[Federal Register Volume 61, Number 137 (Tuesday, July 16, 1996)]
[Rules and Regulations]
[Pages 37116-37130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17757]


      

[[Page 37115]]


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Part II





Department of the Interior





_______________________________________________________________________



Bureau of Land Management



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43 CFR Part 3710



Use and Occupancy Under the Mining Laws; Final Rule

  Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules 
and Regulations  

[[Page 37116]]



DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3710

[WO-320-4130-02-24 1A]
RIN 1004-AC39


Use and Occupancy Under the Mining Laws

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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

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 
Register on September 11, 1992 (57 FR 41846). Refer to the Federal 
Register notice cited above for a full discussion of the proposal. The 
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;
    (c) Identify mining laws and regulations applicable to use and 
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

[[Page 37125]]

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.
    (c) This subpart does not impair the right of any person to engage 
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 
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.


Sec. 3715.1   Do the regulations in this subpart apply to my use or 
occupancy?

    To determine if the regulations in this subpart apply to your 
activities, refer to Table 1 in this section.

                                 Table 1                                
------------------------------------------------------------------------
     Applicability of this subpart                                      
------------------------------------------------------------------------
If your proposed use of the public       Then--                         
 lands--.                                                               
Includes occupancy and is ``reasonably   The provisions of this subpart 
 incident'' as defined by this subpart.   apply to you. You must seek   
                                          concurrence from BLM before   
                                          beginning this use and comply 
                                          with all provisions of this   
                                          subpart.                      
Involves the placement, construction,    The provisions of this subpart 
 or maintenance of enclosures, gates,     apply to you. You must seek   
 fences, or signs.                        concurrence from BLM before   
                                          beginning this use and comply 
                                          with all provisions of this   
                                          subpart.                      
Is reasonably incident, but does not     The provisions of this subpart 
 involve occupancy.                       do not apply to you, except   
                                          for Secs.  3715.4, 3715.5 and 
                                          3715.7. You are subject to the
                                          applicable regulations in 43  
                                          CFR part 3800.                
Is not reasonably incident (involving    The occupancy consultation     
 rights-of-way, for example), but may     provisions of this subpart do 
 be allowed under the public land laws.   not apply to you. Your use is 
                                          not allowed under this        
                                          subpart. You must seek        
                                          authorization under 43 CFR    
                                          Group 2900.                   
Is not allowed under the public land     Your use is prohibited. You    
 laws, the mining laws, the mineral       must not begin or continue    
 leasing laws, or other applicable laws.  unauthorized uses.            
Involves occupancy of a site, or any     The provisions of this subpart 
 subsequent site within a 25-mile         do not apply to you. Refer to 
 radius of the initially occupied site,   the applicable regulations in 
 for 14 days or less in any 90-day        43 CFR part 8360 and pertinent
 period.                                  State Director supplementary  
                                          rules. 43 CFR part 8360 will  
                                          not otherwise apply to a      
                                          reasonably incident use or    
                                          occupancy that this subpart   
                                          allows.                       
------------------------------------------------------------------------


[[Page 37127]]




Sec. 3715.2  What activities do I have to be engaged in to allow me to 
occupy the public lands?

    In order to occupy the public lands under the mining laws for more 
than 14 calendar days in any 90-day period within a 25-mile radius of 
the initially occupied site, you must be engaged in certain activities. 
Those activities that are the reason for your occupancy must:
    (a) Be reasonably incident;
    (b) Constitute substantially regular work;
    (c) Be reasonably calculated to lead to the extraction and 
beneficiation of minerals;
    (d) Involve observable on-the-ground activity that BLM may verify 
under Sec. 3715.7; and
    (e) Use appropriate equipment that is presently operable, subject 
to the need for reasonable assembly, maintenance, repair or fabrication 
of replacement parts.


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

    In addition to the requirements specified in Sec. 3715.2, your 
occupancy must involve one or more of the following:
    (a) Protecting exposed, concentrated or otherwise accessible 
valuable minerals from theft or loss;
    (b) Protecting from theft or loss appropriate, operable equipment 
which is regularly used, is not readily portable, and cannot be 
protected by means other than occupancy;
    (c) Protecting the public from appropriate, operable equipment 
which is regularly used, is not readily portable, and if left 
unattended, creates a hazard to public safety;
    (d) Protecting the public from surface uses, workings, or 
improvements which, if left unattended, create a hazard to public 
safety; or
    (e) Being located in an area so isolated or lacking in physical 
access as to require the mining claimant, operator, or workers to 
remain on site in order to work a full shift of a usual and customary 
length. A full shift is ordinarily 8 hours and does not include travel 
time to the site from a community or area in which housing may be 
obtained.


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

    If you assert the need for a watchman or caretaker to occupy the 
public lands to protect valuable or hazardous property, equipment, or 
workings, you must show that the need for the occupancy is both 
reasonably incident and continual. You must show that a watchman or 
caretaker is required to be present either whenever the operation is 
not active or whenever you or your workers are not present on the site.


Sec. 3715.2-3   Under what circumstances will BLM allow me to 
temporarily occupy a site for more than 14 days?

    BLM may allow temporary occupancy at a single site to extend beyond 
the 14-day period described in Sec. 3715.1 if you need to secure the 
site beyond 14 days through the use of a watchman as allowed by 
Sec. 3715.2-2, and you have begun consultation with BLM under 
Sec. 3715.3. If BLM decides not to concur in the occupancy, the 
temporary occupancy must stop.


Sec. 3715.3   Must I consult with BLM before occupancy?

    Before beginning occupancy, you must consult with BLM about the 
requirements of this subpart. See Table 2 in this section.

                                 Table 2                                
------------------------------------------------------------------------
       Consultation requirements                                        
------------------------------------------------------------------------
If you are proposing a use that would    Then.                          
 involve occupancy.                                                     
Under a plan of operations or a          You must include in the        
 modification submitted under 43 CFR      proposed plan of operations   
 part 3800, subpart 3802 or subpart       the materials required by Sec.
 3809.                                     3715.3-2 describing any      
                                          proposed occupancy for BLM    
                                          review concurrently with      
                                          review of the plan of         
                                          operation.                    
                                         BLM will determine whether you 
                                          have complied with the        
                                          requirements of this subpart  
                                          together with its decision    
                                          approving or modifying the    
                                          plan.                         
Under the notice provisions of 43 CFR    You must submit the materials  
 part 3800, subpart 3809.                 required by Sec.  3715.3-2    
                                          together with the materials   
                                          submitted under 43 CFR 3809.1-
                                          3 for BLM review concurrently 
                                          with its review of the        
                                          proposed activity.            
                                         Any activities in the notice   
                                          that do not involve occupancy 
                                          and are reasonably incident   
                                          may proceed in accordance with
                                          43 CFR part 3800, subpart     
                                          3809.                         
And is a ``casual use'' under 43 CFR     You are subject to the         
 3809.1-2 or does not require a plan of   consultation provisions of    
 operations under 43 CFR 3802.1-2 and     this subpart and must submit  
 3809.1-4 or a notice under 43 CFR        the materials required by Sec.
 3809.1-3.                                 3715.3-2 to BLM.             
                                         Any casual use activities that 
                                          do not involve occupancy and  
                                          are reasonably incident may   
                                          proceed in accordance with 43 
                                          CFR part 3800, subpart 3809.  
Or enclosures, fences, gates, or signs   You are subject to the         
 intended to exclude the general public.  consultation provisions of    
                                          this subpart and must submit  
                                          the materials required by Sec.
                                           3715.3-2 to BLM.             
------------------------------------------------------------------------

Sec. 3715.3-1   At what point may I begin occupancy?

    You must not begin occupancy until--
    (a) You have complied with either 43 CFR part 3800, subpart 3802 or 
3809 and this subpart, and BLM has completed its review and made the 
required determinations under the applicable subparts, and
    (b) You have obtained all federal, state and local mining, 
reclamation, and waste disposal permits, approvals, or other 
authorizations for the particular use or occupancy as required under 
this subpart.


Sec. 3715.3-2  What information must I provide to BLM about my proposed 
occupancy?

    You must give BLM a detailed map that identifies the site and the 
placement of the items specified in paragraphs (c), (d), and (e) of 
this section, and a written description of the proposed occupancy that 
describes in detail:
    (a) How the proposed occupancy is reasonably incident;
    (b) How the proposed occupancy meets the conditions specified in 
Sec. 3715.2 and Sec. 3715.2-1;
    (c) Where you will place temporary or permanent structures for 
occupancy;
    (d) The location of and reason you need enclosures, fences, gates, 
and signs intended to exclude the general public;
    (e) The location of reasonable public passage or access routes 
through or around the area to adjacent public lands; and

[[Page 37128]]

    (f) The estimated period of use of the structures, enclosures, 
fences, gates, and signs, as well as the schedule for removal and 
reclamation when operations end.


Sec. 3715.3-3  How does BLM process the information I submit about my 
proposed occupancy?

    BLM will review all proposed occupancies and all proposed 
enclosures, fences, gates, or signs intended to exclude the general 
public to determine if your proposed occupancy or use will conform to 
the provisions of Secs. 3715.2, 3715.2-1 and 3715.5. BLM will complete 
its review of a proposed occupancy not involving a plan of operations 
within 30 business days of receipt of the materials, unless it 
concludes that the determination cannot be made until:
    (a) 30 business days after it prepares necessary environmental 
documents, and
    (b) 30 business days after it has complied with section 106 of the 
National Historic Preservation Act, Section 7 of the Endangered Species 
Act, and/or other applicable statutes, if applicable.


Sec. 3715.3-4  How will BLM notify me of the outcome of its review 
process?

    At the conclusion of the review, BLM will make a written 
determination of concurrence or non-concurrence, and will send it to 
you. For operations conducted under a plan of operations, BLM will 
include this written determination in the decision that approves, 
modifies, or rejects the plan.


Sec. 3715.3-5  What will BLM's notification include?

    (a) BLM will include in each determination of concurrence a 
statement requiring you to continue to comply with Secs. 3715.2, 
3715.2-1 and 3715.5.
    (b) BLM will specify in each determination of non-concurrence how 
the proposed occupancy fails to meet the conditions of Sec. 3715.2, 
Sec. 3715.2-1 or Sec. 3715.5, and will provide you an opportunity to 
modify the proposed occupancy or appeal the determination under 
Sec. 3715.9.


Sec. 3715.3-6  May I begin occupancy if I have not received concurrence 
from BLM?

    If you have not received concurrence from BLM, you must not begin 
occupancy even though you have submitted, or plan to submit, an amended 
occupancy proposal or an appeal.


Sec. 3715.4  What if I have an existing use or occupancy?

    (a) By August 18, 1997, all existing uses and occupancies must meet 
the applicable requirements of this subpart. If not, BLM will either 
issue you a notice of noncompliance or order any existing use or 
occupancy failing to meet the requirements of this subpart to suspend 
or cease under Sec. 3715.7-1. BLM will also order you to reclaim the 
land under 43 CFR part 3800, subpart 3802 or 3809 to BLM's satisfaction 
within a specified, reasonable time, unless otherwise expressly 
authorized.
    (b) If you are occupying the public lands under the mining laws on 
August 15, 1996, you may continue your occupancy for one year after 
that date, without being subject to the procedures this subpart 
imposes, if:
    (1) You notify BLM by October 15, 1996 of the existence of the 
occupancy using a format specified by BLM; and
    (2) BLM has no pending trespass action against you concerning your 
occupancy.
    (c) The one-year grace period provided in paragraph (b) of this 
section will not apply if at any time BLM determines that your use or 
occupancy is not reasonably incident and the continued presence of the 
use or occupancy is a threat to health, safety or the environment. In 
this situation, BLM will order an immediate temporary suspension of 
activities under Sec. 3715.7-1(a).
    (d) If you have no existing occupancies, but are engaged in uses of 
the public lands under the mining law, you are subject to the standards 
in Sec. 3715.5. BLM will determine if your existing uses comply with 
those standards during normal inspection visits to the area and during 
BLM review of notices and plans of operations filed under 43 CFR part 
3800.


Sec. 3715.4-1  What happens after I give BLM written notification of my 
existing occupancy?

    (a) BLM will visit your site during the normal course of inspection 
to obtain the information described in Sec. 3715.3-2. After the visit, 
BLM will make a determination of concurrence or non-concurrence.
    (b) You must provide the information described in Sec. 3715.3-2 to 
BLM. You may provide it either in writing or verbally during a site 
visit by BLM field staff.


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

    If you do not provide the written notice required in Sec. 3715.4, 
you will be subject to the enforcement actions of Sec. 3715.7-1, the 
civil remedies of Sec. 3715.7-2, and the criminal penalties of 
Sec. 3715.8.


Sec. 3715.4-3  What if BLM does not concur in my existing use or 
occupancy?

    If BLM determines that all or any part of your existing use or 
occupancy is not reasonably incident:
    (a) BLM may order a suspension or cessation of all or part of the 
use or occupancy under Sec. 3715.7-1;
    (b) BLM may order the land to be reclaimed to its satisfaction and 
specify a reasonable time for completion of reclamation under 43 CFR 
part 3800; and
    (c) BLM may order you to apply within 30 days after the date of 
notice from BLM for appropriate authorization under the regulations in 
43 CFR Group 2900.


Sec. 3715.4-4  What if there is a dispute over the fee simple title to 
the lands on which my existing occupancy is located?

    BLM may defer a determination of concurrence or non-concurrence 
with your occupancy until the underlying fee simple title to the land 
has been finally determined by the Department of the Interior. During 
this time, your existing occupancy may continue, subject to 
Sec. 3715.5(a).


Sec. 3715.5  What standards apply to my use or occupancy?

    (a) Your use or occupancy must be reasonably incident. In all uses 
and occupancies, you must prevent or avoid ``unnecessary or undue 
degradation'' of the public lands and resources.
    (b) Your uses must conform to all applicable federal and state 
environmental standards and you must have obtained all required permits 
before beginning, as required under 43 CFR part 3800. This means 
getting permits and authorizations and meeting standards required by 
state and federal law, including, but not limited to, the Clean Water 
Act (33 U.S.C. 1251 et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), 
and the Resource Conservation and Recovery Act (42 U.S.C. 6901 et 
seq.), as required under 43 CFR part 3800.
    (c) Your occupancies must conform to all applicable federal and 
state environmental standards and you must have obtained all required 
permits before beginning, as required under this subpart and 43 CFR 
part 3800. This means getting permits and authorizations and meeting 
standards required by state and federal law, including, but not limited 
to, the Clean Water Act (33 U.S.C. 1251 et seq.), Clean Air Act (42 
U.S.C. 7401 et seq.), and the Resource Conservation and Recovery

[[Page 37129]]

Act (42 U.S.C. 6901 et seq.), as required under this subpart and 43 CFR 
part 3800.
    (d) If your prospecting or exploration activities involve only 
surface activities, you must not place permanent structures on the 
public lands. Any temporary structures you place on the public lands 
during prospecting or exploration will be allowed only for the duration 
of the activities, unless BLM expressly and in writing allows them to 
remain longer. If your prospecting or exploration activities involve 
subsurface activities, you may place permanent structures on the public 
lands, if BLM concurs.
    (e) All permanent and temporary structures you place on the public 
lands must conform with the applicable state or local building, fire, 
and electrical codes, and occupational safety and health and mine 
safety standards. If state or local codes require, you must obtain a 
certificate of occupancy or its equivalent before you begin use or 
occupancy involving permanent structures. If state or local law 
requires, you must also acquire appropriate sewerage and sanitation 
permits before the occupancy or use of a permanent structure placed on 
the public lands.


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

    Unless BLM expressly allows them in writing to remain on the public 
lands, you must remove all permanent structures, temporary structures, 
material, equipment, or other personal property placed on the public 
lands during authorized use or occupancy under this subpart. You have 
90 days after your operations end to remove these items. If BLM concurs 
in writing, this provision will not apply to seasonal operations that 
are temporarily suspended for less than one year and expected to 
continue during the next operating season or to operations that are 
suspended for no longer than one year due to market or labor 
conditions.


Sec. 3715.5-2  What happens to property I leave behind?

    Any property you leave on the public lands beyond the 90-day period 
described in Sec. 3715.5-1 becomes property of the United States and is 
subject to removal and disposition at BLM's discretion consistent with 
applicable laws and regulations. You are liable for the costs BLM 
incurs in removing and disposing of the property.


Sec. 3715.6  What things does BLM prohibit under this subpart?

    Except where other applicable laws or regulations allow, BLM 
prohibits the following:
    (a) Placing, constructing, maintaining or using residences or 
structures for occupancy not meeting:
    (1) The conditions of occupancy under Secs. 3715.2 or 3715.2-1; or
    (2) Any of the standards of occupancy under Sec. 3715.5;
    (b) Beginning occupancy before the filing, review, and approval or 
modification of a plan of operation as required under 43 CFR part 3800, 
subparts 3802 or 3809;
    (c) Beginning occupancy before consultation with BLM as required by 
Sec. 3715.3 for activities that do not require a plan of operations 
under 43 CFR part 3800, subpart 3802 or that are defined as casual use 
or notice activities under 43 CFR part 3800, subpart 3809;
    (d) Beginning occupancy without receiving a determination of 
concurrence because the proposed occupancy or fencing will not conform 
to the provisions of Sec. 3715.2, Sec. 3715.2-1 or Sec. 3715.5;
    (e) Not complying with any order issued under this subpart within 
the time frames the order provides;
    (f) Preventing or obstructing free passage or transit over or 
through the public lands by force, threats, or intimidation; provided, 
however, that reasonable security and safety measures in accordance 
with this subpart are allowed;
    (g) Placing, constructing, or maintaining enclosures, gates, or 
fences, or signs intended to exclude the general public, without BLM's 
concurrence;
    (h) Causing a fire or safety hazard or creating a public nuisance;
    (i) Not complying with the notification and other requirements 
under Sec. 3715.4 relating to an existing occupancy; and
    (j) Conducting activities on the public lands that are not 
reasonably incident, including, but not limited to: non-mining related 
habitation, cultivation, animal maintenance or pasturage, and 
development of small trade or manufacturing concerns; storage, 
treatment, processing, or disposal of non-mineral, hazardous or toxic 
materials or waste that are generated elsewhere and brought onto the 
public lands; recycling or reprocessing of manufactured material such 
as scrap electronic parts, appliances, photographic film, and 
chemicals; searching for buried treasure, treasure trove or 
archaeological specimens; operating hobby and curio shops; cafes; 
tourist stands; and hunting and fishing camps.


Sec. 3715.7  How will BLM inspect my use or occupancy and enforce this 
subpart?

    (a) BLM field staff is authorized to physically inspect all 
structures, equipment, workings, and uses located on the public lands. 
The inspection may include verification of the nature of your use and 
occupancy to ensure that your use or occupancy is, or continues to be, 
reasonably incident and in compliance with Secs. 3715.2, 3715.2-1, 
3715.4-1 and 3715.5.
    (b) BLM will not inspect the inside of structures used solely for 
residential purposes, unless an occupant or a court of competent 
jurisdiction gives permission.


Sec. 3715.7-1  What types of enforcement action can BLM take if I do 
not meet the requirements of this subpart?

    BLM has four types of orders that it can issue depending on the 
circumstances:
    (a) Immediate suspension.
    (1) BLM may order an immediate, temporary suspension of all or any 
part of your use or occupancy if:
    (i) All or part of your use or occupancy is not reasonably incident 
or is not in compliance with Secs. 3715.2, 3715.2-1, 3715.3-1(b), 
3715.5 or 3715.5-1, and
    (ii) an immediate, temporary suspension is necessary to protect 
health, safety or the environment.
    (2) BLM will presume that health, safety or the environment are at 
risk and will order your use or occupancy to be immediately and 
temporarily suspended if:
    (i) You are conducting an occupancy under a determination of 
concurrence under this section; and
    (ii) You fail at any time to meet any of the standards in 
paragraphs Sec. 3715.3-1(b) or Sec. 3715.5 (b), (c) or (d).
    (3) The suspension order will describe--
    (i) How you are failing or have failed to comply with the 
requirements of this subpart; and
    (ii) The actions, in addition to suspension of the use or 
occupancy, that you must take to correct the noncompliance and the time 
by which you must suspend the use or occupancy. It will also describe 
the time, not to exceed 30 days, within which you must complete 
corrective action.
    (4) The suspension order will not be stayed by an appeal.
    (b) Cessation order.
    (1) BLM may order a temporary or permanent cessation of all or any 
part of your use or occupancy if:
    (i) All or any part of your use or occupancy is not reasonably 
incident but does not endanger health, safety or the environment, to 
the extent it is not reasonably incident;
    (ii) You fail to timely comply with a notice of noncompliance 
issued under paragraph (c) of this section;

[[Page 37130]]

    (iii) You fail to timely comply with an order issued under 
paragraph (d) of this section; or
    (iv) You fail to take corrective action during a temporary 
suspension ordered under paragraph (a) of this section.
    (2) The cessation order will describe--
    (i) The ways in which your use or occupancy is not reasonably 
incident; is in violation of a notice of noncompliance issued under 
paragraph (c) of this section; or is in violation of an order issued 
under paragraphs (a) or (d) of this section, as appropriate;
    (ii) The actions, in addition to cessation of the use or occupancy, 
that you must take to correct the noncompliance;
    (iii) The time by which you must cease the use or occupancy, not to 
exceed 30 days from the date the Interior Board of Land Appeals affirms 
BLM's order; and
    (iv) The length of the cessation.
    (c) Notice of noncompliance.
    (1) If your use or occupancy is not in compliance with any 
requirements of this subpart, and BLM has not invoked paragraph (a) of 
this section, BLM will issue an order that describes--
    (i) How you are failing or have failed to comply with the 
requirements of this subpart;
    (ii) The actions that you must take to correct the noncompliance 
and the time, not to exceed 30 days, within which you must start 
corrective action; and
    (iii) The time within which you must complete corrective action.
    (2) If you do not start and complete corrective action within the 
time allowed, BLM may order an immediate suspension under paragraph (a) 
of this section, if necessary, or cessation of the use or occupancy 
under paragraph (b) of this section.
    (d) Other. If you are conducting an activity that is not reasonably 
incident but may be authorized under 43 CFR Group 2900 or 8300, or, as 
to sites in Alaska, 43 CFR part 2560, BLM may order you to apply within 
30 days from the date you receive the order for authorization under the 
listed regulations.


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

    If you do not comply with a BLM order issued under Sec. 3715.7-1, 
the Department of the Interior may request the United States Attorney 
to institute a civil action in United States District Court for an 
injunction or order to prevent you from using or occupying the public 
lands in violation of the regulations of this subpart. This relief may 
be in addition to the enforcement actions described in Sec. 3715.7-1 
and the penalties described in Sec. 3715.8.


Sec. 3715.8  What penalties are available to BLM for violations of this 
subpart?

    The penalties for individuals and organizations are as follows:
    (a) Individuals. If you knowingly and willfully violate the 
requirements of this subpart, you may be subject to arrest and trial 
under section 303(a) of FLPMA (43 U.S.C. 1733(a)) and/or section 4 of 
the Unlawful Occupancy and Inclosures of Public Lands Act (43 U.S.C. 
1064). If you are convicted, you will be subject to a fine of not more 
than $100,000 or the alternative fine provided for in the applicable 
provisions of 18 U.S.C. 3571, or imprisonment not to exceed 12 months, 
or both, for each offense.
    (b) Organizations. If an organization or corporation knowingly or 
willfully violates the requirements of this subpart, it is subject to 
trial and, if convicted, will be subject to a fine of not more than 
$200,000, or the alternative fine provided for in the applicable 
provisions of 18 U.S.C. 3571.


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

    You are subject to arrest and trial before a United States District 
Court if, in any matter under this subpart, you knowingly and willfully 
falsify, conceal or cover up by any trick, scheme or device a material 
fact, or make any false, fictitious or fraudulent statements or 
representations, or make or use any false writings or document knowing 
the same to contain any false, fictitious or fraudulent statement or 
entry. If you are convicted, you will be fined not more than $250,000 
or the alternative fine provided for in the applicable provisions of 18 
U.S.C. 3571, or imprisoned not more than 5 years, or both.


Sec. 3715.9  What appeal rights do I have?

    If you are adversely affected by a BLM decision, order or 
determination made under this subpart, you may appeal the decision, 
order or determination to the Interior Board of Land Appeals (IBLA) 
under the provisions of 43 CFR part 4.


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

    (a) An appeal to IBLA does not suspend an order requiring an 
immediate, temporary suspension of occupancy issued under Sec. 3715.7-
1(a) before the appeal or while it is pending. In this case, the 
provisions of 43 CFR 4.21(a) do not apply.
    (b) The provisions of 43 CFR 4.21(a) apply to all other BLM 
decisions, orders or determinations under this subpart.

[FR Doc. 96-17757 Filed 7-15-96; 8:45 am]
BILLING CODE 4310-84-P