[Federal Register Volume 61, Number 159 (Thursday, August 15, 1996)]
[Proposed Rules]
[Pages 42407-42412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20824]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3860

[WO 320 1990 01 24 1A]


Patenting Information: Petition for Rulemaking

AGENCY: Bureau of Land Management, Interior.

ACTION: Petition for rulemaking; request for comments.

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SUMMARY: The Bureau of Land Management (BLM) of the United States 
Department of the Interior (DOI) seeks comments concerning the rule 
changes proposed in a petition submitted by twelve private 
organizations. The petition requests BLM to amend its regulations to 
require disclosure of the information used by BLM to determine the 
validity of mining claims and the eligibility of mill site claims for 
patenting under the 1872 Mining Law. Comments will assist the Director 
of BLM in deciding whether to grant or deny the petition.

DATES: BLM will accept written comments on the petition until October 
15, 1996.

ADDRESSES: Commenters may hand-deliver comments to the Bureau of Land 
Management, Administrative Record, Room 401, 1620 L St., N.W., 
Washington, D.C.; mail comments to the Bureau of Land Management, 
Administrative Record, Room 401LS, 1849 C Street, N.W., Washington, 
D.C. 20240; or transmit comments electronically via the Internet to 
[email protected]. Please include ``Attn: Roger Haskins, 
Mineral Patent Petition'' in your Internet message. If you do not 
receive a confirmation from the system that we have received your 
Internet message, contact the person identified under
FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Roger Haskins, (202) 452-0355.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background and Substance of Petition
III. Procedural Matters

I. Public Comment Procedures

Written Comments

    Written comments on the suggested change should be specific, should 
be confined to issues pertinent to the proposed revision, and should 
explain the reason for the comment. Where practicable, commenters 
should submit three copies of their comments. If BLM receives your 
comments after the close of the comment period (see DATES) or if your 
comments are delivered to an address other than those listed (see 
ADDRESSES), BLM may not necessarily consider them or include them in 
the Administrative Record for the petition.

Availability of Copies

    Copies of the entire petition are available for inspection, and 
interested persons may obtain them by contacting the person identified 
under
FOR FURTHER INFORMATION CONTACT.

Public Hearing

    BLM will not hold a public hearing on the proposed revision, but 
BLM personnel will be available to meet with the public during business 
hours, 9 a.m. to 4 p.m., during the comment period. In order to arrange 
such a meeting, contact the person identified under
FOR FURTHER INFORMATION CONTACT.

[[Page 42408]]

II. Background and Substance of Petition

    The DOI received a letter dated May 29, 1996, from James S. Lyon, 
Vice President for Policy of the Mineral Policy Center, transmitting a 
petition for rulemaking (MPC petition). The petition was submitted 
jointly by the Mineral Policy Center, American Rivers, Boulder-White 
Clouds Council, Citizens for the Preservation of Powers Gulch and Pinto 
Creek, Greater Yellowstone Coalition, Montana Environmental Information 
Center, National Wildlife Federation, Northern Plains Resource Council, 
the Sierra Club, Taxpayers for Common Sense, Western Mining Action 
Project, the Western Organization of Resource Councils and Western 
Mining Action Project. The petitioners request that BLM amend its 
regulations at 43 CFR part 3860 to establish ``Patenting Disclosure 
Regulations'' that would require the disclosure to the public of all 
information used by BLM to determine the validity of mining claims and 
the eligibility of mill site claims for patenting under the 1872 Mining 
Law (30 U.S.C. 22 et seq). The petitioners also request that BLM's 
regulations be amended to provide for a transition period during which 
companies that have previously submitted information that they wish to 
remain confidential could withdraw their patent application to avoid 
the disclosure of the information. BLM has appended the substantive 
portion of the petition to the end of this notice.
    Under section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(e), any person may petition an agency to initiate a proceeding for 
the issuance, amendment, or repeal of a rule. Under the applicable 
regulations for rulemaking petitions, 43 CFR 14.2, the petitioner is 
required to provide rule text. Although the MPC petition does not 
include rule text, BLM has decided to consider the petition. Under 43 
CFR 14.4, this notice seeks public comment on the merits of the 
petition and on the rule changes suggested in the petition because BLM 
has determined that public comment may aid in consideration of the 
petition.
    In particular, BLM seeks comments regarding: (1) how the requested 
rulemaking may affect the process of considering and acting on 
applications for patent under the 1872 Mining Law; (2) how the type of 
information identified for disclosure in the petition will be used by 
the public; (3) how such disclosure would impact patent applicants; (4) 
whether the information to be disclosed should include documents that 
reflect DOI's deliberation over a patent application before a decision 
has been made; and (5) what impact this rulemaking might have on 
pending patent applications.
    At the close of the comment period, BLM will make a decision 
whether to grant or deny the petition. If the petition is granted, BLM 
will begin rulemaking proceedings in which it would again seek public 
comment regarding proposed, specific rule text. Following receipt and 
analysis of public comment, BLM would publish a final rule. If BLM 
decides to deny the petition, it would publish a notice explaining that 
decision and take no further rulemaking action pursuant to the 
petition. By publishing this notice, BLM does not necessarily endorse 
the petition for rulemaking. The petition does not necessarily reflect 
the position or views of BLM or DOI.

III. Procedural Matters

Executive Order 12866 and Regulatory Flexibility Act

    Publication of this notice of the receipt of the petition for 
rulemaking is a preliminary step prior to the initiation of the 
rulemaking process. If BLM decides to grant the petition, it will begin 
a rulemaking process. At this stage, neither a regulatory flexibility 
analysis nor a regulatory impact analysis under Executive Order 12291 
are required.

National Environmental Policy Act

    Publication of this notice does not constitute a major Federal 
action having a significant effect on the human environment for which 
an environmental impact statement under the National Environmental 
Policy Act, 44 U.S.C. 4322(a)(C), is needed.

Action Plan for Processing Pending Patent Applications

    BLM is publishing this notice at the initiative of the petitioners. 
This action is separate and apart from DOI's action plan for processing 
90 percent of the mineral patent applications grandfathered from the 
patent funding moratorium within five years as required by section 322 
of the Interior and Related Agencies Appropriations Act for Fiscal Year 
1996, Pub. L. 104-134, 142 Cong. Rec. H 3896 (daily ed. April 25, 
1996).

    Dated: August 8, 1996.
Maitland Sharpe,
Acting Director, Bureau of Land Management.

Appendix

    The text of the petition dated May 29, 1996, from the Mineral 
Policy Center and others is printed below. Copies of the entire 
petition, including exhibits, are available for inspection and may be 
obtained by contacting the person identified under
FOR FURTHER INFORMATION CONTACT.

Petition for Rulemaking Before The Honorable Bruce Babbitt, Secretary 
of the Interior

United States Department of the Interior, Washington, DC.

Submitted by

Mineral Policy Center, American Rivers, Boulder-White Clouds Council, 
Citizens for the Preservation of Pinto Creek and Powers Gulch, Greater 
Yellowstone Coalition, Montana Environmental Information Center, 
National Wildlife Federation, Northern Plains Resource Council, Sierra 
Club, Taxpayers for Common Sense, Western Mining Action Project, and 
Western Organization of Resource Councils

    For the adoption of Federal regulations to require disclosure of 
all information used to establish the validity of mining claims and 
eligibility of mill site claims for which mineral patent 
applications have been submitted under the 1872 Mining Law.

29 May 1996

Introduction

    Mineral Policy Center and the above organizations, pursuant to 5 
U.S.C. 553(e) and 43 CFR 14, petition the Secretary of Interior 
(``the Secretary'') to issue regulations that require the disclosure 
to the public of all information used by the Bureau of Land 
Management (BLM) to establish the validity of mining claims and the 
eligibility of mill site claims for patenting under the 1872 Mining 
Law, 30 U.S.C. 22 et seq. This disclosure will include, but not be 
limited to, the information listed in section II(A) below. The 
Secretary should establish rules that make public disclosure of this 
information a pre-requisite to further processing of any mineral 
patent applications.
    These regulations (``the Patenting Disclosure Regulations'') 
serve the public's compelling interest in knowing the factual basis 
upon which the Department of Interior disposes of billions of 
dollars worth of public mineral resources under the 1872 Mining Law.
    The adoption of the Patenting Disclosure Regulations will not be 
unfair or inequitable to parties that have already applied for 
mineral patents. The Patenting Disclosure Regulations will provide 
for a transition period which will allow patent applicants to come 
into compliance with the Regulations' public disclosure 
requirements. Because the Patenting Disclosure Regulations will not 
prevent mining, and will not prevent the patenting of mining and 
mill site claims under the 1872 Mining Law, applicants win not 
suffer compensable harm.

I. Petitioning Organizations

    This petition is submitted on behalf of Mineral Policy Center 
and eleven other organizations (``the petitioners''). These 
organizations conduct research on and advocate more environmentally 
and fiscally

[[Page 42409]]

responsible management of public resources by the federal 
government. A description of each petitioner, its membership, and 
focus of work follows:
    Mineral Policy Center is a Washington-based non-profit 
organization which conducts research on and advocates more 
environmentally and fiscally responsible hardrock mining policies in 
the United States and worldwide. The Center has approximately 2,500 
members, and is based in Washington, D.C., with field offices in 
Colorado and Montana.
    American Rivers is a non-profit organization devoted to the 
protection and restoration of American rivers and watersheds. 
American Rivers is actively involved in campaigns to protect rivers 
from pollution caused by past, current, and proposed mining 
operations. The organization has over 15,000 members in the United 
States.
    Boulder-White Clouds Council is a non-profit organization which 
advocates environmental protection of the Upper Salmon River country 
of Central Idaho.
    Citizens for the Preservation of Powers Gulch and Pinto Creek is 
a non-profit organization of citizens formed to protect the Tonto 
National Forest (Arizona) from the impacts of a copper mine 
presently proposed by Cambior, a Canadian corporation. Many of its 
members live adjacent to the proposed mine.
    Greater Yellowstone Coalition (GYC) is a regional conservation 
group whose mission is to assure ecosystem health throughout the 18-
million acre Greater Yellowstone Ecosystem. Comprised of 120 member 
groups, GYC currently has more than 7,000 individual members who 
regularly participate in recreational, scientific, and natural 
history activities on public lands including those lands 
administered by the BLM, U.S. Forest Service, and National Park 
Service.
    The Montana Environmental Information Center (MEIC) is a 
nonprofit organization founded in 1973 with members throughout the 
United States and the State of Montana. The MEIC is dedicated to 
preserving and enhancing the natural resources and natural 
environment of Montana. In this objective, the MEIC gathers and 
disseminates information in order to inform its members and the 
general public about their rights and obligations under state and 
federal environmental law. The MEIC is also dedicated to assuring 
that state and federal officials comply with and fully uphold the 
laws of the United States which are designed to protect and enhance 
the environment.
    National Wildlife Federation (NWF) is the nation's largest 
conservation organization. Founded in 1936, the NWF works to 
educate, inspire, and assist individuals and organizations of 
diverse cultures to conserve wildlife and other natural resources, 
and to protect the Earth's environment in order to achieve a 
peaceful, equitable, and sustainable future.
    Northern Plains Resource Council (NPRC) is a non-profit 
grassroots organization that is devoted to the protection of water 
and air quality, as well as the promotion of sustainable family 
farming and ranching. Based in Montana, the NPRC's 2,500 members 
consist of farmers, ranchers, and town dwellers.
    The Sierra Club is a national, non-profit, environmental 
organization with more than 500,000 members. The Sierra Club 
advocates the protection of natural resources and wildlife on public 
lands.
    Taxpayers for Common Sense is a non-profit, non-partisan, and 
independent organization dedicated to cutting wasteful government 
spending, subsidies, and tax breaks through research and citizen 
education. Based in Washington, D.C., Taxpayers for Common Sense 
supports a balanced budget and common sense tax reform.
    The Western Organization of Resource Councils (WORC) is a six-
state federation of community groups in Colorado, Idaho, Montana, 
North and South Dakota, and Wyoming. The WORC, a non-profit 
organization, has over 6,000 members and fifty local chapters in the 
six-state region. The WORC's main priorities for regional issues 
include the impact of hardrock mining on the environment and Western 
communities, sustainable family farm agriculture, and energy and 
natural resources development.
    Western Mining Action Project is a non-profit environmental 
organization which provides legal representation to citizens on 
mining issues, including patenting issues.
    The petitioners submit this petition in furtherance of the 
public interest. Many of petitioners' members live, work, and 
recreate near federal lands impacted by hardrock mining.

II. Description of Patenting Disclosure Regulations

    The petitioners petition the Secretary to adopt regulations 
(``Patenting Disclosure Regulations'') that will require public 
disclosure of all information used by the BLM to establish the 
validity of mining claims and eligibility of mill site claims for 
which mineral patent applications have been submitted under the 1872 
Mining Law. Some of this information is factual information 
submitted by patent applicants; other information consists of the 
data and analysis of public land agencies. The Secretary should make 
further processing of any mineral patent applications contingent 
upon the disclosure of this information. In the interest of equity 
to current patent applicants, the Patenting Disclosure Regulations 
should provide for a transition period during which patent 
applicants may, if they prefer, withdraw their applications and thus 
avoid public disclosure of this information.

A. Types of Information Required To Be Disclosed by the Patenting 
Disclosure Regulations

    The petitioners seek the disclosure of all information that 
forms the basis of the BLM and Forest Service validity examinations, 
which determine whether or not a patent applicant has ``discovered'' 
a ``valuable mineral deposit'' on the applicant's mining claims. 
This determination is pivotal in the BLM's ultimate decision whether 
to grant or deny a mineral patent.
    Specifically, the Patenting Disclosure Regulations should 
require the disclosure of the following types of information:
    bullet The size and value of mineral reserves;
    bullet The methods and costs of ore extraction, 
beneficiation, and transportation;
    bullet Costs and methods of reclamation and environmental 
remediation;
    bullet Marketing and labor contracts;
    bullet Economic feasibility studies; and
    bullet Analyses and data generated by the federal 
government which bear on the validity of mining claims under patent 
application.
    The above enumerated information bears on the issue of whether a 
mining claim (lode or placer) contains a valuable mineral deposit. 
However, the Patenting Disclosure Regulations should also require 
the disclosure of information used to establish the eligibility of 
mill site claims. The eligibility of mill site claims depends on 
criteria different from those used to establish the validity of 
mining claims (lode and placer claims). For example, in contrast 
with mining claims, mill site claims must be ``nonmineral'', ``non-
contiguous'' to lode and placer claims, and used for ``mining or 
milling purposes''. See 20 U.S.C. 42. Therefore, petitioners seek 
disclosure of all information used by public land agencies to 
determine whether applicants for mill site patents have satisfied 
the criteria above, and all other necessary eligibility criteria.
    The Patenting Disclosure Regulations should require the 
disclosure of information that mining companies submit to the BLM as 
part of patent applications and mineral examinations. In the past, 
the Department of the Interior has typically withheld this 
information from the public on the grounds that the information 
constitutes trade secrets or confidential business information. The 
Department has cited the Trade Secrets Act, 18 U.S.C. Sec. 1905, and 
Exemption 4 of the Freedom of Information Act, 5 U.S.C. Sec. 552, as 
grounds for withholding this type of information.
    The Patenting Disclosure Regulations should also require 
disclosure by the federal government of the government's own data 
and analyses which bear on whether a patent applicant has made a 
``valuable'' mineral ``discovery''. The Department of the Interior 
has cited Exemption 5 of the Freedom of Information Act (FOIA) as 
justification for withholding some of this information.
    The attached exhibit, Exhibit A (EX-A), documents an example of 
lead petitioner Mineral Policy Center's many unsuccessful attempts 
to obtain from BLM officials the type of information enumerated 
above. The EX-A contains excerpts from the mineral report prepared 
for Barrick Gold Corp.'s mineral patent applications for its 
Goldstrike gold mine in Nevada. (Barrick Gold obtained the patents 
worth approximately $10 billion in May 1994.) Mineral Policy Center 
requested the company's mineral report in February 1994; three 
months later, the BLM released a heavily censored copy to the 
Center. As EX-A shows, the BLM excised key geological and financial 
information from the report which established the basis for the 
validity of Barrick's mining claims.
    The EX-A illustrates the BLM's refusal to disclose to the public 
the information upon

[[Page 42410]]

which the BLM bases its decision whether or not to issue mineral 
patents. The BLM's closed-door policy has created the urgent need 
for the Secretary of the Interior to adopt Patenting Disclosure 
Regulations.

B. Transition Procedures

    In order to give companies an opportunity to make an informed 
choice regarding means of compliance with these regulations, the 
Patenting Disclosure Regulations should establish a reasonable 
period of time during which applicants would have the option to 
withdraw their patent applications. During this period, companies 
that have previously submitted information that they wish to 
maintain confidential could withdraw their patent applications and 
avoid the required disclosure of this information.
    However, upon expiration of the warning period, the information 
enumerated above would be subject to full public disclosure.
    In particular, the Secretary should establish:
    bullet A date upon which the Patenting Disclosure 
Regulations take effect;
    bullet A date after which current patent applicants can 
withdraw their applications and thus avoid public disclosure of 
information required to be disclosed by the Patenting Disclosure 
Regulations;
    bullet A date after which the BLM will make the information 
specified in section II(A) above available to the public; and
     A provision that the BLM will make its patenting 
decisions based exclusively on information that is publicly 
available.

III. Justification for the Adoption of the Patenting Disclosure 
Regulations

    The General Mining Law of 1872 has allowed the sale of at least 
$247 billion of publicly-owned mineral resources for nominal sums, 
according to Mineral Policy Center estimates. In an era of fiscal 
frugality, the Mining Law is fiscally irresponsible. Using a limited 
set of factual tests, federal land managers determine if a mining 
concern has ``discovered'' a ``valuable'' mineral deposit. Once this 
determination has been made, a company can ``patent''--obtain fee 
title--to land for a minute fraction of its real value.
    Also, by allowing the non-discretionary disposal of lands to 
mining operations, patenting decisions have aided the destruction of 
unique environmental resources on millions of acres of public land.
    These fiscally and environmentally reckless policies have been 
largely shielded from public scrutiny. For example, up to the 
present, the Department of the Interior has blocked from public 
access the factual foundation supporting a determination whether or 
not a ``valuable'' mineral deposit has been ``discovered''. Without 
access to this vital information, the public has been unable to 
evaluate the merits of patenting decisions which dispose of billions 
of dollars of the public's mineral wealth without a fair return to 
the public.
    The petitioners recognize that Congress' failure to reform the 
1872 Mining Law compels the BLM to continue processing grandfathered 
patent applications. However, Congress' failure does not compel the 
BLM to carry out the mineral patenting process in secrecy.
    By requiring public land agencies to make patent applications, 
mineral reports, and other essential patenting information available 
to the public, the Patenting Disclosure Regulations will allow the 
American public to meaningfully challenge and evaluate BLM patenting 
evaluations.
    Public disclosure of mineral patenting information will provide 
other benefits, such as contributing to a more informed and balanced 
evaluation of the ``value'' of mineral deposits on publicly owned 
lands. Also, it will promote needed commentary on the benefits and 
costs of mining on public lands. This will include discussion of 
contemporary concerns like the necessary costs of environmental 
controls and reclamation at mining operations. The Department of 
Interior has acknowledged that these environmental costs must be 
taken into account in determining the validity of mining claims. 
U.S. v. Kosanke Sand Corp., 80 I.D. 538, 546 (1973).

IV. Legal Authority for the Patenting Disclosure Regulations

    The Secretary has the legal authority, pursuant to the 1872 
Mining Law and the Federal Land Policy Management Act (FLPMA), to 
adopt the Patenting Disclosure Regulations. In fact, the FLPMA 
obligates the Secretary to adopt the Patenting Disclosure 
Regulations.

A. The Secretary's Authority To Adopt the Patenting Disclosure 
Regulations Under the 1872 Mining Law

    The 1872 Mining Law establishes broad authority for the 
Secretary to adopt the Patenting Disclosure Regulations. The Mining 
Law's Section 22 authorizes the exploration and purchase of public 
land containing mineral deposits ``under regulations prescribed by 
law.'' See 30 U.S.C. Sec. 22. While legislative history on this 
section is scant, the statute's plain language reveals the intention 
of its owners to furnish the Law's administrator a broad and 
flexible grant of authority to promulgate appropriate regulations. 
In fact, Section 22 has been relied upon as authority for many BLM 
regulations under the Mining Law. These regulations include those on 
locating mining claims (43 CFR Part 3830) and applying for mineral 
patents (43 CFR Part 3860). Section 22 has also been relied upon as 
authority for the BLM's regulations on surface management of mining 
operations. See 43 CFR Sec. 3809.0-3 (a). Providing for public 
access to the contents of mineral patent applications and reports is 
clearly within the ambit of this legislative authority.

B. The Secretary's Authority to Adopt the Patenting Disclosure 
Regulations Under the Federal Land Policy Management Act

    The Federal Land Policy and Management Act, 43 U.S.C. Sec. 1701 
et seq., provides an additional source of authority for the 
Patenting Disclosure Regulations. The FLPMA directs the Secretary of 
the Interior, ``by regulation or otherwise'', to ``take any action 
necessary to prevent unnecessary or undue degradation'' of public 
lands. The FLPMA expressly applies this directive to the 1872 Mining 
Law activities. See 43 U.S.C. Sec. 1732(b). Public challenge and 
scrutiny of mineral patent applications and examinations--which the 
Regulations will promote reasonably serve this statutory objective. 
This is especially relevant when maintaining strong Federal land 
management regulation of mining operations is ``necessary to prevent 
unnecessary or undue degradation'' of Federal lands. Many of the 
petitioners strongly believe that patent issuance undercuts Federal 
control of mining operations, because patent issuance results in the 
regulation of mining operations passing from Federal to largely 
state control. Moreover, effective public scrutiny of the patenting 
process can prevent the improper disposal of Federal lands. Improper 
disposal in and of itself constitutes ``unnecessary or undue 
degradation.''
    Under a policy of full disclosure, the public, for example, may 
challenge a patent applicant's mineral report as seriously 
understating long-term environmental costs of a mining operation and 
the operation's impact on environmental resources. If these 
previously unidentified environmental costs result in the patent 
applicant's failing the ``discovery test'', the applicant's, mining 
claims will not be valid and a patent will not be issued.

C. The FLPMA Obligates the Secretary to Adopt the Patenting 
Disclosure Regulations

    The FLPMA, in fact, obligates the Secretary to adopt these 
Patenting Disclosure Regulations. FLPMA states that the Secretary 
``shall, by regulation or otherwise, take any action necessary to 
prevent unnecessary or undue degradation of the lands.'' 43 U.S.C. 
Sec. 1732(b) (emphasis added). Because these disclosure regulations 
are necessary to prevent ``unnecessary or undue degradation'', as 
described above, the Secretary must adopt them.

V. Rebuttal to Legal Objections Which May Be Raised Against the 
Patenting Disclosure Regulations

    The Department of the Interior has raised a number of legal 
objections to public disclosure of the information sought by the 
petitioners. None of these arguments has merit.

A. The Trade Secrets Act

    The Department of the Interior has cited the Trade Secrets Act, 
18 U.S.C. Sec. 1905, as justification for barring public disclosure 
of any trade secrets or confidential business information sought by 
this petition. Although the Trade Secrets Act does prohibit release 
of this of information by government employees, the bar does not 
apply if the disclosure is ``authorized by law.''
    Chrysler v. Brown is the principal case which establishes the 
standards that disclosure regulations must meet in order for them to 
be ``authorized by law'' under the Trade Secrets Act. 99 S.Ct. 1705 
(1979). In Chrysler, a Federal contractor challenged the Department 
of Labor's Office of Federal Contract Compliance Programs 
regulations which provided for public disclosure of information the 
contractor was I required to submit to the government on its 
affirmative action programs. The contractor asserted that

[[Page 42411]]

this information was confidential business information under the 
Trade Secrets Act and that its release to the public was not 
authorized'' by law under the Act. The Supreme Court found in favor 
of the contractor, holding that these regulations were not 
``authorized'' by any statute.
    The Chrysler court's decision established three standards that 
disclosure regulations must satisfy in order to be ``authorized by 
law'' under the Trade Secrets Act. First, the regulations must be 
the product of a congressional grant of legislative authority, such 
that there is a `nexus' between the disclosure regulations and 
Congress's legislative authority; second, the regulations must be 
``substantive'' or ``legislative'' such that they affect individual 
rights and obligations; and third, the regulations must have been 
promulgated in accordance with the rulemaking requirements of the 
Administrative Procedure Act, 5 U.S.C. Sec. 553. Chrysler, 99 S.Ct. 
at 1717-1719.
    The Patenting Disclosure Regulations are ``authorized by law'' 
under all the Chrysler standards. Most significantly, Section 22 of 
the Mining Law's broad grant of regulatory authority establishes a 
``nexus'' between the Patenting Disclosure Regulations and the 
requisite delegation of legislative authority by Congress. Unlike 
the regulations held not to be ``authorized by law'' in Chrysler, 
the regulations proposed here do not spring from a mere 
``housekeeping'' statute, concerned only with the daily internal 
workings of an executive department. Chrysler at 1722. Rather, 
Section 22 provides authority for the Secretary of the Interior to 
adopt broad and substantive regulations on a wide range of issues as 
long as they are not inconsistent with other laws.
    The Federal Land Policy Management Act (see above) similarly 
satisfies the Chrysler nexus test. The FLPMA requires the Secretary 
of the Interior to ``take any action necessary to prevent 
unnecessary or undue degradation'' of public lands. 43 U.S.C. 
Sec. 1732 (emphasis added). This broad statutory directive 
contemplates the Patenting Disclosure Regulations here, because it 
expresses Congress's intent to give the Secretary wide latitude to 
adopt regulations that support the objective of preventing 
``unnecessary or undue degradation'' on public lands.
    Further, the Patenting Disclosure Regulations would meet the two 
remaining Chrysler standards. First, these Patenting Disclosure 
Regulations are clearly ``substantive'', affecting the individual 
rights and obligations'' of mineral patent applicants. Chrysler at 
1718. Finally, the Patenting Disclosure Regulations would conform to 
the formal notice and comment rulemaking procedures required for 
substantive rules under the Administrative Procedure Act, 5 U.S.C. 
Sec. 553(b). Id. at 1724. In sum, under the Chrysler standards, the 
1872 Mining Law's Section 22 and FLPMA invest the Patenting 
Disclosure Regulations with the necessary ``authority'' to exempt 
them from 'ne Trade Secret Act's bar against the government's 
disclosure of confidential commercial information.

B. Freedom of Information Act (FOIA) Exemptions

    The Department of the Interior has cited exemptions to mandatory 
disclosure requirements under the Freedom of Information Act, 5 
U.S.C. Sec. 552, as barriers to the disclosure of much of the 
information sought by the petitioners. Exemption 4 of FOIA exempts 
from mandatory disclosure trade secrets and confidential commercial 
or financial information. 5 U.S.C. Sec. (b)(4). Exemption 5 of FOIA 
protects ``deliberative'' and pre-decisional'' information generated 
by the government from mandatory disclosure. 5 U.S.C. Sec. (b)(5).
    The Department of the Interior has cited FOIA Exemption 4 to 
withhold from the public the same type of information whose release 
is barred by the Trade Secrets Act (see above). BLM, Instruction 
Memorandum No. 95-85, pp. 2-4 (9 March 1995).
    The Department of the Interior has also characterized certain 
types of information related to patent applications and mineral 
reports as ``predecisional'' and thus properly protected by FOIA 
Exemption 5. Instruction Memorandum, supra, p. 3. Under a broad 
reading of Exemption 5, any mineral report not yet approved for 
patent issuance could be considered ``pre-decisional'', and 
therefore protected from mandatory disclosure.
    However, the FOIA Exemptions 4 and 5 would not prevent the 
release by Federal land agencies of ``confidential'' commercial 
information or ``predecisional'' material related to patenting. That 
is because the FOIA does not bar the release of any information by 
the Federal Government. Instead, the FOIA only permits government 
officials, at their discretion, to withhold certain types of 
information from the public.
    Since the Patenting Disclosure Regulations would have the 
authority of law, as demonstrated above, the government would be 
required to release material in patent applications and mineral 
reports that the government has previously withheld as 
``confidential'' commercial information or ``Pre-decisional'' 
material. Thus, the Secretary's adoption of the Patenting Disclosure 
Regulations would remove any withholding discretion that Government 
officials may possess under FOIA Exemptions 4 and 5.
    The Department of the Interior's invoking of Exemption 5, to 
withhold ``pre-decisional'' information related to patenting 
issuance, is less than convincing, since the main purpose of the 
FOIA Exemption 5 is to ``safeguard the policy-making process.'' A 
Citizen's Guide On Using the Freedom of Information Act and the 
Privacy Act of 1974 To Request Government Records, H.R. Rep. No. 
199, 100th Cong., lst Sess. 13. To the contrary, in other contexts, 
the Department has asserted that patent issuances are merely 
``ministerial acts'', which involve a minimum of policymaking and 
discretion. State of S.D. v. Andrus, 614 F.2d 1190 (1980); United 
States v. Kosanke Sand Corp., 80 I.D. 538 (1973). The Department 
cannot have it both ways. Because the information petitioners seek 
to have disclosed is the basis for a process which the Department 
itself has described as ``ministerial'' or ``non-discretionary'', 
the Department should not assert FOIA Exemption 5 as grounds for 
keeping it confidential.

VI. Equitable Impact of Patenting Disclosure Regulations on 1872 Mining 
Law Patent Applicants

    Current and potential 1872 Mining Law patent applicants may 
contend that the Patenting Disclosure Regulations, if adopted, would 
cause them compensable harm, because the Regulations would 
effectively prevent them from patenting. Applicants may argue, for 
example, that requiring public disclosure of information that the 
applicants wish to be held confidential would make applicants so 
reluctant to patent, that patenting would be impossible.
    However, these proposed regulations would not cause these patent 
applicants a compensable harm, because they would not remove 
applicants' right to patent--Under the regulations, holders of 
mining claims can still patent - but only subject to the condition 
of clearer disclosure requirements.
    In addition, the holder of unpatented mining claims who opts not 
to patent can still mine and enjoy financial benefits from his 
claim. Therefore, the claimholder's ``right of use, enjoyment, and 
disposition in his unpatented mining claims remains undiminished.'' 
Freese v. United States, 639 F.2d 754, 758 (Ct. Cl. 1981). Because 
the proposed regulations would not deprive claimholders of any 
valid, pre-existing rights in their property, they would suffer no 
compensable harm. Id. at 758.
    Furthermore, the Patenting Disclosure Regulations' transition 
procedures, described above, mitigate any possible inequities that 
pending patent applicants may suffer as a result of the Regulations' 
adoption. The Patenting Disclosure Regulations would not mandate 
immediate disclosure of information that patent applicants have 
submitted to public land agencies in the reasonable expectation that 
it would be held confidential. Instead of subjecting patent 
applicants to the possible hardships of immediate disclosure, the 
Patenting Disclosure Regulations would establish a reasonable 
transition period that would be fair to all applicants. The 
transition period will give applicants the time to conform to, or 
opt out of, the new public disclosure regime that the Regulations 
would establish. The transition period will give patent applicants 
who do not wish to have their patenting information disclosed the 
opportunity to withdraw their applications, and thus avoid 
disclosure of valuable commercial information that could benefit the 
applicants' market competitors.

VII. The Urgent Need for Patenting Disclosure Regulations

    The current moratorium on processing and issuing mining patents, 
in effect since 1 October 1994, does not diminish the urgent need 
for improved patenting disclosure regulations. The current 
moratorium contains a generous grandfather provision which allows 
the continued processing of approximately 360 patent applications. 
Without the adoption of Patenting Disclosure Regulations, these 
patents will likely continue to be issued in secrecy and without 
effective public scrutiny.

[[Page 42412]]

    Furthermore, the current patenting moratorium is only temporary. 
The moratorium will expire on 30 September 1996. If the moratorium 
is not renewed, 235 frozen patents can be processed and issued, and 
new patenting applications can be filed. Unless current law is 
changed, billions of more dollars in mineral wealth will slip away 
from the public without proper accountability.
    The BLM's continued liquidation-price sales of mineral-rich 
public lands to grandfathered applicants demonstrates the compelling 
need for Patenting Disclosure Regulations. Since 1994, the 
Department of the Interior has signed over title to public lands 
containing over $15.3 billion in minerals to mining companies for 
the price of only $16,015. The Department issued two patents only 
last month. The more egregious of the two was the BLM's 30 April 
sale of 373 acres of public land in Humboldt County, Nevada, to Gold 
Fields Mining Corporation. Gold Fields paid only $1,865 for a gold 
deposit worth over $1 billion.
    Meanwhile, the BLM persists in conducting the patenting process 
in secrecy and without public scrutiny. Over the past few years, BLM 
officials have repeatedly refused to disclose to lead petitioner 
Mineral Policy Center, in response to requests for information, 
facts which are needed for an informed evaluation of the patenting 
process. Most recently, for example, at 10 am (EST) on 28 May 1996, 
Roger Haskins, Geologist, Solid Minerals Group of the BLM 
Headquarters in Washington, D.C., refused to disclose to Mineral 
Policy Center the information enumerated in section II(A) above in 
connection with Cambior Inc.'s patent applications for its Carlota 
Copper Project near Globe, Arizona. Haskins informed Mineral Policy 
Center that this information was either being held confidential in 
deference to the wishes of the patent applicant or was pre-
decisional in nature, and that therefore the BLM could not release 
the information to the public. Telephone communication between Roger 
Haskins, BLM, and Carlos Da Rosa, Mineral Policy Center (10 am 
(EST), 28 May 1996).
    In sum, Patenting Disclosure Regulations are necessary to 
provide for effective public scrutiny of a process that is presently 
undermining fiscal soundness and the rational environmental 
management of America's public lands.

VII. Conclusion

    The Department of the Interior has disposed of approximately 
one-quarter trillion dollars of publicly-held mineral resources for 
nominal sums under the 1872 Mining Law's mineral patenting 
provisions. The results have been both fiscally and environmentally 
irresponsible.
    The petitioners recognize that the Department of the Interior is 
still required to process grandfathered 1872 Mining Law patent 
applications. However, the law does not require that the patenting 
process be conducted in secrecy.
    The public is entitled to full access to the information upon 
which the Department of the Interior bases its decision to dispose 
of the public's riches under this policy. Therefore, the petitioners 
respectfully urge the speedy granting of this petition. Thank you 
for your consideration.
    Respectfully submitted by:
/s/Philip M. Hocker,
Mineral Policy Center.
/s/Rebecca R. Wodder,
American Rivers.
/s/Lynne Stone,
Boulder-White Clouds Council.
/s/Michael Clark,
Greater Yellowstone Coalition.
/s/Cathy Carlson,
National Wildlife Federation.
/s/Kathryn Hohmann,
Sierra Club.
/s/Roger Flynn,
Western Mining Action Project.
/s/Deborah Ham,
Citizens for the preservation of powers Gulch and Pinto Creek.
/s/James D. Jensen,
Montana Environmental Information Center.
/s/Julia Page,
Northern Plains Resource Council.
/s/Jill Lancelot,
Taxpayers for Common Sense.
/s/Pat Sweeney,
 Western Organization of Resource Councils.
[FR Doc. 96-20824 Filed 8-14-96; 8:45 am]
BILLING CODE 4310-84-P