Policy Topics and Background Related to Mining on Federal Lands
Congressional research reportMar 19, 2020
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Policy Topics and Background Related to
Mining on Federal Lands
Brandon S. Tracy
Analyst in Energy Policy
March 19, 2020
Congressional Research Service
7-....
www.crs.gov
R46278
SUMMARY
Policy Topics and Background Related to
Mining on Federal Lands
The 116th Congress is considering multiple proposed changes to U.S. mineral policy. Currently
certain types of mineral production on federal lands provide the federal government and some
states and industries with sources of revenue, while other production does not generate similar
revenue. Proposed changes to federal mineral policy could impact these revenue streams,
industries, and states in a variety of ways.
R46278
March 19, 2020
Brandon S. Tracy
Analyst in Energy Policy
-re-acte--@crs.loc.gov
For a copy of the full report,
please call 7-.... or visit
www.crs.gov.
The processes and requirements to mine on federal lands vary by mineral category,
surface/subsurface management agencies, and estate ownership. Three main statutes create the three categories of minerals
applicable to mining on federal lands. The General Mining Law of 1872 covers locatable (or hardrock) minerals, which are
now defined as those minerals not defined by other statutes; typical examples include gold, silver, copper, and gemstones,
when not found on acquired lands. Leasable minerals are defined by the Mineral Leasing Act of 1920, and include coal,
phosphate, potassium, and sodium, among others (leasable minerals also include otherwise locatable minerals on acquired
land, per the Mineral Leasing Act for Acquired Lands of 1947). Salable minerals are defined by the Materials Act of 1947,
and include common minerals such as sand and gravel.
Additional processes and requirements apply when the surface rights above the federal mineral estate are privately owned
(i.e., split estate), commonly resulting from the Stock Raising Homestead Act of 1916. Similarly, coordination is required
between the surface management agency and the agency managing the mineral estate. Two statutes generally apply to mining
on federal lands, including the Surface Mining Control and Reclamation Act of 1977 (only applicable to coal) and the Federal
Mine Safety and Health Act of 1977, while others may apply, including the Federal Land Policy Management Act of 1976;
the National Environmental Policy Act of 1969; the Clean Water Act of 1972; the Clean Air Act; the Endangered Species Act
of 1973; and the National Historic Preservation Act of 1966, among others.
Data regarding mineral production for locatable minerals on federal lands are not collected by the federal government. This
lack of data can hinder the development and analysis of policies intending to affect mineral production on federal lands. The
116th Congress is considering H.R. 2579, the Hardrock Leasing and Reclamation Act of 2019, which would, among other
provisions, require mining operations on federal lands to report production volumes and values, with these data made public.
Locatable mineral production on federal lands is not subject to royalties. Some interested parties see not charging royalties as
a means of encouraging mineral exploration and production, while others may argue the public is not recovering fair market
value for the transfer of a public asset to a private entity. H.R. 2579 would also establish a federal royalty policy for all new
hardrock mineral mining operations on federal lands, and use these and other fees for the reclamation of abandoned hardrock
mines and other environmental conservation activities on lands and waters affected by past hardrock mining.
Federal land withdrawals may close a given area to mining. Advocates for a specific land withdrawal generally see the
proposed use (e.g., military base, national park, national monument, wilderness area) as superseding the potential use of the
public land by other interests (e.g., for mining). Proponents of mining generally advocate for limited withdrawals from the
mineral estate, as access to public lands for mining represents opportunities for ongoing and future operations. H.R. 1373
would permanently withdraw about one million acres surrounding the Grand Canyon National Park from new mineral entry;
it passed the House, and a companion bill, S. 3127, has been introduced in the Senate. H.R. 5598 would withdraw 234,328
acres of federal lands in the Superior National Forest, including lands covered by previously disputed mineral leases.
Several bills in the 116th Congress would address U.S. critical mineral supply (i.e., those minerals defined by the U.S.
Geological Survey that meet certain net import dependence criteria and perceived necessity to the U.S. economy). For
example, S. 1317 would instruct the U.S. Geological Survey (USGS) to publish information regarding domestic critical
mineral resources and would authorize an ongoing research and development program for critical minerals in the Department
of Energy. The text of S. 1317 was incorporated into a substitute amendment to S. 2657. Another example is H.R. 4410,
which would establish a federal cooperative and a federal corporation to process and sell certain critical minerals commonly
found with thorium, which is radioactive.
Congressional Research Service
Policy Topics and Background Related to Mining on Federal Lands
Contents
Introduction ..................................................................................................................................... 1
Statutory Framework for Mining on Federal Lands ........................................................................ 1
Laws Establishing Mineral Categories ...................................................................................... 2
General Mining Law of 1872 .............................................................................................. 2
Mineral Leasing Act of 1920 .............................................................................................. 2
Materials Act of 1947.......................................................................................................... 2
Land Laws Applicable to Mining .............................................................................................. 3
Federal Lands Overview ..................................................................................................... 3
Federal Land Policy Management Act of 1976 .................................................................. 4
Mineral Leasing Act for Acquired Lands ............................................................................ 4
Stock Raising Homestead Act of 1916 ............................................................................... 5
Laws That Apply to Mining on Federal and Non-Federal Lands.............................................. 5
Federal Mine Safety and Health Act of 1977 ...................................................................... 5
Surface Mining Control and Reclamation Act of 1977....................................................... 5
Selected Federal Laws That May Impact Mining on Federal Lands......................................... 6
Processes Related to Mining on Federal Lands ............................................................................... 6
Locatable Minerals .................................................................................................................... 7
Leasable Minerals: Other Than Coal......................................................................................... 8
Leasable Minerals: Coal ............................................................................................................ 8
Salable Minerals ........................................................................................................................ 9
Policy Topics and Legislative Activity .......................................................................................... 10
Data Availability for Locatable Minerals ................................................................................ 10
Royalties................................................................................................................................... 11
Federal Land Withdrawals ...................................................................................................... 12
Critical Minerals...................................................................................................................... 13
Contacts
Author Contact Information .......................................................................................................... 17
Congressional Research Service
Policy Topics and Background Related to Mining on Federal Lands
Introduction
The 116th Congress is considering multiple proposed changes to U.S. mineral policy. Currently
certain types of mineral production on federal lands provide the federal government and some
states and industries with sources of revenue, while other production does not generate similar
revenue. Proposed changes to federal mineral policy could impact these revenue streams,
industries, and states in a variety of ways.
The North American Industry Classification System (NAICS) defines the term mining to “include
ore extraction, quarrying, and beneficiating (e.g., crushing, screening, washing, sizing,
concentrating, and flotation), customarily done at the mine site.”1 Mineral mining in the United
States had a value added2 of $60.6 billion in 2018, which was about 0.3% of total U.S. value
added (i.e., GDP).3 The value-added contribution to total economic output of minerals mined on
federal lands4 is not known, as not all of the underlying data are recorded by the Bureau of Land
Management (BLM) or reported by mine operators.5 Using available data, the U.S. Department of
the Interior (DOI) estimates that coal and solid minerals mined on federal lands supported $13.9
billion in value added, $24.2 billion in economic output, and 81,700 jobs in FY2018.6
This report offers an introduction to the framework created by federal statutes applicable to
mining on federal lands. It also highlights some topics in the mining sector that may be relevant
to the issue of mining on federal lands for the 116th Congress, such as the availability of mineral
production data; royalties assessed on federal minerals; federal land withdrawals; and critical
minerals on federal lands. While the focus of this report is on mining on federal lands, some
related topics and concepts are included within this focus.
Statutory Framework for Mining on Federal Lands
The statutory framework applicable to mining on federal lands is a combination of mineral laws,
land laws, and laws that impact mining directly or indirectly. These combinations can be complex
when discussing specific minerals and mineral topics, as the statutes applying to one situation
may be different for another situation.
This introduction to the statutory framework is presented in four subsections: “Laws Establishing
Mineral Categories,” “Land Laws Applicable to Mining,” “Laws That Apply to Mining on
Federal and Non-Federal Lands,” and “Selected Federal Laws That May Impact Mining on
1 Executive Office of the President, Office of Management and Budget, North American Industry Classification System,
United States, 2017, p. 106.
2 “Value added is defined as the value of the industry’s output to other industries and final users (gross output) less the
value of its purchases from other industries (intermediate inputs).” U.S. Department of Commerce, Bureau of
Economic Analysis, Measuring the Nation’s Economy: An Industry Perspective, 2011, p. 3.
3 Bureau of Economic Analysis, “Value Added by Industry: Mining, Except Oil and Gas,” release date October 29,
2019, available at https://apps.bea.gov/iTable/iTable.cfm?reqid=56&step=2&isuri=1#reqid=56&step=2&isuri=1.
4 One definition of federal lands is “lands owned by the United States, without reference to how the lands were
acquired or what Federal agency administers the lands, including surface estate, mineral estate and coal estate, but
excluding lands held by the United States in trust for Indians, Aleuts or Eskimos.” 43 C.F.R. §3400.0(o).
5 Values are known for mineral production in the leasable and saleable categories, but not for locatable minerals; these
mineral categories are explained below. To read more about mining data not collected by the BLM, see U.S.
Government Accountability Office, Hardrock Mining: Availability of Selected Data Related to Mining on Federal
Lands, GAO-19-435R, 2019.
6 U.S. Department of the Interior, U.S. Department of the Interior Economic Report, Fiscal Year 2018, 2019, p. 2.
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Federal Lands.” This section presents the statutory framework for mining on federal lands; the
section “Processes Related to Mining on Federal Lands” presents more detail on the regulated
processes to mine the different categories of minerals on federal lands.
Laws Establishing Mineral Categories
General Mining Law of 1872
The present regulatory framework applicable to mining on federal lands generally places minerals
into three categories: locatable (or hardrock), leasable, and salable. The latter two categories
stem from two major changes to the General Mining Law of 1872,7 which encompassed all
mineral deposits on federal lands that were considered valuable.8 The mining of leasable minerals
requires lease and royalty payments; salable minerals generally only require a payment for the
quantity purchased. The laws that define the leasable and salable categories are explained in the
next two subsections.
Locatable minerals originally included all minerals, but now this category includes only those
minerals not covered by other laws: a locatable mineral is a mineral that is not leasable or
salable.9 Locatable minerals are typically high-value minerals; some examples include gold,
copper, lead, gypsum, and gemstones. An otherwise locatable mineral is a leasable mineral if it is
on acquired land (see “Mineral Leasing Act for Acquired Lands”).10 Locatable minerals mined on
federal lands are not subject to federal royalties.
Mineral Leasing Act of 1920
Leasable minerals are defined by the Mineral Leasing Act of 1920,11 and include minerals such as
coal, phosphate, potassium, and sodium. Pursuant to this act, mining of these minerals on federal
land is conducted under a statutory and regulatory framework similar to that of producing oil and
natural gas, including lease payments and production royalties. The leasing process may be
competitive, and the resulting leases are required to obtain fair market value for the public.12
Materials Act of 1947
Salable minerals (or mineral materials) are defined by the Materials Act of 1947,13 and include
low-value, common minerals and materials (i.e., not considered locatable minerals due to their
low value), such as sand, gravel, and pumice. Salable minerals from federal lands are sold to the
public at fair market value from community pits, common resource area, or under more formal
arrangements for large quantities. Salable minerals can be obtained for free by some entities,
7 17 Stat. 91. This law has no official short title. This is a commonly used title for the act.
8 “Valuable” is used in the U.S. Code and in the Code of Federal Regulations in reference to minerals, but it is not
defined.
9 43 C.F.R. §3830.11.
10 Otherwise locatable minerals are generally leasable if found on acquired lands; specific legislation could allow for
different treatment of such minerals (phone call with Congressional Liaison, BLM, March 16, 2020).
11 P.L. 66-146.
12 As determined by the BLM. For an explanation of how the BLM determines fair market value, see “MS-3630
Mineral Material Fair Market Value (FMV) Evaluation (P),” available at https://www.blm.gov/sites/blm.gov/files/
MS%203630.pdf.
13 P.L. 80-291. This law has no official short title. This is a commonly used title for the act.
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including government entities and non-profit organizations.14 Unless found in unusually valuable
deposits,15 salable minerals are no longer covered by the General Mining Law of 1872.
Land Laws Applicable to Mining
Federal Lands Overview
The present land area of the United States, excluding territories and possessions, is approximately
2.4 billion acres, and is the culmination of land purchases, cessions, and acquisitions.16 As the
country’s land area grew, public policies were enacted to encourage settlement and private land
ownership of previously federal lands. These and other policies resulted in changes to the acreage
of federal lands; these changes continue, although more slowly in recent years.17 Four federal
land management agencies include the BLM, the Fish and Wildlife Service (FWS), and the
National Park Service (NPS) in the DOI, and the Forest Service (FS) in the Department of
Agriculture.18 The BLM managed 244.4 million acres of surface lands (about 10% of the total
surface area) and 708.5 million acres of the federal mineral estate (about 29% of the total surface
area) of the United States in 2018.19
The laws and regulations applicable to mining on federal lands vary for different arrangements of
surface and subsurface ownership, and if the lands are part of the public domain.20 The following
examples illustrate some of the potential complexities related to mining on federal lands for
different situations.
Mining may be allowed in a national forest, whose surface is managed by the
U.S. Forest Service and whose subsurface is managed by the BLM.
New mining claims are not allowed in national parks.21
Regulations for mining on acquired lands22 may be different from regulations for
mining on other federal lands, depending on the mineral.
14 43 C.F.R. §§3601-3604.
15 30 U.S.C. §611 distinguishes between deposits of common varieties and uncommon varieties.
16 U.S. Department of the Interior, Bureau of Land Management, Public Land Statistics 2018, vol. 203, August 2019, p.
3, https://www.blm.gov/sites/blm.gov/files/PublicLandStatistics2018.pdf.
17 See Table 1-4 in Public Land Statistics 2018 (2019, pp. 10-11) for acquisitions, restorations, disposals, and
withdraws of lands managed by the BLM from FY2017 to FY2018.
18 For additional information on federal land management, see CRS Report R43429, Federal Lands and Related
Resources: Overview and Selected Issues for the 116th Congress, coordinated by Katie Hoover.
19 U.S. Department of the Interior, Bureau of Land Management, Public Land Statistics 2018, vol. 203, August 2019,
pp. 3-7, https://www.blm.gov/sites/blm.gov/files/PublicLandStatistics2018.pdf. In general, the federal government
manages roughly 650 million acres of surface land.
20 “Public domain lands means lands, including mineral estates, which never left the ownership of the United States,
lands which were obtained by the United States in exchange for public domain lands, lands which have reverted to the
ownership of the United States through the operation of the public land laws and other lands specifically identified by
the Congress as part of the public domain.” 43 C.F.R. §3000.0(g).
21 For background and detail regarding mining in national parks, including how an existing claim can be brought into
production, see https://www.nps.gov/subjects/energyminerals/mining-claims.htm.
22 “Acquired lands means lands which the United States obtained by deed through purchase or gift, or through
condemnation proceedings, including lands previously disposed of under the public land laws including the mining
laws.” 43 C.F.R. §3000.0(h).
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The Department of Energy manages and leases about 25,000 acres of federal land
that was withdrawn from the public domain for mining uranium, which would
otherwise be a locatable mineral.23
Mineral production data for a given mineral may or may not be publicly
available, depending on the type of federal land on which it is found.
The following three subsections highlight statutes related to federal lands that directly impact
mining on federal lands.
Federal Land Policy Management Act of 1976
The Federal Land Policy Management Act (FLPMA)24 establishes statutory guidance for DOI and
BLM management of federal lands, including the federal mineral estate. FLPMA directs the BLM
to manage federal lands according to the principles of multiple use and sustained yield.25 FLPMA
codifies the policy that public lands remain in federal ownership, unless the DOI determines
disposal of public lands is in the national interest, and that fair market value is to be obtained for
use of federal lands. Under FLPMA, the BLM prepares resource management plans (or land use
plans) through a defined process that incorporates public input, including environmental,
historical, and societal values, from a variety of stakeholders.26 Where the BLM is not the surface
management agency of a proposed mining operation, FLPMA directs the BLM to coordinate with
the surface management agency. FLPMA provides authority to DOI to withdraw lands from
mineral entry (i.e., no new mining is allowed).
Mineral Leasing Act for Acquired Lands
Acquired lands are lands that federal agencies purchased, received by donation or exchange, or
acquired through eminent domain; millions of acres have been acquired by the federal
government.27 Generally, minerals that would otherwise be considered locatable are leasable if
they are on acquired lands, per the Mineral Leasing Act for Acquired Lands, as amended, which
became law in 1947.28 Specific legislation could allow for different treatment of such minerals on
acquired lands.29
23 See the U.S. Department of Energy website for background and current status of its uranium leasing program at
https://www.energy.gov/lm/services/property-management/uranium-leasing-program. For more information regarding
the regulation of uranium mining, which is not discussed further in this report, see https://www.nrc.gov/materials/
uranium-recovery.html.
24 P.L. 94-579. For a background on FLPMA, see U.S. Department of the Interior, Bureau of Land Management, The
Federal Land Policy and Management Act of 1976, as amended, September 2016, available at https://www.blm.gov/
sites/blm.gov/files/AboutUs_LawsandRegs_FLPMA.pdf.
25 Ibid., pp. 2-3.
26 Ibid., p. 5. For more information on the BLM’s planning process, see https://www.blm.gov/programs/planning-andnepa/what-informs-our-plans.
27 43 C.F.R. §3000.0(h). One example of a federal land acquisition program is the Land and Water Conservation Fund.
For more background and discussion of this program, see CRS Report RL33531, Land and Water Conservation Fund:
Overview, Funding History, and Issues, by Carol Hardy Vincent, and U.S. Government Accountability Office, Land
and Water Conservation Fund, GAO-19-346, May 2019.
28 30 U.S.C. §§351-359. For a brief discussion of this act by the BLM, see https://www.blm.gov/programs/energy-andminerals/mining-and-minerals/about.
29 Phone call with Congressional Liaison, BLM, March 16, 2020.
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Stock Raising Homestead Act of 1916
The Stock Raising Homestead Act of 191630 allowed settlers to claim the surface rights of 640
acres of federal land, while the subsurface rights remained with the federal government. When the
surface owner does not own the subsurface rights, the joint ownership is designated split estate.
No new split estate lands have been created under the Stock Raising Homestead Act since 1976.31
The process to explore and claim mineral deposits on split estate lands requires additional steps,
as the surface owner must be notified, and compensated in the case of damage to the surface
resulting from the mining operation.32
Laws That Apply to Mining on Federal and Non-Federal Lands
Two laws are discussed in this subsection. The first is applicable to all mining, including all
mining on federal lands. The second is applicable to all coal mining, about 43% of which was
produced on federal lands in 2018. 33
Federal Mine Safety and Health Act of 1977
The Federal Mine Safety and Health Act (FMSHA),34 as amended, created the Mine Safety and
Health Administration (MSHA) within the Department of Labor. MSHA develops and enforces
safety and health rules for all U.S. mines regardless of size, number of employees, commodity
mined, method of extraction, or land ownership.
Surface Mining Control and Reclamation Act of 1977
The Surface Mining Control and Reclamation Act (SMCRA),35 as amended, established the
Office of Surface Mining Reclamation and Enforcement (OSMRE) within the Department of the
Interior. SMCRA applies to all coal mining operations, including those on federal and Native
American lands. OSMRE’s objectives “are to ensure that coal mines are operated in a manner that
protects citizens and the environment during mining and assures that the land is restored to
beneficial use following mining, and to mitigate the effects of past mining by aggressively
pursuing reclamation of abandoned coal mines.”36 Among other requirements, SMCRA
establishes that, as a prerequisite for obtaining a coal mining permit, the applicant is required to
post a reclamation bond.
30 43 U.S.C. §§291-302.
31 For additional background on mining and split estates, see https://www.blm.gov/programs/energy-and-minerals/
mining-and-minerals/split-estate.
32
43 C.F.R. §3838.
33 CRS calculations based on 2018 data for total coal production from the Energy Information Administration, found at
https://www.eia.gov/coal/annual/, and 2018 data for federal and Native American coal production from the U.S.
Department of the Interior, found at https://revenuedata.doi.gov/?tab=tab-production.
34 A summary of the Federal Mine Safety and Health Act, 30 U.S.C. §801, et seq., is available at
https://www.msha.gov/1977-%E2%80%93-mine-safety-and-health-administration-msha-created.
35 30 U.S.C. §1201, et seq. See more information at Office of Surface Mining
Reclamation and Enforcement, “Laws, Regulations, and Guidance,” https://www.osmre.gov/LRG.shtm.
36 See OSMRE, “Our Mission and Vision,” at https://www.osmre.gov/about/MissionVision.shtm.
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Selected Federal Laws That May Impact Mining on Federal Lands
Other laws and statutes may apply to mining on federal lands in certain situations. Below is a
selected list of such statutes with a reference for more information; a range of other federal and
state laws may also apply on a case-by-case basis. Application of these laws and statutes vary
widely for different mining operations; further discussion is beyond the scope of this report.
National Environmental Policy Act of 1969 (NEPA)37
Clean Water Act of 1972 (CWA)38
Clean Air Act (CAA)39
Endangered Species Act of 1973 (ESA)40
National Historic Preservation Act of 1966 (NHPA)41
Processes Related to Mining on Federal Lands
The process to mine on federal lands generally begins with the interested person identifying the
surface management agency (or owner, if the land is split estate) and the subsurface management
agency, if different. The surface management agency can assist with the process to determine
whether the area targeted for mining has been previously claimed, leased, or withdrawn from the
federal mineral estate. This can occur when lands are designated as national parks, monuments, or
military bases, among others. The agency can also ensure that the targeted area and mineral estate
are still under federal control, as changes can occur that would give control to private entities,
state governments, or Indian governments. The managing agency can also indicate whether the
targeted area is acquired land, for which, in most cases, mineral leasing applies. Further, the
managing agency can indicate the required information and processes to explore and potentially
mine in a given area; such requirements can vary among agencies and within agency offices.42
Aside from special cases, the BLM is the subsurface management agency for mining on federal
lands.
Additional considerations and regulations may apply to Indian territories, which number more
than 300 territories and cover more than 56 million acres.43 Indian tribes and persons retain the
37 National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§4321-4347, available at http://www.nepa.gov.
For more background information, see CRS Report RL33152, The National Environmental Policy Act (NEPA):
Background and Implementation, by Linda Luther.
38 A summary of the Clean Water Act of 1972, as amended, 33 U.S.C §§1251-1388, is available at
https://www.epa.gov/laws-regulations/summary-clean-water-act. For more background information, see CRS Report
RL30030, Clean Water Act: A Summary of the Law, by Laura Gatz.
39 A summary of the Clean Air Act, as amended, 42 U.S.C. §§7401-7671, is available at https://www.epa.gov/lawsregulations/summary-clean-air-act. For more background information, see CRS Report RL30853, Clean Air Act: A
Summary of the Act and Its Major Requirements, by James E. McCarthy.
40 A summary of the Endangered Species Act, as amended, 16 U.S.C. §1531 et seq., can be found at
https://www.fws.gov/endangered/laws-policies. For more background information, see CRS Report RL31654, The
Endangered Species Act: A Primer, by Pervaze A. Sheikh.
41 A summary and history of the National Historic Preservation Act, as amended, 54 USC §300101 et seq., is available
at https://www.nps.gov/subjects/historicpreservation/national-historic-preservation-act.htm. For more background
information, see CRS Report R45800, The Federal Role in Historic Preservation: An Overview, by Mark K. DeSantis.
42 U.S. Department of the Interior, Bureau of Land Management, Mining Claims and Sites on Federal Lands, available
at https://www.blm.gov/sites/blm.gov/files/PublicRoom_Mining_Claims_Brochure-2019.pdf.
43 For background information on Indian territories, see U.S. Department of the Interior, Bureau of Indian Affairs,
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right to develop or allow others to develop mineral resources on their lands. The BLM may be
invited to provide assistance, in which case “the BLM’s authorities and responsibilities include,
but are not limited to, resource evaluation, approval of drilling permits, mining and reclamation,
production plans, mineral appraisals, inspection and enforcement, and production verification.”44
The subsequent steps in the process to open a new mine on federal lands depend on the type of
mineral to be mined (i.e., locatable, leasable, or salable), as the processes vary by mineral
category.
Locatable Minerals
If the mineral of interest is locatable and on federal lands open to mineral entry not previously
claimed, exploration that does not result in surface disturbances (e.g., rock-hounding or use of
hand-operated tools) can begin without a permit; a permit may be required if surface disturbance
is expected. Establishing or staking a claim is the statutorily defined process of physically
indicating and publicly recording the specific boundaries of the area containing the mineral(s).45
The local field office of the applicable surface management agency can assist with this process,
but the person exploring is responsible for knowing if a specific area is subject to being claimed
(i.e., there is not an existing prior claim on that area, and that the area is open to mineral entry). If
a reasonable quantity46 of a locatable mineral is found on public land that is open to mineral entry
and has not yet been claimed, the area can be claimed.
The two types of mineral claims defined by statute are lode claims and placer claims. Lode claims
pertain to valuable minerals in an undisturbed state or location (i.e., rock in place); placer claims
refer to valuable minerals that have been moved and deposited in a location different from the
mineral’s formation, typically due to erosion (e.g., sediment bars along streams).47 A lode claim
cannot be longer than 1,500 feet along the main axis and wider than 300 feet on each side of the
axis; an individual placer claim cannot exceed 20 acres.48
If the BLM is both the surface and subsurface manager, it then works with the operator to
approve a required notice or a plan of operation.49 The mine operator is required to submit an
estimate of the reclamation costs50 to the BLM for approval, after which the mine operator
provides a financial guarantee equal to that amount to the BLM. The financial guarantee is held
until operations have ceased and the site has been acceptably reclaimed, as determined by the
BLM. A claimant must pay a location fee when first recording the claim. An annual maintenance
“Frequently Asked Questions,” https://www.bia.gov/frequently-asked-questions.
44 See U.S. Department of the Interior, Bureau of Land Management, “Programs: Energy and Minerals: Oil and Gas:
About: Indian Tribes,” https://www.blm.gov/basic/programs-energy-and-minerals-oil-and-gas-about-indian-tribes.
45 30 U.S.C. §§21-54.
46
The BLM uses the prudent man rule (Chrisman v. Miller, 197 U.S. 313 (1905)) to determine if the demonstrated
amount of a given mineral is an economically viable amount warranting a claim; see https://www.blm.gov/programs/
energy-and-minerals/mining-and-minerals/locatable-minerals/discovery.
47 U.S. Department of the Interior, Bureau of Land Management, “Explanation of Location,” https://www.blm.gov/
programs/energy-and-minerals/mining-and-minerals/locatable-materials/explanation-of-location.
48 43 C.F.R. §3832.22.
49 See 43 C.F.R. §§3809.300-3809.424 for more detail regarding the requirements of a notice and a plan of operation.
50 Reclamation costs refer to the costs of restoring lands or waters adversely affected by mining to a condition that
would mitigate potential hazards to public health, safety, and the environment.
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fee is also required.51 Claim holders may be required to file annual documentation required by
FLPMA.52 More detailed processes need to be followed if exploring on split-estate lands.
Under the General Mining Law, mining claims meeting certain conditions are allowed to be
patented, which typically transfers all rights to the claim holder.53 However, starting in 1994,
Congress, through appropriations laws, has continually placed one-year moratoria on the patent
process.54
Leasable Minerals: Other Than Coal
If the mineral of interest is leasable, which generally includes otherwise locatable minerals on
acquired lands, exploration requires a permit or license
a prospecting permit55 is required to identify valuable deposits of leasable
minerals in areas where valuable deposits have not yet been identified;
an exploration license56 is required if additional information is desired by the
prospective miner regarding a known deposit.
If a valuable deposit is identified by a prospecting permit holder (and other conditions are met),
the BLM may issue the holder a preference right lease.57 The BLM may issue a notice for a
competitive lease58 sale on unleased, leasable parcels known to contain valuable mineral deposits.
Some leasable minerals are subject to minimum royalties, including 5% of the value of gross
output for sulfur and phosphate; 2% of the value of gross output for potassium and sodium; and
25 cents per ton of marketable production for asphalt.59 Unless otherwise indicated by the BLM,
leases require the payment of rent, royalties, and the posting of a reclamation bond; reclamation
includes removal of machinery and structures, in addition to required grading and re-vegetation.60
Many of the steps needed to obtain mining permits, leases, or licenses require the payment of
cost-recovery fees to agencies and local governments.61
Leasable Minerals: Coal
Coal is a leasable mineral and follows the general process for leasable minerals. However, coal
exploration and coal leasing on federal lands are subject to specific regulations and statutes.62
Coal exploration begins with a designation that the land in question is suitable for coal leasing.
51 See 43 C.F.R. §3834 for information regarding fees and fee adjustments.
52 43 C.F.R. §3835.30.
53 30 U.S.C. §29.
54 The Further Consolidated Appropriations Act, 2020 (P.L. 116-94, Division D, Title IV, §404) contains the most
recent statutory prohibition.
55 43 C.F.R. §3505.
56 43 C.F.R. §3506.
57 43 C.F.R. §3507.
58 43 C.F.R. §3508.
59 Other leasable minerals are not subject to a defined minimum royalty, but the BLM may assign a royalty in the terms
of a specific lease. See 43 C.F.R. §3504 for information pertaining to royalties on leasable minerals.
60 43 C.F.R. §3504.
61 For a table of fees, see 43 C.F.R. §3830.21.
62 Coal leasing on federal land is governed by Sections 2-8A of the Mineral Leasing Act of 1920 (30 U.S.C. §201, et
seq.) and by the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. §351, et seq.).
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Coal exploration requires an exploration license, an exploration bond, and conformance with
various federal statutory obligations, and also includes conformance of the regulations
promulgated by SMCRA.63 After any party expresses interest in exploring for coal, the BLM is to
publish a notice of invitation64 calling for other interested parties to jointly explore the indicated
tract of federal land.
Existing coal regions on federal lands may have tracts available for lease that do not require
additional exploration. While some exceptions exist,65 coal leases are to be issued through the
competitive process lease by application.66 This process begins when an interested party files an
application of interest with the BLM for a tract of land previously identified as suitable for coal
mining by the BLM. The BLM publishes notices of the lease sale and invites others to submit
sealed bids for the lease. The lease is awarded to the highest bid that is at least equal to the fair
market value of the lease (conditional on other requirements being met).67
Only U.S. citizens, associations, corporations, and public bodies are able to obtain coal leases. No
entity is permitted to own or control coal leases on federal lands exceeding 75,000 acres in any
one state or 150,000 acres in the United States.68 Coal leases require an annual rental payment of
a minimum of $3 per acre, to be specified in the lease. Coal mining on federal lands requires the
payment of royalties. The royalty for surface mined coal is a minimum of 12.5% of the gross
value of coal produced, and the royalty for coal mined by underground mining methods is 8%.69
A coal lease also requires that the successful bidder post a lease bond to the BLM.70
Salable Minerals
An individual planning to mine or remove salable minerals must contact the local BLM office
and secure a sales contract before conducting any operations. Generally, the BLM authorizes the
removal (i.e., disposition) of salable minerals on federal lands by a sales contract; a free use
permit may be available to certain government entities or non-profit organizations.71 If a mine
operator desires to open a new deposit of a salable mineral, exploration and mining follow the
general processes for leasable minerals. However, common use areas or community pits may be
available for immediate mineral removal, eliminating the need for exploration and other
63 See 43 C.F.R. §3410 and the various pages on the BLM website pertaining to coal exploration at
https://www.blm.gov/programs/energy-and-minerals/coal/land-use-planning/coal-exploration-licenses.
64 43 C.F.R. §3410.2-1.
65 Some exceptions to this process include when a party holds a prospecting permit issued prior to the Federal Coal
Leasing Amendments Act of 1976; when contiguous acres are added to an existing lease; or when the BLM concludes
that conditions are suitable for an Emergency Lease.
66 43 C.F.R. §3425 labels this process “Leasing on Application,” while the BLM uses “Lease by Application.”
67
For general information on the “lease by application” process, see U.S. Department of the Interior, Bureau of Land
Management, “Fair Market Value,” https://www.blm.gov/programs/energy-and-minerals/coal/land-use-planning/fairmarket-value.
68 43 C.F.R. §3472. For general information on lessee requirements, see U.S. Department of the Interior, Bureau of
Land Management, “Lessee Qualifications and Limitations,” https://www.blm.gov/programs/energy-and-minerals/coal/
land-use-planning/lessee-qualifications.
69 See 43 C.F.R. §3473 for information pertaining to royalties and rents on coal leases.
70 43 C.F.R. §3422.4.
71 43 C.F.R. §3604.12.
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Policy Topics and Background Related to Mining on Federal Lands
processes.72 The BLM is to identify the fair market value of the mineral at the specific location,
required payment, and limitation on surface disturbances, among other specifications.
Policy Topics and Legislative Activity
Four policy areas related to mining on federal lands that have been raised in legislation in the
116th Congress are presented and discussed below.73 After a brief presentation of the topic, each
section presents policy concerns, options, and examples of related current legislation. Unless
noted, bills discussed in this section have been introduced in the House or Senate and referred to
committee, but have not seen further legislative activity.
Data Availability for Locatable Minerals
The BLM currently collects mineral production data for leasable and salable minerals on federal
lands, but not for locatable minerals.74 Locatable mineral production information could be useful
for some policy considerations; conversely, the lack of such information could limit policy
discussion for those considerations.
Concern regarding the collection of these data is not new. In 2008 the U.S. Government
Accountability Office (GAO) reported, “according to officials with BLM and the Forest Service,
they do not have the authority to collect information from mine operators on the amount of
hardrock minerals produced on federal land, or the amount remaining.”75 The GAO also
highlighted the limitations of the data collected and reported by the U.S. Geological Survey
(USGS) by noting, “it is not possible to determine hardrock mineral production on federal lands
from the USGS data.”76 The DOI reports production of some hardrock minerals from federal
lands, but notes those values are estimates based on state data.77
This lack of locatable mineral production data for federal lands can impact multiple policy areas,
including issues discussed in the following sections. Some related policy topics include
Royalties: Potential changes to existing mining laws to extend royalties to all
locatable minerals face the challenge that current production and value of these
minerals is not collected. Without this information, analysis of such policy
changes may be limited. For example, it may be difficult to estimate increased
royalty collection or increased costs to producers.
Reclamation Bonds: Knowledge of production data could assist the BLM in
determining if the posted reclamation bond continues to be adequate, is
72 43 C.F.R. §§3601-3604. These terms are discussed in the C.F.R., but they are not defined.
73
A common policy topic related to mining on federal lands considers the permitting process and resulting time
requirements. This topic is not addressed in this report.
74 See U.S. Government Accountability Office, Hardrock Mining: Availability of Selected Data Related to Mining on
Federal Lands, GAO-19-435R, 2019, for more information on the information collected and not collected by different
agencies involved with mining on federal lands.
75 U.S. Government Accountability Office, Hardrock Mining: Information on State Royalties and Trends in Mineral
Imports and Exports, GAO-08-839R, 2008, p. 33.
76 Ibid.
77 U.S. Department of the Interior, U.S. Department of the Interior Economic Report, Fiscal Year 2018, 2019, p. 9.
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excessive, or is inadequate for an ongoing locatable mineral operation on federal
lands.78
Critical Minerals: Executive Order (E.O.) 13817 tasked the DOI with
coordinating with other executive branch agencies to publish a list of critical
minerals. One criterion used to define a critical mineral is net import reliance, the
calculation of which includes domestic production of the critical mineral
commodity.79 It is unclear how locatable mineral production, which is not
required to be reported, is incorporated into the calculation of net import reliance.
Congress could address this question of data availability by requiring the collection of mineral
production data from federal lands. For example, Congress could authorize and require a
government agency to collect mineral production and production value data, among other
operations data. While the BLM could be the agency tasked with this data collection due to its
role in managing the federal mineral estate, other agencies could also receive consideration. For
example, MSHA currently collects and publicly provides data on all mining operations; the USGS
tracks and distributes mineral production from sources around the country; and the Environmental
Protection Agency (EPA) administers or oversees certain permits for most domestic mining
operations.
H.R. 2579, the Hardrock Leasing and Reclamation Act of 2019 (ordered reported by the House
Committee on Natural Resources on October 23, 2019), among other provisions, would establish
the requirement that mining operations on federal lands report production volumes and values,
and it includes the requirement that these and other data are to be made public.
Royalties
Locatable minerals remain regulated by the General Mining Law and are not subject to federal
royalties, unlike leasable minerals.80 Although the federal government does not assess royalties on
locatable minerals, some states assess royalties (i.e., severance taxes) on some minerals mined on
federal lands.81
Congress might consider establishing a royalty policy for locatable minerals. As viewed by some,
locatable minerals represent public assets, and the public should be compensated if any of these
assets are removed for private gain. Royalties on locatable minerals could capture this change in
ownership, and the revenue streams could be used to fund national priorities. Others view royaltyfree access to locatable minerals as a public benefit, given associated mining employment and
mining-related economic activity. If set too high, mineral royalties could restrict mining activity
and force marginal operations to cease.
Congress could also recognize additional complexities stemming from the different types of
royalties and their associated characteristics. Three common royalties are unit-based royalties, ad
78 See U.S. Government Accountability Office, Hardrock Mining Financial Assurances, GAO-19-436R, 2019, for
more information on the data issues related to reclamation bonds.
79 Steven M. Fortier, Nedal T. Nassar, Graham W. Lederer, Jamie Brainard, Joseph Gambogi, and Erin A. McCullough,
Draft Critical Mineral List—Summary of Methodology and Background Information—U.S. Geological Survey
Technical Input Document in Response to Secretarial Order No. 3359: U.S. Geological Survey Open-File Report
2018–1021, 2018, p. 9.
80 As noted above, salable minerals are subject to sales contracts and/or free use permits.
81 For more information on state-level royalties and mineral taxes, see U.S. Government Accountability Office,
Hardrock Mining, GAO-08-849R, 2008 and U.S. Government Accountability Office, Hardrock Mining: Updated
Information on State Royalties and Taxes, B-330854, 2019.
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valorem royalties, and profit-based royalties. Unit-based royalties are assessed on units of volume
or weight and ensure that some revenue is collected in exchange for the removal of the mineral.
Ad valorem royalties are assessed on the sale of the mineral and are subject to fluctuations in
mineral prices. Profit-based royalties are assessed on operator profits, allowing deductions for
certain costs. Further complexities can include whether to assign different royalty rates to
different minerals and how to treat minerals that are byproducts of other minerals.82
As noted above, Congress is currently considering H.R. 2579, the Hardrock Leasing and
Reclamation Act of 2019 (ordered reported by the House Committee on Natural Resources on
October 23, 2019), which, among other provisions, would close federal lands to new mining
claims under the General Mining Law of 1872 and create a hardrock mine reclamation fund. This
bill would establish a federal royalty of 12.5% and a displaced materials reclamation fee of 7
cents per ton of displaced materials for all new hardrock mineral mining operations on federal
lands. These fees and other revenue generated by provisions in the bill would be deposited into a
newly created fund, the Hardrock Minerals Reclamation Fund. The reclamation fund would target
reclamation of abandoned hardrock mines and other environmental conservation activities on
lands and waters affected by past hardrock mining activity, independent of land owner. The bill
would require the collection and public dissemination of data regarding mine production and
royalties paid, and regular inspection of all hardrock mines on federal lands.
Federal Land Withdrawals
New mining operations on federal lands require that the federal lands are open for mineral entry.
Some federal lands have undergone withdrawal, which generally means those lands are closed to
or withdrawn from mining and other activities. FLPMA defines withdrawal as
withholding an area of Federal land from settlement, sale, location, or entry, under some
or all of the general land laws, for the purpose of limiting activities under those laws in
order to maintain other public values in the area or reserving the area for a particular public
purpose or program; or transferring jurisdiction over an area of Federal land, other than
“property” ... from one department, bureau or agency to another department, bureau or
agency.83
As indicated in this definition, a withdrawal does not necessarily close land to mining, and a
withdrawal that closes land to mining may not restrict other land uses. A land withdrawal can
occur through legislation, executive order, or agency action, and a withdrawal is usually for a
specified period of time. In the event a withdrawal impacts existing mining claims or leases, the
DOI and the involved agencies may allow the claims or leases to continue, or they may offer
other federal land in exchange for the existing claims or leases.84 Many federal land withdrawals
close the land to mining, including NPS lands, which are closed to new mining claims.85
The mining industry generally advocates for limited withdrawals from the mineral estate, as
access to public lands for mining represents opportunities for ongoing and future operations.
82 For more information regarding mining royalties, see James Otto, Craig Andrews, Fred Cawood, et al., Mining
Royalties: A Global Study of Their Impact on Investors, Government, and Civil Society (Washington, DC: The World
Bank, 2006).
83 43 U.S.C. §1702(j).
84 43 U.S.C. §1716. Also see Bureau of Land Management, Land Exchange Handbook H-2200-1 (Public), 2005,
https://www.blm.gov/sites/blm.gov/files/h2200-1.pdf.
85 54 U.S.C. §100731 effectively withdrew all national parks and monuments from mineral entry. See 36 C.F.R. §9.10
for information regarding treatment of existing mining claims in these areas.
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Advocates for a specific land withdrawal (with closure to mineral entry) generally see the
proposed use (e.g., military base, national park, national monument, wilderness area) as
superseding the potential use of the public land by other interests (e.g., for mining).
One example of a withdrawal affecting mining on federal lands occurred in 2012 when the
Secretary of the Interior withdrew about one million acres of federal land surrounding the Grand
Canyon National Park from new mineral development for 20 years. The withdrawn area
contained active uranium mining operations and about 3,200 mining claims.86 H.R. 1373, among
other provisions, would permanently withdraw this area from new mineral entry. H.R. 1373
passed the House; a companion bill has been introduced in the Senate as S. 3127.
Another example of a withdrawal with closure to mineral entry is for the Nevada Test and
Training Range (NTTR), which is currently comprised of over 2.9 million acres of federal land
withdrawn until 2021. The Department of the Air Force is requesting that this land withdrawal be
renewed and an additional 300,000 acres be withdrawn to expand the area.87 The State of Nevada
Commission on Mineral Resources has produced a map of the existing and proposed expansion
areas, including affected active mining claims.88 H.R. 5606 and S. 3145, among other provisions,
would expand and renew the withdrawn federal land.
A third example involves a planned mine by Twin Metals Minnesota (TMM) in the Superior
Nation Forest, near the Boundary Waters Canoe Area Wilderness. The Superior National Forest
was withdrawn from mineral entry in 1930,89 but it was reopened to mineral entry in 1950.90
TMM holds two leases issued in 1966 (renewed twice); no mineral production has occurred under
these leases. TMM applied to renew these leases for a third time in 2012, ahead of their 2016
expiration. In 2016, DOI found that TMM does not have a non-discretionary right to renewal, and
the FS did not consent to renewing the leases; DOI canceled the leases.91 In 2017, the DOI found
that TMM has a non-discretionary right to renewal, and it renewed the leases.92 H.R. 5598,
among other provisions, would withdraw 234,328 acres of federal lands in the Superior National
Forest, which include the lands covered by the TMM leases.
Critical Minerals
Affordable and reliable access to critical minerals, and materials or products containing critical
minerals, has been an issue since before the Great Depression, with the first official list of critical
minerals dating to 1921.93 One recent definition of a critical mineral is
86 U.S. Department of the Interior, Secretary Salazar Announces Decision to Withdraw Public Lands near Grand
Canyon from New Mining Claims, January 9, 2012, https://www.doi.gov/news/pressreleases/Secretary-SalazarAnnounces-Decision-to-Withdraw-Public-Lands-near-Grand-Canyon-from-New-Mining-Claims.
87 See Nevada Test and Training Range, “NTTR Military Land Withdrawal Legislative EIS,” http://www.nttrleis.com/.
88 State of Nevada Commission on Mineral Resources, Nevada Test and Training Range (NTTR) Military Land
Withdrawal, http://minerals.nv.gov/home/features/Information_Related_to_Proposed_Land_Withdrawals/.
89 16 U.S.C. §577.
90 16 U.S.C. §508(b).
91 Karen E. Mouritsen, Lease Renewal Application Rejected, U.S. Department of the Interior, 2016,
https://www.blm.gov/download/file/fid/7652.
92 U.S. Department of the Interior, Environmental Assessment, Addition of Terms and Conditions for Renewal of
Hardrock Leases, MNES 001352 and MNES 001353, 2018.
93 For a discussion of the evolution of such lists, see a U.S. Geological Survey study of 23 mineral commodities
considered critical, including antimony, barite, beryllium, cobalt, fluorine, gallium, germanium, graphite, hafnium,
indium, lithium, manganese, niobium, platinum-group elements, rare-earth elements, rhenium, selenium, tantalum,
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(i) a non-fuel mineral or mineral material essential to the economic and national security
of the United States, (ii) the supply chain of which is vulnerable to disruption, and (iii) that
serves an essential function in the manufacturing of a product, the absence of which would
have significant consequences for our economy or our national security. 94
Numerous lists of critical minerals and materials exist, and the creation of such lists is inherently
subjective, as the definition of “critical” includes notions of access to markets and costs of
possible supply interruptions.95 Potentially adding further confusion, some agencies and studies
conflate or do not clarify distinctions between the related terms critical minerals, critical
materials, strategic minerals, and strategic materials.
Discussions of critical minerals often note that the United States has few known locations of
critical minerals that could be economically produced, and the United States does not presently
have refining capabilities to process those critical minerals into commodities. The United States
imports critical minerals (the USGS calculates net import reliance as part of the process to define
a critical mineral) or products containing them, resulting in what is sometimes considered
vulnerable dependencies.96 The limitations of using net import reliance to define a critical mineral
or critical material are not fully defined, as manufactured products can contain critical minerals of
domestic or foreign origin that have been previously imported or exported.97
Some known critical mineral deposits lie on federal lands. One example is the Idaho Cobalt
Operation, which is a cobalt reserve on federal lands.98 Another example is the Twin Metals
Minnesota mining project, which would mine copper, nickel, platinum group metals, and cobalt
in the Superior National Forest.99
To provide more information on the likely locations of critical mineral resources, the USGS has
begun the Earth Mapping Resources Initiative (Earth MRI).100 This program has produced a map
and dataset covering numerous focus areas for one group of critical minerals: the rare-earth
elements.101 Many of these focus areas occur in the western region and presumably lie on federal
lands. As the Earth MRI program continues, it plans to focus on other critical minerals.
tellurium, tin, titanium, vanadium, and zirconium (Critical Mineral Resources of the United States- Economic and
Environmental Geology and Prospects for Future Supply, ed. Klaus J. Schulz, John H. DeYoung, Jr., Robert R. Seal II,
Dwight C. Bradley (Reston, VA: U.S. Geological Survey, 2017)).
94 Executive Order 13817, “A Federal Strategy To Ensure Secure and Reliable Supplies of Critical Minerals,”
December 20, 2017.
95 For background on past critical mineral supply interruptions, see CRS In Focus IF11259, Trade Dispute with China
and Rare Earth Elements, by Wayne M. Morrison.
96 For an overview of critical minerals, see CRS Report R45810, Critical Minerals and U.S. Public Policy, by Marc
Humphries.
97 Steven M. Fortier, Nedal T. Nassar, Graham W. Lederer, Jamie Brainard, Joseph Gambogi, and Erin A. McCullough,
Draft Critical Mineral List—Summary of Methodology and Background Information—U.S. Geological Survey
Technical Input Document in Response to Secretarial Order No. 3359: U.S. Geological Survey Open-File Report
2018–1021, 2018, p. 9.
98 For more information on the Idaho Cobalt Operations by Jervois, see https://jervoismining.com.au/our-assets/idahocobalt-operations.
99 Twin Metals Minnesota, “Bureau of Land Management Renews Twin Metals Minnesota Federal Leases,” May 15,
2019, http://www.twin-metals.com/bureau-of-land-management-renews-twin-metals-minnesota-federal-leases.
100 Jane M. Hammarstrom and Connie L. Dicken, Focus Areas for Data Acquisition for Potential Domestic Sources of
Critical Minerals—Rare Earth Elements, U.S. Geological Survey, Open-File Report 2019–1023, 2019, p. iii.
101 The rare earth elements are defined as the 15 lanthanide elements, scandium, and yttrium (ibid., p. 1).
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Policy options to address concerns related to critical minerals typically intend to create or
increase access to secure quantities of critical minerals. Expanding mineral production on federal
and non-federal lands is one option to create increased access to secure quantities of critical
minerals. Other policy options can include non-mining options; two such options are mentioned
below. One option that could increase access to critical minerals on federal lands includes
creating mapping and mineral exploration programs, such as Earth MRI. Such programs can
facilitate and lower the private costs of locating critical mineral reserves. While general
knowledge of the likelihood of a deposit can assist new mineral developments, policies
supporting such programs may have limited impacts on production from known critical mineral
deposits.
A policy option not focused on increasing domestic mineral production would focus on reducing
potential negative effects of supply shocks by stockpiling additional critical minerals at the
National Defense Stockpile. Given the number of critical minerals and the higher number of
manufacturing input materials made from critical minerals, the costs and complexity of
maintaining substantial supplies could limit the effectiveness of this option. An additional
complication is that “the National Defense Stockpile is not to be used for economic or budgetary
purposes,”102 and much demand for critical minerals stems from private consumption, such as
motors and batteries for electric vehicles.
A third option, also not focused on increasing domestic mineral production, would be to secure
more access to critical minerals by supporting a domestic supply chain based on critical minerals
captured through recycling consumer products. Such support could include funding research to
develop technology that would reduce the costs of recycling critical minerals to a competitive
level. Other support could include tariffs or quotas on imported critical minerals, thus allowing
recycled domestic sources to be more cost competitive.
Congress is presently considering bills related to critical minerals and materials, with some
containing provisions related to the federal mineral estate. These include
An amendment in the nature of a substitute to S. 2657 was introduced on
February 27, 2020 (including the new title “American Energy Innovation Act of
2020”), and incorporated language from several energy and mineral bills reported
by the Senate Committee on Energy and Natural Resources. Cloture was invoked
on March 2. This bill includes text from S. 1317 and S. 1052 (discussed below).
S. 1317, among other provisions, would instruct the USGS to publish information
regarding known and unknown domestic critical mineral resources. The USGS
may conduct geological surveys to increase this information. This bill would also
establish a research and development program in the Department of Energy
(DOE) to increase efficiencies in the critical mineral supply chain, to identify
substitutes for critical minerals, and to promote the use of recycling as a source
of critical minerals. This research also includes producing forecasts related to
critical minerals for a 10-year period, including expected demand, market
conditions, and possible substitutes for critical minerals. This bill would repeal
the National Critical Materials Act of 1984 and authorize $50 million per year for
10 years to fund its activities. This bill also includes identical language to S. 1052
(discussed below).
H.R. 4410, among other provisions, would establish a federal cooperative and a
federal corporation related to rare-earth minerals and thorium; both federal
102 50 U.S.C. §98a(c).
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charters would be privately funded and operated. The cooperative would process
domestic and international sources of rare-earth minerals and materials into
products for sale. The corporation would accept all radioactive material (e.g.,
thorium) produced by the cooperative, sell any valuable materials, and could
conduct research on new uses of such materials.
S. 1052, among other provisions, would direct the DOE to authorize an ongoing
program to develop technologies for the extraction of rare-earth elements (REE)
from coal and coal byproducts. The bill would authorize $23 million per year for
eight years to fund this program. According the committee report accompanying
this bill, “Congress appropriated funding in 2014 for [the National Energy
Technology Lab] to develop extraction technologies for REEs from coal
byproducts. S. 1052 formally authorizes the program.”103
H.R. 2531, among other provisions, would treat mineral exploration and mining
projects related to critical minerals as high-priority infrastructure projects, as
defined by E.O. 13807, and would attempt to reduce the time to issue permits to
30 months by allowing the lead agency to determine that NEPA requirements
have been met or do not apply to the project.
H.R. 3405, among other provisions, would instruct the Secretary of the Interior to
remove uranium from the list of critical minerals, as prepared by the USGS
pursuant to E.O. 13817. A previous version of this bill, introduced on June 21,
2019, finds that the United States has reserves of uranium, and that 52% of
uranium is imported from stable trading partners.
H.R. 3567, among other provisions, would direct the Under Secretary of Defense
for Acquisition and Sustainment, in consultation with others, to establish
guidance for the acquisition of items containing rare-earth materials and the
supply chain of rare-earth materials from countries that are not U.S. adversaries.
The bill would also direct the National Defense Stockpile Manager to dispose of
an additional three million pounds of tungsten and to use available funds to
acquire approximately $37 million of critical materials over five years; tantalum
would be added to the list of critical materials.
S. 3356, among other provisions, would require the DOE to award grants to
encourage battery recycling research, development, and demonstration projects.
Separately, grants would be awarded to state and local governments and battery
retailers to enhance battery recycling collection programs. The bill would
authorize $10 million for one year for the existing Lithium-Ion Battery Recycling
Prize competition at the DOE, and would authorize to be appropriated $30
million per year for five years.
103 The committee report for S. 1052 can be found at https://www.congress.gov/congressional-report/116th-congress/
senate-report/74/1?overview=closed.
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Author Contact Information
Brandon S. Tracy
Analyst in Energy Policy
[redacted]@crs.loc.gov
, 7-....
Congressional Research Service
R46278 · VERSION 2 · NEW
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