proposed rule, because it would be
duplicative. If a small miner could report no change from what was
reported in the exemption filing completed by August 31, 1993, then
there is no purpose in requiring the miner to make any sort of new
filing by August 31, 1994, if he or she intends to obtain another
waiver to hold the claim for the 1994-1995 assessment year. Under the
proposed rule the claimant would not have to make a new filing.
However, the situation may have changed since the claimant filed in
1993; for example, the claimant may now own seven claims instead of
five. Such a claimant would need to make a new filing by August 31,
1994, to reflect the changes. This could be done on the new waiver
form, which is not any more complicated than a ``renewal'' form would
be. Because of this, a renewal form will not be created.
Two comments said that paragraph (a) needed clarification. The
paragraph means that if a claimant properly filed a certification by
August 31, 1993, under the rental fee requirements, stating that he or
she would perform the necessary assessment work in the 1993-1994
assessment year to hold the claim for that same assessment year, and
did subsequently perform the assessment work, then he or she need not
file a waiver statement by August 31, 1994. This does not mean that the
certification filed in 1993 automatically leads to a waiver to hold the
claims for 1994-1995. The claimant's 1993 statement and BLM records as
of August 31, 1994, would have to be found to support a waiver for one
to be allowed. For instance, if a claimant had added claims since the
1993 filing and had more than 10 claims on August 31, 1994, he or she
would not be granted a waiver on the basis of information submitted in
1993, which no longer accurately reflects the status of the claimant.
Such a claimant would have to pay the fee.
Two comments stated that paragraph (c), which allows a waiver
statement to serve as a notice of intention to hold, where required,
should specify the situation where such a filing is required. The
primary case where this would apply would be as to mill and tunnel
sites.
One comment stated correctly that paragraph (c) should refer to
obtaining the small miner waiver for the assessment year ``beginning''
at noon on September 1, 1994, rather than ``ending.'' This correction
has been made in this final rule.
One comment asked about provisions for filing of a notice of
intention to hold for mill sites and tunnel sites included in a small
miner waiver. These provisions can be found in paragraph (c).
Regarding paragraph (d) one comment asked whether each miner in a
group or organization had to file a certification statement. Each miner
with an ownership interest in a claim is required to be identified and
sign the certified statement as provided in paragraphs (d)(4) and
(d)(5).
Two comments asked if the references in paragraph (d) to a
``certified statement'' means the statement is required to be
notarized. The answer is no, and the phrase ``certified statement'' has
been changed to ``statement'' or ``waiver certification,'' as
appropriate to the context, in the final rule.
One comment said that paragraph (d) should require evidence of
actual work on a claim such as proof of a Notice or Plan of Operations
as was required under the old rental fee statute. The requirement for a
Plan or Notice was statutory under the rental fee regulations, while
the maintenance fee statute only calls for submission of proof of
annual assessment. Therefore, the Plan of Operations or Notice
requirement was not included in this rule. The BLM will perform
periodic inspections of mining claims in order to make certain that
work is being performed on mining claims for which fees are waived.
One comment asked whether, pursuant to paragraph (d), a claimant
who has one claim, and who is a member of a corporation that has nine
claims, other members of which have other claims, can receive the small
miner waiver. The answer depends upon whether the claimant is a
``related party'' to the corporation and other members of the
corporation. A ``related party'' is defined in the Act as one who
controls, is controlled by, or is under common control with, another.
The Act goes on to provide that control includes actual control, legal
control, and the power to exercise control, through or by common
directors, officers, stockholders, a voting trust, or a holding company
or investment company, or any other means. Whether a claimant is a
related party for purposes of qualifying as a small miner will be
determined on a case-by-case basis. Because this question has been
raised in a public comment, BLM will consider a subsequent proposed
rulemaking to provide interpretation of this provision.
One comment correctly observed that, under paragraph (d)(2), a
claimant could file for the small miner waiver before August 31, and
then relinquish any excess claims so as to have 10 or fewer claims by
August 31, thereby meeting that requirement for the waiver.
One comment said that paragraph (d)(5) should require notarization
of signatures on the small miner waiver statement. The reason given was
that some claimants use fictitious names to increase acreage in
association placer claims. Requiring notarization would cause far more
difficulty for all concerned, with little or no benefit. Meeting the
notarization requirement is especially inconvenient for multiple co-
owners. In the event a claimant fraudulently inserts fictitious names
as in the example above, the claim would be open to attack from rival
claimants.
Two comments requested a clarification of paragraph (e)(2). The
Soldiers' and Sailors' Relief Act allows mining claims held by persons
on active military duty, or within 6 months of their release from
active duty, or during or within 6 months after their release from any
period of hospitalization due to military injuries, to be exempt from
the assessment work requirement. Likewise, such claims will be exempt
from the maintenance fee requirement. The official notice filed by a
person that he or she has entered active duty in the military service
should also include the scheduled date of discharge. Military personnel
would be subject to all assessment work or fee requirements 6 months
following discharge, unless proof of re-enlistment is submitted that
includes a new discharge date. A person who has been on active duty
since before August 30, 1994, is required to file notice of such active
duty status in the assessment year he or she wishes the exemption to
begin. Beginning September 1, 1994, any decision voiding a claim to
which this exemption applies, for nonpayment of the maintenance fee,
will be vacated. This provision has been added to paragraph (e)(2) in
the final rule. Filing a notice of intention to hold is not necessary,
because fee payments for mill and tunnel sites, for instance, would
merely be exempted in this case. As long as a qualified claimant
follows the requirements of this paragraph, the claim cannot be
considered abandoned for failure to pay the maintenance fee. Section
(e) has also been amended to make it clear that, for a claimant to
qualify under this section, he or she must own the claim without any
unqualified co-owners, and cannot be controlled by anyone who is
unqualified under this section. Finally, for the purpose of clarity,
the order of paragraphs (e)(1) and (e)(2) in the proposed rule has been
reversed in the final rule.
One comment stated that paragraph (f) should be removed because it
would allow claimants who cannot perform assessment work in National
Parks, for example, also to avoid paying the maintenance fee. Because
the assessment work restriction within National Parks does not
automatically signify that a claimant has been denied all access to his
or her mining claim(s), BLM has accepted this comment and paragraph (f)
has been removed in the final rule. Claimants who hold mining claims
within National Parks and who would otherwise file a notice of
intention to hold must pay the maintenance fee to hold their claims
unless they are denied all access to their mining claims by the
National Park Service or they are qualified as a small miner. Claimants
who have been denied all access to their mining claims by the National
Park Service or other governmental agencies may seek relief from the
maintenance fee under Sec. 3833.1-6(d).
43 CFR 3833.1-8
This section is redesignated in this final rule as section 3833.1-
1. The old Sec. 3833.1-1 is being removed administratively as a part of
this rule, as explained above.
Paragraph (d) has been amended to show that the Act of August 10,
1993, does not affect the assessment work requirements starting
September 1, 1999, and that the first FLPMA filing not affected by the
Act is the one due on December 30, 2000.
One comment asked if fees or charges should be returnable if the
claims are still shown as active on BLM records but have been voided or
abandoned by operation of law, but for which a decision has not yet
been issued. The answer is yes, if for some reason payments are made on
such claims.
Two comments asked what the term ``docketed'' in paragraph (a)
means. This word and other terms of art have been removed and replaced
with other terms to clarify the point at which service charges cannot
be returned.
One comment asked if service charges for amended locations will
also be returnable under paragraph (b). The answer is yes.
One comment disagreed that paragraph (b) allows service charges to
be returnable in such a case. Service charges must be returnable in
this case because the charges were paid for a service that will not be
performed. For instance, if a small miner submits the service charge
with his or her annual assessment filing on a claim that is already
abandoned and void by operation of law, the service that the charges
are for (to process the annual filing submitted) will never be
rendered.
One comment asked whether paragraph (c) should refer to the time of
``submission'' of fees rather than the time ``fees were paid.'' The
term ``time of submission'' is more precise and the final rule has been
amended accordingly.
One comment said that paragraph (c) did not cover all instances for
which fees may be refunded. This paragraph has been amended to add
overpayments as a reason for refund.
One comment asked for a clarification of whether paragraph (d)
means that BLM will only refund duplicate payments when requested to.
The answer is yes, but the final rule regarding this process has been
amended to give the claimant a choice between a refund or an
application of the excess fees to a future year.
One comment said that paragraph (d) should not apply to maintenance
fees, but instead a new paragraph should be added in which application
of the duplicate fees to a future year would be automatic unless a
refund is issued. This paragraph has been amended to require that
claimants who overpay their fee be given the choice either to receive a
refund or to apply the fees to a subsequent year. Claimants will be
notified in every case, because they have a right to direct how their
overpayment is to be treated, and must know how much they have already
contributed to the next year's payment in order to adjust their payment
for the next year.
One comment suggested that paragraph (d) should be reworded for
clarity. This has been done in the final rule.
43 CFR 3833.2-3
Paragraph (e) has been amended to provide that fee payments under
the Act of August 10, 1993, need only be made for new claims located on
or before September 29, 1998. The time period that such a claim will be
held in good standing by such a payment has also been clarified.
43 CFR 3833.2-6
One comment stated that the term ``mineral entry'' is inconsistent
with terminology in 43 CFR 3851.5(a) and should be changed to reflect
this. It is inappropriate to make this change because the term is used
in this section as it is in 43 CFR subpart 3851.
One comment challenged the statutory authority for this section.
The comment stated that allowance of mineral entry is only an early
hurdle in the patent process, and a claim at that point remains
unpatented and thus subject to the fee. The comment also stated that
associated regulations that allow assessment work to be excused in such
a case are similarly erroneous. There is no specific statutory
authority for this section, but there are significant numbers of
judicial decisions supporting it. The end of the obligation to file
proof of performance of assessment work is a part of the recognition of
mineral entry, which must be determined on a case-by-case basis. The
similar treatment of the maintenance fee payment is also a recognition
of this mineral entry.
Two comments asked for the definition of when mineral entry begins.
One comment urged insertion of the definition into the rule. When
mineral entry occurs must be determined on a case-by-case basis.
One comment said that this section should be reworded because a
notice of intention to hold can no longer be filed on a mining claim.
This section has been reworded in the final rule to reflect this.
43 CFR 3833.3
One comment stated that paragraph (c) in the proposed rule is
misleading because it refers to transfers of interest ``being
effective'' on the date of recordation with BLM and also refers to
``BLM record title purposes,'' which it said implies that BLM records
reflect the true state of legal title for mining claims. This paragraph
has been amended in the final rule to make it clear that the
recordation date of a transfer of interest is merely the effective date
for BLM record purposes. The paragraph is further amended by removing
the phrase ``For BLM record title purposes'' to eliminate this
confusion.
Three comments asked for a clarification of paragraph (c). The
paragraph means to say that a transfer is first officially shown on BLM
records as of the date of recordation with BLM. The actual effective
date of the transfer is determined by State law.
43 CFR 3833.4
Two comments stated that paragraph (a)(1)(i) does not make
reference to annual filings as to mill sites. This inadvertent omission
has been corrected in the final rule.
One comment said that paragraph (a)(3), which deals with failure to
perform assessment work on or before the date of the filing of a waiver
statement, cannot result in forfeiture of the claim because this is not
allowed under the Mining Law. The comment further stated that
retroactive forfeiture of a claim for failure to perform assessment
work once the waiver has already been granted should not be allowed.
This paragraph is only referring to situations where a claimant would
file a false statement which says that assessment work had been
performed when it had not. In such a case, upon investigation, the
claims would be declared void for failure to pay the maintenance fee,
given that an invalid waiver certification was filed.
One comment said that the current paragraph (b) had been
incorrectly amended in previous rules so that complete cross references
regarding the curability of the contents of a notice of intention to
hold were omitted. The paragraph is amended by adding a cross reference
to Sec. 3833.2-5.
One comment said that paragraph (b) did not adequately explain that
failure to file complete information under the referenced sections is
not automatically fatal, but is curable by means of submittal of the
information in response to a notice from the authorized officer asking
for it. The paragraph clearly says that this failure is curable, and no
amendment is considered necessary.
One comment said that paragraph (c) did not reflect the case law
regarding on whom BLM must serve notice. It cited an Interior Board of
Land Appeals (IBLA) decision to support its position. The IBLA decision
in question directed BLM to look at assessment affidavits in order to
help determine the last address of record for an owner. This paragraph,
however, merely deals with determining who is the owner of a claim, not
where he or she lives. Therefore, it does not run afoul of the cited
decision of IBLA.
43 CFR 3833.5
One comment requested that a change be made to paragraph (d) to
allow for an additional method of service within this subpart. This
change cannot be made in the final rule because it was not proposed in
the May 11, 1994, Federal Register publication. Substantive changes may
not be made in regulations, absent emergency circumstances, without
providing opportunity for public comment on the proposed changes. 5
U.S.C. 553. The BLM will give consideration to this request to
determine whether additional methods of service are warranted and
should be adopted by future rulemaking.
43 CFR 3851.4
Two comments asked whether mill or tunnel sites should be added in
the co-ownership provisions of this section. The answer is yes, and
sites have been added to this section in this final rule to clarify the
rights and responsibilities of co-owners of these sites.
One comment stated that paragraph (a) should clearly state that the
year referred to means assessment year. This amendment has been made in
the final rule.
One comment suggested that the phrase ``ownership records'' in
paragraph (b) should be changed to ``BLM records'' to underscore that
BLM is not the official repository of mining claim ownership records.
The BLM does not consider itself the keeper of the definitive record of
ownership, and this paragraph in the proposed rule is not intended to
imply that it is.
One comment said that the phrase ``record title'' in paragraph (c)
should be changed to ``BLM records'' in order to avoid suggesting that
the BLM ownership records are the official legal title records. The
paragraph has been amended to remove this misleading implication.
The principal authors of this final rule are Frank Bruno and Roger
Haskins of the Division of Solid Minerals, assisted by the staff of the
Division of Legislation and Regulatory Management, BLM.
It has been determined that this final rule does not constitute a
major Federal action significantly affecting the quality of the human
environment, and that no detailed statement pursuant to Section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)) is required. The BLM has determined that this rule is
categorically excluded from further environmental review pursuant to
516 Departmental Manual, Chapter 2, Appendix 1, Item 1.10, and that the
rule will not significantly affect the 10 criteria for exceptions
listed in 516 DM 2, Appendix 2. Pursuant to the Council on
Environmental Quality regulations (40 CFR 1508.4) and environmental
policies and procedures of the Department of the Interior,
``categorical exclusions'' means a category of actions that do not
individually or cumulatively have a significant effect on the human
environment and that have been found to have no such effect in
procedures adopted by a Federal agency and for which neither an
environmental assessment nor an environmental impact statement is
required.
This rule has been reviewed under Executive Order 12866.
The Department also certifies that this document will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The fee
may represent an economic consideration for a small, marginal operation
that does not qualify for an exemption under the rule. However, most
small operations would qualify. A small entity that holds a valuable
mining claim will not be deterred by the annual fee, and many of them
will qualify for an exemption. Most marginal claims were already
abandoned in 1993 upon promulgation of the regulations implementing the
Act of October 5, 1992.
As required by Executive Order 12630, the Department of the
Interior has determined that the rule would not cause a taking of
private property. The requirement that a modest fee be paid to hold or
maintain an existing unpatented mining claim, mill or tunnel site
constitutes a reasonable regulatory burden, and it will have no effect
on a claimant's use of his or her claim or site as long as he or she
complies with the requirement.
The Department has certified to the Office of Management and Budget
that these regulations meet the applicable standards provided in
sections 2(a) and 2(b)(2) of Executive Order 12778.
The provisions for collection of information contained at 43 CFR
Parts 3730, 3820, 3830, and 3850, and subpart 3809 have previously been
approved by the Office of Management and Budget and assigned clearance
numbers 1004-0104, 1004-0110, and 1004-0114. Information collections
for Parts 3730, 3820, 3830, and 3850 were consolidated under clearance
number 1004-0114 in the July 15, 1993, rule (58 FR 38186). As this rule
removes obsolete or inoperative sections of Title 43, Code of Federal
Regulations, and extends the information collection-related effect of
the previously enacted Act of October 5, 1992, and implementing
regulations published on July 15, 1993, this rule does not contain
information collection requirements that require approval by the Office
of Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects
43 CFR Part 3720
Coal, Mineral royalties, Mines, Public lands--mineral resources.
43 CFR Part 3730
Administrative practice and procedure, Mines, Public lands--mineral
resources, Reporting and recordkeeping requirements, Surety bonds.
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 3810
Mines, Public lands--mineral resources, Reporting and recordkeeping
requirements.
43 CFR Part 3820
Mines, Monuments and memorials, National forests, National parks,
Public lands--mineral resources, Reporting and recordkeeping
requirements, Surety bonds, Wilderness areas.
43 CFR 3830
Mineral royalties, Fees, Mines, Public lands--mineral resources,
Reporting and recordkeeping requirements.
43 CFR 3850
Assessment work, Mines, Public lands--mineral resources, Reporting
and recordkeeping requirements.
Dated: August 15, 1994.
Bob Armstrong,
Assistant Secretary of the Interior.
Under the authority of the Act of August 11, 1993 (Pub. L. 103-66,
107 Stat. 312); sections 441 and 2478 of the Revised Statutes, as
amended (43 U.S.C. 1457 and 1201); section 2319 of the Revised
Statutes, as amended (30 U.S.C. 22); sections 310 and 703(a) of the
Federal Land Policy and Management Act of 1976, as amended (43 U.S.C
1701 and 1740); and the Act of April 16, 1993 (107 Stat. 60); parts
3730, 3820, 3830, and 3850, and subpart 3809, Groups 3700 and 3800,
subchapters A and C, chapter II of title 43 of the Code of Federal
Regulations are amended as follows:
PART 3720--PUBLIC LAW 357; ENTRY AND LOCATION OF SOURCE MATERIALS
UPON PUBLIC LANDS VALUABLE FOR COAL
1. Part 3720 is removed and reserved.
PART 3730--PUBLIC LAW 359; MINING IN POWERSITE WITHDRAWALS: GENERAL
2. The authority citation for part 3730 is revised to read as
follows:
Authority: 69 Stat. 681, 30 U.S.C. 621-625; 43 U.S.C. 1701 et
seq.; 30 U.S.C. 28f-k, 107 Stat. 405.
Subpart 3730--Public Law 359; Mining in Power Site Withdrawals:
General
3. Section 3730.0-1 is revised to read as follows:
Sec. 3730.0-1 Purpose; lands open.
(a) The purpose of the Mining Claims Rights Restoration Act of
August 11, 1955 (Act), is to permit the mining, development, and
utilization of the mineral resources of all public lands withdrawn or
reserved for power development and other purposes, except for lands
that:
(1) Are included in any project operating or being constructed
under a license or permit issued under the Federal Power Act or other
Act of Congress, or
(2) Are under examination and survey by a prospective licensee of
the Federal Energy Regulatory Commission under an uncancelled
preliminary permit that has not been renewed more than once.
(b) Locations made under the Act on lands withdrawn or reserved for
power development within the revested Oregon and California Railroad
and Reconveyed Coos Bay Wagon Road Grant Lands are also subject to the
provisions of the Act of April 8, 1948 (62 Stat. 162). See subpart 3821
of this title.
4. Section 3730.0-3 is revised to read as follows:
Sec. 3730.0-3 Authority.
The authorities for the regulations in this part are the Act of
August 11, 1955 (30 U.S.C. 621-625); Sec. 314 of the Act of October 21,
1976 (43 U.S.C. 1744); 30 U.S.C. 28f-k, 107 Stat. 405.
5. Section 3730.0-9 is amended by revising paragraph (a) to read as
follows:
Sec. 3730.0-9 Information collection.
(a) The collections of information contained in subpart 3730 have
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1004-0110 and subsequently
consolidated with 1004-0114. The information will enable the authorized
officer to determine whether a mining claimant is qualified to hold a
mining claim or site for the exploration, development, and utilization
of minerals on all public lands that are withdrawn for power
development. A response is required to obtain a benefit in accordance
with the Act of August 11, 1955 (30 U.S.C. 621-625), Section 314 of the
Federal Land Policy and Management Act of 1976, as amended (43 U.S.C.
1744), and the Act of August 10, 1993 (Pub. L. 103-66, 107 Stat. 312).
* * * * *
Subpart 3734--Location and Assessment Work
6. Section 3734.1 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 3734.1 Owner of claim to file notice of location and assessment
work.
(a) The owner of any unpatented mining claim, mill site, or tunnel
site located on land described in Sec. 3730.0-1 (a) and (b), shall file
all notices or certificates of location, amended notices or
certificates, and transfers of interest, with the proper State Office
of the Bureau of Land Management pursuant to Secs. 3833.1, 3833.3,
3833.4, and 3833.5 of this title, and pay the applicable maintenance,
location, and service fees required by subpart 3833 of this title. The
notice, certificate, transfer, or amendment thereto shall be marked by
the owner to indicate that it is being filed pursuant to the Act of
August 11, 1955, the Act of April 8, 1948, or both, as required by
Sec. 3833.5(c). Failure to so mark the location certificate will delay
the procedures to authorize mining under subpart 3736.
* * * * *
(c) The owner of any unpatented mining claim, mill site, or tunnel
site located on land described in Sec. 3730.0-1 shall perform and
record annual assessment work if he or she qualifies as a small miner
under Sec. 3833.0-5(u) of this title or pay an annual maintenance fee
of $100 per unpatented mining claim, mill site, or tunnel site in lieu
of the annual assessment work or notice of intention to hold, pursuant
to subpart 3833 of this title.
PART 3800--MINING CLAIMS UNDER THE GENERAL MINING LAWS
7. The authority citation for part 3800 is revised to read as
follows:
Authority: 16 U.S.C. 447; 16 U.S.C. 347-354; 16 U.S.C. 460y et
seq.; 16 U.S.C. 473, 478-482; 16 U.S.C. 1901, 1907; 30 U.S.C. 22 et
seq.; 30 U.S.C. 122, 161, 162; 30 U.S.C. 242; 31 U.S.C. 9701; 43
U.S.C. 2; 43 U.S.C. 154; 43 U.S.C. 299, 300; 43 U.S.C. 1201; 43
U.S.C. 1474; 43 U.S.C. 1701 et seq.; 50 U.S.C. Appendix 565; 62
Stat. 162; 100 Stat. 3457-3468; 107 Stat. 60; and 30 U.S.C. 28f-k,
107 Stat. 405.
Subpart 3809--Surface Management
8. Section 3809.0-3 is amended by adding new paragraph (e) to read
as follows:
Sec. 3809.0-3 Authority.
* * * * *
(e) The Act of October 21, 1970 (16 U.S.C. 460y et seq.), as
amended by Section 602 of the Federal Land Policy and Management Act of
1976 (16 U.S.C. 460y-8), established the King Range Conservation Area
in California. The Secretary is required under these Acts to manage
activities in this conservation area under the General Mining Law of
1872 in such a manner as to protect the scenic, scientific, and
environmental values against undue impairment, and ensure against
pollution of streams and waters.
9. Section 3809.0-5 is amended by adding new paragraph (l) to read
as follows:
Sec. 3809.0-5 Definitions.
* * * * *
(l) King Range Conservation Area means the area designated pursuant
to the Act of October 21, 1970 (16 U.S.C. 460y et seq.), as amended by
Section 602 of the Federal Land Policy and Management Act of 1976 (16
U.S.C. 460y-8).
10. Section 3809.1-4 is amended by adding new paragraph (b)(6) to
read as follows:
Sec. 3809.1-4 Plan of operations: When required.
* * * * *
(b) * * *
(6) The area designated as the King Range Conservation Area
pursuant to 16 U.S.C. 460y et seq., as amended by section 602 of the
Federal Land Policy and Management Act of 1976.
* * * * *
PART 3810--LANDS AND MINERALS SUBJECT TO LOCATION
10. The authority citation for Part 3810 is added to read as
follows:
Authority: 30 U.S.C. 22 et seq.; 43 U.S.C. 1201 and 1740.
Subpart 3811--Lands Subject to Location and Purchase
11. Section 3811.2-2 is revised to read as follows:
Sec. 3811.2-2 Lands in national parks and monuments.
The Mining in the Parks Act (16 U.S.C. 1901 et seq.), effectively
withdrew all National Parks and Monuments from location and entry under
the General Mining Law of 1872, as amended. Since September 28, 1976,
all National Parks and Monuments and other units of the National Park
System have been closed to the location of mining claims and sites
under the General Mining Law of 1872, as amended. Valid existing rights
are recognized, but access and permission to operate mining claims and
sites within units of the National Park System are now governed by 36
CFR part 9.
12. Section 3811.2-3 is revised to read as follows:
Sec. 3811.2-3 Lands in Indian reservations.
All lands contained within the boundaries of an established Indian
Reservation are withdrawn from all location, entry, and appropriation
under the General Mining Law of 1872, as amended. All minerals on
Indian Reservations may only be acquired by lease pursuant to the Act
of May 11, 1938 (25 U.S.C. 396a), the Act of March 3, 1909 (25 U.S.C.
396), or the Indian Mineral Development Act of 1982 (25 U.S.C. 2101 et
seq.). The regulations governing the mineral leasing of Indian lands
are found in 25 CFR Chapter I Subchapter I.
Sec. 3811.2-8 [Removed]
13. Section 3811.2-8 is removed.
PART 3820--AREAS SUBJECT TO SPECIAL MINING LAWS
13. The authority citation for part 3820 is revised to read as
follows:
Authority: 30 U.S.C. 22 et seq.; 43 U.S.C. 1201 and 1740.
Subpart 3821--O and C Lands
14. Section 3821.0-3 is revised to read as follows:
Sec. 3821.0-3 Authority.
The authorities for the regulations in this subpart are the Act of
April 8, 1948 (62 Stat. 162); Section 314 of the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1744); and the Act of August 10,
1993 (30 U.S.C. 28f-k, 107 Stat. 405).
15. Section 3821.2 is revised to read as follows:
Sec. 3821.2 Requirements for filing notices of locations of claims;
descriptions.
The owner of any unpatented mining claim, mill site, or tunnel site
located on land described in Sec. 3821.1 shall file all notices or
certificates of location, amended notices or certificates, and
transfers of interest in the proper State Office of the Bureau of Land
Management pursuant to Secs. 3833.1, 3833.3, 3833.4, and 3833.5 of this
title and shall pay the applicable maintenance, location, and service
fees required by subpart 3833 of this title. The notice or certificate
of location, or amendment thereto, shall be marked by the owner as
being filed under the Act of April 8, 1948, and, if located on
powersite lands, also the Act of August 11, 1955, as prescribed by
Secs. 3734.1 and 3833.5 of this title.
16. Section 3821.3 is revised to read as follows:
Sec. 3821.3 Requirement for filing statements of assessment work.
The owner of an unpatented mining claim, mill site, or tunnel site
located on O and C lands shall perform and record proof of annual
assessment work, or pay an annual maintenance fee of $100 per
unpatented mining claim, mill site, or tunnel site, pursuant to subpart
3833 of this title.
Subpart 3826--[Removed and Reserved]
17. Subpart 3826 is removed and reserved.
Subpart 3827--[Removed and Reserved]
18. Subpart 3827 is removed and reserved.
PART 3830--LOCATION OF MINING CLAIMS
19. The authority citation for part 3830 is revised to read as
follows:
Authority: 30 U.S.C. 22 and 28; 43 U.S.C. 1201; 31 U.S.C. 9701;
16 U.S.C. 1901, 1907; 43 U.S.C. 1740 and 1744; 30 U.S.C. 242; 50
U.S.C. Appendix 565; 107 Stat. 60; 107 Stat. 405.
Subpart 3833--Recordation of Mining Claims, Mill Sites, and Tunnel
Sites; Payment of Service Charges, Maintenance, and Location Fees
20. Section 3833.0-1 is amended by revising paragraph (c) to read
as follows:
Sec. 3833.0-1 Purpose.
* * * * *
(c) The payment in the same office of an annual maintenance fee, if
required, for each mining claim, mill site, or tunnel site held by the
claimant;
* * * * *
21. Section 3833.0-3 is amended by revising the first sentence of
paragraph (a), revising paragraphs (e) and (f), and adding new
paragraphs (g) and (h) to read as follows:
Sec. 3833.0-3 Authority.
(a) Sections 314(a) and (b) of the Federal Land Policy and
Management Act (43 U.S.C. 1744), as amended by the Act of August 10,
1993 (30 U.S.C. 28f-k, 107 Stat. 405), require the recordation of
unpatented mining claims, mill sites, and tunnel sites, and the filing
of information concerning annual assessment work performed on
unpatented mining claims in the proper BLM office within specified time
periods. * * *
* * * * *
(e) Sections 10101-10106 of the Act of August 10, 1993 (Pub. L.
103-66, 107 Stat. 405), require an annual maintenance fee of $100 to be
paid to the proper State Office of the Bureau of Land Management for
each non-waived mining claim, mill site, or tunnel site. With certain
exceptions provided in Sec. 3833.1-6, this fee is in lieu of the
requirement to perform and record annual assessment work under 30
U.S.C. 28-28e and section 314(a) of FLPMA. Failure to pay the fee
within the time limits prescribed by the Act of August 10, 1993,
constitutes a statutory abandonment and forfeiture of the non-waived
mining claim, mill site, or tunnel site. Provisions relating to
maintenance fees and waivers are contained in Secs. 3833.0-3(f),
3833.1-5, 3833.1-6, and 3833.1-7.
(f) Section 2511(e)(2) of the Energy Policy Act of 1992 (30 U.S.C.
242) requires oil shale claim holders to pay an annual fee of $550 per
oil shale claim, notwithstanding any other provision of law. The Act of
August 10, 1993, specifically states that the maintenance fee provision
shall not apply to any oil shale claims for which a fee is required to
be paid under Section 2511(e)(2) of the Energy Policy Act of 1992. The
$550 fee requirement for oil shale claims remains in effect. The $550
fee is first payable on or before December 31, 1993, and on or before
each December 31st thereafter.
(g) The Stockraising Homestead Act of December 29, 1916 (SRHA) (43
U.S.C. 299), as amended by the Act of April 16, 1993 (107 Stat. 60),
provides that no person other than the surface owner may locate a
mining claim on SRHA lands after October 13, 1993, until a notice of
intent to locate has been filed with the proper BLM State Office and
the surface owner is notified of the filing.
(1)(i) When a notice of intent to locate a mining claim has been
properly filed by a mining claimant, no other person may, until 90 days
after the date the notice of intent is filed:
(A) File such a notice with respect to any portions of the lands
covered by the first notice;
(B) Explore for minerals or locate a mining claim on any portion of
such lands; or
(C) File an application to acquire any interest in any portion of
such lands pursuant to Section 209 of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1719).
(ii) The 90-day exclusive right may be extended by filing a Plan of
Operations pursuant to subpart 3809 of this title. The extension runs
until the BLM has approved or denied the Plan of Operations.
(2) The mining claimant may not locate mining claims on the lands
encompassed by a notice under the Act of April 16, 1993, until at least
30 days after he or she has properly notified the surface owner by
registered or certified mail, return receipt requested.
(3) The Act of April 16, 1993, contains numerous other requirements
prerequisite to a claimant engaging in mineral exploration and
development activities on SRHA lands. These requirements are
administered pursuant to subpart 3814 of this title.
(h) The Soldiers' and Sailors' Relief Act of 1940 (50 U.S.C.
appendix 565) excuses performance of assessment work by military
personnel while they are on active duty, or within 6 months of their
release from active duty, or during or within 6 months after their
release from any period of hospitalization due to military injuries.
The procedures for obtaining a waiver from the performance of
assessment work may be found in subpart 3851 of this title.
22. Section 3833.0-5 is amended by revising paragraphs (e), (g),
(m), and (o), removing paragraphs (t) and (v), redesignating existing
paragraphs (u) and (w) as paragraphs (t) and (u), and adding paragraphs
(v), (w), (x), (y), (z), (aa), and (bb) to read as follows:
Sec. 3833.0-5 Definitions.
* * * * *
(e) Owner or claimant means the person who is, under State or
Federal law, the holder of the right to sell or transfer all or any
part of an unpatented mining claim, mill site, or tunnel site. The name
of the owner and his or her current address shall be identified on all
instruments required to be recorded or filed by the regulations in this
subpart.
* * * * *
(g) Proper BLM office means the Bureau of Land Management State
Office listed in Sec. 1821.2-1(d) of this title having jurisdiction
over the land in which the claims or sites are located. In Alaska, the
Northern District Office's Records and Public Information Unit, located
in Fairbanks, may also receive and record documents, filings, and fees
for all mining claims, mill sites, and tunnel sites located in the
State of Alaska.
* * * * *
(m) File or filed means being received and date stamped by the
proper BLM office. For purposes of complying with Secs. 3833.1-2,
3833.1-3, 3833.1-5, 3833.1-6, 3833.1-7, or 3833.2, a filing or fee
required by any of these sections is timely if received within the time
period prescribed by law, or, if mailed to the proper BLM office, is
contained within an envelope clearly postmarked by a bona fide mail
delivery service within the period prescribed by law and received by
the proper BLM State Office by 15 calendar days subsequent to such
period, except as provided in Sec. 1821.2-2(e) of this title if the
last day falls on a day the office is closed.
* * * * *
(o) Filing period means the time period during which documents and
fees are required to be provided to the proper BLM office. Except for
filings and recordings required of a small miner qualifying for a
waiver under Sec. 3833.1-7 of this title, filings under FLPMA that
would have been due on December 30, 1994, and each December 30 through
and including December 30, 1999, are waived effective January 1, 1994,
and so long thereafter as the Act of August 10, 1993, is in effect.
* * * * *
(v) Maintenance fee means the annual $100 payment required by the
Act of August 10, 1993 (Pub.L. 103-66, 107 Stat. 312), to hold and
maintain a mining claim, mill site, or tunnel site. The requirement to
pay a maintenance fee does not apply to any claim located after
September 29, 1998.
(w) Location fee means the one time $25 payment required by the Act
of August 10, 1993, for all new mining claims and mill and tunnel sites
located upon the public lands on or after August 11, 1993, and before
September 30, 1998. The location fee shall be paid at the time the
mining claim or site is recorded with the proper BLM office.
(x) Related party means:
(1) The spouse and dependent children of the claimant as defined in
section 152 of the Internal Revenue Code of 1986, or
(2) A person who controls, is controlled by, or is under common
control with the claimant.
(y) Control means, as defined in the Act of August 10, 1993, actual
control, legal control, and the power to exercise control, through or
by common directors, officers, stockholders, a voting trust, or a
holding company or investment company, or any other means.
(z) Forfeiture means the consequences of an act or failure to act
that results in an unpatented mining claim, mill, or tunnel site being
deemed to be by operation of law abandoned or null and void. The term
has the same meaning whether it is used in the noun form or in the verb
form ``forfeit'' or ``forfeited.''
(aa) Returnable means that a check or negotiable instrument,
including a valid credit card order, is received by the authorized
officer but not yet processed through the accounting system of the
Bureau of Land Management, and can be returned to the originator
without processing of a refund check through the United States Treasury
pursuant to Sec. 3833.1-1.
(bb) Refundable means that a check or negotiable instrument,
including a valid credit card order, has been processed through the
accounting system of the Bureau of Land Management, and cannot be
returned to the originator without the processing of a refund check
through the United States Treasury or the crediting to a credit card
account pursuant to Sec. 3833.1-1.
23. Section 3833.0-9 is amended by revising paragraph (a) to read
as follows:
Sec. 3833.0-9 Information collection.
(a) The collections of information contained in subpart 3833 have
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1004-0114. The information
will be used to enable BLM to record mining claims, mill sites, and
tunnel sites; to maintain ownership records to those claims and sites;
to determine the geographic location of the claims and sites recorded
for proper land management purposes; and to determine which claims and
sites their owner(s) wish to continue to hold under applicable Federal
statute. A response is required to obtain a benefit in accordance with
Section 314 of FLPMA, as amended, the Act of April 16, 1993 (Public Law
103-23, 107 Stat. 60), and the Act of August 10, 1993 (Public Law 103-
66, 30 U.S.C. 28f-k, 107 Stat. 405).
* * * * *
24. Section 3833.1-1 is revised to read as follows:
Sec. 3833.1-1 Refundability of service charges, location fees, rental
and maintenance fees.
(a) Service charges submitted for new recordings under Sec. 3833.1-
2 are not returnable or refundable after the document has received the
processing for which the service charges were paid.
(b) Service charges submitted with documents to be filed pursuant
to Secs. 3833.2 and 3833.3 are returnable or refundable if, at the time
of submission, the affected mining claim or site is determined to be
null and void or abandoned by operation of law.
(c) Maintenance and location fees are not returnable or refundable
unless the mining claim or site has been determined, as of the date the
fees were submitted, to be null and void, abandoned by operation of
law, or otherwise forfeited.
(d) Maintenance fees, location fees, or service charges made in
duplicate for the same claim or site or otherwise overpaid are
returnable or refundable. The money will be returned or refunded to the
party who submitted it. The authorized officer may apply the fee to a
future year if so instructed by the payor.
(e) Voluntary actions such as relinquishment of claims or sites, or
payment of maintenance fees by a qualified small miner, shall not be a
qualifying reason for obtaining a refund of such fees previously paid.
25. Section 3833.1-2 is amended by adding paragraphs (c) and (d) to
read as follows:
Sec. 3833.1-2 Recordation of mining claims, mill sites, and tunnel
sites located after October 21, 1976.
* * * * *
(c)(1) Beginning on October 13, 1993, mining claims cannot be
located on lands patented under the Stockraising Homestead Act of 1916,
as amended by the Act of April 16, 1993 (107 Stat 60); until the
claimant has first filed a notice of intent to locate with the proper
BLM State Office and has served a copy of the notice upon the surface
owner(s) of record, by registered or certified mail, return receipt
requested. Such notice shall be in the form and contain the information
required in paragraph (d) of this section.
(2) The claimant shall wait 30 days after such service before
entering the lands to locate any mining claims on the Stockraising
Homestead Act lands.
(3) The authorized officer will not record any mining claim located
on lands patented under the Stockraising Homestead Act, as amended,
unless the claimant has complied with the requirements of this section,
and all certificates or notices of location will be returned to the
claimant without further action.
(4) The surface owner of land patented under the Stockraising
Homestead Act, as amended, is exempt from the requirements of this
section.
(5) All mining claims located on Stockraising Homestead lands are
subject to the requirements of the Act of April 16, 1993. These
additional requirements are found in subpart 3814 of this title.
(d) A separate notice of intent shall be filed and recorded in the
appropriate BLM State Office for each separate surface ownership in an
individual State.
(1) Each notice of intent submitted shall be accompanied by
evidence of title of the surface owner(s). Evidence of title shall be
either a certificate of title or abstract of title certified by a
person, association, or corporation authorized by State law to execute
such a certificate within that State, and acceptable to the Bureau of
Land Management.
(2) The notice of intent shall contain:
(i) The names(s), mailing address(es), and telephone number(s) of
the person(s) filing the notice;
(ii) The names(s), mailing address(es), and telephone number(s) of
the surface owner(s);
(iii) The legal description of the lands to which the notice
applies, to the nearest 5-acre subdivision or lot;
(iv) The total number of acres under the specific notice of intent
filed to the nearest whole acre;
(v) A brief description of the proposed mineral activities;
(vi) A map and legal description of the lands to be subject to
mineral exploration, including access route(s);
(vii) The name, mailing address, and telephone number of the person
managing such activities; and
(viii) A statement of the dates on which such activities will take
place.
(3) The legal description shall be based on the public land survey
or on such other description as is sufficient to permit the authorized
officer accurately to record the notice on the BLM land status records
(i.e., to the nearest 5-acre subdivision or lot).
(4) Upon acceptance of a notice of intent by the authorized
officer, the notice of intent will be entered upon the official land
status records of the Bureau of Land Management.
(5) The total acreage covered at any time by notices of intent
filed by any person and by affiliates of such person may not exceed
6,400 acres of such lands in any one State and 1,280 acres of such
lands nationwide for a single surface owner.
(6) If the surface owner(s) sells all or part of the surface during
the authorized exploration period, the person who filed the notice of
intent is not required to notify the new surface owner(s) prior to
entry during the authorized exploration period.
26. Section 3833.1-3 is revised to read as follows:
Sec. 3833.1-3 Service charges, rental fees, maintenance fees, and
location fees; form of remittance and acceptance.
(a) Payment and acceptance policy. All service charges, maintenance
fees, and location fees shall be payable by United States currency,
postal money order, or negotiable instrument payable in United States
currency, and shall be made payable to the Department of the Interior--
Bureau of Land Management, or by a valid credit card acceptable to the
Bureau of Land Management. A check or negotiable instrument, including
credit cards submitted for payment of charges and/or fees, for which
payment is not honored by the issuing authority, and such refusal is
not an error of the issuing authority, will be deemed to be a
nonpayment of the charges or fees for which the check or negotiable
instrument, including a credit card order, was tendered. See
Sec. 3833.1-4 (f) and (g) for payments made by credit cards or from
Declining Deposit Accounts.
(b) Recordation of new mining claims, mill sites, or tunnel sites
with the Bureau of Land Management. (1) New location notices or
certificates submitted for recording pursuant to Sec. 3833.1-2 that are
not accompanied by full payment of the maintenance and location fees
required by Sec. 3833.1-4 or 3833.1-5 will not be accepted, and the
submittal will be returned without further action by the authorized
officer. The claimant may resubmit the filings with the proper payment
of service charges and fees within the same 90-day filing period
referred to in Sec. 3833.1-2(a).
(2) Failure to provide full payment of service charges set forth in
Sec. 3833.1-4 will be curable for new location notices or certificates
submitted for recording pursuant to Sec. 3833.1-2 when the proper
maintenance and location fees have been submitted. Such documents will
be noted as being recorded on the date received provided that the
claimant submits the proper service charge either within 30 days of
receipt of a deficiency notice sent by the authorized officer, or on or
before the 90th day of the filing period referred to in 3833.1-2(a),
whichever date is later.
(3) If the proper service charges have not been tendered pursuant
to paragraph (b)(2), and if the claimant has not provided written
instructions regarding the application of the funds received with the
original filing, the authorized officer will apply such funds and
serialize the claims in the order received. All notices or certificates
for which there are insufficient funds to cover all service charges and
maintenance and location fees will be returned to the claimant.
(c) Mining claims, mill sites, and tunnel sites recorded and
serialized by the Bureau of Land Management. (1) Failure to provide
full payment of service charges set forth in Sec. 3833.1-4 will be
curable for documents and filings made pursuant to Secs. 3833.2 and
3833.3 and amended locations filed under Sec. 3833.1. Such documents
and filings will be noted as being recorded on the date initially
received, provided that the claimant submits the proper service charge
within 30 days of receipt of a deficiency notice from the authorized
officer. Failure to submit the proper service charge as required by
this paragraph will cause filings made pursuant to Secs. 3833.2 and
3833.3 and amended locations filed under Sec. 3833.1 to be rejected and
returned to the claimant/owner. If a payment is received that partially
covers the claims submitted, the payment shall be applied to mining
claims and sites in ascending numerical order of serialization.
(2) If a claimant fails to submit the proper maintenance fees on or
before each August 31, the authorized officer will apply the fees
received to existing recorded and serialized mining claims and sites in
ascending numerical order of serialization, unless otherwise directed
by the claimant. The authorized officer will note the deficient fees as
being paid on the original date received, provided that the claimant
submits the proper fees within 30 days of receipt of a deficiency
notice from the authorized officer, if that much time remains before
August 31. If there are less than 30 days before August 31, the correct
fees shall be filed (see Sec. 3833.0-5(m)) by such claimant on or
before the August 31 deadline. Failure to submit the proper fees will
cause the forfeiture of remaining claims or sites by the claimant/
owner.
27. Section 3833.1-4 is amended by revising the section reading;
redesignating existing paragraphs (b) through (f) as (c) through (g),
respectively; revising redesignated paragraphs (f) and (g); and adding
a new paragraph (b), to read as follows:
Sec. 3833.1-4 Service charges and location fees.
* * * * *
(b) Each notice or certificate of location of a mining claim, mill
site, or tunnel site that is located on or after August 11, 1993, and
before September 30, 1998, shall, when filed with BLM, be accompanied
by a one time nonrefundable location fee of $25.
* * * * *
(f) The claimant/owner may authorize the BLM to charge payment of
service charges, maintenance fees, and location fees to his or her
credit card under Sec. 3833.1-3(a) by transmitting a facsimile
authorization bearing the signature of the claimant/owner to the
authorized officer, or the authorized officer may accept such
authorization by telephone if the identity of the claimant/owner is
established to the satisfaction of the authorized officer.
(g) The claimant/owner may also maintain a declining deposit
account with the State Office of the BLM where the mining claims and
sites are recorded for the payment of service charges, maintenance
fees, and location fees. The authorized officer may deduct the
necessary service charges and fees from or add overpayments to such
account only at the direction of the claimant/owner.
28. Section 3833.1-5 is revised to read as follows:
Sec. 3833.1-5 Maintenance fees.
Except as provided in Secs. 3833.0-3(f), 3833.1-6, and 3833.1-1 (d)
and (e), each claimant shall pay a nonrefundable maintenance fee of
$100 for each mining claim, mill site, or tunnel site to the proper BLM
office for each specified assessment year for which the claimant
desires to hold the mining claim, mill site, or tunnel site. The
assessment years covered by the Act of August 10, 1993, begin at 12
o'clock noon on September 1, 1994, and end at 12 o'clock noon on
September 1, 1999.
(a)(1) The initial $100 nonrefundable maintenance fee for the
assessment year in which the mining claim or site is located shall be
paid for each mining claim, mill site, or tunnel site at the time of
its filing with BLM pursuant to section 314(b) of FLPMA and
Sec. 3833.1-2. If such claims or sites are located prior to an August
31, and the notice of location is properly filed within the FLPMA time
frame but after August 31, then the $100 fee that was due on August 31
for the succeeding assessment year shall be paid at the time of filing
the location notice along with the initial $100 fee.
(2) The initial maintenance fee described in paragraph (1) is not
subject to the waiver provisions contained in Secs. 3833.1-6 and
3833.1-7.
(b) Under the Act of August 10, 1993, a nonrefundable maintenance
fee of $100.00 for each mining claim, mill site, or tunnel site shall
be paid annually on or before August 31 for the subsequent assessment
year beginning at 12 o'clock noon on September 1 of that year. The
first payment will be due on or before August 31, 1994, with payments
due for each August 31 through August 31, 1998. At the time of payment,
the claimant/owner shall submit a list of claim names and BLM serial
numbers assigned to each mining claim or site for which the maintenance
fee is being paid.
(c) There will be no proration of rental or maintenance fees for
partial years of holding of mining claims, mill sites, or tunnel sites.
(d) A small miner may, under the waiver provisions of Secs. 3833.1-
6 and 3833.1-7, perform assessment work and file the affidavit of labor
pursuant to Sec. 3833.2 in lieu of paying the rental or maintenance
fee.
(e) The owner of an oil shale placer claim shall pay the required
$550 annual rental fee to the proper BLM State Office on or before each
December 31.
(f) The payment of the required maintenance fee for a mining claim,
mill site, or tunnel site satisfies the requirement to file an
affidavit of assessment work or a notice of intention to hold pursuant
to Sec. 3833.2.
(g) If a waived mining claim or site is transferred in total or in
part to a party not qualified for a waiver, the waiver is forfeited for
the mining claim or site or portion of interest therein transferred to
the unqualified party. The maintenance fee for the previously waived
claim or site will be paid for the assessment year in which the
transfer was effective under State law pursuant to Sec. 3833.3. The
applicable deadline is the August 31 on or immediately after which the
transfer is effective under State law.
(h) The Secretary will adjust the location and maintenance fees
every 5 years, based upon the Consumer Price Index (CPI) as published
by the Bureau of Labor Statistics, Department of Labor. The Secretary
may adjust the location and maintenance fees sooner, if he deems it
reasonable, based upon changes in the CPI.
(1) Public notice of any adjustment of maintenance or location fees
will be provided by July 1 of the assessment year prior to the
assessment year to which the adjustment becomes effective.
(2) Any such adjustment of maintenance or location fees to reflect
changes in the CPI will be payable no later than the second August 31
following the July 1 by which the notice of the adjustment was given.
29. Section 3833.1-6 is revised to read as follows:
Sec. 3833.1-6 Maintenance fee waiver qualifications under the Act of
August 10, 1993, and other exceptions--applicable from 12 o'clock noon
on September 1, 1993, until 12 o'clock noon September 1, 1999.
A small miner may, under certain conditions described in this
section and in Sec. 3833.1-7, perform the assessment work required
under 30 U.S.C. 28-28e and record it pursuant to Section 314(a) of
FLPMA and Sec. 3833.2 in lieu of paying the maintenance fee. Assessment
work shall conform to the requirements contained in subpart 3851 of
this title.
(a) In order to qualify for a waiver of the maintenance fee
requirements, a small miner shall meet all of the following conditions:
(1) The claimant and all related parties shall hold no more than 10
mining claims, mill sites, and tunnel sites, or any combination
thereof, on Federal lands in the United States on the date the payment
is due, which is each August 31. For purposes of determining the small
miner waiver, oil shale claims shall not be counted toward the 10 claim
limitation for the small miner waiver of the $100 maintenance fee. A
claimant who owns 10 or fewer claims, mill sites, and tunnel sites, and
otherwise meets the requirements of this section, is not precluded from
paying the maintenance fee in addition to filing for a small miner
waiver.
(2) All mining claims and sites held by a claimant and all related
parties shall be counted toward the 10 claim and site limit.
(3) Mill and tunnel sites of a qualified small miner, if listed
upon the exemption certificate along with the affected lode and placer
mining claims, are waived from payment of the maintenance fee.
(b) Mining claims and sites that are undergoing final reclamation,
as approved by the authorized officer pursuant to subparts 3802, 3809,
or 3814 of this title, with no intent by the owner thereof to continue
mining, milling, or processing operations upon or under the mining
claims or sites, are excused from payment of the maintenance fees. The
owner shall file a certified statement by August 31 in the proper BLM
office attesting to the reclamation status of the affected mining
claims and/or sites, with reference to a reclamation plan approved by
the authorized officer for plan-level activities or submitted in
consultation with the authorized officer for notice-level activities,
and to his or her intent to place them into permanent closure. If the
surface is managed by an entity other than BLM, the claimant shall
submit evidence of a final reclamation plan that conforms to the
requirements of the managing entity. A certified statement of such
intent and reclamation shall be filed pursuant to Sec. 3833.1-7. The
number of mining claims or sites that may properly qualify for a
reclamation waiver pursuant to this paragraph is not restricted to a
10-claim limit.
(c) Pursuant to the Soldiers' and Sailors' Relief Act (50 U.S.C.
Appendix 565), military personnel on active duty status may, under
certain conditions, qualify for an exemption from the performance of
assessment work and the payment of maintenance fees. See Secs. 3833.1-
7(e)(2) and 3851.6 of this title.
(d) Under the following circumstances, a waiver may be obtained
from the payment of the maintenance fee for mining claims and sites:
(1) The claimant has received a declaration of taking or a notice
of intent to take from the National Park Service pursuant to Sections 6
and 7 of the Act of September 28, 1976, as amended (16 U.S.C. 1905,
1906), or the Act of December 2, 1980, as amended (16 U.S.C. 3192); or
the claimant has otherwise been denied access by the United States to
his/her mining claims or sites.
(2) The claimant shall file proof of the above conditions for
exemption, attested to as a certified statement, pursuant to
Sec. 3833.1-7, with the proper BLM office by the August 31 immediately
preceding the assessment year for which a waiver is sought.
(3) The certified statement required by paragraph (d)(2) of this
section, serves as a notice of intention to hold as to mining claims
and sites for which the exemption is sought. In such cases, the payment
of the $5 service charge per claim or site is due upon filing the
certification statement.
(e) Payment of the maintenance fee for mining claims covered by a
deferment of assessment work granted by the authorized officer pursuant
to 30 U.S.C. 28 (b)-(e) and subpart 3852 of this title may be deferred
during the period for which the deferment is granted. Deferments are
governed by the following rule. If a petition for a deferment of
assessment work, as required by Sec. 3852.2 of this title, is filed
with the proper BLM office on or before August 31 for a given year, the
maintenance fee need not be paid on the claims listed in the petition
for deferment until the authorized officer has acted upon the petition.
(1) If the petition is granted, maintenance fees for the claims are
deferred for the upcoming assessment year. At the expiration of the
deferment, all deferred fees shall be paid within 30 days of the end of
the deferment, unless the claimant/owner qualifies as a small miner. If
the claimant/owner qualifies as a small miner, all deferred assessment
work shall be performed as provided in Sec. 3852.5 of this title upon
expiration of the deferment.
(2) If the petition for deferment is denied by the authorized
officer, the maintenance fees shall be paid within 30 days of receipt
of the decision of the authorized officer denying the petition for
deferment. Failure to pay the maintenance fees owed will result in the
forfeiture of the claims contained within the petition.
(f) On mining claims for which an application for a mineral patent
has been filed, and the mineral entry has been allowed, the payment of
the maintenance fee is excused for the assessment years during which
assessment work is not required pursuant to Sec. 3851.5 of this title.
However, no refund of previously deposited maintenance fees will be
made to the mineral patent applicant.
30. Section 3833.1-7 is revised to read as follows:
Sec. 3833.1-7 Filing requirements for the maintenance fee waiver and
other exceptions.
(a) If no change in status has occurred, a small miner exemption
certification previously filed for the assessment year ending at noon
on September 1, 1994, under the Act of October 5, 1992 (Pub. L. 102-
381, 106 Stat. 1374), and the pertinent regulations in effect on August
31, 1993, will be considered a proper certification filing for a waiver
of payment of the maintenance fee due on August 31, 1994.
(b) The affidavit of assessment work performed by a small miner
claiming a maintenance fee waiver shall be filed with the proper BLM
office pursuant to Sec. 3833.2 and shall meet the requirements of
Sec. 3833.2-4.
(c) For mining claims and sites covered by a waiver, the filing of
a waiver certification pursuant to any of paragraphs (a), (d), (e), or
(f) of this section will satisfy the requirements for filing of a
notice of intention to hold pursuant to Sec. 3833.2-5, when such notice
of intention to hold is otherwise required. In such a case the payment
of the $5 service charge per claim/site for processing the notice of
intention to hold is due upon filing of the waiver statement.
(d) In order to hold mining claims or sites for the assessment year
beginning at 12 o'clock noon on September 1, 1994, each small miner
shall file a waiver certification on or before August 31, 1994. Each
small miner shall file a waiver certification on or before August 31
each year thereafter to hold the claims each assessment year beginning
at 12 o'clock noon on September 1 of the calendar year the
certification is due, through August 31, 1998. The small miner shall
document, as provided in this paragraph (d), the claimed waiver for
each assessment year a small miner's waiver is claimed, certified, and
attested to under penalty of 18 U.S.C. 1001. The statement shall
contain:
(1) The mining claim and site names and BLM serial numbers assigned
to the mining claims and sites held by the small miner;
(2) A declaration by the claimant and all related parties that they
own no more than 10 mining claims and sites in total nationwide on the
date the waiver statement is due;
(3) A declaration that specifies that the assessment work
requirements have been or will be completed by the date the payment is
due, which is each August 31, for the assessment year just ending;
(4) The names and addresses of all owners maintaining an interest
in the mining claims and sites; and
(5) The signatures of all the owners of the mining claims and sites
for which a waiver is claimed.
(e) Pursuant to the Soldiers' and Sailors' Relief Act, and
Sec. 3851.6 of this title, a military person entering active service
may file, or cause to be filed, in the proper BLM office, a notice of
his or her entry into active military service.
(1) The filing of the notice excuses the person from performing
assessment work or paying the maintenance fees until 6 months have
passed from the person's release from active duty status, or until 6
months have passed after release from a military hospital, whichever is
later. To be excused from paying the maintenance fee, the person cannot
hold the subject claim or site with a related party, as defined in
paragraph 3833.0-5(y), who does not also qualify under the Soldiers'
and Sailors' Relief Act.
(2) The notice must be filed in the assessment year that the person
entered active duty status, or if active duty began prior to August 30,
1994, the notice must be filed in the assessment year that he or she
wishes the benefits provided in paragraph (e)(1) of this section to
take effect. If the person previously filed a notice under the
Soldiers' and Sailors' Relief Act to be excused from performing
assessment work, and remains qualified under that Act, he or she will
automatically be exempt from paying the maintenance fee.
(3) The performance of assessment work or the payment of
maintenance fees shall resume in the assessment year next following the
assessment year during which the person was released from active duty
or a military hospital, whichever is later.
(4) The notice shall be filed as a certified statement pursuant to
paragraph (d) of this section, and shall list all mining claims and
sites affected by claim/site name and BLM serial number.
31. Section 3833.2-3 is amended by revising the section heading and
paragraphs (d) and (e) to read as follows:
Sec. 3833.2-3 Consistency between the Federal Land Policy and
Management Act, the General Mining Law of May 10, 1872, and the Act of
August 10, 1993.
* * * * *
(d) The Act of August 10, 1993, does not affect the requirements to
do assessment work in the assessment year beginning at 12 o'clock noon
on September 1, 1999, or to make annual filings on or before December
30, 2000, pursuant to Secs. 3833.2 and 3851.1.
(e) For mining claims and sites located on or after September 1,
1998, and on or before September 29, 1998, and for which the required
$100 maintenance fee was paid at the time of recording pursuant to
Sec. 314(b) of FLPMA and Sec. 3833.1-2, payment of the maintenance fee
holds the claims or sites through at least September 1, 1999.
32. Section 3833.2-6 is revised to read as follows:
Sec. 3833.2-6 When evidence or notice is not required.
Evidence of annual assessment work performed to hold a mining claim
or a notice of intention to hold a mill site need not be filed on
unpatented mining claims or mill sites if mineral entry under a mineral
patent application has been allowed. The owner of that mining claim or
mill site is exempt from the filing requirements of Sec. 3833.2 and the
payment of maintenance fees under Sec. 3833.1-5 as of the date mineral
entry is allowed.
33. Section 3833.3 is amended by adding paragraph (c) to read as
follows:
Sec. 3833.3 Notice of transfer of interest.
* * * * *
(c) The filing of a transfer of interest, when properly executed
and recorded under State law, is placed on the BLM record when it is
filed with the proper BLM office. The transfer will be deemed to have
taken place on its effective date under State law.
34. Section 3833.4 is amended by revising the heading and
paragraphs (a) and (b), redesignating paragraphs (c) through (e) as (d)
through (f), respectively, and adding paragraph (c), to read as
follows:
Sec. 3833.4 Failure to file, or to pay maintenance or location fees.
(a)(1) The failure to make annual filings required by Secs. 3833.2-
1 and 3833.2-2 on or before the December 30 immediately following the
August 31 by which the small miner filed for a waiver of payment of the
maintenance fee, shall conclusively constitute a forfeiture of the
mining claim or site.
(2) Failure to record the notice or certificate of location
required by Sec. 3833.1-2(a), Sec. 3734.1(a), or Sec. 3821.2 of this
title, or failure to pay the maintenance or location fees required by
Secs. 3833.1-4, 3833.1-5, and 3833.1-7, or failure to file the
documents required by Sec. 3833.1-7 (b) through (d) within the time
periods prescribed therein for claimants who also fail to pay the
maintenance fee, shall be deemed conclusively to constitute a
forfeiture of the mining claim, mill site, or tunnel site.
(3) Claimants who fail to pay the maintenance fee, but file a
waiver certification under Sec. 3833.1-7, shall perform the assessment
work required by subpart 3851 of this title by the waiver statement
filing deadline, or the mining claims under the invalid waiver
certification will be conclusively deemed forfeited for failure to pay
the maintenance fee on time.
(4) Failure to list the 10 or fewer mining claims and/or sites for
which the fee is requested to be waived on the applicable certification
document filed pursuant to 3833.1-6 or 3833.1-7 will result in the
affected mining claims and/or sites being deemed abandoned by the owner
or owners thereof.
(b) Failure to file the complete information required in
Secs. 3833.1-2(b), 3833.1-7(d)-(f), 3833.2-4(a), 3833.2-4(b), 3833.2-
5(b) and 3833.2-5(c), when the document is otherwise filed on time,
shall not be conclusively deemed to constitute an abandonment or
forfeiture of the claim or site, but such information shall be
submitted within 30 days of receipt of a notice from the authorized
officer calling for such information. Failure to submit the information
requested by the decision of the authorized officer shall result in the
mining claim, mill site, or tunnel site being deemed abandoned by the
owner.
(c) Failure to record a transfer of interest under Sec. 3833.3 will
result in the Bureau of Land Management refusing to recognize the
interest acquired by the transferee or to serve notice of any action,
decision, or contest on the unrecorded owner.
PART 3850--ASSESSMENT WORK
35. The authority citation for part 3850 is revised to read as
follows:
Authority: 30 U.S.C. 22 et seq.; 30 U.S.C. 28-28k; 50 U.S.C.
Appendix 565; 107 Stat. 405.
Subpart 3851--Assessment Work: General
36. Section 3851.3 is amended by revising paragraph (c) to read as
follows:
Sec. 3851.3 Effect of failure to perform assessment work.
* * * * *
(c) The Act of August 10, 1993, with certain exceptions for small
miners, temporarily suspends and supersedes the requirement to perform
assessment work under Sec. 3851.1, and requires the payment of an
annual $100 maintenance fee per mining claim in lieu of the assessment
work. For oil shale claims, the Energy Policy Act of 1992 (30 U.S.C.
242) suspends and supersedes the requirement to perform assessment work
under Sec. 3851.1, and requires the payment of an annual $550 rental
fee per oil shale mining claim in lieu of the assessment work. The
maintenance fee requirements and waivers from the maintenance fee are
described in Secs. 3833.0-3(f), 3833.1-5, 3833.1-6, and 3833.1-7 of
this title.
37. Section 3851.4 is revised to read as follows:
Sec. 3851.4 Failure of a co-owner to contribute to annual assessment
work; or to the payment of maintenance fees.
(a) Upon the failure of any co-owner of a mining claim or mill or
tunnel site to contribute the proper proportion of the required
expenditures, the co-owners who have performed the labor, made
improvements, paid the maintenance fee required under Secs. 3833.1-5
and 3833.1-6 of this title, may, at the expiration of the assessment
year, give such delinquent co-owner personal notice of this failure in
writing. Alternatively, this notice may be given by publication in the
newspaper published nearest the claim for at least once a week for 90
days. If, upon the expiration of 90 days, after such notice in writing,
or upon the expiration of 180 days after the first newspaper
publication of notice, the delinquent co-owner shall have failed to
contribute the proportionate share of such expenditures or
improvements, such interest in the claim by law passes to the co-owners
who have made the expenditures or improvements.
(b) A claimant alleging ownership of a forfeited interest under
paragraph (a) of this section who requests the authorized officer to
change the ownership records of the affected mining claims or sites
shall present the following:
(1) Statement of the publisher of the newspaper as to the facts of
publication, giving the beginning and ending dates of publication, a
printed copy of the notice published, and a statement by the claimant
that the delinquent co-owner failed to contribute the proper proportion
within the period fixed by the statute, or
(2) Evidence of personal notice of delinquency upon the delinquent
party. If notice is effected by mail, the minimum sufficient evidence
shall consist of a copy of the notice and a copy of the return receipt
of the U.S. Postal Service evidencing receipt by the delinquent party
of a registered or certified envelope containing the notice. If notice
was made in person, an affidavit signed and dated on the date of notice
will suffice as evidence of such notice; and
(3) In all cases, a signed and dated statement by the claimant that
the delinquent co-owner failed to contribute the proper proportion
within the period fixed by the statute.
(c) Upon determination by the authorized officer that paragraphs
(a) and (b) of this section have been complied with, the BLM records of
the mining claim shall be changed pursuant to Sec. 3833.3 of this
title. Such a change in ownership requires that the claimant submit the
service charge required for a transfer of interest pursuant to
Sec. 3833.1-4 of this title.
(d) Active duty military personnel who give notice and comply with
Sec. 3851.6 are not subject to the provisions of this section.
38. Section 3851.5 is revised to read as follows:
Sec. 3851.5 Assessment work not required after allowance of mineral
entry.
Performance of annual assessment work and payment of maintenance
fees is not required after the date that the mineral entry has been
allowed.
(a) The assessment year in which the mineral entry is allowed is
the first assessment year for which the assessment work and payment of
maintenance fees is no longer required, and assessment work is not
required in any assessment year thereafter until a mineral patent
issues.
(b) If a mineral entry is canceled in whole or in part, the mining
claims and mill sites that are no longer covered by the mineral entry
shall be subject to the assessment work requirement, or the payment of
maintenance fees, beginning in the next assessment year following the
assessment year that the mineral entry was canceled.
39. Section 3851.6 is added to read as follows:
Sec. 3851.6 Assessment work not required for active duty military
personnel.
Pursuant to the Soldiers' and Sailors' Relief Act (50 U.S.C.
Appendix 565), a person entering active military service is exempt from
the performance of annual assessment work under this subpart for each
assessment year in which the service person is on active duty.
(a) To claim the exemption, the person entering active military
service shall file, or cause to be filed with the proper BLM office, a
notice of his or her entry into active military service. The notice
shall be filed in the assessment year that the person entered active
duty status.
(b) The filing of the notice exempts the person from performing
assessment work or paying the maintenance fees until 6 months have
passed from the person's release from active duty status, or until 6
months have passed from release from a military hospital, whichever is
later.
(c) The performance of assessment work or the payment of
maintenance fees shall resume in the assessment year beginning at least
6 months after the date the person was released from active duty or a
military hospital, whichever is later.
(d) The notice shall be filed as a certified statement pursuant to
section 3833.1-7 of this title, and shall list all mining claims and
sites affected by claim name and BLM serial number.
Subpart 3852--Deferment of Assessment Work
40. Section 3852.2 is amended by revising the first and second
sentences to read as follows:
Sec. 3852.2 Filing of petition for deferment, contents.
(a) In order to obtain a deferment, the claimant shall file with
the proper BLM office a petition in duplicate requesting such a
deferment. No particular form of petition is required, but the
applicant shall attach to one copy thereof a copy of the notice to the
public required by 30 U.S.C. 28e showing that it has been filed or
recorded in the local recording office in which the notices or
certificates of location were filed or recorded. * * *
* * * * *
41. Section 3852.3 is revised to read as follows:
Sec. 3852.3 Notice of action on petition to be recorded.
The claimant shall file or record, in the local recording office in
which the notice of petition for deferment was filed or recorded, a
copy of the order or decision of the BLM authorized officer disposing
of the petition.
[FR Doc. 94-21388 Filed 8-29-94; 8:45 am]
BILLING CODE 4310-84-P