Use and Occupancy Under the Mining Laws

Federal RegisterJul 16, 1996

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SUMMARY: The Bureau of Land Management (BLM) is adopting regulations

addressing the unlawful use and occupancy of unpatented mining claims

for non-mining purposes. This rule sets forth the restrictions on use

and occupancy of public lands open to the operation of the mining laws

that BLM administers in order to limit use and occupancy to those

involving prospecting or exploration, mining, or processing operations

and reasonably incidental uses. The rule establishes procedures for

beginning occupancy, standards for reasonably incidental use or

occupancy, prohibited acts, procedures for inspection and enforcement,

and procedures for managing existing uses and occupancies. It also

provides for penalties and appeals procedures. This rule is necessary

to prevent unnecessary or undue degradation of the public lands from

uses and occupancies not reasonably incident to mining. The rule does

not adversely affect bona fide mining operations or alter BLM's

regulations in 43 CFR Part 3800 pertaining to them. Terms used in this

preamble have the meaning given to them in the rule.

EFFECTIVE DATE: August 15, 1996.

FOR FURTHER INFORMATION CONTACT: Richard Deery, (202) 452-0353.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Discussion of Final Rule and Response to Comments.

III. Procedural Matters.

I. Background

The mining industry has played a key role in both the settlement

and development of the American West. The problem of occupancy of

mining claims on public lands by those who have no intention of

conducting legitimate hardrock mineral prospecting, exploration or

extraction activities has long been recognized. These occupancies waste

valuable resources by hampering and discouraging the activities of

those who are engaged in the legitimate development of our mineral

resources or other legitimate uses of the public lands. This rule

establishes a framework for distinguishing between bona fide uses and

occupancies and those that represent abuse of the mining laws. The

purpose of this rule is to strengthen BLM's use of its enforcement

authority to combat abuse of the Mining Law of 1872 for non-mining

pursuits.

The Mining Law of 1872

The Mining Law of 1872 is the Act of May 10, 1872 (17 Stat. 91, 30

U.S.C. 22 et seq.) together with its judicial interpretations. The law

established the basic statutory framework governing the location of

mining claims that is still in practice today.

Under the law, a person can acquire an interest in the public lands

by the proper location of a mining claim. A prospector can go out on

the public lands, search for minerals and, upon discovery of a valuable

mineral deposit, locate a claim to the lands upon which the discovery

is made. A prospector can locate a claim by staking the corners of the

claim, posting a notice of the claim, and filing or recording the claim

according to state and federal law.

The law did not operate without conflict and controversy. After

all, the ``claim jumper'' has become as much a part of the folklore of

the West as the prospector and his mule. Two noteworthy cases were

decided in the early part of this century that helped define the scope

of activities allowed on unpatented mining claims.

One, Teller v. United States, 113 F. 273 (8th Cir. 1901), involved

the cutting of timber on an unpatented mining claim. The court found

that the owner of the claim had the right to work the claim for its

minerals, but had no right to cut timber or engage in other surface

activities unless the activities were reasonably necessary to the

mining operation. The second case, United States v. Rizzinelli, 182 F.

675 (D. Idaho 1910), involved the establishment of saloons on

unpatented mining claims. This case stands for the principle that

surface uses of a claim can only be for purposes ``connected with or

incident to'' exploration for, and recovery of, minerals.

Surface Resources Act of 1955

In spite of all good intentions, by the 1950's it had become clear

that widespread abuse of the general mining law was taking place.

People were locating mining claims who either had no intention of

mining or who never got around to it. Some of the uses taking place on

unpatented claims included permanent residences, summer homes,

townsites, orchards, farms, a nudist colony, restaurants, a rock

museum, a real estate office, hunting and fishing lodges, filling

stations, curio shops and tourist camps. To deal with this, Congress

passed the Surface Resources Act of 1955 (69 Stat. 367, 30 U.S.C. 601-

615), which included a provision that any unpatented mining claim may

not be used for purposes other than prospecting, mining or processing

operations and reasonably incident uses.

Federal Land Policy and Management Act of 1976

The Federal Land Policy and Management Act of 1976 (90 Stat. 2743,

43 U.S.C. 1701 et seq.), also known as FLPMA, directed the Secretary of

the Interior to take any action necessary to prevent unnecessary or

undue degradation of the public lands. FLPMA established a federal

mining claim recording system, which requires an annual filing of an

affidavit of assessment work or a notice of intention to hold a mining

claim. It also strengthened the Secretary's enforcement authorities by

authorizing the Secretary to issue regulations necessary to implement

FLPMA, the violation of which are punishable by civil and criminal

penalties. In 1980, BLM adopted regulations outlining procedures and

standards designed to prevent hardrock mining operations from causing

unnecessary or undue degradation of the public lands.

BLM's 1980 Regulations

The 1980 regulations, found at 43 CFR part 3800, address the

management of surface impacts from exploration and mining operations,

treating mining operations differently depending on the level of mining

activity the operator proposes. At the lowest level of activity, called

``casual use,'' prospectors or part-time miners who cause only

negligible surface disturbance need not contact BLM. An operator who

exceeds this negligible level of surface activity, but keeps the amount

of surface disturbance below five acres per year, is required only to

file a notice with BLM 15 days before commencing operations. The

operator does not have to obtain BLM's approval of the notice, nor

obtain bonding, except in special circumstances. Operators proposing

mining operations causing more than five acres of surface disturbance

per year are required to file a plan of operations which sets out the

details of those operations. The operator must also file a plan of

operations if special categories of land are involved, even if

[[Page 37117]]

less than five acres per year will be disturbed. BLM must approve the

plan before the operator may commence operations.

Development of Proposed Regulations

In August 1990, the General Accounting Office issued a report that

found some holders of unpatented mining claims were using their claims

for unauthorized residences, non-mining commercial operations, illegal

activities, or speculative activities not related to legitimate mining.

See Unauthorized Activities on Hardrock Claims, GAO/RCED-90-111. These

unauthorized activities result in a variety of problems, including

blocked access to public land; safety hazards, including threats of

violence; environmental contamination; investment scams; and increased

costs to reclaim the land. The report recommended that BLM revise its

regulations to clearly state that residency and nonmining commercial

activities are normally not authorized, thereby shifting the burden of

proof to the claim holder to show that an activity is incidental to

mining. At a follow-up hearing before the Subcommittee on Mining and

Natural Resources, House Interior and Insular Affairs Committee, in

September 1990, the Director of BLM and the Subcommittee agreed that

while occupancy reasonably incident to prospecting, mining, and

production is legitimate, BLM field staff need a satisfactory process

for administering and enforcing legal requirements.

After the September 1990 hearing, BLM established a task force of

headquarters and field staff to strengthen BLM's ability to prevent

unauthorized uses and occupancies on the public lands under the mining

laws. The task force drafted a proposal in late 1990 and discussed it

in meetings with miners and environmentalists in Washington, D.C.;

Denver, Colorado; Spokane, Washington; and Sacramento, California.

Following these discussions, a proposed rule adding a new subpart 3715

to the regulations at 43 CFR part 3710 was published in the Federal

60-day comment period closed on November 10, 1992. BLM received 44

comments concerning the proposal: 16 from individuals, 4 from mining

businesses, 7 from associations, 16 from offices of federal agencies,

and 1 from a state government citizens' advisory commission. As

discussed in the next portion of the preamble to this final rule, BLM

gave full consideration to all comments received. Any changes in the

final rule from the proposed rules are identified in the following

detailed discussion of the final rule.

Regulatory Reform

In February 1995, the President outlined his regulatory reform

initiative, which is intended to reduce unnecessary regulatory burden

and overlap, create regulations with clearly stated goals and

objectives and stimulate partnerships with regulated parties. BLM

undertook a page-by-page review of its rules and identified about 1,000

pages in the Code of Federal Regulations that would be eliminated,

streamlined or rewritten in ``plain English.'' Plain English is a

specific writing technique that communicates the information and legal

requirements of regulations more effectively through the use of

question-and-answer headings, active voice, short sentences, and

tables, among other things.

Because the proposed rule was issued before the regulatory reform

initiative, it was not written in plain English. Readers of the final

rule will quickly note differences in the language and format of the

final rule as compared to the proposal. Readers will also note that

final Sec. 3715.4 addresses existing occupancies. In the proposed rule,

these provisions were generally located in Sec. 3715.7. BLM changed the

location of the existing occupancy provisions and renumbered the

intervening sections accordingly as part of a reorganization of the

final rule. The conversion to plain English does not affect the

substantive content of the rule. These changes are intended to increase

the clarity and understandability of the rule. Any substantive changes

that BLM has made in the final rule are fully described in the

following discussion.

To assist the reader in understanding the difference between the

proposed rule and the final rule adopted today, BLM has prepared the

following table:

Comparison of Proposed Rule and ``Plain English'' Final Rule

------------------------------------------------------------------------

Proposed Rule ``Plain English'' Final Rule

------------------------------------------------------------------------

Sec. 3715.0-1....................... Sec. 3715.0-1

Sec. 3715.0-2....................... Sec. 3715.0-1

Sec. 3715.0-3....................... Sec. 3715.0-3

Sec. 3715.0-5....................... Sec. 3715.0-5

Sec. 3715.0-6....................... Sec. 3715.0-1

Sec. 3715.0-7....................... Sec. 3715.0-1

None................................. Sec. 3715.0-9

Sec. 3715.1......................... Sec. 3715.1

Sec. 3715.2 (a) and (b)............. Sec. 3715.2

Sec. 3715.2(c)...................... Sec. 3715.2-1

Sec. 3715.2(d)...................... Sec. 3715.2-2

Sec. 3715.3 (a)-(e)................. Sec. 3715.3

Sec. 3715.3(f)...................... Sec. 3715.3-2

Sec. 3715.3(g)...................... Sec. 3715.3-2 and Sec. 3715.3-3

Sec. 3715.3(h)...................... Sec. 3715.3-4

Sec. 3715.3(h)(1)................... Sec. 3715.3-5(a) and Sec.

3715.7-1(a)

Sec. 3715.3 (h)(2) and (i).......... Sec. 3715.3-5(b)

Sec. 3715.3(j)...................... Sec. 3715.3-6

Sec. 3715.3(k)...................... Sec. 3715.1

Sec. 3715.4(a)...................... Sec. 3715.5(a)

Sec. 3715.4(b)...................... Sec. 3715.3-1(b)

Sec. 3715.4 (c)-(e)................. Sec. 3715.5 (b)-(e)

Sec. 3715.4(f)...................... Sec. 3715.5-1(a)

Sec. 3715.4(f)(1)................... Sec. 3715.5-1(b)

Sec. 3715.4(f)(2)................... Sec. 3715.5-2

Sec. 3715.5......................... Sec. 3715.6

Sec. 3715.6(a)...................... Sec. 3715.7 (a) and (b)

Sec. 3715.6(b)...................... Sec. 3715.7-1(a)

Sec. 3715.6(c)...................... Sec. 3715.4-3(c)

Sec. 3715.6(d)...................... Sec. 3715.7-1(c)

Sec. 3715.6(e)...................... Sec. 3715.7-1(d)

Sec. 3715.6(f)...................... Sec. 3715.7-2

Sec. 3715.7(a)...................... Sec. 3715.4(b)

Sec. 3715.7(b)...................... Sec. 3715.4-1

Sec. 3715.7(c)...................... Sec. 3715.4-2

Sec. 3715.7(d)...................... Sec. 3715.4(a)

Sec. 3715.7(e)...................... Sec. 3715.4-3

Sec. 3715.8(a)...................... Sec. 3715.8(a)

Sec. 3715.8(b)...................... Sec. 3715.8-1

Sec. 3715.9(a)...................... Sec. 3715.9

Sec. 3715.9(b)...................... Sec. 3715.9

Sec. 3715.9(c)...................... Deleted

Sec. 3715.9(d)...................... Deleted

Sec. 3715.9(e)...................... Deleted

3715.9(f)............................ Sec. 3715.9-1

Sec. 3715.9(g)...................... Deleted

------------------------------------------------------------------------

II. Discussion of Final Rule and Response to Comments

Legal Basis and Purpose of the Final Rule

These regulations carry out the statutory requirements of section 4

of the Surface Resources Act of 1955, which states that mining claims

are not to be used for any purposes other than prospecting, mining, or

processing operations, and uses reasonably incident thereto (30 U.S.C.

612). Even before 1955, the courts had long held that the Mining Law of

1872 itself entitled the mining claimant to use the surface only for

reasonably incident purposes. See, for example, United States v.

Rizzinelli, 182 F. 675 (D. Id. 1910) and Bruce W. Crawford, 92 I.D.

208, 216 (1985).

Uses that are not reasonably incident are not authorized by the

mining laws and should not be occurring on public lands, unless they

are authorized under other authorities. Because illegal uses should

never occur on public lands, the mere existence of an illegal use

[[Page 37118]]

inherently constitutes ``unnecessary or undue degradation'' of the

public lands. Consequently, these regulations clarify that unauthorized

uses and occupancies on public lands constitute ``unnecessary or undue

degradation'' of the public lands.

Section 302(b) of the Federal Land Policy and Management Act gives

the Secretary of the Interior the duty to take any action necessary to

prevent unnecessary or undue degradation of the public lands. This duty

arises in section 302(b) in the context of the Secretary's obligation

to manage the public lands by regulating the use, occupancy, and

development of the public lands. Accordingly, as applied to this rule,

``unnecessary or undue degradation'' includes those uses that are not

authorized by law, specifically those activities which are not

reasonably incident and are not authorized under any other applicable

law or regulation.

To the extent that uses are reasonably incident and do not involve

occupancy, the surface management requirements of 43 CFR part 3800

govern the conduct of those uses.

The purposes of the regulations in this subpart are to--

(a) Distinguish between the allowable and prohibited uses and

occupancies under the Mining Law of 1872 (30 U.S.C. 21 et seq.),

section 4(a) of the Surface Resources Act, (30 U.S.C. 612), the Federal

Land Policy and Management Act (43 U.S.C. 1701 et seq.), and other

applicable law, to ensure that mining claims and millsites are not

used, prior to issuance of patent therefor, for any purposes other than

prospecting or exploration, mining, or processing operations, and uses

reasonably incident thereto;

(b) Inform persons operating under the mining laws of their basic

rights and responsibilities relative to use and occupancy of public

lands;

occupancy of public lands;

(d) Enumerate instances where use and occupancy of public lands are

authorized under the mining laws, and to set standards for such use or

occupancy;

(e) Enumerate prohibited acts relating to use and occupancy of

public lands under the mining laws; and

(f) Provide for administrative remedies and appropriate penalties

for cases of non-compliance with the regulations in this subpart.

The rule does not adversely affect bona fide mining operations or

alter BLM's regulations in 43 CFR Part 3800 pertaining to them.

General Comments

Several comments from individuals objected to the proposed rule as

an undue infringement on their use of a mining claim. The rule does

not, however, infringe on lawful uses of the public lands. Bona fide

mining operations will not be adversely affected by the rule. The rule

is necessary to carry out the statutory responsibility to manage the

public lands and to enforce the statutory restrictions on the use and

occupancy of the public lands for reasonably incident activities.

Enforcement authority is found in sections 302(c), 303(a), and 303(g)

of the Federal Land Policy and Management Act of 1976 (FLPMA), the

Unlawful Occupancy and Inclosures of Public Lands Act (43 U.S.C. 1201),

and 18 U.S.C. 1001.

Section 3715.0-1 What are the Purpose and Scope of This Subpart?

Final Sec. 3715.0-1(a) describes the purpose of subpart 3715. The

purpose is to manage the use of the public lands for the development of

locatable mineral deposits by limiting use and occupancy to that which

is reasonably incident.

One comment suggested a change in the policy provision, proposed

Sec. 3715.0-6, to provide added protection for valid uses of mining

claims. Another comment suggested a wording change in the policy

provision, pointing out that some older unpatented mining claims may

lie on lands that are withdrawn or otherwise not now open to the

operation of the mining laws. However, these claims are still subject

to regulation under the mining laws. BLM adopted these comments in the

final rule, with language added to final Sec. 3715.0-1 specifically to

provide for protection of valid uses of valid claims, regardless of

when created.

Final paragraph (b) states that the subpart applies to public lands

BLM administers.

Final paragraph (c) states that these regulations do not impair the

right of any person to engage in recreational activities or any other

authorized activity on public lands BLM administers. This paragraph was

added in response to concerns from commenters that legitimate

recreational activities would be affected by the regulations.

BLM formed this section of the final rule from proposed

Secs. 3715.0-2, 3715.0-6, and 3715.0-7.

Section 3715.0-3 What are the Legal Authorities for This Subpart?

This section enumerates the statutory authority for the

promulgation of these regulations. The primary authorities include the

Mining Law of 1872, the Surface Resources Act of 1955, the Federal Land

Policy and Management Act, and the Unlawful Occupancy and Inclosures of

Public Lands Act.

Section 1 of the Mining Law of 1872 (30 U.S.C. 22) provides that,

except as otherwise provided by law, all valuable mineral deposits in

lands belonging to the United States must be free and open to

exploration and purchase. It also provides that the lands containing

these deposits must be open to occupation and purchase under

regulations prescribed by law and the local customs or mining district

rules that are not inconsistent with the laws of the United States.

Section 15 of the Mining Law of 1872, as amended (30 U.S.C. 42),

provides that a patent application for a lode claim may include

nonmineral land not contiguous to the vein or lode only if it is used

or occupied for mining or milling purposes. It also provides that a

patent application for a placer claim may include nonmineral land only

if it is needed, used and occupied by the proprietor of a placer claim

for mining, milling, processing, beneficiation, or other operations in

connection with that claim.

Section 4 of the Surface Resources Act (30 U.S.C. 612) states that

any mining claim located after July 23, 1955, under the mining laws of

the United States must not be used, prior to issuance of patent, for

any purposes other than prospecting, mining, or processing operations,

and reasonably incident uses. Any such mining claim is also subject,

prior to issuance of patent, to the right of the United States, its

permittees, and licensees, to use so much of the surface as may be

necessary for management and disposition of vegetative surface

resources and management of other surface resources, or for access to

adjacent land.

Several comments argued that pre-1955 claims should be exempt from

the provisions of the rule. This position is not adopted in the final

rule. Such claims are subject to the portions of the regulations

establishing whether a use or occupancy is reasonably incident to

prospecting, mining, milling, and so forth. While Section 4(a) of the

Act of July 23, 1955 (30 U.S.C. 601 et seq.) (the 1955 Act), provides

that claims located after that date are not to be used before patenting

for any purpose other than prospecting, mining, or processing

operations, or uses reasonably incident thereto, this provision merely

restated the law as it existed prior to its enactment. (Bruce Crawford,

86 IBLA 325, 92 I.D. 208, 216, 221, n. 15). Cases

[[Page 37119]]

cited in Crawford held that, as long ago as 1910, uses of mining claims

were required to be reasonably incident to mining. See United States v.

Rizzinelli, 182 F. 675 (D. Id. 1910). The legislative history of the

1955 Act shows clearly that existing law prohibited uses of the Mining

Law for non-mineral-related occupancies, and that a purpose of the 1955

Act was only to strengthen existing tools for dealing with these

situations. See S. Rep. No. 554, 84th Cong., 1st Session (1955). The

Mining Law of 1872 itself states that ``all valuable mineral deposits

in lands belonging to the United States . . . shall be free and open .

. . to occupation . . . under regulations prescribed by law. . . .'' 30

U.S.C. 22. The patenting authority for millsites also defines valid

millsites as those used for mining, milling, processing, beneficiation,

or other operations. 30 U.S.C. 42. The citation to that authority for

millsites has been added to the rule. However, BLM concurrence that a

use or occupancy on a millsite is authorized under this rule does not

necessarily mean that the millsite is valid for purposes of complying

with 30 U.S.C. 42. A validity determination for patenting or for

establishing the underlying validity of a millsite is separate from a

BLM concurrence in a proposed use or occupancy on a millsite under this

subpart.

Section 302(b) of the Federal Land Policy and Management Act

(FLPMA) (43 U.S.C. 1732(b)) directs the Secretary to take all necessary

actions to prevent unnecessary or undue degradation in managing the

public lands to regulate use, occupancy, and development of the public

lands.

Section 302(c) of FLPMA (43 U.S.C. 1732(c)) directs the Secretary

to include in all land use instruments a provision authorizing

revocation or suspension, after notice and hearing, of such instrument

upon a final administrative finding of a violation of any term or

condition of the instrument. This section also provides that the

Secretary may order an immediate temporary suspension of use,

occupancy, or development prior to a hearing or final administrative

finding if such a suspension is necessary to protect health, safety, or

the environment.

Section 303(a) of FLPMA (43 U.S.C. 1733(a)) states that the

Secretary must issue regulations necessary to implement the provisions

of FLPMA with respect to the public lands, and sets forth basic

penalties for violation of such regulations.

Section 303(g) of FLPMA (43 U.S.C. 1733(g)) states that the use,

occupancy, or development of any portion of the public lands contrary

to any regulation of the Secretary or other responsible authority, or

contrary to any order issued under any such regulation, is unlawful and

prohibited.

Section 1 of the Unlawful Occupancy and Inclosures of Public Lands

Act (43 U.S.C. 1061 et seq.) prohibits inclosures and exclusive use and

occupancy of the public lands, without claim or color of title as

described in the Act. The same Act states, in summary, that no person,

by force, threats, intimidation, or by any fencing or any other

unlawful means, may prevent or obstruct peaceful entry, free passage or

transit over or through the public lands by another person.

43 U.S.C. 1201 states that the Secretary of the Interior, or such

officer as the Secretary may designate, is authorized to enforce and to

execute, by appropriate regulations, every part of the provisions

related to the public lands not otherwise specially provided for.

43 U.S.C. 1457 charges the Secretary with the supervision of public

business relating to the public lands, including mines.

18 U.S.C. 1001 states that whoever, in any matter within the

jurisdiction of any department or agency of the United States,

knowingly falsifies, conceals, or covers up by any trick, scheme, or

device a material fact, or makes any false, fictitious, or fraudulent

statements or representations, or makes or uses any false writings or

document knowing the same to contain any false, fictitious, or

fraudulent statement or entry, will be fined not more than $10,000 or

imprisoned not more than 5 years, or both.

The Sentencing Reform Act of 1984 (18 U.S.C. 3571 et seq.)

authorizes fines for Class A misdemeanors of up to $100,000 for

individuals and $200,000 for organizations.

Section 3715.0-5 How are Certain Terms in This Subpart Defined?

This section contains definitions of terms significant to this

rule. These terms include ``mining laws,'' ``mining operations,''

``occupancy,'' ``permanent structure,'' ``public lands,'' ``prospecting

or exploration,'' ``reasonably incident,'' ``substantially regular

work,'' and ``unnecessary or undue degradation.'' BLM has not adopted

the proposed definition of ``authorized officer.'' To simplify the

rule, BLM uses the term ``BLM'' instead of ``authorized officer'' in

the final rule.

BLM has added a definition of ``mining laws'' to the final rule in

order to make it clear that this term refers to all laws that apply to

hardrock mining on public lands and which make public lands available

for hardrock mineral development.

BLM has added a definition of ``public lands'' to the final rule in

order to eliminate possible confusion or misinterpretation regarding

the lands to which this rule applies. The definition also eliminates

repetitious language included throughout the proposed rule regarding

the rule's applicability to public lands, including mining claims and

millsites. In the context of this rule, ``public lands'' are defined as

BLM-administered lands open to the operation of the mining laws. These

lands specifically include mining claims and millsites on which most

mining activities occur. However, to the extent that mining-related

activities may occur to a certain extent on the public lands before a

proper mining claim or millsite is located, this rule also applies to

those public lands. In addition, to the extent that unauthorized uses

are occurring on public lands without the proper location of a mining

claim or millsite under the guise of a mining operation or mining-

related activity, this rule applies. Finally, to the extent

unauthorized uses are occurring or may occur on mining claims or

millsites located on public lands, this rule also applies.

One comment found the definition of ``occupancy'' overly broad and

confusing, stating that it blurred the distinction between activities

that justify occupancy and those that comprise occupancy. BLM does not

agree, but did modify the wording of the definition for clarity.

One comment pointed out that other multiple uses of the public

lands, such as recreation, are allowed as short-term temporary

encampments, usually 14 days or less, while conducting that use. The

comment suggested that mining-related activities should not be treated

differently. BLM has adopted this comment in the final rule and will

not treat temporary occupancies up to 14 days as occupancies required

to conform to the standards contained in the final rule. As discussed

below, Secs. 3715.1 and 3715.2 of the final rule provide that this

subpart is applicable only to occupancy for more than 14 calendar days

in any 90-day period within a 25-mile radius of the initially occupied

site.

One comment stated that tents and lean-tos should be excepted from

the definition of ``permanent structure,'' so that they can be used for

temporary encampments for assessment work or prospecting. Although, as

another comment pointed out, temporary encampments may be subject to

abuse through conversion or expansion to semi-permanent structures, BLM

has

[[Page 37120]]

adopted the comment in the final rule, which specifically excludes

tents and lean-tos from the definition of ``permanent structure.'' BLM

will rely on monitoring to prevent abuse of this provision.

One comment suggested that the use of the ``reasonably incident''

standard should not be read to discourage the continued development of

new technology, exploration techniques, or mining methods. It is not

the intent of the rule that the standard be limiting in this way. The

rule defines the uses of the public land authorized under the general

mining law in terms of the prudent miner and appropriate methods,

structures, and equipment, and is not designed to discourage the

development of new technology, exploration techniques, or mining

methods intended to discover, delineate, recover, or process locatable

minerals. Such new technologies may be more efficient, cost effective,

or environmentally sensitive. BLM will consider them to be reasonably

incident if the activity is a good faith effort to improve the methods

of prospecting or exploration, mining, or processing locatable

minerals.

Several comments stated that the use of the phrase ``substantially

regular and steady work'' in proposed Sec. 3715.2 could be construed to

prohibit occupancies associated with weekend or intermittent mining

activities that would otherwise be legitimate under the general mining

law. BLM has changed the phrase ``substantially regular and steady

work'' to ``substantially regular work'' and included a definition in

this section of the final rule. ``Substantially regular work'' means

work on, or that substantially and directly benefits, a mineral

property, including nearby properties under the control of the

operator. The work must be associated with the search for and

development of mineral deposits or the processing of ores. It includes

active and continuing exploration, mining, and beneficiation or

processing of ores. It also includes assembly or maintenance of

equipment, work on physical improvements, and procurement of supplies,

incidental to activities meeting the conditions of this subpart. It may

also include off-site trips associated with these activities. The term

encompasses a seasonal, but recurring, work program. This provision

does not prohibit weekend or intermittent mining activities. Such

activities, if carried out in good faith, may warrant occupancy under

certain circumstances. This requirement is not intended to preclude

activities that are reasonably undertaken to carry out the justified

occupancy.

One comment raised a concern that the rule was not adequately based

on the ``unnecessary or undue degradation'' standard and raised a

question about the ease of interpretation and enforcement of the

``unnecessary or undue degradation'' standard as applied to occupancy.

BLM's regulations at 43 CFR parts 3802 and 3809 define ``unnecessary

and undue degradation'' to mean, among other things, ``surface

disturbance greater than what would normally result when an activity is

being accomplished by a prudent operator in usual, customary, and

proficient operations of similar character.'' The purpose of the 43 CFR

parts 3802 and 3809 regulations is to establish procedures to prevent

unnecessary or undue degradation of public lands by mining operations.

43 CFR 3802.0-1 and 3809.0-1. However, the purpose of this rule is to

distinguish between those uses that are authorized by the mining laws

and those that are not and to prohibit those that are not authorized.

Because this rule covers regulation of those uses that are not

authorized, BLM has added a definition of ``unnecessary or undue

degradation'' to these rules to address unauthorized uses that are not

covered by the 43 CFR parts 3802 and 3809 definitions of ``unnecessary

or undue degradation.''

Section 3715.0-9 Information Collection

Final Sec. 3715.0-9 explains that BLM has submitted to the Office

of Management and Budget (OMB) the information collection requirements

contained in this subpart under 44 U.S.C. 3507 and the Paperwork

Reduction Act of 1995. BLM collects the information so that it may

manage use and occupancy of the public lands by prohibiting

unauthorized uses and occupancies. A response is mandatory and required

to obtain the benefit of occupying the public lands for reasonably

incident activities.

BLM inadvertently omitted this section from the proposal, but is

including it in the final rule because the Paperwork Reduction Act

requires it. This section is technical in nature and imposes no

requirements in addition to subpart 3715.

Section 3715.1 Do the Regulations in This Subpart Apply to My Use or

Occupancy?

Final Sec. 3715.1 consists of a table that provides information to

enable persons to determine if this subpart governs their activities.

This section of the final rule corresponds to Sec. 3715.1 of the

proposed rule, but has been reformatted for clarity. No comments were

received on this portion of the proposal.

Proposed Sec. 3715.3(k) exempted authorized occupancies from the

time limits of 43 CFR 8365.1-2. BLM has made some minor editorial

changes to that provision and moved it to the table in final

Sec. 3715.1.

Section 3715.2 What Activities Do I Have To Be Engaged in to Allow Me

To Occupy the Public Lands?

Final Sec. 3715.2 describes the circumstances warranting occupancy

of the public lands under this subpart.

In response to a comment on the definition of ``occupancy''

suggesting a need to treat uses and occupancies of less than 14-day

duration in a consistent manner, the final rule indicates that subpart

3715 governs uses and occupancies lasting for more than 14 calendar

days. In addition, the table in Sec. 3715.1 states that this subpart

does not apply to occupancy of 14 days or less in any 90-day period on

the same site or within a 25-mile radius of that site. This section of

the final rule is intended to prevent abusers of the mining laws from

circumventing its requirements by moving illegal occupancies (for

example, recreational vehicles) from one site to another nearby.

Section 3715.2-1 What Additional Characteristic(s) Must my Occupancy

Have?

Final Sec. 3715.2-1 provides that in addition to the requirements

specified in Sec. 3715.2, occupancies must involve at least one of five

qualifying activities in order to warrant an occupancy.

One comment suggested that equipment that requires protection from

theft or loss or that would constitute a danger to the public should

warrant occupancy of a mining claim if the equipment is not otherwise

readily portable, and if the equipment cannot reasonably be protected

through means other than site occupancy, or if the hazard could not be

prevented by reasonable means other than occupancy. BLM has adopted

this comment in the final rule and has revised Sec. 3715.2-1(b)

accordingly. A certain minimum amount of appropriate, operable

equipment is necessary to warrant an occupancy. This minimum amount may

vary among operations. The equipment you assert to justify an occupancy

should be in regular use and required for the operation. Equipment used

only infrequently should normally be stored at an off-site equipment

yard. Appropriate and operable equipment of such size and type that may

be easily placed in a three-quarter ton pickup truck and/or towed

utility trailer and

[[Page 37121]]

hauled away at the end of a work day will not by itself normally

justify an occupancy. Larger amounts of equipment may also be removable

at the end of a work day, depending on the situation. On the other

hand, nothing in this provision prevents the storage and use of

portable equipment and personnel for prospecting and exploration for 14

days or less. Unused or infrequently used equipment cannot be stored on

site or added to on-site equipment to justify an occupancy.

Final Sec. 3715.2-1(e) has been revised editorially to make it

clear that the work expected on an occupied site is that which is usual

and customary, which is ordinarily not less than 8 hours but not

necessarily an unbroken 8-hour shift or a rigid 8-hour shift every day.

For example, the first and last days of an occupancy may be short for

travel purposes, or shifts may be split overnight between two days.

Section 3715.2-2 How Do I Justify Occupancy by a Caretaker or

Watchman?

Final Sec. 3715.2-2 provides the conditions you must meet in order

to justify a caretaker or watchman. BLM received no comments on this

portion of the proposal, which is adopted with minor editorial changes

into the final rule.

Section 3715.2-3 Under What Circumstances Will BLM Allow Me To

Temporarily Occupy a Site for More Than 14 Days?

Final Sec. 3715.2-3 describes the circumstances under which BLM

will allow you to remain on a site temporarily beyond 14 days without

first having met all of the requirements in this subpart for beginning

occupancy. This provision was not part of the proposed rule, but BLM

added it to the final rule in response to a commenter's concern about

site security.

Section 3715.3 Must I Consult With BLM Before Occupancy?

This section of the final rule is organized as a table that lists

the requirements you must follow to consult with BLM regarding a

proposed occupancy before occupancy may begin in connection with a plan

of operations, notice-level activities, or casual use activities. The

table also notes that in some cases you may propose both to occupy the

public lands and to conduct notice-level or casual use activities that

do not involve occupancy. In those cases, any notice-level or casual

use activities that do not involve occupancy may proceed in accordance

with authorizing regulations without consulting BLM. For example, you

may propose both to build a cabin on a mining claim and to dig a small

pit subject to the notice provisions of 43 CFR part 3800, subpart 3809.

Under the final rule, you could dig the pit after giving notice to BLM

under subpart 3809, but would have to consult with BLM before building

the cabin.

One comment stated that, whereas the proposed rule is often

directed toward new operations, the rule should also address

modifications of plans of operations that are often necessitated by

changed conditions or operations. BLM adopted this comment and added

language to final Sec. 3715.3 making it applicable to plan

modifications as well as new plans. Plan modifications may call for

new, additional, or enhanced occupancy.

Several comments suggested that certain activities that are

incidental to justified occupancies, but are not themselves actually

reasonably incident, should be allowed if they do not cause unnecessary

or undue degradation. The activities of concern in this connection are

recreational in nature, done after regular work on the mining claim

during periods of occupancy. The rule is not intended to preclude such

activities where they are reasonably undertaken together with the

justified occupancy.

Section 3715.3-1 At What Point May I Begin Occupancy?

Final Sec. 3715.3-1 describes the requirements you must meet before

you may begin occupancy. This provision consolidates two proposed

provisions related to restrictions on initiating occupancy, proposed

Secs. 3715.3(b) and 3715.4(b).

One comment stated that it was unreasonable for proposed

Sec. 3715.4(b) to require operators to obtain all necessary state

permits before beginning use or occupancy of a claim. The comment

pointed out that this would require that all permits conceivably

necessary during the life of the mining operation be obtained in

advance rather than as needed. BLM accepted this comment and changed

final Sec. 3715.3-1(b) to require only those permits necessary for the

particular use or reasonably incident use justifying the occupancy.

Requiring compliance with building codes is not a matter of

technicalities; rather, it is important in protecting public health and

safety. A 1982 report of the General Accounting Office (GAO), for

example, described cases in which buildings on mining claims that did

not meet local building codes burned and caused death and injury. See

GAO, Illegal and Unauthorized Activities on Public Lands--A Problem

with Serious Implications, No. RCED-8248 (1982), pp. 30-32.

Section 3715.3-2 What Information Must I Provide to BLM About My

Proposed Occupancy?

Final Sec. 3715.3-2 describes the kinds of information that you

must provide to BLM regarding your proposed occupancy, including maps

and written descriptions of your occupancy. BLM received no comments on

this portion of the proposal, which is adopted with minor editorial

changes into the final rule.

Section 3715.3-3 How Does BLM Process the Information I Submit About

My Proposed Occupancy?

Final Sec. 3715.3-3 provides that BLM must review all proposed

occupancies, enclosures, fences, gates, or signs intended to exclude

the general public in order to make a concurrence or non-concurrence

determination. This section also describes the timing of BLM's review,

including any action that BLM must take to comply with the National

Environmental Policy Act (NEPA), the National Historic Preservation

Act, Section 7 of the Endangered Species Act, and/or other applicable

statutes. For example, under NEPA, BLM will analyze the environmental

impact of your proposed occupancy and document in writing its analysis

and findings. BLM received no comments on this portion of the proposal,

which is adopted with minor editorial changes into the final rule.

Section 3715.3-4 How Will BLM Notify Me of the Outcome of Its Review

Process?

Final Sec. 3715.3-4 describes the written determination of

concurrence or non-concurrence you will receive from BLM after its

review is complete. BLM received no comments on this portion of the

proposal, which is adopted with minor editorial changes into the final

rule.

Section 3715.3-5 What Will BLM's Notification Include?

Final Sec. 3715.3-5 describes what information BLM's written

determination of concurrence or non-concurrence will contain. BLM found

that the second sentence of proposed Sec. 3715.3(h)(1), which

identified the circumstances under which BLM would order an immediate,

temporary suspension of occupancy, to be redundant with the immediate,

temporary suspension provision in final Sec. 3715.7-1(a) and removed it

from proposed Sec. 3715.3. Also, BLM moved

[[Page 37122]]

the provision describing when BLM will assume that a risk to health,

safety, and the environment exists to final Sec. 3715.7-1(a).

Several comments suggested that proposed Sec. 3715.3(h)(2) should

be amended to state that BLM will allow a proposed occupancy to be

amended if the original proposal results in a non-concurrence. BLM

adopted this suggestion in Sec. 3715.3-5(b) of the final rule. It is in

the public interest to permit appropriate activity under the general

mining law if this activity can be planned through cooperation between

you and BLM, avoiding costly administrative appeals, if possible, in

cases where the initial proposal is not accepted.

Section 3715.3-6 May I Begin Occupancy if I Have Not Received

Concurrence From BLM?

Final Sec. 3715.3-6 prohibits beginning occupancy until a

concurrence from BLM is received. BLM received no comments on this

portion of the proposal, which is adopted with minor editorial changes

into the final rule.

Section 3715.4 What if I have an Existing Use or Occupancy?

Final Sec. 3715.4 describes how this subpart applies to existing

uses and occupancies. This section of the final rule combines proposed

Secs. 3715.7 (a) and (d). BLM revised this section to make it clear

that existing use or occupancy that is not reasonably incident may be

subject to an immediate, temporary suspension, if necessary to protect

health, safety, or the environment. BLM received no comments on this

part of the proposal, which is adopted with minor editorial changes

into the final rule.

Section 3715.4-1 What Happens After I Give BLM Written Notification of

My Existing Occupancy?

Final Sec. 3715.4-1 describes the actions BLM will take after it

receives a written notification of your existing occupancy. Paragraph

(a) of this section, which provides that BLM will visit your site

during the normal course of inspection to obtain the information

required under Sec. 3715.3-2, did not exist in the proposed rule.

However, BLM added it to the final rule in an effort to reduce the

paperwork burden on operators with existing occupancies. Final

Sec. 3715.4-1(b) was proposed as Sec. 3715.7(b) and is adopted with

minor editorial changes.

Taken together, Secs. 3715.4 and 4-1 allow your existing occupancy

a one-year grace period from compliance with this final rule if you

timely notify BLM of the occupancy, with the expectation that BLM will

visit your site within that one-year period to gather additional

information. If the year passes and BLM has not yet visited your site,

this final rule does not require you to take any further action with

regard to obtaining BLM's concurrence in your occupancy. At that point,

the ball would be in BLM's court.

Section 3715.4-2 What if I Do Not Notify BLM of My Existing Occupancy?

Final Sec. 3715.4-2 (proposed Sec. 3715.7(c)) states that you are

subject to the penalty and enforcement provisions of this subpart if

you do not file the written notice required in Sec. 3715.4. BLM

received no comments on this portion of the proposal, which is adopted

with minor editorial changes into the final rule.

Section 3715.4-3 What if BLM Does Not Concur in My Existing Use or

Occupancy?

Final Sec. 3715.4-3 describes the actions BLM may take after

inspection if it determines that your use or occupancy, or portion

thereof, is not reasonably incident. Final Sec. 3715.4-3 consolidates

provisions proposed at Secs. 3715.6 (b) and (c) as they apply to

existing operations. BLM moved proposed Sec. 3715.6(c) to final

Sec. 3715.4-3(b) because it deals with existing use and occupancy. BLM

received no comments on this part of the proposal, which is adopted

with minor editorial changes into the final rule.

Section 3715.4-4 What if There is a Dispute Over the Fee Simple Title

to the Lands on Which My Existing Occupancy is Located?

Final Sec. 3715.4-4 describes BLM's discretion in deferring a

determination regarding the status of your occupancy if the lands on

which the occupancy occurs are involved in a title dispute with the

United States regarding the underlying fee simple title to the land.

This provision was not part of the proposal, but BLM added it to the

final rule to make it clear that BLM has discretion to defer the point

at which it deals with occupancy on lands over which a title dispute

exists.

Section 3715.5 What Standards Apply to My Use or Occupancy?

Final Sec. 3715.5 describes the laws and standards which you must

comply with while engaging in any use or occupancy of the public lands.

Paragraph (b) of this section refers to the federal and state standards

that apply to uses of public lands under the mining laws. Paragraph (c)

refers to the standards applicable to occupancies. The paragraphs are

identical, except that occupancies are subject to the standards of this

final rule, while uses are not.

These provisions were included in the proposal as Secs. 3715.4 (a),

(c), (d), and (e) respectively. One comment addressed proposed

Sec. 3715.4(e), pointing out that, normally, residential structures

need only be in compliance with building and other codes in effect at

the time of construction, rather than, as the proposed rule implied,

with current codes. The final rule has been changed to require

structures to conform with ``applicable'' state or local codes. If, in

some areas, structures need only be in compliance with codes in effect

at the time of construction, those codes will be the only ones

applicable.

Several comments objected to BLM's adoption of state and local

building codes rather than promulgation of its own regulatory

requirements. BLM does not agree and did not adopt these comments in

the final rule. State and local building codes are a function of the

police powers held by state and local governments. In addition, the

building codes already exist and are tried and tested.

One comment pointed out that it may be a burden for state or local

officials to visit remote claims to inspect for code compliance, and

another suggested that the rule allow BLM to waive compliance with such

codes in truly remote areas. BLM does not agree and did not adopt these

comments in the final rule. If state or local agencies wish to waive

code compliance, BLM will recognize that waiver, but BLM has no

authority to independently allow you to ignore code requirements.

One comment called on the BLM to adopt a standard that combines the

reasonably incident standard with a ``required'' standard, that is, to

disallow use and occupancy that is not required in order to conduct

mining activities. The comment argued that United States v. Richardson,

599 F.2d 290 (9th Cir.), cert. denied, 444 U.S. 1014 (1980), serves as

a precedent for using this combined standard. BLM chooses to adopt the

standard of ``reasonably incident to'' rather than ``required for''

prospecting, mining, or processing operations. The statutory language

quoted in the comment is in section 4(c) of the 1955 Act and relates to

the severance and use of vegetative and other surface resources. Such

use must be required for mining, prospecting, or processing operations

and uses reasonably incident thereto. However, the general standard

applied in this rule is found in section 4(a) of the 1955 Act, which

prohibits the use of the claim itself for any purposes other than

[[Page 37123]]

prospecting, mining or processing operations and uses reasonably

incident thereto. Under section 4(c) of the 1955 Act, surface resources

may be used only if ``required'' for uses ``reasonably incident'' to

mining. The tighter standard for removal and use of trees and other

surface resources in section 4(c) is built upon the standard in section

4(a). The applicable standard for activities on the claims is the basic

``reasonably incident'' standard rather than the ``required'' standard

that is applicable only to removal and use of trees and other surface

resources. The burden of proving that activities are reasonably

incident to mining will remain on you, as it is under existing law, and

occupancies that are not reasonably incident will not be allowed.

Section 3715.5-1 What Standards Apply to Ending My Use or Occupancy?

Final Sec. 3715.5-1 describes what you must do with structures,

material, equipment or other personal property placed on the public

lands during your use or occupancy when your use or occupancy ends.

These provisions were included in the proposal as Secs. 3715.4 (f)

and (f)(1) respectively. BLM received no comments on this portion of

the proposal, which is adopted with minor editorial changes into the

final rule.

Section 3715.5-2 What Happens to Property I Leave Behind?

Final Sec. 3715.5-2 describes what BLM will do with property you

leave on the public lands after your use or occupancy ends. This

provision was included in the proposal as Sec. 3715.4(f)(2). BLM

received no comments on this part of the proposal, which is adopted

with minor editorial changes into the final rule.

Section 3715.6 What Things Does BLM Prohibit Under This Subpart?

Final Sec. 3715.6 (proposed Sec. 3715.5) describes those

activities, uses, or occupancies that are prohibited under this

subpart.

Two comments pointed out drafting errors in proposed Sec. 3715.5.

Paragraph (a), as proposed, would have required a violation of both the

conditions of occupancy under proposed Sec. 3715.2 and one or more of

the standards of occupancy under proposed Sec. 3715.4. The intent of

the rule is that uses or occupancies are not permitted that violate any

provision of Sec. 3715.2, Sec. 3715.2-1 or Sec. 3715.5. Also, paragraph

(b) as proposed could have been read to imply that occupancy might be

initiated after rejection of a plan of operation. Paragraphs (a) and

(b) of Sec. 3715.6 in the final rule have been revised to correct these

errors.

Some comments argued that claimants with claims located before 1955

are not barred from blocking access to or through the claims. The

Crawford case, supra, at pages 216-217, stated that section 4(b) of the

1955 Act substantially changed the mining law with regard to access.

Actions by owners of such claims to block reasonable access by the

public will, however, prompt a determination of surface rights under

section 5 of the 1955 Act and 43 CFR part 3710, subpart 3712, and/or a

validity examination.

One comment stated that proposed Sec. 3715.5(f) would not allow an

operator to exclude the public from hazardous areas or areas that need

to be secure for proprietary reasons. BLM has corrected this provision

at Sec. 3715.6(f) of the final rule to allow operators to take

reasonable security measures. Mining claimants have the right to

exclude the public from use of the land within the operation in order

to prevent material interference with the operation or to comply with

relevant state or federal law or regulations.

One comment noted that proposed Sec. 3715.5(i) should be amended to

prohibit non-mining related animal maintenance or pasturage. BLM has

adopted this comment, but has also revised Sec. 3715.6(i) of the final

rule to make it clear that the acts listed are prohibited unless they

are allowable under other applicable law or regulation. For example, a

non-mining activity on a mining claim could be authorized under 43 CFR

part 2920 under appropriate circumstances.

Section 3715.7 How Will BLM Inspect My Use or Occupancy and Enforce

This Subpart?

Final Sec. 3715.7 provides that BLM field staff is authorized to

physically inspect all structures, equipment, workings and uses located

on public lands and will not inspect the inside of structures used

solely as residences without permission from the occupant or a proper

court.

BLM included these provisions in the proposal at Sec. 3715.6(a).

One comment suggested that proposed Sec. 3715.6(a) should be amended to

provide BLM with discretion to inspect all occupancies on public lands

rather than obligate BLM to inspect all such occupancies. The proposed

rule language was not intended to obligate BLM to conduct inspections

within a certain timeframe. The language is merely to establish BLM's

authority to conduct inspections of all structures, equipment, workings

and uses located on public lands. Final Sec. 3715.6(a) has been amended

to make it clear that there is no time limitation placed on BLM for

inspections.

Section 3715.7-1 What Types of Enforcement Action Can BLM Take if I Do

Not Meet the Requirements of This Subpart?

Final Sec. 3715.7-1 discusses the four types of orders that BLM can

issue to you, depending on the circumstances, for not complying with

the provisions of this subpart.

Final paragraph (a) describes the circumstance under which BLM can

order an immediate, temporary suspension of use or occupancy prior to a

hearing if you are not in compliance with Secs. 3715.2, 3715.2-1,

3715.3-1(b), 3715.5 or 3715.5-1, if necessary to protect health, safety

or the environment. If you fail at any time to meet any of the

standards in paragraphs Secs. 3715.3-1(b) and 3715.5 (b), (c) and (d),

BLM will presume that a risk to health, safety or the environment

exists. BLM's assumption that breach of those sections creates a risk

to health, safety, or the environment is based on the nature of those

requirements. Readers should note that an appeal of an order issued

under this paragraph does not stay the effect of the order. This means

that if BLM orders you under this paragraph to immediately suspend your

occupancy, you must comply even if you file an appeal. Your activity

must remain suspended until the appeal has been decided.

Section 3715.3-1(b) requires you to be in possession of all

requisite federal, state and local mining, reclamation, and waste

disposal permits, approvals, or other authorizations before beginning

an occupancy. Sections 3715.5 (b) and (c) require your use or occupancy

to conform to all applicable federal, state and local environmental

standards and have all requisite permits and authorizations. In

addition, Sec. 3715.5(e) requires your buildings and structures to

comply with state and local building, fire and electrical codes and

occupational safety and health and mine safety standards. To the extent

that you do not possess the proper mining, reclamation, waste disposal,

building, fire, electrical or occupational safety or mine safety

permits or have not met related standards, BLM may reasonably assume

that you are creating a risk to health, safety or the environment. This

provision was included in the proposal at Secs. 3715.3(h)(1) and

3715.6(b). The final rule has been revised editorially at Sec. 3715.7-

1(a)(3) to make clear the corrective actions BLM may require you to

take to correct the noncompliance in

[[Page 37124]]

addition to suspension of the use or occupancy.

Final paragraph (b) was not included in the proposal, but BLM added

it to the final rule because, while the final rule provides for

immediate, temporary suspensions, no provision specifically provided

for cessation of unlawful use or occupancy, subject to normal appeal

procedures or for failure to comply with BLM notices of noncompliance.

Final paragraph (c) describes the circumstances under which BLM can

issue notices of noncompliance. BLM included paragraph (c) of the final

rule in the proposal at Sec. 3715.6(d). BLM received no comments on

this portion of the proposal, which is adopted with minor editorial

changes into the final rule.

Final paragraph (d) describes the circumstances under which BLM can

order you to apply within 30 days for authorization under the

regulations of 43 CFR Group 2900 or 8300, or, as to sites in Alaska, 43

CFR part 2560.

Section 3715.7-2 What Happens if I Do Not Comply With a BLM Order?

Final Sec. 3715.7-2 describes the legal remedies the Interior

Department may seek if you do not comply with a BLM order. This relief

may be in addition to the penalties described in Sec. 3715.8. BLM

included this paragraph in the proposal at Sec. 3715.6(f). BLM received

no comments on this part of the proposal, which is adopted with minor

editorial changes into the final rule.

Section 3715.8 What Penalties Are Available to BLM for Violations of

This Subpart?

Final Sec. 3715.8 describes the penalties BLM may seek against

individuals or corporations for knowingly and willfully violating

requirements of this subpart.

One comment suggested that the penalty provisions in proposed

Sec. 3715.8 be amended to incorporate the maximum penalties provided

for in the Sentencing Reform Act of 1984, as amended (18 U.S.C. 3571 et

seq.). BLM adopted this comment and made the penalties described in the

final rule consistent with the penalties that a court could otherwise

impose under the Sentencing Reform Act. Penalty provisions such as

those in both FLPMA and the Unlawful Occupancy and Inclosures of Public

Lands Act, which provide for up to a year in jail or a fine of $1,000

for violations, are classified as Class A misdemeanors under 18 U.S.C.

3559. The Sentencing Reform Act authorizes fines for Class A

misdemeanors of up to $100,000 for individuals and $200,000 for

organizations.

Section 3715.8-1 What Happens if I Make False Statements to BLM?

Final Sec. 3715.8-1 describes possible legal consequences if you

make false statements to BLM. BLM included this paragraph in the

proposal at Sec. 3715.8(b). BLM received no comments on this portion of

the proposal, which is adopted with minor editorial changes into the

final rule.

Section 3715.9 What Appeal Rights Do I Have?

Final Sec. 3715.9 describes the way in which you may appeal BLM

decisions, orders or determinations made under this subpart.

BLM has removed provisions included in the proposal which allowed

for appeals to the State Director. This change is made to make the

appeals provisions in this rule consistent with BLM's other appeals

provisions. In addition, because appeals from a BLM non-concurrence or

a cessation order may require a hearing, an appellant's rights are best

preserved by providing an opportunity for a hearing before an

administrative law judge or an administrative appeals board.

Section 3715.9-1 Does an Appeal to IBLA Suspend a BLM Decision?

Final Sec. 3715.9-1 describes the conditions under which a BLM

decision may be suspended while IBLA considers an appeal of that

decision.

BLM included these paragraphs in the proposal at Secs. 3715.9 (b)

and (f). BLM received no comments on this portion of the proposal and

adopts it with minor editorial changes into the final rule. BLM did not

include proposed Sec. 3715.9(g) in the final rule because it is

subsumed in the right to appeal a BLM decision to IBLA.

III. Procedural Matters

National Environmental Policy Act

BLM has determined that this final rule does not constitute a major

federal action significantly affecting the quality of the human

environment, and that no detailed statement pursuant to section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)) is required. BLM has determined that this final rule is

categorically excluded from further environmental review pursuant to

516 Departmental Manual (DM), Chapter 2, Appendix 1, Item 1.10, and

that the proposal would not meet any of the 10 criteria for exceptions

to categorical exclusion listed in 516 DM 2, Appendix 2. This

categorical exclusion includes rules that are of a financial, legal,

technical or procedural nature; or the environmental effects of which

are too broad, speculative, or conjectural to lend themselves to

meaningful analysis and will be subject later to the NEPA process,

either collectively or on a case-by-case basis. Under the Council on

Environmental Quality regulations (40 CFR 1508.4) and environmental

policies and procedures of the Department of the Interior, the term

``categorical exclusions'' means a categories of actions that do not

individually or cumulatively have a significant effect on the human

environment and that have been found to have no such effect in

procedures adopted by a federal agency and for which neither an

environmental assessment nor an environmental impact statement is

required.

Executive Order 12866 and Regulatory Flexibility Act

This rule was not subject to review by the Office of Management and

Budget under Executive Order 12866. No discernible economic impacts on

operations involving occupancy are expected from this final rule. All

operations involving occupancy are expected to occur under notices or

plans covered by 43 CFR part 3800, subparts 3802 or 3809. The BLM is

unaware of any specific casual use occupancies. The cost of complying

with the requirements of the final rule is indistinguishable from the

requirements imposed by the existing surface management regulations

found in 43 CFR part 3800, because the requirements of the final rule

limit uses and occupancies to those that are governed by 43 CFR part

3800. Further, for the same reasons, the Department has determined

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that the

rule will not have a significant economic impact on a substantial

number of small entities. The effect of the rule will be to curtail

occupancy activities by those whose occupancy of the public lands is

not reasonably incident to mining, prospecting or exploration, or

processing operations. Such activities are already, and have long been,

prohibited by law. Therefore, the only activities that would be

curtailed are those that are already unlawful.

Federal Paperwork Reduction Act

Under 44 U.S.C. 3507 and the Paperwork Reduction Act of 1995, the

Office of Management and Budget (OMB) has approved the information

collection requirements contained in this subpart. OMB has assigned

clearance number 1004-0169. BLM

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collects the information so that it may manage use and occupancy of the

public lands under the mining laws. A response is mandatory and

required to obtain the benefit of occupying the public lands for

reasonably incidental activities.

BLM estimates the public reporting burden for this information to

average two hours per response, including the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of this collection of information, including

suggestions for reducing the burden, to the Information Collection

Clearance Officer (DW-110), Bureau of Land Management, Building 50,

Denver Federal Center, Denver, Colorado 80225-0047, and the Office of

Management and Budget, Paperwork Reduction Project, 1004-0169,

Washington, DC 20503.

Executive Order 12630

The Department certifies that this final rule does not represent a

governmental action capable of interference with constitutionally

protected property rights. The rule will not adversely affect lawful

occupancies. Therefore, as required by Executive Order 12630, the

Department of the Interior has determined that the rule would not cause

a taking of private property.

Unfunded Mandates Reform Act

BLM has determined that this regulation is not significant under

the Unfunded Mandates Reform Act of 1995, because it will not result in

the expenditure by State, local, and tribal governments, in the

aggregate, or by the private sector, of $100 million or more in any one

year. Further, this rule will not significantly or uniquely affect

small governments.

Authors

The principal author of this final rule is Richard E. Deery, Solid

Minerals Group, BLM. Patrick W. Boyd, Regulatory Management Team, BLM,

prepared the plain English version. Staff of the Division of Mineral

Resources, Office of the Solicitor, Department of the Interior,

provided assistance.

List of Subjects in 43 CFR Part 3710

Administrative practice and procedure, Mines, Public lands-mineral

resources.

Dated: May 20, 1996.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

Under the authorities cited below, and for the reasons stated in

the preamble, part 3710, group 3700, subchapter C, chapter II, subtitle

B, title 43 of the Code of Federal Regulations is amended by adding a

new subpart 3715 to read as follows:

PART 3710--PUBLIC LAW 167; ACT OF JULY 23, 1955

Subpart 3715--Use and Occupancy Under the Mining Laws

Sec.

3715.0-1 What are the purpose and the scope of this subpart?

3715.0-3 What are the legal authorities for this subpart?

3715.0-5 How are certain terms in this subpart defined?

3715.0-9 Information collection.

3715.1 Do the regulations in this subpart apply to my use or

occupancy?

3715.2 What activities do I have to be engaged in to allow me to

occupy the public lands?

3715.2-1 What additional characteristic(s) must my occupancy have?

3715.2-2 How do I justify occupancy by a caretaker or watchman?

3715.2-3 Under what circumstances will BLM allow me to temporarily

occupy a site for more than 14 days?

3715.3 Must I consult with BLM before occupancy?

3715.3-1 At what point may I begin occupancy?

3715.3-2 What information must I provide to BLM about my proposed

occupancy?

3715.3-3 How does BLM process the information I submit about my

proposed occupancy?

3715.3-4 How will BLM notify me of the outcome of its review

process?

3715.3-5 What will BLM's notification include?

3715.3-6 May I begin occupancy if I have not received concurrence

from BLM?

3715.4 What if I have an existing use or occupancy?

3715.4-1 What happens after I give BLM written notification of my

existing occupancy?

3715.4-2 What if I do not notify BLM of my existing occupancy?

3715.4-3 What if BLM does not concur in my existing use or

occupancy?

3715.4-4 What if there is a dispute over the fee simple title to

the lands on which my existing occupancy is located?

3715.5 What standards apply to my use or occupancy?

3715.5-1 What standards apply to ending my use or occupancy?

3715.5-2 What happens to property I leave behind?

3715.6 What things does BLM prohibit under this subpart?

3715.7 How will BLM inspect my occupancy and enforce this subpart?

3517.7-1 What types of enforcement action can BLM take if I do not

meet the requirements of this subpart?

3715.7-2 What happens if I do not comply with a BLM order?

3715.8 What penalties are available to BLM for violations of this

subpart?

3715.8-1 What happens if I make false statements to BLM?

3715.9 What appeal rights do I have?

3715.9-1 Does an appeal to IBLA suspend a BLM decision?

Subpart 3715--Use and Occupancy Under the Mining Laws

Authority: 18 U.S.C. 1001, 3571 et seq.; 30 U.S.C. 22, 42, 612;

43 U.S.C. 1061 et seq., 1201, 1457, 1732 (b) and (c), 1733 (a) and

(g).

Sec. 3715.0-1 What are the purpose and the scope of this subpart?

(a) Purpose. The purpose of this subpart is to manage the use and

occupancy of the public lands for the development of locatable mineral

deposits by limiting such use or occupancy to that which is reasonably

incident. The Bureau of Land Management (BLM) will prevent abuse of the

public lands while recognizing valid rights and uses under the Mining

Law of 1872 (30 U.S.C. 22 et seq.) and related laws governing the

public lands, regardless of when those rights were created. BLM will

take appropriate action to eliminate invalid uses, including

unauthorized residential occupancy of the public lands.

(b) Scope. This subpart applies to public lands BLM administers.

They do not apply to state or private lands in which the mineral estate

has been reserved to the United States. They do not apply to Federal

lands administered by other Federal agencies, even though those lands

may be subject to the operation of the mining laws.

in recreational activities or any other authorized activity on public

lands BLM administers.

Sec. 3715.0-3 What are the legal authorities for this subpart?

The authorities for this subpart are 18 U.S.C. 1001, 3571 et seq.;

30 U.S.C. 22, 42, 612; 43 U.S.C. 1061 et seq., 1201, 1457, 1732 (b) and

(c), 1733 (a) and (g).

Sec. 3715.0-5 How are certain terms in this subpart defined?

As used in this subpart the term:

Mining laws means all laws that apply to hardrock mining on public

lands and which make public lands available for hardrock mineral

development. This includes, but is not limited to, the general

authorities relating to hardrock mining or to the public lands on which

[[Page 37126]]

this rule is based and case law which interprets those authorities.

Mining operations means all functions, work, facilities, and

activities reasonably incident to mining or processing of mineral

deposits. It includes building roads and other means of access to a

mining claim or millsite on public lands.

Occupancy means full or part-time residence on the public lands. It

also means activities that involve residence; the construction,

presence, or maintenance of temporary or permanent structures that may

be used for such purposes; or the use of a watchman or caretaker for

the purpose of monitoring activities. Residence or structures include,

but are not limited to, barriers to access, fences, tents, motor homes,

trailers, cabins, houses, buildings, and storage of equipment or

supplies.

Permanent structure means a structure fixed to the ground by any of

the various types of foundations, slabs, piers, poles, or other means

allowed by building codes. The term also includes a structure placed on

the ground that lacks foundations, slabs, piers, or poles, and that can

only be moved through disassembly into its component parts or by

techniques commonly used in house moving. The term does not apply to

tents or lean-tos.

Public lands means lands open to the operation of the mining laws

which BLM administers, including lands covered by unpatented mining

claims or millsites.

Prospecting or exploration means the search for mineral deposits by

geological, geophysical, geochemical, or other techniques. It also

includes, but is not limited to, sampling, drilling, or developing

surface or underground workings to evaluate the type, extent, quantity,

or quality of mineral values present.

Reasonably incident means the statutory standard ``prospecting,

mining, or processing operations and uses reasonably incident thereto''

(30 U.S.C. 612). It is a shortened version of the statutory standard.

It includes those actions or expenditures of labor and resources by a

person of ordinary prudence to prospect, explore, define, develop,

mine, or beneficiate a valuable mineral deposit, using methods,

structures, and equipment appropriate to the geological terrain,

mineral deposit, and stage of development and reasonably related

activities.

Substantially regular work means work on, or that substantially and

directly benefits, a mineral property, including nearby properties

under your control. The work must be associated with the search for and

development of mineral deposits or the processing of ores. It includes

active and continuing exploration, mining, and beneficiation or

processing of ores. It may also include assembly or maintenance of

equipment, work on physical improvements, and procurement of supplies,

incidental to activities meeting the conditions of Secs. 3715.2 and

3715.2-1. It may also include off-site trips associated with these

activities. The term also includes a seasonal, but recurring, work

program.

Unnecessary or undue degradation, as applied to unauthorized uses,

means those activities that are not reasonably incident and are not

authorized under any other applicable law or regulation. As applied to

authorized uses, the term is used as defined in 43 CFR 3802.0-5 and

3809.0-5.

Sec. 3715.0-9 Information collection.

(a) BLM has submitted to the Office of Management and Budget the

information collection requirements contained in this subpart under 44

U.S.C. 3507 and the Paperwork Reduction Act of 1995 and assigned

clearance number 1004-0169. BLM collects the information so that it may

manage use and occupancy of public lands under the mining laws by

prohibiting unauthorized uses and occupancies. A response to BLM is

mandatory and required to obtain the benefit of occupying the public

lands for reasonably incident activities.

(b) BLM estimates the public reporting burden for this information

to average two hours per response, including the time for reviewing