While the Department of Interior has no legal obligation to adopt substantive, prospective standards for applying the “reciprocity” provision of 30 U.S.C. § 181, if it chooses to do so it should comply with the public, notice-and-comment procedures applicable to agency rulemaking under the Administrative Procedure Act (APA). If the Department of the Interior instead continues to determine on a country-by-country basis whether another country’s laws and regulations accord American investors “similar or like privileges,” APA procedures would not be considered applicable to such decisionmaking. However, an adequate record for judicial review of the substance of the ultimate decision should be made.
As previously concluded, the Secretary of the Interior has authority under the Mineral Leasing Act of 1920 to “mirror” restrictive practices of another country. The question whether the Secretary is required to do so, or whether he could choose to take some more extreme action such as barring any investment by the other country’s citizens, is not addressed.