Patenting Information: Petition for Rulemaking

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