[Federal Register Volume 65, Number 241 (Thursday, December 14, 2000)]
[Rules and Regulations]
[Pages 78358-78376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31656]



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Part III





Department of the Interior





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Bureau of Land Management



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43 CFR Parts 6300 and 8560



Wilderness Management; Final Rule

  Federal Register / Vol. 65 , No. 241 / Thursday, December 14, 2000 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 6300 and 8560

[WO-250-1220-PA-24 1A]
RIN: 1004-AB69


Wilderness Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: In this final rule, the Bureau of Land Management (BLM) 
revises and updates the regulations for management of designated 
wilderness areas. In February of 1985, BLM issued the existing 
regulations. Since the original issuance of the regulations, BLM has 
developed new policies, Congress has required new procedures, and 
technologies have changed. The final rule meets the need for updated 
regulations by adding new requirements based on changes in legislation 
or agency objectives, clarifying what uses BLM allows and authorizes in 
wilderness areas, what acts BLM prohibits, and explaining special uses 
the Wilderness Act explicitly allows, and how BLM allows access to non-
Federal lands located within BLM wilderness areas.

EFFECTIVE DATE: January 16, 2001.

ADDRESSES: You should send any inquiries or suggestions to:
    Department of the Interior, Bureau of Land Management, Mail Stop 
WO-172, 1849 C St., NW., Attention: Jeff Jarvis, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Jeff Jarvis, Wilderness, Rivers and 
National Trails Group, (202) 452-5189. Persons who use a 
telecommunications device for the deaf (TDD) may contact him by calling 
the Federal Information Relay Service (FIRS) at (800) 877-8339, 24 
hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:
I. Background
II. Responses to Comments
III. Final Rule as Adopted
IV. Procedural Matters

I. Background

    The Federal Land Policy and Management Act of 1976 (FLPMA) (43 
U.S.C. 1701-1785) and the Wilderness Act (16 U.S.C. 1131-1136) direct 
BLM to manage wilderness areas for the public's use and enjoyment in a 
manner that will leave these areas unimpaired for future use and 
enjoyment as wilderness by providing for:
     Protection of these areas,
     Preservation of their wilderness character, and
     The gathering and disseminating of information about their 
use and enjoyment as wilderness.
    Unless Congress specifies otherwise, BLM must ensure the 
preservation of wilderness character in managing all activities 
conducted within wilderness areas.
    The proposed rule on Wilderness Management was published in the 
Federal Register on December 19, 1996 (61 FR 66968). The proposed rule 
covered the management of BLM wilderness areas outside Alaska. The rule 
explained--
     What wilderness areas are,
     How BLM manages them, and
     How you can use them.
    The proposed rule also explained what activities BLM would not 
allow in wilderness areas, the penalties for doing prohibited acts, and 
the special provisions for some uses and access. When BLM has 
management responsibility for wilderness areas in Alaska, we will 
develop regulations for their management, if necessary.
    The proposed rule, while it revised and redesignated the entire 
part in the CFR, focused on the following five areas: (1) definitions, 
(2) use of wilderness areas, (3) prohibited acts, (4) special use 
provisions, and (5) access.
    The period for public comment on the proposed rule originally 
expired on February 18, 1997. In response to public requests, BLM 
extended the comment period until April 21, 1997. BLM received nearly 
1,600 public comment letters or other communications during this four-
month comment period.

II. Responses to Comments

A. General Comments

    A number of comments addressed the proposed rule in general terms, 
without addressing any specific provision or section. Some opposed or 
supported the rule, others asked for general clarification, still 
others questioned underlying authorities. We will address these general 
comments in this section of the Supplementary Information.
    One respondent asked BLM to clarify its authority over activities 
on non-BLM lands adjacent to BLM wilderness areas. BLM has authority to 
protect Federal lands and resources under its jurisdiction by virtue of 
section 302(b) of FLPMA (43 U.S.C.1732(b)). This includes the authority 
to regulate activities on adjacent private or State lands to protect 
public lands, including BLM wilderness areas. The final rule does not 
expand BLM's authority to manage wilderness areas in a way that will 
affect activities on adjacent non-BLM lands.
    Several respondents criticized the proposed rule for not covering 
extensively enough the responsibility of BLM wilderness managers to 
monitor and otherwise manage activities and land uses affecting 
wilderness. Management of activities within wilderness are thoroughly 
covered in BLM Manuals or handbooks and other internal guidance, which 
are available to the public in any field office that manages 
wilderness. The regulations need not explain these internal procedures 
to BLM managers. The principal purpose of regulations is to provide 
guidance and direction to the public and other regulated parties.
    One comment asked for clarification of how the rule applies to 
wilderness study areas. The regulations in this rule apply only to 
congressionally-designated wilderness areas, not to wilderness study 
areas.
    One comment asked what regulations apply when specific provisions 
in this rule refer to applicable management plans as allowing, 
limiting, or prohibiting an activity, but BLM has not completed its 
management plans for a particular area. The regulations in this final 
rule apply regardless of the status of plans. The plans referred to in 
these regulations include not just Resource Management Plans or Plan 
Amendments covering large areas of public lands, but also local BLM 
field office plans and other decision documents.
    Some comments asserted that the proposed regulations were too 
permissive or conflict with law, including the Wilderness Act, saying 
they would diminish wildness, reduce challenge and risk, and increase 
mechanization. The comments said that the language in the proposed rule 
is ambiguous, allows for inconsistent interpretation and too much 
discretion on the part of BLM managers. One respondent concluded that 
the ``special provisions'' in the proposed rule provided loopholes for 
uses incompatible with the preservation of wilderness character.
    BLM believes that the proposed rule and the final rule are fully 
consistent with the requirements of the Wilderness Act and other laws. 
The Wilderness Act specifically provides for limited commercial use and 
resource development in wilderness areas in the ``special provisions'' 
of the Act (16 U.S.C. 1133). A certain amount of discretion on the part 
of local BLM managers is necessary because circumstances and conditions 
vary from area to area, and no national regulation could cover every 
situation. BLM has made every effort to see that these regulations will 
ensure preservation of

[[Page 78359]]

the wilderness character of the subject lands while recognizing the 
specific statutory protections for valid existing rights and the 
specified uses.
    Other comments stated, by contrast, that the regulations are too 
restrictive, oppressive, or heavy-handed, that they have an adverse 
effect on the rights of the general public, or that they are 
unconstitutional. The comments stated that they would reduce the level 
of enjoyment of wilderness, eliminate or restrict traditionally 
acceptable uses, generate too much paperwork, and be overly complex or 
unresponsive to public needs. One comment asserted that the proposed 
rule gives BLM too much flexibility and reduces individual rights.
    BLM does not agree with these assessments of the proposed rule. The 
regulations are no more restrictive than necessary to carry out the 
requirements in the Wilderness Act and FLPMA, including--
     Managing wilderness so as to leave it unimpaired for 
future use and enjoyment as wilderness;
     Providing for its protection and the preservation of 
wilderness character; and
     Providing for the gathering and dissemination of 
information regarding wilderness use and enjoyment.
    One comment stated that the proposed rule did not consider the 
special provisions of the California Desert Protection Act of 1994 (16 
U.S.C. 410aaa et seq.). The special provisions of that Act apply only 
to those BLM-managed areas designated as wilderness in the California 
Desert Protection Act. It would be inappropriate for a regulation with 
nationwide effect to implement these special provisions. These special 
provisions in the Act stand alone, and do not need regulations to make 
them effective. If any aspect of these regulations were inconsistent 
with the special provisions of the California Desert Protection Act, 
that Act would prevail over these regulations to the extent of the 
inconsistency.
    Some comments urged that National Environmental Policy Act of 1969 
(NEPA) analysis of the proposed regulations be done. BLM prepared an 
environmental assessment (EA) and found that the regulations cause no 
significant impact (FONSI). Notwithstanding the statement in the 
preamble of the proposed rule that the EA was still in draft form, BLM 
approved the EA and FONSI on September 13, 1996. Also, BLM has updated 
these documents in new versions approved June 19, 2000. These documents 
are available for review in the administrative record of this rule.
    One comment stated that BLM has no authority to enact these 
regulations and that Federal laws must conform to State and local laws. 
BLM has ample authority to issue these regulations (see sections 310 
and 302(b) of FLPMA, 43 U.S.C. 1740 and 1732(b), for examples). Federal 
law prevails over inconsistent State laws. The Constitution of the 
United States provides at Article VI that the Constitution and the laws 
enacted under it are the supreme law of the land.
    Some comments maintained that the proposed rule unnecessarily 
restricts wildlife management and public enjoyment of wildlife. Others 
stated that the rule does not address fish and wildlife management 
activities or hunting, or recognize State management authority for fish 
and wildlife resources that is contained in Section 4(d) of the 
Wilderness Act (16 U.S.C. 1133) and Section 302(b) of FLPMA. In this 
rule, BLM does not alter the existing roles of Federal and State 
governments in managing wildlife on any public lands, including 
wilderness. As section 4(d)(8) of the Wilderness Act provides, 
``Nothing in this Act shall be construed as affecting the jurisdiction 
or responsibilities of the several States with respect to wildlife and 
fish * * *.'' States will continue to have jurisdiction over fish and 
wildlife management.
    Comments stated that BLM's present and proposed regulations deny 
aboriginal, traditional land rights, and urged that the rule should 
require BLM to work with Native Americans for management of motorized 
vehicle use, wood cutting, water, and archaeological sites. As stated 
earlier, the regulations are no more restrictive of traditional 
practices than necessary to carry out the requirements of law. There is 
no authority in the Wilderness Act for public use of motor vehicles, 
for example, or for cutting trees in wilderness areas. BLM does 
cooperate with Native Americans and others in the management of 
archaeological sites under other laws and regulations.
    A number of comments expressed general support for the proposed 
rule, saying that the regulations are necessary to protect the 
character of wilderness for the long term, and that they are balanced, 
reasonable, well-crafted, and faithfully implement Congressional 
wilderness goals.
    Several comments addressed the style of the proposed rule, either 
opposing or supporting the question-and-answer format. We did not 
change the basic format in the final rule because the style follows 
current Federal Government policy. The final rule somewhat reorders and 
reorganizes the regulations. We explain this in detail in the section 
of this preamble discussing the final rule.

B. Specific Comments

    In this discussion, section names and numbers refer to those in the 
proposed rule. Where appropriate, we have inserted the new section 
numbers in parentheses at the beginning of each section discussion. In 
the final rule, many numbers have been changed both to improve the 
organization of the regulations and to respond to public comments. We 
will explain this reorganization and renumbering in Section III of this 
preamble. If this portion of the Supplementary Information does not 
discuss a particular section or paragraph, it means that no public 
comments addressed the provision, and there is no other need to amend 
it in the final rule.
Preamble of the Proposed Rule
    Regarding the discussion of livestock grazing, one comment 
questioned the reference to an appendix of a Report of the Committee of 
Interior and Insular Affairs (H.Rept. 101-405, Appendix A) regarding 
grazing in wilderness and urged that the Report be published in the 
Federal Register. The proposed rule used the principles and findings in 
the Report as the basis for the text of the livestock grazing section 
of the rule. The Report itself is in the administrative record for the 
rule and is published in the BLM wilderness management manual.
    One comment suggested that either the preamble or the regulatory 
text should refer to the International Association of Fish and Wildlife 
Agencies document, ``Policies and Guidelines for Fish and Wildlife 
Management in National Forest and Bureau of Land Management 
Wildernesses.'' Such a reference is unnecessary because--
    (1) neither the proposed nor the final rule alters the fish or 
wildlife management roles of State and Federal Government, and
    (2) guidance for BLM field managers for cooperating with State 
wildlife management officers, including a reference to the document in 
question, is in the BLM Manual.
Subpart 6301--Introduction

Section 6301.30  What is a BLM wilderness area? (Section 6301.3 in the 
final rule)

    One comment objected to this section as a subjective definition of 
wilderness. BLM intends this section to be an objective, simple, 
factual, and

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unobjectionable statement that wilderness is what Congress says it is, 
with a reference added to the Wilderness Act itself for a detailed 
definition.

Section 6301.50  What are the definitions of terms used in this part? 
(Section 6301.5)

    A few comments addressed the proposed definitions as a group. One 
suggested that they were vague and overly broad and could lead to 
inconsistent decisions. BLM's position is that our definitions are 
similar to those of the other Federal wilderness managing agencies, and 
that they are broad enough to illuminate terms in a set of regulations 
with a nationwide effect. Nevertheless, in some instances we have 
changed the definitions to make them clearer in light of specific 
comments.
    Other comments suggested that we define additional terms, 
including: Primeval, natural condition, untrammeled, solitude, 
wilderness character, commercial use, American Indian, religious 
ceremony, emergency, unimpaired, motorized vehicles, permanent 
improvement, and all non-pedestrian traffic. We have not added 
definitions for any of these terms. Some of them do not appear at all 
in the regulations. Others appear once, but with sufficient explanation 
in their context to make a definition unnecessary. Others are familiar 
enough that their dictionary definitions provide adequate description 
of their meaning.

Access 

    Several comments criticized the definition of ``access,'' stating 
that it did not make clear what constitutes adequate access. Others 
stated that access should include R.S. 2477 rights-of-way, guarantee 
landowners logical and appropriate methods of travel, or allow legal 
access under Section 501 of FLPMA.
    Section 501(a) of FLPMA expressly excludes designated wilderness 
from land across which BLM may grant a right-of-way. Therefore, BLM is 
forbidden by law to grant new rights-of-way across wilderness. BLM 
recognizes valid R.S. 2477 rights-of-way in wilderness areas, as it 
does all valid existing rights.
    Finally, the regulatory provisions on access in the final rule 
(subpart 6305) are designed to provide inholders with logical and 
appropriate access within the limitations of the Wilderness Act. 
Definitions themselves are not intended to have regulatory content.

Inholding

    A few comments addressed the definition of ``inholding,'' stating 
that the definition is too narrow to include non-Federal lands 
surrounded by other lands along with BLM wilderness. The additional 
lands bounding the inholding might, for example, be national forest 
lands or wilderness study areas. Some comments asked for clarification 
of what constitutes an interest in land under the ``inholding'' 
definition. Others stated that this definition, as well as the 
definitions of ``valid occupancy'' and ``mining operations,'' 
improperly limited access rights of owners.
    The definition of ``inholding'' in the proposed rule is consistent 
with definitions used by other Federal wilderness land managing 
agencies. However, the concept of ``interest in land'' has been removed 
from the definition in the final rule as unnecessary. We address the 
effects of different degrees of ownership--fee simple ownership, 
surface ownership only, mining claims, and so forth--in the access 
provisions of the final rule, not in the definitions.

Mechanical Transport 

    A number of comments addressed the definition of ``mechanical 
transport,'' particularly as it affects the use of game carriers. A 
majority of these comments said that the definition should not include 
game carriers, or only include motorized ones. They said that a 
prohibition of game carriers in wilderness would be an unnecessary 
hardship for hunters and would increase environmental impacts--due to 
dragging big game--from hunting, would discriminate against the 
elderly, and would limit the ability to retrieve downed game. They said 
that animal carriers are traditional, compatible, and legitimate in 
wilderness and could be considered the minimum tool, especially in 
desert situations, and that prohibition may discourage legal hunting of 
big game, limiting management efforts by State government agencies.
    A few comments urged that the definition of ``mechanical 
transport'' should not include wheelbarrows because they are necessary 
for trail construction and maintenance work.
    BLM's position is that we must include wheeled game carriers or 
wheelbarrows in the definition of mechanical transport, or it will 
conflict with the letter and spirit of the Wilderness Act. This 
position is also consistent with Forest Service policy. Trail work is 
an administrative function that is adequately addressed in section 4(c) 
of the Wilderness Act. This section allows BLM to use the minimum tools 
necessary for such administrative work.
    A large number of comments stated that the definition of 
``mechanical transport'' should not include horses and other pack 
livestock like mules and llamas. BLM never intended to ban horses from 
wilderness areas, and we have amended the definition specifically to 
make it clear that horses and other pack stock are allowed in 
wilderness. Horses are not mechanical transport, and neither are their 
saddles and bridles and other tack.
    A small number of comments raised other concerns about the 
definition of ``mechanical transport.'' One asked for clarification of 
the word ``contrivance'' as used in the definition. BLM used this term 
to emphasize the human-origin aspect of the means of transportation by 
relying on a dictionary definition of ``contrivance'' as ``a mechanical 
device.'' We have expanded the definition by adding the words ``device 
or vehicle'' to improve its clarity. Another comment stated that the 
definition could be misinterpreted to include a number of devices such 
as fishing and hunting equipment, and even persons such as land users 
and administrative and law enforcement personnel. The intent of the 
final rule is that mechanical transport refers to man-made devices with 
moving parts and an internal or external power source (even if the 
power source is environmentally benign, such as solar cells), that are 
commonly used to carry people or cargo. It would be impractical, and 
potentially misleading, to include an exhaustive list of inclusions and 
exclusions, because questions may be raised as to items omitted from 
the list.
    Some comments urged that the definition of ``mechanical transport'' 
should not include horse-drawn wagons and carts. Another urged that the 
definition should include canoes, rafts, bicycles, and travois, and 
that unless the enabling legislation specifies otherwise, BLM must 
prohibit all assisted transportation. Wagons, carts, and bicycles 
clearly fall within the definition of mechanical transport and are 
excluded from wilderness. Canoes, rafts, and travois, on the other 
hand, are not included in the definition--they lack moving parts. There 
is no authority in the Wilderness Act to disallow all assisted 
transport.
    One comment maintained that the definition of ``mechanical 
transport'' violates the Americans with Disabilities Act (ADA). The 
proposed rule excluded wheelchairs from the definition, but with the 
qualification that a wheelchair

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is allowed only as necessary medical equipment. BLM has amended the 
definition in the final rule to remove this qualification. The final 
rule specifically allows wheelchairs to be used in wilderness areas. 
The definition of ``wheelchair'' in the proposed rule has also been 
changed in the final rule to repeat the definition in the ADA.
    One comment asserted that the definition of ``mechanical 
transport,'' by including the reference to living power sources, is 
more restrictive than the Arizona Desert Wilderness Act of 1990 and is 
inconsistent with the Wilderness Act, and alleged that the definition 
significantly affects recreation. The reference to a living power 
source was designed to encompass bicycles and horse-carts and similar 
mechanical means of transportation, and not backpackers and horse 
packers, which, though they may employ living power sources, do not use 
mechanical contrivances for transport. However, since the power source 
itself is not a critical element in defining ``mechanical transport,'' 
we removed the reference to ``living power source'' in the final rule.
    One comment urged that the rule should restrict the use of wheeled 
devices to only those specifically permitted in the Wilderness Act. The 
Wilderness Act makes no mention of wheeled vehicles or devices as such, 
and it is unnecessary to amend the definition.
    A couple of comments addressed a definition not in the proposed 
rule, ``mechanized equipment,'' apparently confusing it with 
``mechanical transport'' or ``motorized equipment.'' One asked whether 
rock climbing hardware is mechanized equipment, and another urged that 
rifles be considered mechanized equipment. Power drills for installing 
bolts in support of climbing would be considered motorized equipment 
and are banned from BLM wilderness areas, as are chainsaws and other 
large power tools. Rifles and shotguns are not motorized, and are not 
mechanical means of transportation. Therefore, they are not affected by 
the restrictions on motorized equipment or mechanical transport in 
section 6302.20(d) of the final rule.

Mining Operations and Valid Occupancy 

    A few comments stated that the proposed definitions of these terms 
infringe on the access rights of owners. BLM has changed the definition 
of ``mining operations'' to make it a cross reference to the definition 
in the use and occupancy regulations in 43 CFR subpart 3715. Also, BLM 
has added to the definition of ``valid occupancy'' a cross-reference to 
the use and occupancy regulations in subpart 3715 of this title. These 
definitions rely entirely on existing BLM regulatory definitions, and 
therefore do not affect the rights of land owners or mining claimants.

Motorized Equipment 

    A small number of comments addressed this definition, most of them 
listing devices that they thought should or should not be considered 
motorized equipment and accordingly banned from or allowed in 
wilderness. One comment urged that chain saws be allowed. Chain saws 
are always motorized and therefore are banned specifically by the 
Wilderness Act. One comment stated that the definition could be 
interpreted to include battery-powered devices such as shavers, 
watches, and the others specifically excluded in the definition. We do 
not believe this to be a reasonable interpretation, and have not 
changed the definition in the final rule.
    A few comments asked for a more expansive definition of ``motorized 
equipment,'' one that would include propane heaters, stoves, Global 
Positioning Systems, Geiger counters, cellular telephones, metal 
detectors, or radios. They maintained that such devices should have no 
place in primitive or unconfined use of wilderness, that wilderness is 
a place for primitive travel skills. The comment suggested that 
technological advances represented by some of these devices would lead 
to further mechanization of wilderness, and concluded that exemptions 
should be limited to flashlights, wristwatches, cameras, and gas 
stoves. While this view of wilderness may be shared by some, the 
impacts of the devices proposed for inclusion in the definition by the 
respondent do not warrant their prohibition in wilderness. We have made 
no change in the final rule in response to this comment.

Wheelchair

    A small number of comments criticized this definition as being too 
restrictive, and urged that the term be defined as other agencies do. 
In the final rule, we have amended the definition slightly to conform 
it exactly to the definition found in Section 507 of the Americans with 
Disabilities Act, 42 U.S.C. 12207(c)(2).

Temporary Structure

    One comment suggested adding a definition for this term and offered 
language: `` `Temporary structure' means any structure that can be 
readily and completely dismantled and removed from the site between 
periods of actual use, and must be removed at the end of each season of 
use.'' We have not adopted this comment in the final rule. BLM 
generally cannot allow permanent or temporary structures in wilderness, 
so there is no need for a definition of this term. However, we have 
added a cross reference to the use and occupancy regulations for mining 
operations in 43 CFR part 3715, because you may erect structures under 
certain circumstances on mining claims in wilderness areas. We have 
also added language making it clear that you may use tents and other 
such equipment for overnight camping.
Subpart 6302--Use of Wilderness Areas, Prohibited Acts, and Penalties

Section 6302.10  May I use wilderness areas? (Section 6302.11)

    A small number of comments addressed this general section on use of 
wilderness, most suggesting uses that should be specifically listed, 
such as: education, conservation, scenic and historic appreciation, 
ecology, philosophy, photography, art, spirituality, hunting, fishing, 
trapping. Most of these uses are expressly mentioned or at least 
implied in the Wilderness Act, and need not be recited in the 
regulations. To avoid any appearance of excluding such recognized 
wilderness uses by naming some uses and omitting others, we removed the 
list of examples of allowable uses from this section in the final rule. 
As for hunting, fishing, and trapping, these are managed by State 
government, and BLM does not seek to change this management role in 
these regulations.
    One comment suggested that this section should emphasize that 
wilderness is for non-motorized, non-mechanized use. This need not be 
stated explicitly here; the regulations make this clear in other 
sections.

Section 6302.20  Do I need and where do I obtain an authorization to 
use a wilderness area? (Sections 6302.12 and 6302.13)

    Several comments addressed this section. One objected to the 
requirement for authorization if the BLM management plan for the 
wilderness area involved requires it, arguing that BLM has no authority 
to prepare management plans in the existing BLM wilderness regulations 
or the regulations in 36 CFR 283.1. It continued that BLM therefore 
cannot promulgate or enforce plans, or include

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them in our budget. BLM's general land use planning authority may be 
found in Section 202 of FLPMA (43 U.S.C. 1712). We have made no change 
in the final rule in response to this comment.
    One comment stated that the proposed rule contained no provision 
for timely and efficient response to requests for authorizations. 
Another comment asserted that the permitting process could be used to 
restrict use unreasonably. A third comment requested clarification as 
to the type(s) of authorization needed and who issues them, and 
clarification that BLM requires a permit for any activity that is not 
consistent with wilderness management.
    This rule makes possession of an authorization a prerequisite for 
certain activities, but does not itself provide for the issuance of 
authorizations. If this rule requires you to have a permit or other 
authorization, you must obtain it under the specific BLM regulation for 
your use or activity. The authorization may be a general use permit 
under 43 CFR part 2920, a notification of practices and procedures for 
geophysical exploration under an existing fluid mineral lease under 43 
CFR 3151.1, or a special recreation permit under subpart 8372, for 
example. We have not changed the final rule.
    One comment noted that designations of individual wilderness areas 
by Congress may contain statutory provisions that supersede the 
Wilderness Act or FLPMA. This is true, and in such a case the statutory 
provision would also supersede these regulations. It is not our intent 
to account for every such exception to the general requirements of the 
Wilderness Act.
    The comment went on to state that lands must be managed as provided 
in the Multiple Use and Sustained Yield Act of 1960. The Wilderness Act 
provides that its purposes are within and supplemental to the purposes 
for which national forests and other units of Federal lands are 
managed. Therefore, the Wilderness Act and these regulations are 
consistent with the purposes of the Multiple Use and Sustained Yield 
Act.
    One comment urged that fees BLM charges for permits should be used 
to pay for law enforcement rather than restoring user-caused damage. It 
went on to say that users should pay for such restoration. There is no 
need to change the regulation as a result of this comment, because it 
neither provides for specific fees nor directs where specific fees are 
to go. Other regulations provide for fees and their administration.

Section 6302.30  When and how does BLM close or restrict use of 
wilderness areas? (Section 6302.19)

    A few comments addressed this section of the proposed rule. One 
noted that only Congress can alter the use of wilderness areas, and 
stated that temporary closures should be for no more than one year. 
Another urged that the regulation should clearly state that the law 
permits BLM to restrict areas within wilderness without issuing an 
order. We have amended this provision in the final rule to make it 
clear that closures will affect the minimum area for the minimum amount 
of time necessary, likely in most cases to be less than three months. 
(A typical reason for such restrictions will be wildlife protection.)
    Another comment stated that closure or restrictions on use of 
public lands for mining, grazing, logging, recreation, and so forth, 
would cause a significant economic impact on small communities if 
wilderness guidelines are not carefully administered. BLM's intent is 
that we will carefully administer the regulations, guidelines, and 
handbooks relating to wilderness management.

Section 6302.40  May I gather information, do research, or collect 
things such as rocks, animals, plants, or other types of natural or 
cultural resources in wilderness areas? (Sections 6302.15 and 6302.16)

    A number of comments addressed this section. Some challenged the 
proposed language because of perceived undue effects on the wilderness 
environment, asserting: uses that damage the environment should be 
banned; fuel gathering for campfires should be prohibited; collection 
should be limited to scientific research; commercial collection should 
be prohibited; and the regulations should be as restrictive as possible 
for uses inconsistent with the purposes of the Wilderness Act. Others 
said that the section imposed restrictions on activities that are too 
stringent or not authorized, maintaining: the rule should allow 
``incidental use (surface collection with small hand tools)''; the rule 
should not require a plan to be in place before collecting can be 
allowed; the rule conflicts with State authority for wildlife 
management and control of hunting and fishing; and the rule should 
allow traditional aboriginal land uses, such as wood gathering and 
pottery shard collection.
    To help address some of these comments, we have divided this 
section into two sections in the final rule: section 6302.15 on 
collecting or disturbing specimens, and section 6302.16 on scientific 
information gathering. Thus, we have separated scientific from casual 
collecting. In the final rule we have tried to minimize the impacts of 
these activities, within the limits of the law.
    This division of the proposed provision into two sections 
recognizes that scientific research under section 6302.16 is generally 
a more intensive use of lands and resources than casual or recreational 
collecting or disturbance of resources, or even the mineral prospecting 
authorized by the Wilderness Act. Scientific research may involve 
surface disturbance, long-term use of the land, and larger numbers of 
people. Of course, BLM will permit scientific research that does not 
involve these elements as well, but not impose the reclamation and 
other requirements stated in section 6302.16. Examples of this kind of 
research would be wildlife population counts that do not involve 
surface disturbance or lengthy stays in the wilderness.
    Under section 6302.15, you may remove small mineral samples for 
purposes of prospecting, or souvenir items such as pine cones or 
attractive stones. This provision recognizes that such activities 
conducted by persons without mechanized transportation or power tools 
are likely to create considerably smaller impacts on the wilderness 
environment than scientific research, which may involve base camps, 
organized crews of scientists and staff, more extensive equipment, and 
surface disturbance.
    In the final rule we have also removed proposed paragraph 
6302.40(b), which consisted of several lists of resources and materials 
that may be collected in wilderness for non-commercial purposes. The 
lists are not necessary and may have been misleading because most 
collecting would require an authorization not provided for in the 
wilderness management regulations. For such collecting, you would need 
an authorization from other Federal agencies, State agencies, or from 
BLM under other regulations.
    The final rule provides that for scientific information gathering 
(section 6302.16) in a wilderness area--
     Similar research opportunities must not be reasonably 
available elsewhere;
     The activity must be compatible with wilderness 
preservation and the pertinent BLM management plan;
     You must minimize ground disturbance and use of motorized 
equipment and mechanical transport, including the landing of aircraft; 
and
     The activity must be authorized by BLM before you may 
begin.

[[Page 78363]]

    For information gathering and resource collection or disturbance 
not related to scientific research, section 6302.15 requires the 
activity to be--
     Non-commercial as required by section 4(c) of the 
Wilderness Act;
     Characterized by methods that preserve the wilderness 
environment; and
     Either in conformance with the pertinent BLM management 
plan or specially authorized by BLM.
    Also, information gathering related to minerals, including 
prospecting under the mining laws, is specifically allowed under the 
terms of section 4(d)(2) of the Wilderness Act (16 U.S.C. 1133(d)(2)).
    Some measures suggested in comments were: to require campers to 
carry campfire fuel with them; to limit collecting to education or 
scientific research; and to require that information and specimen 
gathering be for the purpose of benefitting wilderness. These 
activities are not occurring at levels that are harmful to wilderness, 
and there is no need at present to impose such limits. Some of the 
activities that respondents suggested we allow in wilderness are 
prohibited by law. For instance, section 6 of the Archaeological 
Resources Protection Act of 1979, 16 U.S.C. 470ee(a), prohibits taking 
pottery shards and similar artifacts from public lands without a 
permit: ``No person may excavate, remove, damage, or otherwise alter or 
deface, or attempt to excavate, remove, damage, or otherwise alter or 
deface any archaeological resource located on public lands or Indian 
lands unless such activity is pursuant to a permit. * * *''
    Several comments addressed the specific issue of hobby mineral 
collecting in the context of this section. They said that the proposed 
rule would severely limit the hobby, and that collecting specimens 
preserves them from erosion. One comment stated that closing public 
lands to mineral collection is unfair when mining may still occur. 
Another asserted that the proposed rule would impose an excessive 
restriction of traditional family recreation activities. In response to 
these comments, we have amended the final rule to allow hobby 
collecting in BLM wilderness if it is compatible with wilderness 
preservation and if either the activity conforms with the applicable 
BLM plan or the hobbyist has an authorization from BLM. The proposed 
rule would have required both plan conformance and an authorization.

Section 6302.41  Will BLM authorize me to use a motor vehicle, 
motorized equipment, or mechanized transport to conduct research or 
gather resource information? (Section 6302.16)

    About 20 comments addressed this section. Respondents criticized 
the provision, stating that it implied motor vehicles could be allowed 
in wilderness, that it could be interpreted to preclude airborne 
research over wilderness, and that it did not necessarily require a 
bond in every case. One comment stated that the rule should clearly 
prohibit motorized equipment and mechanical transport with certain 
exceptions: access to valid mining claims, construction and maintenance 
of wildlife watering devices, maintenance of range improvements, or 
other uses that BLM cannot prohibit, and that research is not grounds 
for allowing motorized equipment or mechanical transport. Another 
comment asked for clarification of how BLM will determine reclamation 
needs, and another asked whether BLM will give verbal or written 
authorization for motorized or mechanical information gathering.
    Many of these issues are addressed in either other BLM regulations 
governing specific activities or uses of the public lands, or the BLM 
Manual if they relate more to BLM internal procedure than to user 
activity. The type of authorization required is usually covered in the 
regulations dealing with the subject matter of the research or 
information gathering. The Wilderness Act governs access to mining 
claims. Such access need not be by mechanized transport in every case.
    We have removed most of the section in the final rule because it is 
unnecessary. The final sentence has been moved to section 6302.16(b). 
It requires reclamation, but still provides for discretion on the part 
of local BLM managers as to whether we will require a bond.
    Most human activity in wilderness disturbs the surface in some way. 
There is no need for bonding in a case where there is likely to be no 
appreciable impact. The regulations give local managers the power and 
discretion to require bonding.

Section 6302.50  May wheelchairs be used in a wilderness area? (Section 
6302.17)

    A few comments addressed this section. Some supported the notion, 
with which we agree, that adventure and untrammeled nature should be 
available to the wheelchair user. Another contended that the rule does 
not meet the spirit of the Americans with Disabilities Act (ADA) 
because it does not provide for additional facilities for wheelchair 
users. We disagree with this comment. Special facilities are not 
required for wheelchair users in wilderness under Section 507 of the 
ADA (42 U.S.C. 12207(c)(1)).
    Another comment stated that the regulation should permit motorized 
wheelchairs. In the final rule, ``wheelchair'' is defined in the same 
way as in Section 507 of the ADA (42 U.S.C. 12207(c)(2)). If a 
motorized wheelchair meets this definition, so that it is suitable for 
use in an indoor pedestrian area, it qualifies as a wheelchair under 
the final rule and may be used in BLM wilderness. One comment asserted 
that if wheelchairs are allowed in wilderness, game carriers should 
also be allowed. However, wheelchair users are protected by statute 
from exclusion, while wheeled game carriers, being mechanical 
transport, are barred from wilderness by statute.

Section 6302.60  May wilderness areas be used for traditional religious 
purposes? (Section 6302.18)

    A number of comments addressed this section, some of them focusing 
on the issue of temporary closure to protect privacy of American Indian 
ceremonies, and others focusing on whether the regulations should even 
address the issue of religious use of wilderness. We will discuss the 
latter issue first.
    Several comments objected to the provision for temporary closure to 
the public of portions of wilderness areas being used by Native 
Americans for religious practices. They stated that persons who engage 
in such ceremonies on public land should accept the possibility of 
public discovery of their ceremony. Others said that any closure in 
support of religious activities is discriminatory, that it is a race-
based regulation, and that it violates the Establishment Clause of the 
First Amendment. On the other hand, several comments supported 
temporary closure for this purpose, saying that temporary closure is 
compatible with wilderness values and is needed to protect privacy. One 
comment tied closure to need, saying that if an area has a history of 
ceremonies being consistently invaded, BLM should permit temporary 
closure. Partly because of these comments, and partly because it is 
unnecessary, BLM has removed this provision in the final rule. Such a 
special provision for temporary closures to accommodate Indian 
religious observances is unnecessary because, under 43 CFR subpart 8364 
and the general land

[[Page 78364]]

management authority in Section 302 of FLPMA, the BLM local land 
manager can temporarily close an area to protect or accommodate this or 
any other use in appropriate circumstances.
    The final rule allows American Indians to use wilderness areas for 
traditional religious purposes, implementing the American Indian 
Religious Freedom Act (42 U.S.C. 1996) (AIRFA), and other applicable 
law. It does not specifically allow closure. However, it recognizes the 
limits provided for in the Wilderness Act, so that Indians using 
wilderness areas for traditional wilderness purposes may not use 
motorized equipment or mechanical transportation, and must behave in 
such a way as to minimize impacts on the wilderness environment.
    Comments suggested that the rule should specifically allow 
mechanical transport for Indian access; however, there is no authority 
in the Wilderness Act or AIRFA to allow this use. One comment suggested 
that BLM restrict the manner and degree of this religious activity to 
that of such activities carried on before designation of the 
wilderness. There is also no authority to restrict the manner and 
degree of such Indian religious activity so long as it otherwise 
comports with the Wilderness Act and these regulations.
    One comment stated that the regulations should include the 
provisions from Executive Order No. 13007 for access, ceremonial use, 
protection and confidentiality of sacred sites, and notification of 
proposed management actions potentially affecting these sites. The 
Executive Order is binding on Federal agencies, and its provisions need 
not be repeated in these regulations. One comment urged that the 
regulations should ensure physical access into wilderness for Native 
Americans for ceremonial, medicinal, cultural, and traditional 
collecting. We address collecting of materials in wilderness areas in 
section 6302.15 of the final rule. Native Americans wishing to collect 
materials for these purposes must do so in a manner compatible with the 
preservation of the wilderness environment, and the collection must 
conform with the applicable management plan or be separately authorized 
by BLM. One comment stated that the term ``American Indian'' should be 
replaced by ``enrolled member of a federally recognized tribe.'' This 
comment is not adopted in the final rule--the terms used in the rule 
are those used in AIRFA.

Section 6302.70  What activities does BLM prohibit in wilderness areas? 
(Sections 6302.20 and 6302.14)

    Our discussion of the comments on this section will address each 
paragraph separately, as did most of the comments. But first, a few 
comments addressed the section as a whole. One comment asked for 
clarification as to the applicability of the rule to individuals as 
opposed to State agencies. The rule does not distinguish between States 
and individuals. For example, State agencies may not use motor vehicles 
to track wildlife in BLM wilderness any more than individual hunters 
may, even though States have primary responsibility for wildlife 
management. Another comment maintained that the treatment in the 
proposed rule of Wilderness Act prohibitions was inadequate. We 
disagree with this assessment: Each prohibition in the Wilderness Act 
is thoroughly covered in this section, along with others that implement 
the general authority of BLM to regulate public lands, including 
wilderness. One comment stated that persons wishing to carry on 
activities that are exceptions to prohibitions should be encouraged in 
the regulations to use non-wilderness land, or their activities should 
be narrowly delineated. This comment appears to be directed more to the 
special provisions of the Act that were covered in subpart 6303 of the 
proposed rule. Section 4(c) of the Wilderness Act provides for strictly 
limited exceptions to wilderness prohibitions. BLM believes that 
subpart 6304 of this final rule properly implements this statutory 
authority.
    Some comments supported the prohibited acts section as a whole, 
stating that the restrictions imposed are consistent with the purpose 
and preservation of wilderness, places that are quiet, pristine, and 
unspoiled. One comment urged that we remove the language in the 
introductory text giving BLM discretion to enforce these prohibitions 
in favor of absolute prohibitions. BLM made this change in the final 
rule.
    A small number of comments addressed the issue of road closures, a 
matter that is not covered in the proposed or final rule. Subject to 
valid existing rights and special provisions in individual statutes 
designating wilderness areas, wilderness designation closes jeep trails 
and similar routes on public lands, but the wilderness management 
regulations themselves do not close any roads. Wilderness designation 
or these regulations do not affect roads that are outside wilderness, 
even those adjacent to wilderness boundaries. If there are routes to 
wildlife water developments within wilderness, they are closed to 
mechanical transport except for administrative use. The Wilderness Act 
prohibits four-wheel drive, off-highway, or other vehicle use of 
wilderness.
    The final rule contains a provision omitted from the proposed 
rule--a protection of valid existing rights--that is necessary as a 
matter of law. Section 4(c) of the Wilderness Act (16 U.S.C. 1133(c)) 
specifically preserves existing private rights.
    Paragraph (a). This paragraph prohibits operating a commercial 
enterprise in BLM wilderness. A small number of comments addressed this 
provision. A few urged that BLM not prohibit commercial activities such 
as outfitting and guiding for hunting, fishing, and recreational pack 
trip. These activities are not prohibited. The rule excepts from the 
prohibition those activities specifically provided for in the 
Wilderness Act; Section 4(d)(6) of the Act allows commercial services 
related to the recreational or other wilderness purposes of the 
particular area.
    One comment asked whether the use of helicopters for wildlife 
management activities is a commercial activity. Whether such use of 
helicopters is commercial or not is irrelevant, because BLM claims no 
authority in this final rule to regulate activities in airspace. 
Section 4(c) of the Wilderness Act, however, specifically prohibits the 
landing of aircraft. This does not apply to emergency landing of 
aircraft.
    Paragraph (c). This paragraph prohibits landing strips and 
helicopter landing facilities. A few comments supported this section, 
and none objected to it. BLM has made no change in the final rule.
    Paragraph (d). This paragraph prohibits the use of motorized 
equipment. Several comments addressed this prohibition, different 
respondents raising different points:
     objecting to any motorized and mechanized use of 
wilderness,
     stating that State wildlife management activities, 
predator control, fire suppression, emergencies, trail work, delivery 
of construction materials where delivery is not feasible without 
mechanical transportation, all require use of mechanized vehicles, 
motorized equipment, and low-level flights, and
     stating that modern, efficient Native American range 
management requires use of mechanized vehicles, motorized equipment, 
and low-level flights.
    In response, BLM does not assert authority to regulate overflights 
of public land in this rule. The other mechanized uses urged in these

[[Page 78365]]

comments are prohibited by Section 4(c) of the Wilderness Act, except 
in the event of emergencies involving the health and safety of persons 
within the area.
    Section 6303.1 of this final rule covers administrative use and 
emergency situations. The Preamble discussion of that section addresses 
the merits of allowing or prohibiting use of mechanical transportation 
and motorized equipment for administrative purposes.
    Paragraph (e). This paragraph prohibits landing aircraft, and the 
dropping and picking up of persons or things by aircraft. A few 
comments addressed this provision, some in opposition and some in 
support. One said that the regulations should never allow the use or 
landing of aircraft unless specifically authorized by Congress for 
particular wilderness areas. One comment said that the regulations 
should not restrict the use of aircraft for the administrative uses 
listed in the discussion of paragraph (d), above, and another urged an 
exception for search and rescue activities.
    Again, BLM does not assert any regulatory authority over airspace. 
The regulations do allow the landing of aircraft for administrative 
purposes, and allow BLM to prescribe conditions in which aircraft, as 
well as other modes of transportation, may be used in emergency 
situations.
    Paragraph (f). This paragraph prohibits structures and 
installations in BLM wilderness. A few comments addressed this 
provision, one saying that it did not go far enough and should also 
specifically prohibit permanent corrals, tent frames, caches, spring 
boxes, and piped water systems, new grazing structures other than 
fences intended for wilderness protection, and maintenance of existing 
dams and other water catchments, unless they are to benefit wilderness. 
The comment also suggested the addition of ``transmission lines'' to 
the list of examples of prohibited structures. Another comment asked 
that we make our prohibition of structures consistent with that of the 
U.S. Forest Service. We have added ``transmission lines'' and ``sheds'' 
to the prohibition, in part to be consistent with the policy of the 
Forest Service, and also in response to the comments. Finally, one 
comment asked that the regulations not prohibit milepost and trail 
marker signs. This was not the intent of the proposed rule in 
prohibiting structures, and milepost and trail signs are allowed in 
BLM-managed wilderness.
    Paragraph (g). This paragraph prohibits cutting trees in BLM 
wilderness areas. A few comments addressed this prohibition. One 
questioned whether the prohibition conflicted with section 6302.40(c) 
of the proposed rule, which specifically allowed the gathering of 
firewood in reasonable quantities for campfires. (This provision is 
found at section 6302.15(b) of the final rule.) BLM intends a 
distinction between gathering firewood and cutting trees. The 
prohibition of tree cutting does not extend to dead fall and dead 
branches in reasonable quantities to be used for firewood. One comment 
stated that the regulations should include an exception for cutting 
trees to improve habitat if provided for in applicable BLM management 
plans or under BLM authorization. As a matter of policy, BLM does not 
permit this kind of habitat management in the wilderness environment.
    Paragraph (i). This paragraph prohibits competitive events in 
wilderness areas. A few comments addressed this section. Some agreed 
with the notion that the prohibition of competitive use is in keeping 
with the spirit of the Wilderness Act. Some maintained that some 
competitive events, such as Eco-Challenge, do not permanently harm the 
character of wilderness land or reduce the opportunity for solitude, 
and argued that the prohibition of such events is not consistent with 
the special provisions section of the Wilderness Act and these 
regulations. Some questioned the authority for the prohibition.
    As a matter of policy, to carry out our responsibility to preserve 
the wilderness character of the land under the Wilderness Act and 
FLPMA, BLM does not allow competitive events such as races and time 
trials in wilderness areas. This is not a change from the existing 
wilderness management regulations.
    Another comment asserted that hunting is a competitive event that 
BLM should prohibit. In general, hunting is not a competitive sport, 
but the regulations do prohibit organized competitive hunting events. 
The regulations treat orienteering in the same way--prohibiting it only 
if competitive.
    Paragraph (j). This paragraph of the proposed rule prohibited 
``physical alteration or defacement of a natural rock surface for any 
purpose, including the use of any type of drill, permanent fixed anchor 
or expansion bolt; construction of permanent artificial hand and 
footholds; use of glues, epoxies, or other fixatives to facilitate 
mountain climbing, rock climbing, or cave exploration,'' unless allowed 
under the applicable BLM management plan or a BLM authorization. This 
provision of the proposed rule attracted the most voluminous public 
response, over 1,300 comments, most opposing what was perceived as a 
ban on using existing or new fixed anchors for climbing, or a ban on 
temporary fixed anchors such as slings on trees.
    On June 1, 1998, the Forest Service issued a discretionary review 
decision in separate letters to the Access Fund and Wilderness Watch, 
finding that fixed anchors are ``installations'' prohibited by Section 
4(c) of the Wilderness Act. On October 29, 1999, the Forest Service 
published a notice of intent to establish a negotiated rulemaking 
advisory committee to help develop regulations on the placement, use, 
and removal of fixed anchors in national forest wilderness areas. 
Pending the outcome of this Forest Service effort, BLM is reserving 
paragraph (j) in this final rule. In light of this reservation, we also 
withhold further discussion of the comments until such time as we 
publish a final rule addressing the use of fixed anchors in BLM 
wilderness.
    As a point of clarification, climbers do not need authorization to 
use existing fixed anchors. BLM will not prosecute anyone for using 
them. However, the final rule also reaffirms the prohibition of power 
drills used for climbing or any other purpose.

Section 6302.80  What penalties am I subject to if I commit one or more 
of the prohibited acts? (Section 6302.30)

    A few comments opposed this section, stating that penalties are not 
expressly provided for in the Wilderness Act, or that we should have 
used the penalties in FLPMA rather than the Sentencing Reform Act in 
the U.S. Criminal Code (18 U.S.C. 3551-3586). As one of the comments 
pointed out, FLPMA provides ample authority for penalizing those who 
violate BLM regulations. The enforcement authority in Section 303(a) of 
FLPMA (43 U.S.C. 1733(a)) establishes Federal criminal penalties, 
including fines and imprisonment. The Sentencing Reform Act of 1984, as 
amended, raises the upper limits on these and all Federal criminal 
penalties. These new maximums automatically apply to all existing 
criminal penalty statutes. Of course, magistrates and judges will not 
necessarily impose the maximum penalties for minor infractions--the 
penalties are neither mandates nor guidelines. They are the maximum 
allowed. We have changed this provision in the final rule to make it 
clear that the imprisonment penalty is based on FLPMA. We have removed 
the reference to the Sentencing Reform Act.

[[Page 78366]]

Subpart 6303--Special Provisions (Subpart 6304)
    One comment suggested that BLM add a provision to this subpart 
specifically authorizing hunting, fishing, and trapping in BLM 
wilderness areas, so long as the person doing so does it in accordance 
with applicable State and Federal law. We have not added such a 
provision in the final rule. These activities are managed by States, 
not BLM or other Federal agencies, and are not specifically authorized 
or prohibited by the Wilderness Act.

Section 6303.10  Are there special provisions for some uses of 
wilderness areas?

    The few comments addressing this section objected that the 
activities--mining, grazing, development of mineral leases, and so 
forth--allowed in these special provisions are not compatible with 
wilderness. They asked that the regulations state that wilderness is a 
place where such activities are prohibited to preserve wilderness 
values.
    BLM is obligated to allow these activities in wilderness areas 
because they are specifically allowed by the ``special provisions'' of 
Section 4(d) of the Wilderness Act. In most cases the regulations allow 
the uses only if they pre-existed wilderness designation.

Section 6303.20  Are there special provisions for aircraft and 
motorboat use within wilderness areas? (Section 6303.21)

    A few comments addressed this section, some questioning the need 
for regulations on aviation, others suggesting controls on aviation 
noise, and others suggesting that low level flights by government 
agencies for wildlife management, search and rescue, and so forth, 
should not be prohibited. One comment asked for clarification as to how 
the prohibition of motorized equipment relates to aviation. One comment 
questioned the right of BLM to infringe on the regulatory authority of 
the Department of Transportation and the Federal Aviation 
Administration. Another questioned the need for regulations on 
aviation, including lighter-than-air craft and skydiving. Still another 
stated that the provision on military overflights should be expanded to 
apply to private and commercial aviation.
    BLM asserts no authority in this rule to regulate the use of 
airspace or any form of aviation, including military, regardless of 
altitude. The rule only prohibits the landing of aircraft in 
wilderness, subject to various exceptions.
    One comment asserted that BLM's proposed rule would be too 
permissive and inconsistent with the Wilderness Act. It said that BLM 
should use its regulatory authority to restrict these uses as the 
Secretary of the Interior ``deems reasonable'' or desirable, not just 
for protection of wilderness values. It concluded that the regulations 
should not expand aircraft and motorboat use. The final rule retains, 
in paragraph (a), a somewhat revised provision allowing BLM to impose 
other reasonable restrictions necessary to protect wilderness values. 
The rule includes an amendment, in new paragraph (b), requiring that 
maintenance of existing wilderness airstrips be done without motorized 
equipment.
    One comment suggested that the regulations should provide that 
existing but abandoned airstrips cannot be used or maintained after 
wilderness designation. We have adopted this idea in the final rule.
    Several comments addressed the issue of military overflights, most 
suggesting that such flights should be regulated, reduced, or 
eliminated. BLM has no authority in this regard, and paragraph (b) of 
the proposed rule has been removed in the final rule to avoid any 
suggestion that BLM is trying to regulate any kind of overflight.

Section 6303.30  What special provisions apply to operations under the 
mining laws? (Section 6303.11)

    A few comments addressed this section. One comment argued that 
subordination of mining activities to the provisions of the Wilderness 
Act violates section 102(b) of FLPMA (43 U.S.C. 1701(b)). Section 
102(b) limits only the effectiveness of the policies of FLPMA, not any 
other legislation, including the Wilderness Act. This provision has no 
effect on the relationship between the Wilderness Act and the mining 
laws.
    One comment stated that either casual use (a term defined in 43 CFR 
3809.0-5) in a wilderness area should not be exempt from having a plan 
of operations under 43 CFR subpart 3809, or this rule should include a 
requirement that casual use be conducted in a manner that preserves the 
wilderness character of the land.
    Amendment of the requirements of subpart 3809 is beyond the scope 
of this rule. This rule has no effect on subpart 3809, except that it 
imposes additional requirements on mining operations in wilderness. 
However, the proposed rule at section 6303.30(b) and (d) required all 
mining operations, which would include casual use, to be conducted 
under the standards in the wilderness designation legislation, and to 
comply with BLM's requirements imposed to protect wilderness values. 
These provisions are renumbered and consolidated into one paragraph in 
the final rule. We do not believe a special provision for casual use is 
necessary.
    One comment pointed out that the wording of paragraph (d) in the 
proposed rule requiring compliance ``with all reasonable requirements 
established by BLM'' implies that some BLM requirements may be 
unreasonable and that miners need not comply with those. This paragraph 
also raises the question of who determines reasonableness, to the 
extent that it would provide a legal basis for appeals. BLM has removed 
this provision in the final rule because paragraph (b)(1) makes it 
redundant.
    One comment asserted that paragraphs (a), (b), (c), and (f) 
substantially restate the law and are not needed, that paragraphs (d) 
and (e) may be considered a taking under Executive Order 12630, and 
that paragraph (h) is unnecessary. BLM promulgates regulations to 
implement the law. Consequently, all regulations reflect the laws on 
which they are based, and these paragraphs are included for 
completeness. Requiring that mining claimants protect wilderness values 
consistent with use of a mining claim or site for mineral activities, 
and requiring reclamation and removal of improvements within a 
reasonable time after termination of mining activities, do not 
constitute takings of private property under the cited Executive Order. 
The information in subparagraph (h) was removed because it was 
substantially covered in the sections on information gathering.
    We have also amended this section in the final rule to consolidate 
in paragraph (b) portions of paragraphs (b), (d), and (g) of the 
proposed rule that duplicate each other. These three paragraphs address 
how you must conduct your mining operations to protect wilderness.
    One comment stated that the one-year deadline for removal of 
equipment and improvements, and the six-month deadline for beginning 
reclamation, may not be long enough, especially at high altitudes or 
latitudes. It claimed that the reclamation and environmental protection 
requirements are too vague, and asked for clarification as to time for 
completion of activities, reclamation standards, ending operations, and 
the relationship of the requirement that structures be removed with 
historic preservation requirements.
    To answer these concerns, we have amended paragraph (e) to link the

[[Page 78367]]

reclamation requirements in the final rule to the regulations in 43 CFR 
subpart 3809. The final rule requires claimants and operators to remove 
their equipment and structures and begin reclamation within the time 
frames established in their plan of operations approved by BLM, but no 
later than 18 months after they have ceased mining and extraction 
operations. The regulatory provisions are somewhat flexible to 
accommodate regional differences, keeping in mind the direction in the 
Wilderness Act to restore the surface as soon as operations are ended. 
We believe that the environmental protection requirements in the 
regulations are appropriate for mining in a wilderness setting. As for 
historic preservation and other legislative requirements, a mining 
operator who is ready to reclaim must prepare a reclamation plan that 
addresses such issues.
    One comment said that mining should be prohibited in BLM 
wilderness. As of midnight, December 31, 1983, the location of new 
mining claims became statutorily prohibited in wilderness, but the 
Wilderness Act specifically recognizes valid existing rights, including 
the right to mine valid claims that existed at the time the wilderness 
was designated and have been properly and continuously maintained since 
that time. Another comment suggested that BLM require miners to use the 
minimum tools necessary, in order to protect the land and wilderness 
values. The Wilderness Act does not provide authority to impose this 
requirement.
    On May 22, 1998, the Solicitor of the Department of the Interior 
issued an opinion entitled ``Patenting of Mining Claims and Mill Sites 
in Wilderness Areas,'' M-36994. Consistent with established case law 
interpreting comparable statutes restricting patenting, the Solicitor's 
Opinion concludes that section 4(d)(3) of the Wilderness Act requires a 
reservation of the surface estate to the United States in all patents 
where the claimant had not established a right to a patent as of the 
date the lands on which the claim is situated are designated as 
wilderness. The Solicitor strongly recommended that BLM amend its 
wilderness regulations to provide guidelines for patenting that comport 
with the Opinion. Accordingly, BLM will publish shortly a new proposed 
rule proposing to amend part 6300 as promulgated in today's final rule. 
This new proposed rule would set forth the patenting limitation and 
related requirements and clarify BLM's patenting procedures. This final 
rule reserves a subparagraph in the mining law administration section 
for this proposed subparagraph.
    The final rule also reserves a subparagraph in the mining law 
administration section for a proposed subparagraph on timber use for 
mining activities. The proposed rule would have removed from the 
regulations paragraph (i) of section 8560.4-6, which specified that 
owners of patented mining claims located after the lands were included 
in the National Wilderness Preservation System could use timber growing 
on the patented claims only for mining and mineral extraction and 
beneficiation purposes, and only if timber otherwise reasonably 
available is insufficient for these needs. This provision appears in 
the wilderness regulations in the 1997 edition of the Code of Federal 
Regulations, but the proposed rule omitted it. No public comments 
addressed its removal. Because the existing section 8560.4-6(i) could 
be read to imply a conflict with the Solicitor's Opinion, BLM chose not 
to incorporate the language from the existing regulations into this 
final rule. Instead, we will propose, as part of the new rule mentioned 
above, a revised timber provision that would address timber use for 
mining operations on both patented and unpatented claims.

Section 6303.31  How will BLM determine the validity of unpatented 
mining claims or sites? (Section 6304.12)

    This section attracted few comments. One comment stated that 
validity examinations should not be imposed on mining claimants because 
they would interfere with valid existing rights. The Wilderness Act 
allows mining under valid existing rights only, and thus by implication 
authorizes determination by the appropriate administrative authority 
whether the rights claimed are, in fact, valid.
    Another comment requested that BLM make clear (1) whether existing 
approved mining operations are allowed to continue during the validity 
examination; (2) that BLM reserves the right to impose mitigation 
measures; and (3) that BLM must verify the validity of all lode and 
placer claims affected by a proposed plan of operations. In response to 
the first concern, we have amended the final rule to allow BLM to 
determine on a case-by-case basis whether operations may begin or 
continue pending a validity examination. As to the second part of the 
comment, operational standards are covered in 43 CFR subpart 3809. 
Finally, as to the third part, the final rule requires BLM to make a 
validity determination before approving a plan of operations.
    One comment suggested re-wording paragraph (a) of this section to 
make it clear that the claim must be valid when the area becomes 
wilderness, not just on some date ``prior to'' the wilderness 
designation. BLM adopts this comment, in part, in the final rule to 
make it clear that the validity must be ``as of'' the date of 
wilderness designation.

Section 6303.40  What special provisions apply to mineral leasing and 
material sales? (Section 6304.23)

    A few comments addressed this section. One asserted that the 
proposed rule did not clearly recognize rights under valid existing 
leases, licenses, and permits. It went on to say that such 
authorizations should continue under existing legal requirements or the 
government should compensate the owner. We disagree with the initial 
premise of the comment: the regulatory text clearly recognizes valid 
existing rights. There is no need to provide for compensation, since 
the regulations allow development of valid existing rights.
    One comment suggested that BLM should amend paragraph (b) to 
provide that activities for which a lease, license, or permit was 
issued may continue but must be conducted in a manner that preserves 
the wilderness character of the land. There is no authority in the 
Wilderness Act for such a provision.
    Finally, we removed paragraph (c) of the proposed rule because 
paragraph (a) renders it redundant.

Section 6303.50  What special provisions apply to water and power 
resources? (Section 6304.24)

    A few comments addressed this section, which deals with the 
specific authority in the Wilderness Act for the President of the 
United States to authorize certain water resource prospecting and 
development. The comments raised issues relating to wildlife water 
development and State government prerogatives. One comment said that 
the provision should be removed from the proposed rule because its 
implementation would damage public lands wilderness. Since the 
regulation is based directly on a Wilderness Act provision, it is not 
changed in the final rule except to substitute a codification of the 
cite to the Act. The provision has no bearing on State water 
development authority.

[[Page 78368]]

Section 6303.60  What special provisions apply to livestock grazing? 
(Section 6304.25)

    A number of comments addressed this section, some objecting to 
grazing in wilderness, an activity specifically allowed by the 
Wilderness Act, and others suggesting various limitations on grazing 
and related developments. A few of the comments questioned BLM's 
authority to restrict existing uses or to limit maintenance and 
reconstruction of grazing support facilities. Under the Wilderness Act, 
the Federal land managing agency with jurisdiction over a wilderness 
area will permit you to continue grazing livestock, subject to 
reasonable regulations, where your grazing authorization was already 
established when Congress designated the wilderness and has continued 
since. We consider it to be reasonable regulation to restrict livestock 
increases, and to prohibit construction of additional facilities, 
unless they can be shown necessary for purposes of protection and 
improved management of wilderness resources.
    One comment suggested that the regulations include provisions for 
prevention and correction of resource damage and for allocation of 
forage among livestock, wildlife, and pack stock. Another asked that 
the regulations include authority for reduction of grazing levels if 
resources are being damaged. These matters are covered in BLM's 
regulations on range management. See 43 CFR subparts 4130 and 4180.
    One comment asked for special accommodations for grazing by 
livestock of Indian tribes, and recommended that the regulations 
provide for tribal consultation as to grazing decisions on BLM lands 
adjacent to tribal lands. It also addressed a specific development 
concern in a wilderness study area.
    The final rule has no bearing on wilderness study areas, and the 
respondent's concern will have to be addressed in the wilderness study 
process. As for consultation, it is often provided for in other laws 
and regulations. There is no authority either in the Wilderness Act or 
in BLM's range management regulations or other grazing authority for 
special treatment for Indian tribes as to grazing in wilderness areas 
or on any other public lands. We have not changed the final rule in 
response to this comment.
    One comment suggested that BLM remove the final sentence of the 
section, allowing increases in grazing levels if they will not 
adversely affect wilderness values. Removal of the provision would 
leave no standard in the regulations for deciding whether to allow a 
requested increase in grazing in wilderness. We believe that no 
``adverse impact on wilderness values'' is a standard sufficiently 
strict to apply in such cases.

Section 6303.70  What special provisions apply to other commercial 
uses?

    Fewer than 10 comments addressed this section. The Wilderness Act 
provides that commercial services may be performed in wilderness to the 
extent necessary for activities proper for realizing the recreational 
and other wilderness purposes of the area (16 U.S.C. 1133(d)(5)). One 
comment said that the regulations should require wilderness management 
plans to include a needs assessment for such commercial activities. BLM 
planning regulations, which apply to wilderness as well as other public 
lands, already require a needs analysis. See 43 CFR 1610.4. Such a 
provision is unnecessary in these regulations.
    One comment suggested that the regulations should prohibit 
permanent or seasonal structures or caches for recreation, or only 
allow very primitive and ephemeral base camps. Another comment asked 
that the regulations require NEPA analysis and public review for all 
decisions on temporary structures. Again, this is covered in BLM's 
planning regulations--see the previous paragraph. The final rule does 
not allow temporary structures in BLM wilderness except under the 
regulations in 43 CFR subpart 3715 on use and occupancy of mining 
claims.
    One comment asked that ``wilderness education'' or ``educational'' 
be added as one of the permissible purposes for commercial use of 
wilderness. This addition is unnecessary--education is included in 
``other wilderness purposes.''
    One comment suggested that commercial hunting be prohibited. We 
assume the comment refers to commercial guiding and outfitting for 
hunters. Commercial outfitters often serve as guides for hunters, and 
this activity is considered among the recreational purposes 
contemplated in the Wilderness Act.
    Upon reviewing these comments, and because the final rule does not 
permit either permanent or temporary structures in BLM wilderness, we 
have concluded that this section is unnecessary. We have removed it 
from the final rule.

Section 6303.80  What special provisions apply to administrative and 
emergency functions? (Subpart 6303 and Section 6304.22)

    A few comments addressed this section, some saying the provision 
was too restrictive, and others saying it was too permissive. Some said 
that these provisions should include a minimum tool requirement, that 
BLM should carry out administrative functions with the minimum tools 
necessary to minimize damage to the wilderness. BLM has not adopted the 
comment in the regulations. The standard is not appropriate for 
emergencies, and BLM can apply it in other situations as a matter of 
policy.
    One comment stated that the regulations should not place sole 
authority in the hands of BLM, States, and counties without imposing 
more stringent and more detailed standards. We believe that the level 
of detail in the regulations is appropriate for regulations with 
national effect. The regulations provide local managers with the 
discretion and flexibility they need to be effective wilderness 
managers. Also, regulations are for the guidance and instruction of the 
public, not BLM personnel. Internal guidance is found in the BLM 
Manual, instruction memoranda, and other documents.
    One comment stated that the regulations should require that motor 
vehicles and aircraft be used for rescues, fire-fighting, fighting pest 
infestations, and trail maintenance and construction. The regulations 
allow such use, but it would be unnecessary and inappropriate to 
require it in every case. Another comment, on the other hand, stated 
that the regulations should include a preference for use of non-
motorized equipment. The regulations include no such preference, and 
are silent on the matter. We do not believe it is appropriate to place 
anything in regulations that may hamper emergency personnel and place 
life and property at undue risk.
    One comment asked whether the reference in proposed paragraph (c) 
to ``property'' is to public or private property. BLM intends no 
distinction between the two in the context of fire and pest 
emergencies. In the final rule, we moved this paragraph to new section 
6304.22, while the remainder of the section becomes a separate subpart 
6303, which addresses BLM administrative functions.
    The same comment asked for clarification on the application of the 
rule to protection of wilderness users, to entry into wilderness by law 
enforcement officers, and whether BLM will prescribe emergency measures

[[Page 78369]]

before or after the emergency. A separate comment opposed allowing 
occupancy and use by non-BLM officials. Paragraph (d) in the proposed 
rule clearly stated that emergency measures are to apply in cases of 
danger to ``health and safety of persons.'' This clearly includes 
wilderness users, and the meaning is made clearer by adding, from the 
Wilderness Act itself, the phrase ``in the area'' to apply to 
``persons.'' The rule also states that BLM may authorize occupancy and 
use of wilderness by law enforcement officers. We have kept the 
provision discretionary in order to maintain maximum flexibility in 
protecting health and safety; there may be occasions where it would be 
inappropriate to require BLM to give free rein to non-Federal agencies, 
or to establish emergency measures and procedures in advance of the 
emergency. On the other hand, the Wilderness Act does not prohibit BLM 
from cooperating with officials of other agencies, and BLM policy is to 
cooperate with State and local governments to the maximum extent 
feasible and appropriate.
    One comment urged that the regulations include provisions 
authorizing BLM to use prescribed burns in appropriate situations. We 
believe that paragraph (b) of this section (section 6303.1(c) of the 
final rule) is broad enough to allow prescribed fire as a management 
tool in BLM wilderness. This paragraph allows BLM to authorize Federal, 
State, and local officials to occupy and use the wilderness areas in 
order to carry out the purposes of the Wilderness Act or other law.
    One comment suggested that feral species and cowbirds should be 
included, along with fire, insects, and disease, as pests that BLM is 
authorized to use aircraft to control. The comment is not adopted in 
the final rule. The Wilderness Act specifies only fire, insects, and 
disease.
    Another comment stated that the provisions for administration, 
fire, emergencies, insect and noxious weed control need to be more 
restrictive. We believe that we allowed a level of discretion in the 
proposed and final rule appropriate for a national regulation. However, 
we have amended the provision to remove the requirement that control of 
fire, insects, and disease be tied to threats to human life or 
property. The Wilderness Act does not limit control of fire, insects, 
and disease to situations where life or property is in danger. In order 
to carry out our responsibility for preserving the wilderness character 
of BLM wilderness areas, we have also added non-native invasive plants 
to the list of problems to which BLM may apply control measures under 
this section.
    One comment stated that the rule should not provide for emergency 
rescue. We did not adopt this comment because Section 4(c) of the Act 
specifically provides for the use of aircraft, motor vehicles, and so 
forth, in emergencies involving the health and safety of persons within 
the area.
    One comment stated that BLM's emergency actions that involve acts 
that are otherwise prohibited, such as cutting trees or using a 
motorized climbing drill, should not be considered a violation of the 
regulations. We agree. Section 4(c) of the Wilderness Act states that 
emergencies involving the health and safety of persons within the area 
are exceptions to the prohibitions in the Act--and the rule should be 
interpreted in this way.
    Several comments offered specific suggestions for rewording certain 
provisions. BLM adopted some suggestions: adding references to 
temporary roads, motor vehicles, structures, and landing aircraft in 
paragraph (a), and, to conform with the Wilderness Act, adding the 
phrase ``in the area'' to paragraph (d). We rejected other suggestions 
as overly restricting administrative discretion. One such comment 
suggested that the final rule should prohibit most of the 
administrative measures that the proposed rule sanctioned. We did not 
adopt this suggestion, because to do so would be contrary to the 
Wilderness Act.
Subpart 6304  Access to State and Private Lands Within Wilderness Areas 
(Subpart 6305)
    This subpart is renumbered 6305 in the final rule to accommodate 
new subpart 6303 on BLM administrative functions.

Section 6304.20  How will BLM give access to State and private land 
within wilderness areas when the access is affected by wilderness 
designation? (Sections 6305.10, 6305.20, and 6305.30)

    Several comments addressed this section, which provides for access 
to inholdings. ``Inholdings'' in these regulations are State and 
private lands completely surrounded by designated wilderness. Several 
comments addressed matters that are covered in other regulations, 
primarily 43 CFR part 2920 on general leases, permits, and easements. 
The regulations in part 2920 authorize, among other things, ``uses that 
cannot be authorized under Title V of the Federal Land Policy and 
Management Act . . .'' (43 CFR 2920.1-1(a)). Title V of FLPMA (43 
U.S.C. Chapter 35, Subchapter V, Sections 1761-1771) expressly excludes 
wilderness from those lands across which BLM may grant rights-of-way 
under Title V. For this reason, part 2920, which provides for legal 
mechanisms other than Title V rights-of-way, is the actual authority 
used to provide access to wilderness inholdings.
    Where valid existing rights to access do not exist, BLM may give 
access to inholdings by permit under existing part 2920, using its 
administrative discretion under this final rule to determine what 
access is adequate and causes the briefest and most limited impacts on 
wilderness character. BLM is preparing a revised version of part 2920 
that would provide specific mechanisms for authorizing access to 
inholdings.
    In accordance with these final wilderness management regulations, 
BLM will only approve the kind and degree of access that you enjoyed 
immediately before the wilderness area across which you must travel to 
reach your inholding was designated as wilderness and BLM determines 
will serve the reasonable purposes for which the non-Federal lands are 
held or used and cause the least impact on wilderness character. By 
providing for BLM land managers to approve only access routes that were 
in existence at the time of wilderness designation, the final rule in 
many cases effectively ratifies the inholder's original choice of route 
and mode of travel. If no access (other than travel by foot, horseback, 
or packstock) existed at the date of wilderness designation, BLM will 
only approve that combination of routes and non-motorized modes of 
travel to non-Federal inholdings that BLM determines will serve the 
reasonable purposes for which the non-Federal lands are held or used 
and cause the least impact on wilderness character. If you have a valid 
existing access right that is greater than the access BLM provides 
under this rule, we will ensure your reasonable use and enjoyment of 
your inholding. However, we may impose reasonable restrictions on your 
access to protect wilderness values.
    One comment maintained that rights of access exist independently 
and are not granted by BLM authority, and that BLM does not have 
authority to tell private land owners what mode of travel they must 
use. Section 4(c) of the Wilderness Act (16 U.S.C. 1133(c)) recognizes 
that valid rights of access may exist in designated wilderness. BLM may 
nevertheless regulate such existing rights to access in order to 
protect wilderness resources. Section

[[Page 78370]]

302(b) of FLPMA directs the Secretary of the Interior, ``by regulation 
or otherwise, [to] take any action necessary to prevent unnecessary or 
undue degradation of the lands.'' The final regulations specifically 
implement this authority by providing at section 6305.10 that such 
rights are subject to reasonable regulation.
    One comment stated that, for areas surrounded on only three sides 
by wilderness but where access on the non-wilderness side may not be 
possible, the regulations should allow access via the wilderness. 
Section 5 of the Wilderness Act does not apply to private or State land 
that is near or adjacent to wilderness, or only partly surrounded by 
wilderness. Section 5 provides for access only to State and private 
land that ``is completely surrounded by'' public land ``within areas 
designated by this Act as wilderness...'' (16 U.S.C. 1134(a)). Private 
or State land that is near or adjacent to wilderness would not be an 
inholding as defined in these regulations, and we cannot adopt the 
comment in the final rule.
    One comment asked whether BLM will use written or verbal 
authorization to grant access to inholdings. The authorization must be 
in writing, and we have added this clarification in the final rule. The 
same comment asked for clarification of ``means that are customarily 
being used'' for determining the type of access allowed, and for 
assurance that new roads will not be allowed except for mining claims 
with valid existing rights. The final rule does not allow construction 
of new roads. You may maintain existing access routes to the degree you 
or your predecessors maintained them at the time of wilderness 
designation. BLM will not allow you to upgrade your access routes 
beyond the condition that existed on the date Congress designated the 
area as wilderness, unless the improvement would protect wilderness 
resources from degradation. Further, the customary usage language in 
section 5 (b) of the Wilderness Act pertains only to mining claims and 
other valid occupancies, not to access to State and private inholdings 
provided for in Section 5(a).
    One comment stated that the regulations need to acknowledge State 
and local government jurisdiction over R.S. 2477 rights-of-way. The 
regulations are silent on how such rights may be recognized. BLM is 
forestalled by a 1997 statute from promulgating regulations on R.S. 
2477 rights-of-way without Congressional consent (Pub. L. 104-208, 110 
Stat. 3009-181, 3009-200).
    One comment stated that the regulations should use the term 
``inholding,'' as defined in the definitions section, and provide that 
inholdings do not include unpatented mining claims and grazing leases, 
but should state that these uses have special rights to access under 
the Wilderness Act. In response, we divided the access section to show 
more clearly the rights of mining claimants and persons with other 
valid occupancies.
    Two comments criticized the proposed rule's use of the term 
``customarily used'' as a standard for permitting means of access to 
mining claims and other valid occupancies within wilderness, asserting 
this standard would not protect wilderness. In the final rule, we have 
substituted the term ``customarily enjoyed.'' Section 5(b) of the 
Wilderness Act contains that standard and we may not use a different 
one.
    One comment stated that, according to the United States Attorney 
General's Opinion of June 23, 1980, BLM need not provide access under 
the Wilderness Act to inholdings if the owner of the inholding has 
refused a reasonable offer of exchange. The Attorney General's Opinion 
addressed the authorities of the Forest Service. It has not yet been 
determined if the 1980 opinion applies to BLM acquisition of inholdings 
by exchange. In the event the opinion is determined applicable to BLM, 
this final rule allows for that possibility. Even so, however, BLM's 
policy will be to exercise that authority only in unusual or extreme 
circumstances. The final rule, therefore, allows BLM to acquire land or 
interests in land from a landowner by exchange, by accepting donation 
of the inholding or, if the landowner agrees, by purchase. Further, we 
encourage inholders to seek a fair exchange of their inholding for 
other public land in the same State (as provided by Sec. 5(a) of the 
Wilderness Act), and we expect BLM local land managers to explore this 
possibility in all wilderness inholding cases. Before issuing any 
authorization allowing access to State-owned or privately owned land, 
BLM will discuss with the property owner the possibility of selling or 
donating the inholding to BLM, or exchanging it for other public land.

III. Final Rule as Adopted

    The following table shows how BLM redesignated sections in the 
proposed rule or created new sections in the final rule.

------------------------------------------------------------------------
             Proposed rule                          Final rule
------------------------------------------------------------------------
Part 6300..............................  Part 6300
Subpart 6301...........................  Subpart 6301
Sec....................................  Sec.
6301.10................................  6301.1
6301.30................................  6301.3
6301.50................................  6301.5
Subpart 6302...........................  Subpart 6302
Sec....................................  Sec.
6302.10................................  6302.11
6302.20(a).............................  6302.12(a)
6302.20(b).............................  6302.12(b)
6302.20(c).............................  6302.13
6302.30................................  6302.19
6302.40(a).............................  6302.16
6302.40(b).............................  6302.15(a)
6302.40(c).............................  6302.15(b)
6302.41................................  6302.15
6302.50................................  6302.17
6302.60................................  6302.18
6302.70................................  6302.20
6302.70(j).............................  6302.14, 6302.20(j)
6302.80................................  6302.30
Subpart 6303...........................  Subpart 6304
Sec....................................  Sec.

[[Page 78371]]

 
6303.10................................  removed
6303.20................................  6304.21
6303.30................................  6304.11
6303.31................................  6304.12
6303.40................................  6304.23
6303.50................................  6304.24
6303.60................................  6304.25
6303.70................................  6302.20(f)
6303.80................................  Subpart 6303
6303.80(c).............................  6304.22
Subpart 6304...........................  Subpart 6305
Sec....................................  Sec.
6304.20(a).............................  6305.10, 6505.11
6304.20(b).............................  6305.20
6304.20(c).............................  6305.30
------------------------------------------------------------------------

    We have tried in this renumbering to make the organization more 
logical and the regulations flow better and be more informative. We 
divided a few of the longer sections in the proposed rule into two or 
more shorter sections with informative headings.
    Also, we have arranged subject matter so that major subject matter 
headings (with section numbers ending in zero (0) and often with no 
regulatory content themselves), lead into two or more subordinate 
sections, with numbers ending in other than 0, providing detailed 
information and guidance. For example, sections 6304.11 and 6304.12 are 
subordinate to section 6304.10, and section 6304.20 immediately 
thereafter leads into a separate series of sections. We have also 
simplified some of the section headings, and minimized the use of ``yes 
or no'' questions.
    Subpart 6301 contains general information, a statement of purpose 
in section 6301.1, a reference to the statutory definition of 
wilderness in section 6301.3, and definitions in section 6301.5.
    Subpart 6302 discusses use of wilderness areas, when you need and 
how you get a permit, what you can do in wilderness without a permit 
(including rock climbing), and what acts the regulations totally 
prohibit. It concludes with a section on criminal and civil penalties 
for violating the prohibited acts.
    Subpart 6303 describes the administrative and emergency functions, 
except for fire, insect, and disease control, that BLM performs in 
wilderness.
    Subpart 6304 deals with the ``special provisions'' in Section 4(d) 
of the Wilderness Act. It contains the regulations for mining, 
prospecting and information gathering, mineral leasing, control of 
fire, insects, and disease, water development, livestock grazing, and 
commercial services related to recreation and other wilderness uses.
    Subpart 6305 covers access to wilderness inholdings, both those 
held as private property in fee simple by individuals, or as State 
land, and those legally occupied, such as mining claims.

IV. Procedural Matters

    The principal author of this final rule is Jeff Jarvis, Senior 
Wilderness Specialist, Wilderness, Rivers and National Trails Group, 
Office of the National Landscape Conservation System, assisted by Rob 
Hellie of the National Monuments and National Conservation Areas Group, 
and Ted Hudson of the Regulatory Affairs Group, all in the Washington, 
D.C., office. David Porter of the Colorado State Office, Ken Mahoney of 
the Arizona State Office, and Paul Brink of the California State 
Office, BLM, also assisted.

National Environmental Policy Act

    BLM has performed and documented an environmental assessment (EA), 
and has found that the rule is not a major Federal action significantly 
affecting the quality of the human environment under section 102(2)(C) 
of the National Environmental Policy Act of 1969, 42 U.S.C. 
4332(2)(C)(NEPA). Therefore, BLM is not required to write a detailed 
statement on the environmental impacts of the rule under NEPA. BLM has 
placed the EA and the Finding of No Significant Impact (FONSI), dated 
June 19, 2000, on file in the BLM Administrative Record. You may review 
these documents by contacting us at the address listed above (see 
ADDRESSES).

Executive Order 12866

    Following the criteria listed in section 3(f) of Executive Order 
12866, BLM has found that the rule is not a significant regulatory 
action. Therefore, this rule is not subject to review by the Office of 
Management and Budget under section 6(a)(3) of the Executive Order.

Executive Order 12630

    This rule does not represent a governmental action capable of 
interference with constitutionally protected property rights or result 
in a taking of private property under Executive Order 12630. It does 
not provide for the taking of any property rights or interests.
    One public comment suggested that the access provisions in subpart 
6305 may require a takings assessment under this Executive Order. 
Section 1(b) of the Executive Order states, in part, ``Executive 
departments * * * should account in decision-making for those takings 
that are necessitated by statutory mandate.'' The only non-Federal 
property directly affected by the rule is non-Federal land surrounded 
by designated wilderness, and the rule establishes procedures 
regulating access to such inholdings.
    There are fewer than 1,000 State and private inholdings in BLM 
wilderness areas in California and Arizona. These two States contain 
the great bulk of BLM designated wilderness. This is the approximate 
number of inholdings that may be affected by this provision of the 
rule. The rule establishes acquisition by BLM as the remedy of 
preference for resolving inholding problems. Inholders for whom an 
exchange or other acquisition arrangement will not work will likely 
need to apply for access under 43 CFR part 2920. Under BLM policy, we 
will grant access to such inholders appropriate for their level of use 
of the affected property and equivalent to that which they enjoyed 
before wilderness designation.

Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 5 
U.S.C. 601-612, to ensure that Government regulations do not 
unnecessarily or disproportionately burden small entities. The RFA 
requires a regulatory

[[Page 78372]]

flexibility analysis if a rule would have a significant economic 
impact, either detrimental or beneficial, on a substantial number of 
small entities. BLM has determined under the RFA that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    Several public comments maintained that section 6302.70(j) of the 
proposed rule would have a serious impact on small businesses. This 
argument was based on two premises: (1) that paragraph (j) would 
prohibit the use of fixed anchors and thereby virtually prohibit 
climbing, and (2) that the rule would affect many climbing areas.
    In Part II of this preamble, we explained that the Forest Service 
has begun a negotiated rulemaking. This process must be concluded 
before BLM can promulgate regulations on this matter. Therefore, we 
reserve a discussion of the supposed impacts of the rule on small 
business until such time as we publish a final rule containing a 
provision affecting climbing.
    None of the other provisions of the proposed rule attracted 
comments alleging negative effects on small business.
    The Small Business Administration established the Small Business 
and Agricultural Regulatory Enforcement Ombudsman and ten Regional 
Fairness Boards to receive comments from small businesses about Federal 
agency enforcement actions. The Ombudsman annually evaluates these 
enforcement activities and rates each agency's responsiveness to small 
business. If you wish to comment on enforcement aspects of this rule, 
you may call 1-888-734-4247.

Paperwork Reduction Act

    This final rule does not contain information collection 
requirements that require approval by the Office of Management and 
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

Unfunded Mandates Reform Act

    This rule will not result in any unfunded mandate to State, local, 
or tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. The rule will not establish a 
Federal mandate that may result in expenditures of $100 million or more 
in any one year by State, local, and tribal governments in the 
aggregate, or by the private sector. Therefore, BLM need not prepare a 
written statement of the anticipated costs and benefits of the rule in 
accordance with the Unfunded Mandates Reform Act (25 U.S.C. 1501-1571).
    The rule requires that State agencies comply with the Wilderness 
Act in carrying out their activities in BLM wilderness areas. For 
example, States will not be allowed to use motorized equipment or 
mechanical transport, or to land aircraft, in managing wildlife. This 
degree of limitation does not cross the financial threshold 
contemplated in the Unfunded Mandates Reform Act, and is required by 
Federal law.

Executive Order 12988

    The Department has determined that this rule meets the applicable 
standards provided in sections 3(a) and 3(b)(2) of Executive Order 
12988.

Executive Order 13132

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. The rule does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. The rule does 
not preempt State law. Several comments on the proposed rule questioned 
whether the rule would affect State management of fish and wildlife. 
This was the only arena where the public perceived potential conflict 
between BLM and the States. As stated several times earlier in this 
preamble, and as directed by both FLPMA and the Wilderness Act, this 
rule has no effect on the respective roles of Federal and State 
government in this area.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible 
effects on Federally recognized Indian tribes and have determined that 
there are no adverse effects on the tribes. The regulations 
specifically allow Indian use of BLM wilderness for religious 
ceremonies. Limitations imposed on Indians for the use of BLM 
wilderness in this rule are no different from limitations imposed on 
other groups, and are required by the Wilderness Act and FLPMA. The 
regulations have no effect on Indian governmental affairs, Indian 
reservations, or other Indian lands.

List of Subjects in 43 CFR Parts 6300 and 8560

    Penalties, Public lands, Reporting and recordkeeping requirements, 
Wilderness areas.
    For the reasons explained in the preamble, and under the authority 
of 43 U.S.C. 1740, chapter II, subtitle B of title 43 of the Code of 
Federal Regulations is amended as follows:

    Dated: November 28, 2000.
Sylvia V. Baca,
Assistant Secretary of the Interior.

    1. Subchapter F, consisting of Part 6300, is added to read as 
follows:

Subchapter F--Preservation and Conservation (6000)

Part 6300--Management of Designated Wilderness Areas

Subpart 6301--Introduction
Sec.
6301.1   Purpose.
6301.3   What is a BLM wilderness area?
6301.5   Definitions.
Subpart 6302--Use of Wilderness Areas, Prohibited Acts, and Penalties

Use of Wilderness Areas

6302.10   Use of wilderness areas.
6302.11   How may I use wilderness areas?
6302.12   When do I need an authorization and to pay a fee to use a 
wilderness area?
6302.13   Where do I obtain an authorization to use a wilderness 
area?
6302.14   What authorization do I need to climb in BLM wilderness?
6302.15   When and how may I collect or disturb natural resources 
such as rocks and plants in wilderness areas?
6302.16   When and how may I gather scientific information about 
resources in BLM wilderness?
6302.17   When may I use a wheelchair in BLM wilderness?
6302.18   How may American Indians use wilderness areas for 
traditional religious purposes?
6302.19   When may BLM close or restrict use of wilderness areas?

Prohibited Acts

6302.20   What is prohibited in wilderness?

Penalties

6302.30   What penalties apply if I commit one or more of the 
prohibited acts?
Subpart 6303--Administrative and Emergency Functions
6303.1   How does BLM carry out administrative and emergency 
functions?
Subpart 6304--Uses Addressed in Special Provisions of the Wilderness 
Act

Mining Under the General Mining Laws

6304.10   Mining law administration.
6304.11   What special provisions apply to operations under the 
mining laws?
6304.12   How will BLM determine the validity of unpatented mining 
claims or sites?

[[Page 78373]]

Other Uses Specifically Addressed by the Wilderness Act

6304.20   Other uses addressed in special provisions of the 
Wilderness Act.
6304.21   What special provisions cover aircraft and motorboat use?
6304.22   What special provisions apply to control of fire, insects, 
and diseases?
6304.23   What special provisions apply to mineral leasing and 
material sales?
6304.24   What special provisions apply to water and power 
resources?
6304.25   What special provisions apply to livestock grazing?
Subpart 6305--Access to State and Private Lands Or Valid Occupancies 
Within Wilderness Areas

Access to Non-Federal Inholdings

6305.10   How will BLM allow access to State and private land within 
wilderness areas?
6305.11   What alternatives to granting access will BLM consider in 
cases of State and private inholdings?

Access to Other Valid Occupancies

6305.20   How will BLM allow access to valid mining claims or other 
valid occupancies within wilderness areas?

Access Procedures for Valid Occupancies

6305.30   What are the steps BLM must take in issuing an access 
authorization to valid occupancies?

    Authority: 16 U.S.C. 1131 et seq.; 43 U.S.C. 1733, 1740, 1782.

Subpart 6301--Introduction


Sec. 6301.1  Purpose.

    This part governs the management of BLM wilderness areas outside of 
Alaska. It tells you what wilderness areas are, how BLM manages them, 
and how you can use them. These regulations also tell you what 
activities BLM does not allow in wilderness areas, the penalties for 
performing prohibited acts, and the special provisions for some uses 
and access that the Wilderness Act explicitly allows.


Sec. 6301.3  What is a BLM wilderness area?

    A BLM wilderness area is an area of public lands that Congress has 
designated for BLM to manage as a component of the National Wilderness 
Preservation System in accordance with the Wilderness Act of 1964. The 
Wilderness Act provides a detailed definition of wilderness that 
applies to BLM wilderness areas. See 16 U.S.C. 1131(c) and 43 U.S.C. 
1702(i).


Sec. 6301.5  Definitions.

    Terms used in this part have the following meanings:
    Access means the physical ability of property owners and their 
successors in interest to have ingress to and egress from State or 
private inholdings, valid mining claims, or other valid occupancies. It 
does not include rights-of-way or permits under section 501 of the 
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761) (FLPMA) 
or parts 2800 and 2880 of this chapter.
    Inholding means State-owned or privately owned land that is 
completely surrounded by Congressionally designated wilderness.
    Mechanical transport means any vehicle, device, or contrivance for 
moving people or material in or over land, water, snow, or air that has 
moving parts. This includes, but is not limited to, sailboats, 
sailboards, hang gliders, parachutes, bicycles, game carriers, carts, 
and wagons. The term does not include wheelchairs, nor does it include 
horses or other pack stock, skis, snowshoes, non-motorized river craft 
including, but not limited to, drift boats, rafts, and canoes, or 
sleds, travois, or similar devices without moving parts.
    Mining operations is defined in subpart 3715 of this chapter.
    Motor vehicle means any vehicle that is self-propelled.
    Motorized equipment means any machine that uses or is activated by 
a motor, engine, or other power source. This includes, but is not 
limited to, chainsaws, power drills, aircraft, generators, motorboats, 
motor vehicles, snowmobiles, tracked snow vehicles, snow blowers or 
other snow removal equipment, and all other snow machines. The term 
does not include shavers, wrist watches, clocks, flashlights, cameras, 
camping stoves, cellular telephones, radio transceivers, radio 
transponders, radio signal transmitters, ground position satellite 
receivers, or other similar small hand held or portable equipment.
    Primitive and unconfined recreation means non-motorized types of 
outdoor recreation activities that do not require developed facilities 
or mechanical transport.
    Public lands means any lands and interests in lands owned by the 
United States and administered by the Secretary of the Interior through 
BLM without regard to how the United States acquired ownership.
    Valid occupancy means an occupancy under a current permit, lease, 
or other written authorization from BLM to occupy public lands. For a 
definition of occupancy related to development of locatable minerals, 
see subpart 3715 of this chapter.
    Wheelchair means a device that is designed solely for use by a 
mobility-impaired person for locomotion, and that is suitable for use 
in an indoor pedestrian area.

Subpart 6302--Use of Wilderness Areas, Prohibited Acts, and 
Penalties

Use of Wilderness Areas


Sec. 6302.10  Use of wilderness areas.


Sec. 6302.11  How may I use wilderness areas?

    Unless otherwise provided by BLM, the Wilderness Act, or the Act of 
Congress designating the area as wilderness, all wilderness areas will 
be open to uses consistent with the preservation of their wilderness 
character and their future use and enjoyment as wilderness. In subpart 
6304 you will find provisions implementing the special provisions of 
the Wilderness Act that allow specific uses of wilderness areas. In 
Sec. 6302.20 you will find a list of acts that are explicitly 
prohibited within wilderness areas.


Sec. 6302.12  When do I need an authorization and to pay a fee to use a 
wilderness area?

    (a) In general, you do not need an authorization to use wilderness 
areas.
    (b) BLM may require an authorization and charge fees for some uses 
of wilderness areas. You must obtain authorization from BLM and pay 
fees to use a wilderness area when required by:
    (1) The regulations in this part (see Sec. 6302.15 on collecting 
natural resource materials, Sec. 6302.16 on gathering scientific 
information, and subpart 6305 on access to inholdings and valid 
occupancies);
    (2) Regulations in this chapter II--Bureau of Land Management, 
Department of the Interior--governing the specific activities in which 
you are engaged;
    (3) The management plan for the wilderness area; or
    (4) A BLM closure or restriction under Sec. 6302.19 of this part.
    (c) To determine whether you need an authorization under paragraph 
(b)(2) of this section, you should refer to the applicable BLM 
regulations for your particular activity.


Sec. 6302.13  Where do I obtain an authorization to use a wilderness 
area?

    You may request an authorization to use a wilderness area from the 
BLM field office with jurisdiction over the wilderness area you want to 
use.


Sec. 6302.14  What authorization do I need to climb in BLM wilderness?

    (a) You do not need a permit or other authorization to climb in BLM 
wilderness.
    (b) [Reserved]
    (c) You must not use power drills for climbing. See 
Sec. 6302.20(d).

[[Page 78374]]

Sec. 6302.15  When and how may I collect or disturb natural resources 
such as rocks and plants in wilderness areas?

    (a) You may remove or disturb natural resources for non-commercial 
purposes in wilderness areas, including prospecting, provided--
    (1) You do it in a manner that preserves the wilderness 
environment, using no more than non-motorized hand tools and causing 
minimal surface disturbance; and
    (2) (i) Your proposed activity conforms to the applicable 
management plan; or
    (ii) You have a BLM authorization if one is required by statute or 
regulation.
    (b) Where BLM allows campfires in a wilderness, you may gather a 
reasonable amount of wood for use in your campfire.


Sec. 6302.16  When and how may I gather scientific information about 
resources in BLM wilderness?

    (a) You may conduct research, including gathering information and 
collecting natural or cultural resources in wilderness areas, using 
methods that may cause greater impacts on the wilderness environment 
than allowed under Sec. 6302.15(a), if--
    (1) Similar research opportunities are not reasonably available 
outside wilderness;
    (2) You carry out your proposed activity in a manner compatible 
with the preservation of the wilderness environment and conforming to 
the applicable management plan;
    (3) Any ground disturbance or removal of material is the minimum 
necessary for the scientific purposes of the research; and
    (4) You have an authorization from BLM.
    (b) You must reclaim disturbed areas, and BLM may require you to 
post a bond.


Sec. 6302.17  When may I use a wheelchair in BLM wilderness?

    If you have a disability that requires the use of a wheelchair, you 
may use a wheelchair in a wilderness. Consistent with the Wilderness 
Act and the Americans with Disabilities Act of 1990 (42 U.S.C. 12207), 
BLM is not required to facilitate such use by building any facilities 
or modifying any conditions of lands within a wilderness area.


Sec. 6302.18  How may American Indians use wilderness areas for 
traditional religious purposes?

    In accordance with the American Indian Religious Freedom Act (42 
U.S.C. 1996), American Indians may use wilderness areas for traditional 
religious purposes, subject to the provisions of the Wilderness Act, 
the prohibitions in Sec. 6302.20, and other applicable law.


Sec. 6302.19  When may BLM close or restrict use of wilderness areas?

    When necessary to carry out the provisions of the Wilderness Act 
and other Federal laws, BLM may close or restrict the use of lands or 
waters within the boundaries of a BLM wilderness area, using the 
procedures in Sec. 8364.1 of this chapter. BLM will limit any such 
closure to affect the smallest area necessary for the shortest time 
necessary.

Prohibited Acts


Sec. 6302.20  What is prohibited in wilderness?

    Except as specifically provided in the Wilderness Act, the 
individual statutes designating the particular BLM wilderness area, or 
the regulations of this part, and subject to valid existing rights, in 
BLM wilderness areas you must not:
    (a) Operate a commercial enterprise;
    (b) Build temporary or permanent roads;
    (c) Build aircraft landing strips, heliports, or helispots;
    (d) Use motorized equipment; or motor vehicles, motorboats, or 
other forms of mechanical transport;
    (e) Land aircraft, or drop or pick up any material, supplies or 
person by means of aircraft, including a helicopter, hang-glider, hot 
air balloon, parasail, or parachute;
    (f) Build, install, or erect structures or installations, including 
transmission lines, motels, vacation homes, sheds, stores, resorts, 
organization camps, hunting and fishing lodges, electronic 
installations, and similar structures, other than tents, tarpaulins, 
temporary corrals, and similar devices for overnight camping;
    (g) Cut trees;
    (h) Enter or use wilderness areas without authorization, where BLM 
requires authorization under Sec. 6302.12;
    (i) Engage or participate in competitive use as defined in section 
8372.0-5(c) of this chapter, including those activities involving 
physical endurance of a person or animal, foot races, water craft 
races, survival exercises, war games, or other similar exercises;
    (j) [Reserved]; or
    (k) Violate any BLM regulation, authorization, or order.

Penalties


Sec. 6302.30  What penalties apply if I commit one or more of the 
prohibited acts?

    (a) If you commit a prohibited act listed in Sec. 6302.20 in a BLM 
wilderness area, you are subject to criminal prosecution on each 
offense. If convicted, you may be fined not more than $100,000 under 18 
U.S.C. 3571. In addition, you may be imprisoned for not more than 12 
months, as provided for by 43 U.S.C. 1733(a).
    (b) At the request of the Secretary of the Interior, the United 
States Attorney General may institute a civil action in any United 
States district court for an injunction or other appropriate order to 
prevent you from using public lands in violation of the regulations of 
this part.

Subpart 6303--Administrative and Emergency Functions.


Sec. 6303.1  How does BLM carry out administrative and emergency 
functions?

    As necessary to meet minimum requirements for the administration of 
the wilderness area, BLM may:
    (a) Use, build, or install temporary roads, motor vehicles, 
motorized equipment, mechanical transport, structures or installations, 
and land aircraft, in designated wilderness;
    (b) Prescribe conditions under which other Federal, State, or local 
agencies or their agents may use, build, or install such items to meet 
the minimum requirements for protection and administration of the 
wilderness area, its resources and users;
    (c) Authorize officers, employees, agencies, or agents of the 
Federal, State, and local governments to occupy and use wilderness 
areas to carry out the purposes of the Wilderness Act or other Federal 
statutes; and
    (d) Prescribe measures that may be used in emergencies involving 
the health and safety of persons in the area, including, but not 
limited to, the conditions for use of motorized equipment, mechanical 
transport, aircraft, installations, structures, rock drills, and fixed 
anchors. BLM will require any restoration activities that we find 
necessary to be undertaken concurrently with the emergency activities 
or as soon as practicable when the emergency ends.

Subpart 6304--Uses Addressed in Special Provisions of the 
Wilderness Act

Mining Under the General Mining Laws


Sec. 6304.10  Mining law administration.


Sec. 6304.11  What special provisions apply to operations under the 
mining laws?

    The general mining laws apply to valid existing mining claims and 
mill sites within BLM wilderness, except as provided in this section.

[[Page 78375]]

    (a) After the date on which the general mining laws cease to apply 
to a specific wilderness area--
    (1) You cannot locate a mining claim or establish any right to or 
interest in any mineral deposits discovered in that wilderness area; 
and
    (2) You cannot locate a mill site in that wilderness area.
    (b) If you hold a valid existing mining claim or mill site within a 
wilderness area--
    (1) You must conduct any mining operations following the applicable 
standards provided in--
    (i) The Wilderness Act;
    (ii) The legislation designating the wilderness;
    (iii) Your approved plan of operations;
    (iv) Subpart 3809 of this chapter; and
    (v) Subpart 3715 of this chapter;
    (2) You must minimize impairment of wilderness characteristics to 
the extent BLM determines practicable, consistent with the use of a 
valid claim or site for mineral activities; and
    (3) Your temporary structures used in mining operations are subject 
to the use and occupancy regulations in subpart 3715 of this chapter.
    (4) You must post a financial guarantee under subpart 3809 of this 
chapter in order to ensure completion of reclamation.
    (c) If you hold a valid mining claim, mill site, or tunnel site 
located in any BLM wilderness area before the general mining laws 
ceased to apply to that area, you may maintain your mining claim or 
site, so long as you comply with the general mining laws, the 
regulations in part 3830 of this chapter, and the Act of Congress 
designating the wilderness.
    (d) As required in your approved plan of operations, when you 
complete mining operations in a wilderness area--
    (1) You must remove all structures, equipment, and other facilities 
and begin reclamation as soon as feasible after mining operations end. 
However, you must start reclamation no later than 18 months after 
mining operations end.
    (2) You must restore the surface as near as practicable to the 
appearance and contour of the surface before mining operations began, 
following the regulations in subpart 3809 of this chapter.
    (e) [Reserved]
    (f) [Reserved]


Sec. 6304.12  How will BLM determine the validity of unpatented mining 
claims or sites?

    (a) BLM will conduct a mineral examination to determine whether 
your claim or site was valid as of the date that lands within the 
wilderness area were withdrawn from appropriation under the mining 
laws. We also will determine whether your claim or site remains valid 
at the time of the examination.
    (1) If you do not have an approved plan of operations, BLM must 
complete this validity determination before approving your plan of 
operations.
    (2) If you have a plan of operations that was approved before the 
wilderness designation, BLM will determine whether operations may begin 
or continue while we conduct the validity determination.
    (b) If BLM concludes that your mining claim lacks a discovery of a 
valuable mineral deposit or your claim or site is invalid for any other 
reason, we will disapprove your application for a plan of operations. 
For an existing approved operation, BLM may issue a notice ordering 
suspension or cessation of operations. We will begin contest 
proceedings to determine the validity of your mining claim or site 
under subpart E of part 4 of this title. However, you may take samples 
and gather other evidence to confirm or corroborate mineral exposures 
that were physically disclosed on the claim before the date the 
wilderness area was withdrawn.
    (c) If the Department of the Interior issues a final administrative 
decision declaring your claim or site null and void, you must cease all 
operations and complete all reclamation required under subpart 3809 of 
this chapter and Sec. 6304.11(d) of this part.

Other Uses Specifically Addressed by the Wilderness Act


Sec. 6304.20  Other uses addressed in special provisions of the 
Wilderness Act.


Sec. 6304.21  What special provisions cover aircraft and motorboat use?

    (a) Subject to such restrictions as BLM determines necessary to 
protect wilderness values, we may authorize you to land aircraft and 
use motorboats at places within any wilderness area if these uses were 
established and active at the time Congress designated the area as 
wilderness.
    (b) BLM may also authorize you to maintain, utilizing non-motorized 
means, aircraft landing strips, heliports or helispots that existed and 
were in active use when Congress designated the area as wilderness.


Sec. 6304.22  What special provisions apply to control of fire, 
insects, and diseases?

    BLM may prescribe measures to control fire, noxious weeds, non-
native invasive plants, insects, and diseases. BLM may require 
restoration concurrent with or as soon as practicable upon completion 
of such measures.


Sec. 6304.23  What special provisions apply to mineral leasing and 
material sales?

    (a) After Congress designates any area of public lands as 
wilderness, BLM will not issue mineral or geothermal leases, licenses, 
or permits under the mineral or geothermal leasing laws, or sales 
contracts or free use permits under the Materials Act (30 U.S.C. 601 et 
seq.)
    (b) You may continue to hold and operate mineral or geothermal 
leases, licenses, contracts, or permits under their original terms and 
conditions after Congress designates the affected BLM lands as 
wilderness.


Sec. 6304.24  What special provisions apply to water and power 
resources?

    If the President specifically authorizes you under 16 U.S.C. 
1133(d)(4)(1), BLM will permit you to prospect for water resources and 
establish new reservoirs, water-conservation works, power projects, 
transmission lines, and other facilities needed in the public interest, 
and to maintain such facilities.


Sec. 6304.25  What special provisions apply to livestock grazing?

    (a) If you hold a BLM grazing permit or grazing lease for land 
within a wilderness area, you may continue to graze your livestock 
provided that you or your predecessors began such use under a permit or 
lease before Congress established the wilderness area.
    (b) Your grazing activities within wilderness areas, including the 
construction, use, and maintenance of livestock management 
improvements, must comply with the livestock grazing regulations in 
part 4100 of this chapter.
    (c) If the management plan for the area allows, you may maintain or 
reconstruct grazing support facilities that existed before designation 
of the wilderness area. BLM will not authorize new support facilities 
for the purpose of increasing your number of livestock. The 
construction of new livestock management facilities must be for the 
purposes of protection and improved management of wilderness resources.
    (d) BLM may authorize an increase in livestock numbers only if you 
demonstrate that the additional use will not have an adverse impact on 
wilderness values.

[[Page 78376]]

Subpart 6305--Access to State and Private Lands Or Valid 
Occupancies Within Wilderness Areas

Access to Non-Federal Inholdings


Sec. 6305.10  How will BLM allow access to State and private land 
within wilderness areas?

    (a) If you own land completely surrounded by wilderness, BLM will 
only approve that combination of routes and modes of travel to your 
land that--
    (1) BLM finds existed on the date Congress designated the area 
surrounding the inholding as wilderness, and
    (2) BLM determines will serve the reasonable purposes for which the 
non-Federal lands are held or used and cause the least impact on 
wilderness character.
    (b) If you own land completely surrounded by wilderness, and no 
routes or modes of travel to your land existed on the date Congress 
designated the area surrounding the inholding as wilderness, BLM will 
only approve that combination of routes and non-motorized modes of 
travel to non-Federal inholdings that BLM determines will serve the 
reasonable purposes for which the non-Federal lands are held or used 
and cause the least impact on wilderness character.
    (c) If BLM approves your access route under paragraph (a) or (b) of 
this section, we will authorize it under part 2920 of this chapter.
    (d) BLM will not allow construction of new access routes to State 
and private inholdings in wilderness.
    (e) BLM will not allow improvement of access routes to a condition 
more highly developed than that which existed on the date Congress 
designated the area as wilderness, except such improvements BLM 
determines are necessary to protect wilderness resources from 
degradation.
    (f) If you own land completely surrounded by wilderness and you 
have a valid existing right of access which is greater than the access 
described in paragraph (a) or (b) of this section, BLM may manage such 
access to protect wilderness resources while ensuring your reasonable 
use and enjoyment of the inholding.


Sec. 6305.11  What alternatives to granting access will BLM consider in 
cases of State and private inholdings?

    To reduce or eliminate the need to use wilderness areas for access 
to State and private land, BLM may--
    (a) Accept donation of the inholding, or
    (b) Acquire the inholding from the owner by an exchange for 
federally owned land in the same State of approximately equal value or, 
if the owner concurs, by purchase.

Access to Other Valid Occupancies


Sec. 6305.20  How will BLM allow access to valid mining claims or other 
valid occupancies within wilderness areas?

    If you hold a valid mining claim or other valid occupancy wholly 
within a wilderness area, BLM will allow you access by means that are 
consistent with the preservation of the area as wilderness and that 
have been or are being customarily enjoyed with respect to other mining 
claims or similar occupancies surrounded by wilderness.
    (a) BLM approves plans of operation under subpart 3809 of this 
chapter. The plan of operation will prescribe the routes of travel that 
you may use for access to claims or sites surrounded by wilderness. 
These plans will also identify the mode of travel, and other conditions 
reasonably necessary to preserve the wilderness area.
    (b) BLM issues written authorizations under part 2920 of this 
chapter. Your authorization will prescribe the routes of travel that 
you may use for access to occupancies surrounded by wilderness. The 
authorizations will also identify the mode of travel and other 
conditions reasonably necessary to minimize adverse impacts on the 
natural resource values of the wilderness area.

Access Procedures for Valid Occupancies


Sec. 6305.30  What are the steps BLM must take in issuing an access 
authorization to valid occupancies?

    (a) Before issuing an access authorization to mining claims or 
other valid occupancies wholly surrounded by wilderness, BLM will make 
certain that:
    (1) You have demonstrated a lack of any existing access rights or 
alternate routes of access available by deed or under applicable State 
or common law and that access by non-federally owned routes is not 
reasonably obtainable;
    (2) Your combination of routes and modes of travel, including non-
motorized modes, will cause the least impact on the wilderness but, at 
the same time, will permit the reasonable use of the non-Federal land, 
valid mining claim, or other valid occupancy; and
    (3) The location, construction, maintenance, and use of the access 
route that BLM approves will be as consistent as possible with the 
management of the wilderness area.
    (b) After issuing an access authorization, BLM will make certain 
that you situate and build the route that BLM approves to minimize 
adverse impacts on the natural resource values of the wilderness area.

Subchapter H--Recreation Programs

PART 8560  [Removed]

    2. Group 8500, part 8560, and subpart 8560 are removed.
[FR Doc. 00-31656 Filed 12-13-00; 8:45 am]
BILLING CODE 4310-84-P