March 24, 1999
VIA FACSIMILE &
REGULAR MAIL
Mr. Tom Fry
Acting Director
Bureau of Land Management
Department of Interior
1849 C Street, NW
Room 5660
Washington, DC 20240
Re: Mining Claims Under General Mining Laws; Surface Management
Dear Mr. Fry:
The Office of Advocacy of the U.S. Small Business Administration (SBA) was established by Congress under Pub. L. No. 94-305 to advocate the views of small business before federal agencies and Congress. Advocacy is also required by the Regulatory Flexibility Act (RFA) to monitor agency compliance with the RFA. 5 U.S.C. § 612. The Chief Counsel of Advocacy is authorized to appear as amicus curiae in regulatory appeals from final agency actions, and is allowed to present views with respect to compliance with the RFA, the adequacy of the rulemaking record with respect to small entities, and the effect of the rule on small entities. Id. On March 28, 1996, President Clinton signed the Small Business Regulatory Enforcement Fairness Act (SBREFA), Pub. L. 104-121, which made a number of significant changes to the RFA, the most significant being provisions to allow judicial review of agencies' compliance with the RFA. 5 U.S.C. § 611.
On February 9, 1999 the Bureau of Land Management (BLM) published a proposed rule in the Federal Register on Mining Claims Under General Mining Laws; Surface Management. Federal Register, Vol. 64, No. 26, p. 6422. The purpose of the proposed rule is to revise BLM’s regulations governing mining operations involving metallic and some other minerals on public lands administered by BLM. The regulations are intended to prevent unnecessary or undue degradation of BLM-administered lands by mining operations authorized by mining laws. According to BLM, a significant aspect of the proposed rulemaking addresses the concerns raised by the United States District Court for the District of Columbia in Northwest Mining Association v. Babbitt, No. 97-1013 (D.D.C. May 13, 1998). Id. at 6424.
The preamble of the rule states that:
The Office of Advocacy asserts that BLM’s characterization of the debate over whether the revisions to subpart 3809 are necessary in view of the improvements in State regulations is extremely misleading. It is the Office of Advocacy’s understanding that the concern over the necessity of the revisions is so widespread that Congress requested an independent study be undertaken by the National Academy of Sciences (NAS) to determine the need for the action.(1)A Congressional request for an independent study indicates that this is, indeed, an extremely serious matter that deserves more objective treatment in the BLM preamble.
Currently, the comment period for the proposal closes before the completion of the NAS study. Since the purpose of the study is to address whether the revisions are necessary, the Office of Advocacy asserts that the comment period should be extended to allow for completion and review of the study. Such an extension is necessary if BLM wishes to avoid questions about its compliance with the Administrative Procedures Act (APA), with regard to this issue.
An agency violates the APA if it relies on factors Congress did not intend for it to consider, fails to examine an important aspect of the problem, offers an explanation for its decision that contradicts the evidence before the agency, or is so implausible that it cannot be attributed to a product of agency expertise. (Emphasis added) Motor Vehicle Manufacturers Association v. State Farm Mutual Auto Insurance Co., 463 U.S. 29,43, 77 L.Ed. 2d 443, 103 S. Ct. 2856 (1983). Surely, a Congressionally requested study that examines the necessity of the rulemaking is "an important aspect of the problem." Failure to allow the public an opportunity to review and possibly incorporate the findings of the NAS study in their comments may be considered arbitrary and capricious behavior that may subject to challenges under the APA.
The Office of Advocacy is extremely concerned about this potential problem under the APA. Failure to await NAS’ findings 1) runs the risk that small businesses and BLM will have to spend valuable time and resources on the legal process, or, on the other hand, 2) misses the opportunity to have BLM’s proposal supported by NAS’ findings and, thus, avoid controversy. In any event, delay strengthens the regulatory process.
When the court stated in Northwest Mining Association v. Babbitt 5 F. Supp. 2d 9, 15 (D.D.C. 1998) remanded this matter to the agency, it stated:
Extending the comment period until after the NAS study is released will not be contrary to the public interest. If anything, failure to extend the comment period until after the study is completed would be contrary to the public interest and reinforces the public’s skepticism about the fairness of the regulatory process. Accordingly, the Office of Advocacy respectfully requests that BLM extend the comment period to allow ample time for NAS to complete its study and for the public to review the study.
If you have any questions, please feel free to contact me at (202) 205-6533.
Sincerely,
Jere W. Glover
Chief Counsel
Office of Advocacy
Jennifer Alisa Smith
Assistant Chief Counsel
for Economic Regulation &
International Trade
ENDNOTE
1. Department of Interior and Related Agencies Appropriations Act, 1999 (as contained in Division A, § 101(e) of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277)).
* Last Modified: 6/14/01