Final Rule for Use and Occupancy Under the Mining Laws

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

DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3710
[WO–320–4130–02–24 1A]
RIN 1004–AC39

Use and Occupancy Under the Mining
Laws
Bureau of Land Management,
Interior.
ACTION: Final rule.
AGENCY:

The Bureau of Land
Management (BLM) is adopting
regulations addressing the unlawful use
and occupancy of unpatented mining
claims for non-mining purposes. This
rule sets forth the restrictions on use
and occupancy of public lands open to
the operation of the mining laws that
BLM administers in order to limit use
and occupancy to those involving
prospecting or exploration, mining, or
processing operations and reasonably
incidental uses. The rule establishes
procedures for beginning occupancy,
standards for reasonably incidental use
or occupancy, prohibited acts,
procedures for inspection and
enforcement, and procedures for
managing existing uses and
occupancies. It also provides for
penalties and appeals procedures. This
rule is necessary to prevent unnecessary
or undue degradation of the public
lands from uses and occupancies not
reasonably incident to mining. The rule
does not adversely affect bona fide
mining operations or alter BLM’s
regulations in 43 CFR Part 3800
pertaining to them. Terms used in this
preamble have the meaning given to
them in the rule.
EFFECTIVE DATE: August 15, 1996.
FOR FURTHER INFORMATION CONTACT:
Richard Deery, (202) 452–0353.
SUPPLEMENTARY INFORMATION:
SUMMARY:

I. Background.
II. Discussion of Final Rule and Response to
Comments.
III. Procedural Matters.

I. Background
The mining industry has played a key
role in both the settlement and
development of the American West. The
problem of occupancy of mining claims
on public lands by those who have no
intention of conducting legitimate
hardrock mineral prospecting,
exploration or extraction activities has
long been recognized. These
occupancies waste valuable resources
by hampering and discouraging the
activities of those who are engaged in

the legitimate development of our
mineral resources or other legitimate
uses of the public lands. This rule
establishes a framework for
distinguishing between bona fide uses
and occupancies and those that
represent abuse of the mining laws. The
purpose of this rule is to strengthen
BLM’s use of its enforcement authority
to combat abuse of the Mining Law of
1872 for non-mining pursuits.
The Mining Law of 1872
The Mining Law of 1872 is the Act of
May 10, 1872 (17 Stat. 91, 30 U.S.C. 22
et seq.) together with its judicial
interpretations. The law established the
basic statutory framework governing the
location of mining claims that is still in
practice today.
Under the law, a person can acquire
an interest in the public lands by the
proper location of a mining claim. A
prospector can go out on the public
lands, search for minerals and, upon
discovery of a valuable mineral deposit,
locate a claim to the lands upon which
the discovery is made. A prospector can
locate a claim by staking the corners of
the claim, posting a notice of the claim,
and filing or recording the claim
according to state and federal law.
The law did not operate without
conflict and controversy. After all, the
‘‘claim jumper’’ has become as much a
part of the folklore of the West as the
prospector and his mule. Two
noteworthy cases were decided in the
early part of this century that helped
define the scope of activities allowed on
unpatented mining claims.
One, Teller v. United States, 113 F.
273 (8th Cir. 1901), involved the cutting
of timber on an unpatented mining
claim. The court found that the owner
of the claim had the right to work the
claim for its minerals, but had no right
to cut timber or engage in other surface
activities unless the activities were
reasonably necessary to the mining
operation. The second case, United
States v. Rizzinelli, 182 F. 675 (D. Idaho
1910), involved the establishment of
saloons on unpatented mining claims.
This case stands for the principle that
surface uses of a claim can only be for
purposes ‘‘connected with or incident
to’’ exploration for, and recovery of,
minerals.
Surface Resources Act of 1955
In spite of all good intentions, by the
1950’s it had become clear that
widespread abuse of the general mining
law was taking place. People were
locating mining claims who either had
no intention of mining or who never got
around to it. Some of the uses taking
place on unpatented claims included

permanent residences, summer homes,
townsites, orchards, farms, a nudist
colony, restaurants, a rock museum, a
real estate office, hunting and fishing
lodges, filling stations, curio shops and
tourist camps. To deal with this,
Congress passed the Surface Resources
Act of 1955 (69 Stat. 367, 30 U.S.C. 601–
615), which included a provision that
any unpatented mining claim may not
be used for purposes other than
prospecting, mining or processing
operations and reasonably incident
uses.
Federal Land Policy and Management
Act of 1976
The Federal Land Policy and
Management Act of 1976 (90 Stat. 2743,
43 U.S.C. 1701 et seq.), also known as
FLPMA, directed the Secretary of the
Interior to take any action necessary to
prevent unnecessary or undue
degradation of the public lands. FLPMA
established a federal mining claim
recording system, which requires an
annual filing of an affidavit of
assessment work or a notice of intention
to hold a mining claim. It also
strengthened the Secretary’s
enforcement authorities by authorizing
the Secretary to issue regulations
necessary to implement FLPMA, the
violation of which are punishable by
civil and criminal penalties. In 1980,
BLM adopted regulations outlining
procedures and standards designed to
prevent hardrock mining operations
from causing unnecessary or undue
degradation of the public lands.
BLM’s 1980 Regulations
The 1980 regulations, found at 43 CFR
part 3800, address the management of
surface impacts from exploration and
mining operations, treating mining
operations differently depending on the
level of mining activity the operator
proposes. At the lowest level of activity,
called ‘‘casual use,’’ prospectors or parttime miners who cause only negligible
surface disturbance need not contact
BLM. An operator who exceeds this
negligible level of surface activity, but
keeps the amount of surface disturbance
below five acres per year, is required
only to file a notice with BLM 15 days
before commencing operations. The
operator does not have to obtain BLM’s
approval of the notice, nor obtain
bonding, except in special
circumstances. Operators proposing
mining operations causing more than
five acres of surface disturbance per
year are required to file a plan of
operations which sets out the details of
those operations. The operator must also
file a plan of operations if special
categories of land are involved, even if

Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules and Regulations
less than five acres per year will be
disturbed. BLM must approve the plan
before the operator may commence
operations.

received. Any changes in the final rule
from the proposed rules are identified in
the following detailed discussion of the
final rule.

Development of Proposed Regulations
In August 1990, the General
Accounting Office issued a report that
found some holders of unpatented
mining claims were using their claims
for unauthorized residences, nonmining commercial operations, illegal
activities, or speculative activities not
related to legitimate mining. See
Unauthorized Activities on Hardrock
Claims, GAO/RCED–90–111. These
unauthorized activities result in a
variety of problems, including blocked
access to public land; safety hazards,
including threats of violence;
environmental contamination;
investment scams; and increased costs
to reclaim the land. The report
recommended that BLM revise its
regulations to clearly state that
residency and nonmining commercial
activities are normally not authorized,
thereby shifting the burden of proof to
the claim holder to show that an activity
is incidental to mining. At a follow-up
hearing before the Subcommittee on
Mining and Natural Resources, House
Interior and Insular Affairs Committee,
in September 1990, the Director of BLM
and the Subcommittee agreed that while
occupancy reasonably incident to
prospecting, mining, and production is
legitimate, BLM field staff need a
satisfactory process for administering
and enforcing legal requirements.
After the September 1990 hearing,
BLM established a task force of
headquarters and field staff to
strengthen BLM’s ability to prevent
unauthorized uses and occupancies on
the public lands under the mining laws.
The task force drafted a proposal in late
1990 and discussed it in meetings with
miners and environmentalists in
Washington, D.C.; Denver, Colorado;
Spokane, Washington; and Sacramento,
California. Following these discussions,
a proposed rule adding a new subpart
3715 to the regulations at 43 CFR part
3710 was published in the Federal
Register on September 11, 1992 (57 FR
41846). Refer to the Federal Register
notice cited above for a full discussion
of the proposal. The 60-day comment
period closed on November 10, 1992.
BLM received 44 comments concerning
the proposal: 16 from individuals, 4
from mining businesses, 7 from
associations, 16 from offices of federal
agencies, and 1 from a state government
citizens’ advisory commission. As
discussed in the next portion of the
preamble to this final rule, BLM gave
full consideration to all comments

Regulatory Reform
In February 1995, the President
outlined his regulatory reform initiative,
which is intended to reduce
unnecessary regulatory burden and
overlap, create regulations with clearly
stated goals and objectives and
stimulate partnerships with regulated
parties. BLM undertook a page-by-page
review of its rules and identified about
1,000 pages in the Code of Federal
Regulations that would be eliminated,
streamlined or rewritten in ‘‘plain
English.’’ Plain English is a specific
writing technique that communicates
the information and legal requirements
of regulations more effectively through
the use of question-and-answer
headings, active voice, short sentences,
and tables, among other things.
Because the proposed rule was issued
before the regulatory reform initiative, it
was not written in plain English.
Readers of the final rule will quickly
note differences in the language and
format of the final rule as compared to
the proposal. Readers will also note that
final § 3715.4 addresses existing
occupancies. In the proposed rule, these
provisions were generally located in
§ 3715.7. BLM changed the location of
the existing occupancy provisions and
renumbered the intervening sections
accordingly as part of a reorganization
of the final rule. The conversion to plain
English does not affect the substantive
content of the rule. These changes are
intended to increase the clarity and
understandability of the rule. Any
substantive changes that BLM has made
in the final rule are fully described in
the following discussion.
To assist the reader in understanding
the difference between the proposed
rule and the final rule adopted today,
BLM has prepared the following table:

COMPARISON OF PROPOSED RULE AND
‘‘PLAIN ENGLISH’’ FINAL RULE
Proposed Rule
§ 3715.0–1 ....................
§ 3715.0–2 ....................
§ 3715.0–3 ....................
§ 3715.0–5 ....................
§ 3715.0–6 ....................
§ 3715.0–7 ....................
None .............................
§ 3715.1 ........................
§ 3715.2 (a) and (b) ......
§ 3715.2(c) ....................
§ 3715.2(d) ....................
§ 3715.3 (a)–(e) ............

‘‘Plain English’’
Final Rule
§ 3715.0–1
§ 3715.0–1
§ 3715.0–3
§ 3715.0–5
§ 3715.0–1
§ 3715.0–1
§ 3715.0–9
§ 3715.1
§ 3715.2
§ 3715.2–1
§ 3715.2–2
§ 3715.3

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COMPARISON OF PROPOSED RULE AND
‘‘PLAIN ENGLISH’’ FINAL RULE—Continued
Proposed Rule

‘‘Plain English’’
Final Rule

§ 3715.3(f) .....................
§ 3715.3(g) ....................

§ 3715.3–2
§ 3715.3–2 and
§ 3715.3–3
§ 3715.3–4
§ 3715.3–5(a) and
§ 3715.7–1(a)
§ 3715.3–5(b)
§ 3715.3–6
§ 3715.1
§ 3715.5(a)
§ 3715.3–1(b)
§ 3715.5 (b)–(e)
§ 3715.5–1(a)
§ 3715.5–1(b)
§ 3715.5–2
§ 3715.6
§ 3715.7 (a) and (b)
§ 3715.7–1(a)
§ 3715.4–3(c)
§ 3715.7–1(c)
§ 3715.7–1(d)
§ 3715.7–2
§ 3715.4(b)
§ 3715.4–1
§ 3715.4–2
§ 3715.4(a)
§ 3715.4–3
§ 3715.8(a)
§ 3715.8–1
§ 3715.9
§ 3715.9
Deleted
Deleted
Deleted
§ 3715.9–1
Deleted

§ 3715.3(h) ....................
§ 3715.3(h)(1) ...............
§ 3715.3 (h)(2) and (i)
§ 3715.3(j) .....................
§ 3715.3(k) ....................
§ 3715.4(a) ....................
§ 3715.4(b) ....................
§ 3715.4 (c)–(e) ............
§ 3715.4(f) .....................
§ 3715.4(f)(1) ................
§ 3715.4(f)(2) ................
§ 3715.5 ........................
§ 3715.6(a) ....................
§ 3715.6(b) ....................
§ 3715.6(c) ....................
§ 3715.6(d) ....................
§ 3715.6(e) ....................
§ 3715.6(f) .....................
§ 3715.7(a) ....................
§ 3715.7(b) ....................
§ 3715.7(c) ....................
§ 3715.7(d) ....................
§ 3715.7(e) ....................
§ 3715.8(a) ....................
§ 3715.8(b) ....................
§ 3715.9(a) ....................
§ 3715.9(b) ....................
§ 3715.9(c) ....................
§ 3715.9(d) ....................
§ 3715.9(e) ....................
3715.9(f) .......................
§ 3715.9(g) ....................

II. Discussion of Final Rule and
Response to Comments
Legal Basis and Purpose of the Final
Rule
These regulations carry out the
statutory requirements of section 4 of
the Surface Resources Act of 1955,
which states that mining claims are not
to be used for any purposes other than
prospecting, mining, or processing
operations, and uses reasonably
incident thereto (30 U.S.C. 612). Even
before 1955, the courts had long held
that the Mining Law of 1872 itself
entitled the mining claimant to use the
surface only for reasonably incident
purposes. See, for example, United
States v. Rizzinelli, 182 F. 675 (D. Id.
1910) and Bruce W. Crawford, 92 I.D.
208, 216 (1985).
Uses that are not reasonably incident
are not authorized by the mining laws
and should not be occurring on public
lands, unless they are authorized under
other authorities. Because illegal uses
should never occur on public lands, the
mere existence of an illegal use

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inherently constitutes ‘‘unnecessary or
undue degradation’’ of the public lands.
Consequently, these regulations clarify
that unauthorized uses and occupancies
on public lands constitute ‘‘unnecessary
or undue degradation’’ of the public
lands.
Section 302(b) of the Federal Land
Policy and Management Act gives the
Secretary of the Interior the duty to take
any action necessary to prevent
unnecessary or undue degradation of
the public lands. This duty arises in
section 302(b) in the context of the
Secretary’s obligation to manage the
public lands by regulating the use,
occupancy, and development of the
public lands. Accordingly, as applied to
this rule, ‘‘unnecessary or undue
degradation’’ includes those uses that
are not authorized by law, specifically
those activities which are not
reasonably incident and are not
authorized under any other applicable
law or regulation.
To the extent that uses are reasonably
incident and do not involve occupancy,
the surface management requirements of
43 CFR part 3800 govern the conduct of
those uses.
The purposes of the regulations in
this subpart are to—
(a) Distinguish between the allowable
and prohibited uses and occupancies
under the Mining Law of 1872 (30
U.S.C. 21 et seq.), section 4(a) of the
Surface Resources Act, (30 U.S.C. 612),
the Federal Land Policy and
Management Act (43 U.S.C. 1701 et
seq.), and other applicable law, to
ensure that mining claims and millsites
are not used, prior to issuance of patent
therefor, for any purposes other than
prospecting or exploration, mining, or
processing operations, and uses
reasonably incident thereto;
(b) Inform persons operating under
the mining laws of their basic rights and
responsibilities relative to use and
occupancy of public lands;
(c) Identify mining laws and
regulations applicable to use and
occupancy of public lands;
(d) Enumerate instances where use
and occupancy of public lands are
authorized under the mining laws, and
to set standards for such use or
occupancy;
(e) Enumerate prohibited acts relating
to use and occupancy of public lands
under the mining laws; and
(f) Provide for administrative
remedies and appropriate penalties for
cases of non-compliance with the
regulations in this subpart.
The rule does not adversely affect
bona fide mining operations or alter
BLM’s regulations in 43 CFR Part 3800
pertaining to them.

General Comments
Several comments from individuals
objected to the proposed rule as an
undue infringement on their use of a
mining claim. The rule does not,
however, infringe on lawful uses of the
public lands. Bona fide mining
operations will not be adversely affected
by the rule. The rule is necessary to
carry out the statutory responsibility to
manage the public lands and to enforce
the statutory restrictions on the use and
occupancy of the public lands for
reasonably incident activities.
Enforcement authority is found in
sections 302(c), 303(a), and 303(g) of the
Federal Land Policy and Management
Act of 1976 (FLPMA), the Unlawful
Occupancy and Inclosures of Public
Lands Act (43 U.S.C. 1201), and 18
U.S.C. 1001.
Section 3715.0–1 What are the
Purpose and Scope of This Subpart?
Final § 3715.0–1(a) describes the
purpose of subpart 3715. The purpose is
to manage the use of the public lands for
the development of locatable mineral
deposits by limiting use and occupancy
to that which is reasonably incident.
One comment suggested a change in
the policy provision, proposed
§ 3715.0–6, to provide added protection
for valid uses of mining claims. Another
comment suggested a wording change in
the policy provision, pointing out that
some older unpatented mining claims
may lie on lands that are withdrawn or
otherwise not now open to the operation
of the mining laws. However, these
claims are still subject to regulation
under the mining laws. BLM adopted
these comments in the final rule, with
language added to final § 3715.0–1
specifically to provide for protection of
valid uses of valid claims, regardless of
when created.
Final paragraph (b) states that the
subpart applies to public lands BLM
administers.
Final paragraph (c) states that these
regulations do not impair the right of
any person to engage in recreational
activities or any other authorized
activity on public lands BLM
administers. This paragraph was added
in response to concerns from
commenters that legitimate recreational
activities would be affected by the
regulations.
BLM formed this section of the final
rule from proposed §§ 3715.0–2,
3715.0–6, and 3715.0–7.
Section 3715.0–3 What are the Legal
Authorities for This Subpart?
This section enumerates the statutory
authority for the promulgation of these

regulations. The primary authorities
include the Mining Law of 1872, the
Surface Resources Act of 1955, the
Federal Land Policy and Management
Act, and the Unlawful Occupancy and
Inclosures of Public Lands Act.
Section 1 of the Mining Law of 1872
(30 U.S.C. 22) provides that, except as
otherwise provided by law, all valuable
mineral deposits in lands belonging to
the United States must be free and open
to exploration and purchase. It also
provides that the lands containing these
deposits must be open to occupation
and purchase under regulations
prescribed by law and the local customs
or mining district rules that are not
inconsistent with the laws of the United
States.
Section 15 of the Mining Law of 1872,
as amended (30 U.S.C. 42), provides that
a patent application for a lode claim
may include nonmineral land not
contiguous to the vein or lode only if it
is used or occupied for mining or
milling purposes. It also provides that a
patent application for a placer claim
may include nonmineral land only if it
is needed, used and occupied by the
proprietor of a placer claim for mining,
milling, processing, beneficiation, or
other operations in connection with that
claim.
Section 4 of the Surface Resources Act
(30 U.S.C. 612) states that any mining
claim located after July 23, 1955, under
the mining laws of the United States
must not be used, prior to issuance of
patent, for any purposes other than
prospecting, mining, or processing
operations, and reasonably incident
uses. Any such mining claim is also
subject, prior to issuance of patent, to
the right of the United States, its
permittees, and licensees, to use so
much of the surface as may be necessary
for management and disposition of
vegetative surface resources and
management of other surface resources,
or for access to adjacent land.
Several comments argued that pre1955 claims should be exempt from the
provisions of the rule. This position is
not adopted in the final rule. Such
claims are subject to the portions of the
regulations establishing whether a use
or occupancy is reasonably incident to
prospecting, mining, milling, and so
forth. While Section 4(a) of the Act of
July 23, 1955 (30 U.S.C. 601 et seq.) (the
1955 Act), provides that claims located
after that date are not to be used before
patenting for any purpose other than
prospecting, mining, or processing
operations, or uses reasonably incident
thereto, this provision merely restated
the law as it existed prior to its
enactment. (Bruce Crawford, 86 IBLA
325, 92 I.D. 208, 216, 221, n. 15). Cases

Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules and Regulations
cited in Crawford held that, as long ago
as 1910, uses of mining claims were
required to be reasonably incident to
mining. See United States v. Rizzinelli,
182 F. 675 (D. Id. 1910). The legislative
history of the 1955 Act shows clearly
that existing law prohibited uses of the
Mining Law for non-mineral-related
occupancies, and that a purpose of the
1955 Act was only to strengthen existing
tools for dealing with these situations.
See S. Rep. No. 554, 84th Cong., 1st
Session (1955). The Mining Law of 1872
itself states that ‘‘all valuable mineral
deposits in lands belonging to the
United States . . . shall be free and
open . . . to occupation . . . under
regulations prescribed by law. . . .’’ 30
U.S.C. 22. The patenting authority for
millsites also defines valid millsites as
those used for mining, milling,
processing, beneficiation, or other
operations. 30 U.S.C. 42. The citation to
that authority for millsites has been
added to the rule. However, BLM
concurrence that a use or occupancy on
a millsite is authorized under this rule
does not necessarily mean that the
millsite is valid for purposes of
complying with 30 U.S.C. 42. A validity
determination for patenting or for
establishing the underlying validity of a
millsite is separate from a BLM
concurrence in a proposed use or
occupancy on a millsite under this
subpart.
Section 302(b) of the Federal Land
Policy and Management Act (FLPMA)
(43 U.S.C. 1732(b)) directs the Secretary
to take all necessary actions to prevent
unnecessary or undue degradation in
managing the public lands to regulate
use, occupancy, and development of the
public lands.
Section 302(c) of FLPMA (43 U.S.C.
1732(c)) directs the Secretary to include
in all land use instruments a provision
authorizing revocation or suspension,
after notice and hearing, of such
instrument upon a final administrative
finding of a violation of any term or
condition of the instrument. This
section also provides that the Secretary
may order an immediate temporary
suspension of use, occupancy, or
development prior to a hearing or final
administrative finding if such a
suspension is necessary to protect
health, safety, or the environment.
Section 303(a) of FLPMA (43 U.S.C.
1733(a)) states that the Secretary must
issue regulations necessary to
implement the provisions of FLPMA
with respect to the public lands, and
sets forth basic penalties for violation of
such regulations.
Section 303(g) of FLPMA (43 U.S.C.
1733(g)) states that the use, occupancy,
or development of any portion of the

public lands contrary to any regulation
of the Secretary or other responsible
authority, or contrary to any order
issued under any such regulation, is
unlawful and prohibited.
Section 1 of the Unlawful Occupancy
and Inclosures of Public Lands Act (43
U.S.C. 1061 et seq.) prohibits inclosures
and exclusive use and occupancy of the
public lands, without claim or color of
title as described in the Act. The same
Act states, in summary, that no person,
by force, threats, intimidation, or by any
fencing or any other unlawful means,
may prevent or obstruct peaceful entry,
free passage or transit over or through
the public lands by another person.
43 U.S.C. 1201 states that the
Secretary of the Interior, or such officer
as the Secretary may designate, is
authorized to enforce and to execute, by
appropriate regulations, every part of
the provisions related to the public
lands not otherwise specially provided
for.
43 U.S.C. 1457 charges the Secretary
with the supervision of public business
relating to the public lands, including
mines.
18 U.S.C. 1001 states that whoever, in
any matter within the jurisdiction of any
department or agency of the United
States, knowingly falsifies, conceals, or
covers up by any trick, scheme, or
device a material fact, or makes any
false, fictitious, or fraudulent statements
or representations, or makes or uses any
false writings or document knowing the
same to contain any false, fictitious, or
fraudulent statement or entry, will be
fined not more than $10,000 or
imprisoned not more than 5 years, or
both.
The Sentencing Reform Act of 1984
(18 U.S.C. 3571 et seq.) authorizes fines
for Class A misdemeanors of up to
$100,000 for individuals and $200,000
for organizations.
Section 3715.0–5 How are Certain
Terms in This Subpart Defined?
This section contains definitions of
terms significant to this rule. These
terms include ‘‘mining laws,’’ ‘‘mining
operations,’’ ‘‘occupancy,’’ ‘‘permanent
structure,’’ ‘‘public lands,’’ ‘‘prospecting
or exploration,’’ ‘‘reasonably incident,’’
‘‘substantially regular work,’’ and
‘‘unnecessary or undue degradation.’’
BLM has not adopted the proposed
definition of ‘‘authorized officer.’’ To
simplify the rule, BLM uses the term
‘‘BLM’’ instead of ‘‘authorized officer’’
in the final rule.
BLM has added a definition of
‘‘mining laws’’ to the final rule in order
to make it clear that this term refers to
all laws that apply to hardrock mining
on public lands and which make public

37119

lands available for hardrock mineral
development.
BLM has added a definition of
‘‘public lands’’ to the final rule in order
to eliminate possible confusion or
misinterpretation regarding the lands to
which this rule applies. The definition
also eliminates repetitious language
included throughout the proposed rule
regarding the rule’s applicability to
public lands, including mining claims
and millsites. In the context of this rule,
‘‘public lands’’ are defined as BLMadministered lands open to the
operation of the mining laws. These
lands specifically include mining claims
and millsites on which most mining
activities occur. However, to the extent
that mining-related activities may occur
to a certain extent on the public lands
before a proper mining claim or millsite
is located, this rule also applies to those
public lands. In addition, to the extent
that unauthorized uses are occurring on
public lands without the proper location
of a mining claim or millsite under the
guise of a mining operation or miningrelated activity, this rule applies.
Finally, to the extent unauthorized uses
are occurring or may occur on mining
claims or millsites located on public
lands, this rule also applies.
One comment found the definition of
‘‘occupancy’’ overly broad and
confusing, stating that it blurred the
distinction between activities that
justify occupancy and those that
comprise occupancy. BLM does not
agree, but did modify the wording of the
definition for clarity.
One comment pointed out that other
multiple uses of the public lands, such
as recreation, are allowed as short-term
temporary encampments, usually 14
days or less, while conducting that use.
The comment suggested that miningrelated activities should not be treated
differently. BLM has adopted this
comment in the final rule and will not
treat temporary occupancies up to 14
days as occupancies required to
conform to the standards contained in
the final rule. As discussed below,
§§ 3715.1 and 3715.2 of the final rule
provide that this subpart is applicable
only to occupancy for more than 14
calendar days in any 90-day period
within a 25-mile radius of the initially
occupied site.
One comment stated that tents and
lean-tos should be excepted from the
definition of ‘‘permanent structure,’’ so
that they can be used for temporary
encampments for assessment work or
prospecting. Although, as another
comment pointed out, temporary
encampments may be subject to abuse
through conversion or expansion to
semi-permanent structures, BLM has

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adopted the comment in the final rule,
which specifically excludes tents and
lean-tos from the definition of
‘‘permanent structure.’’ BLM will rely
on monitoring to prevent abuse of this
provision.
One comment suggested that the use
of the ‘‘reasonably incident’’ standard
should not be read to discourage the
continued development of new
technology, exploration techniques, or
mining methods. It is not the intent of
the rule that the standard be limiting in
this way. The rule defines the uses of
the public land authorized under the
general mining law in terms of the
prudent miner and appropriate
methods, structures, and equipment,
and is not designed to discourage the
development of new technology,
exploration techniques, or mining
methods intended to discover,
delineate, recover, or process locatable
minerals. Such new technologies may
be more efficient, cost effective, or
environmentally sensitive. BLM will
consider them to be reasonably incident
if the activity is a good faith effort to
improve the methods of prospecting or
exploration, mining, or processing
locatable minerals.
Several comments stated that the use
of the phrase ‘‘substantially regular and
steady work’’ in proposed § 3715.2
could be construed to prohibit
occupancies associated with weekend or
intermittent mining activities that
would otherwise be legitimate under the
general mining law. BLM has changed
the phrase ‘‘substantially regular and
steady work’’ to ‘‘substantially regular
work’’ and included a definition in this
section of the final rule. ‘‘Substantially
regular work’’ means work on, or that
substantially and directly benefits, a
mineral property, including nearby
properties under the control of the
operator. The work must be associated
with the search for and development of
mineral deposits or the processing of
ores. It includes active and continuing
exploration, mining, and beneficiation
or processing of ores. It also includes
assembly or maintenance of equipment,
work on physical improvements, and
procurement of supplies, incidental to
activities meeting the conditions of this
subpart. It may also include off-site trips
associated with these activities. The
term encompasses a seasonal, but
recurring, work program. This provision
does not prohibit weekend or
intermittent mining activities. Such
activities, if carried out in good faith,
may warrant occupancy under certain
circumstances. This requirement is not
intended to preclude activities that are
reasonably undertaken to carry out the
justified occupancy.

One comment raised a concern that
the rule was not adequately based on
the ‘‘unnecessary or undue degradation’’
standard and raised a question about the
ease of interpretation and enforcement
of the ‘‘unnecessary or undue
degradation’’ standard as applied to
occupancy. BLM’s regulations at 43 CFR
parts 3802 and 3809 define
‘‘unnecessary and undue degradation’’
to mean, among other things, ‘‘surface
disturbance greater than what would
normally result when an activity is
being accomplished by a prudent
operator in usual, customary, and
proficient operations of similar
character.’’ The purpose of the 43 CFR
parts 3802 and 3809 regulations is to
establish procedures to prevent
unnecessary or undue degradation of
public lands by mining operations. 43
CFR 3802.0–1 and 3809.0–1. However,
the purpose of this rule is to distinguish
between those uses that are authorized
by the mining laws and those that are
not and to prohibit those that are not
authorized. Because this rule covers
regulation of those uses that are not
authorized, BLM has added a definition
of ‘‘unnecessary or undue degradation’’
to these rules to address unauthorized
uses that are not covered by the 43 CFR
parts 3802 and 3809 definitions of
‘‘unnecessary or undue degradation.’’
Section 3715.0–9 Information
Collection
Final § 3715.0–9 explains that BLM
has submitted to the Office of
Management and Budget (OMB) the
information collection requirements
contained in this subpart under 44
U.S.C. 3507 and the Paperwork
Reduction Act of 1995. BLM collects the
information so that it may manage use
and occupancy of the public lands by
prohibiting unauthorized uses and
occupancies. A response is mandatory
and required to obtain the benefit of
occupying the public lands for
reasonably incident activities.
BLM inadvertently omitted this
section from the proposal, but is
including it in the final rule because the
Paperwork Reduction Act requires it.
This section is technical in nature and
imposes no requirements in addition to
subpart 3715.
Section 3715.1 Do the Regulations in
This Subpart Apply to My Use or
Occupancy?
Final § 3715.1 consists of a table that
provides information to enable persons
to determine if this subpart governs
their activities. This section of the final
rule corresponds to § 3715.1 of the
proposed rule, but has been reformatted

for clarity. No comments were received
on this portion of the proposal.
Proposed § 3715.3(k) exempted
authorized occupancies from the time
limits of 43 CFR 8365.1–2. BLM has
made some minor editorial changes to
that provision and moved it to the table
in final § 3715.1.
Section 3715.2 What Activities Do I
Have To Be Engaged in to Allow Me To
Occupy the Public Lands?
Final § 3715.2 describes the
circumstances warranting occupancy of
the public lands under this subpart.
In response to a comment on the
definition of ‘‘occupancy’’ suggesting a
need to treat uses and occupancies of
less than 14-day duration in a consistent
manner, the final rule indicates that
subpart 3715 governs uses and
occupancies lasting for more than 14
calendar days. In addition, the table in
§ 3715.1 states that this subpart does not
apply to occupancy of 14 days or less
in any 90-day period on the same site
or within a 25-mile radius of that site.
This section of the final rule is intended
to prevent abusers of the mining laws
from circumventing its requirements by
moving illegal occupancies (for
example, recreational vehicles) from one
site to another nearby.
Section 3715.2–1 What Additional
Characteristic(s) Must my Occupancy
Have?
Final § 3715.2–1 provides that in
addition to the requirements specified
in § 3715.2, occupancies must involve at
least one of five qualifying activities in
order to warrant an occupancy.
One comment suggested that
equipment that requires protection from
theft or loss or that would constitute a
danger to the public should warrant
occupancy of a mining claim if the
equipment is not otherwise readily
portable, and if the equipment cannot
reasonably be protected through means
other than site occupancy, or if the
hazard could not be prevented by
reasonable means other than occupancy.
BLM has adopted this comment in the
final rule and has revised § 3715.2–1(b)
accordingly. A certain minimum
amount of appropriate, operable
equipment is necessary to warrant an
occupancy. This minimum amount may
vary among operations. The equipment
you assert to justify an occupancy
should be in regular use and required
for the operation. Equipment used only
infrequently should normally be stored
at an off-site equipment yard.
Appropriate and operable equipment of
such size and type that may be easily
placed in a three-quarter ton pickup
truck and/or towed utility trailer and

Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules and Regulations
hauled away at the end of a work day
will not by itself normally justify an
occupancy. Larger amounts of
equipment may also be removable at the
end of a work day, depending on the
situation. On the other hand, nothing in
this provision prevents the storage and
use of portable equipment and
personnel for prospecting and
exploration for 14 days or less. Unused
or infrequently used equipment cannot
be stored on site or added to on-site
equipment to justify an occupancy.
Final § 3715.2–1(e) has been revised
editorially to make it clear that the work
expected on an occupied site is that
which is usual and customary, which is
ordinarily not less than 8 hours but not
necessarily an unbroken 8-hour shift or
a rigid 8-hour shift every day. For
example, the first and last days of an
occupancy may be short for travel
purposes, or shifts may be split
overnight between two days.
Section 3715.2–2 How Do I Justify
Occupancy by a Caretaker or
Watchman?
Final § 3715.2–2 provides the
conditions you must meet in order to
justify a caretaker or watchman. BLM
received no comments on this portion of
the proposal, which is adopted with
minor editorial changes into the final
rule.
Section 3715.2–3 Under What
Circumstances Will BLM Allow Me To
Temporarily Occupy a Site for More
Than 14 Days?
Final § 3715.2–3 describes the
circumstances under which BLM will
allow you to remain on a site
temporarily beyond 14 days without
first having met all of the requirements
in this subpart for beginning occupancy.
This provision was not part of the
proposed rule, but BLM added it to the
final rule in response to a commenter’s
concern about site security.
Section 3715.3 Must I Consult With
BLM Before Occupancy?
This section of the final rule is
organized as a table that lists the
requirements you must follow to consult
with BLM regarding a proposed
occupancy before occupancy may begin
in connection with a plan of operations,
notice-level activities, or casual use
activities. The table also notes that in
some cases you may propose both to
occupy the public lands and to conduct
notice-level or casual use activities that
do not involve occupancy. In those
cases, any notice-level or casual use
activities that do not involve occupancy
may proceed in accordance with
authorizing regulations without

consulting BLM. For example, you may
propose both to build a cabin on a
mining claim and to dig a small pit
subject to the notice provisions of 43
CFR part 3800, subpart 3809. Under the
final rule, you could dig the pit after
giving notice to BLM under subpart
3809, but would have to consult with
BLM before building the cabin.
One comment stated that, whereas the
proposed rule is often directed toward
new operations, the rule should also
address modifications of plans of
operations that are often necessitated by
changed conditions or operations. BLM
adopted this comment and added
language to final § 3715.3 making it
applicable to plan modifications as well
as new plans. Plan modifications may
call for new, additional, or enhanced
occupancy.
Several comments suggested that
certain activities that are incidental to
justified occupancies, but are not
themselves actually reasonably incident,
should be allowed if they do not cause
unnecessary or undue degradation. The
activities of concern in this connection
are recreational in nature, done after
regular work on the mining claim
during periods of occupancy. The rule
is not intended to preclude such
activities where they are reasonably
undertaken together with the justified
occupancy.
Section 3715.3–1 At What Point May I
Begin Occupancy?
Final § 3715.3–1 describes the
requirements you must meet before you
may begin occupancy. This provision
consolidates two proposed provisions
related to restrictions on initiating
occupancy, proposed §§ 3715.3(b) and
3715.4(b).
One comment stated that it was
unreasonable for proposed § 3715.4(b) to
require operators to obtain all necessary
state permits before beginning use or
occupancy of a claim. The comment
pointed out that this would require that
all permits conceivably necessary
during the life of the mining operation
be obtained in advance rather than as
needed. BLM accepted this comment
and changed final § 3715.3–1(b) to
require only those permits necessary for
the particular use or reasonably incident
use justifying the occupancy. Requiring
compliance with building codes is not
a matter of technicalities; rather, it is
important in protecting public health
and safety. A 1982 report of the General
Accounting Office (GAO), for example,
described cases in which buildings on
mining claims that did not meet local
building codes burned and caused death
and injury. See GAO, Illegal and
Unauthorized Activities on Public

37121

Lands—A Problem with Serious
Implications, No. RCED–8248 (1982),
pp. 30–32.
Section 3715.3–2 What Information
Must I Provide to BLM About My
Proposed Occupancy?
Final § 3715.3–2 describes the kinds
of information that you must provide to
BLM regarding your proposed
occupancy, including maps and written
descriptions of your occupancy. BLM
received no comments on this portion of
the proposal, which is adopted with
minor editorial changes into the final
rule.
Section 3715.3–3 How Does BLM
Process the Information I Submit About
My Proposed Occupancy?
Final § 3715.3–3 provides that BLM
must review all proposed occupancies,
enclosures, fences, gates, or signs
intended to exclude the general public
in order to make a concurrence or nonconcurrence determination. This section
also describes the timing of BLM’s
review, including any action that BLM
must take to comply with the National
Environmental Policy Act (NEPA), the
National Historic Preservation Act,
Section 7 of the Endangered Species
Act, and/or other applicable statutes.
For example, under NEPA, BLM will
analyze the environmental impact of
your proposed occupancy and
document in writing its analysis and
findings. BLM received no comments on
this portion of the proposal, which is
adopted with minor editorial changes
into the final rule.
Section 3715.3–4 How Will BLM Notify
Me of the Outcome of Its Review
Process?
Final § 3715.3–4 describes the written
determination of concurrence or nonconcurrence you will receive from BLM
after its review is complete. BLM
received no comments on this portion of
the proposal, which is adopted with
minor editorial changes into the final
rule.
Section 3715.3–5 What Will BLM’s
Notification Include?
Final § 3715.3–5 describes what
information BLM’s written
determination of concurrence or nonconcurrence will contain. BLM found
that the second sentence of proposed
§ 3715.3(h)(1), which identified the
circumstances under which BLM would
order an immediate, temporary
suspension of occupancy, to be
redundant with the immediate,
temporary suspension provision in final
§ 3715.7–1(a) and removed it from
proposed § 3715.3. Also, BLM moved

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the provision describing when BLM will
assume that a risk to health, safety, and
the environment exists to final § 3715.7–
1(a).
Several comments suggested that
proposed § 3715.3(h)(2) should be
amended to state that BLM will allow a
proposed occupancy to be amended if
the original proposal results in a nonconcurrence. BLM adopted this
suggestion in § 3715.3–5(b) of the final
rule. It is in the public interest to permit
appropriate activity under the general
mining law if this activity can be
planned through cooperation between
you and BLM, avoiding costly
administrative appeals, if possible, in
cases where the initial proposal is not
accepted.
Section 3715.3–6 May I Begin
Occupancy if I Have Not Received
Concurrence From BLM?
Final § 3715.3–6 prohibits beginning
occupancy until a concurrence from
BLM is received. BLM received no
comments on this portion of the
proposal, which is adopted with minor
editorial changes into the final rule.
Section 3715.4 What if I have an
Existing Use or Occupancy?
Final § 3715.4 describes how this
subpart applies to existing uses and
occupancies. This section of the final
rule combines proposed §§ 3715.7 (a)
and (d). BLM revised this section to
make it clear that existing use or
occupancy that is not reasonably
incident may be subject to an
immediate, temporary suspension, if
necessary to protect health, safety, or
the environment. BLM received no
comments on this part of the proposal,
which is adopted with minor editorial
changes into the final rule.
Section 3715.4–1 What Happens After
I Give BLM Written Notification of My
Existing Occupancy?
Final § 3715.4–1 describes the actions
BLM will take after it receives a written
notification of your existing occupancy.
Paragraph (a) of this section, which
provides that BLM will visit your site
during the normal course of inspection
to obtain the information required under
§ 3715.3–2, did not exist in the
proposed rule. However, BLM added it
to the final rule in an effort to reduce
the paperwork burden on operators with
existing occupancies. Final § 3715.4–
1(b) was proposed as § 3715.7(b) and is
adopted with minor editorial changes.
Taken together, §§ 3715.4 and 4–1
allow your existing occupancy a oneyear grace period from compliance with
this final rule if you timely notify BLM
of the occupancy, with the expectation

that BLM will visit your site within that
one-year period to gather additional
information. If the year passes and BLM
has not yet visited your site, this final
rule does not require you to take any
further action with regard to obtaining
BLM’s concurrence in your occupancy.
At that point, the ball would be in
BLM’s court.
Section 3715.4–2 What if I Do Not
Notify BLM of My Existing Occupancy?
Final § 3715.4–2 (proposed
§ 3715.7(c)) states that you are subject to
the penalty and enforcement provisions
of this subpart if you do not file the
written notice required in § 3715.4. BLM
received no comments on this portion of
the proposal, which is adopted with
minor editorial changes into the final
rule.
Section 3715.4–3 What if BLM Does Not
Concur in My Existing Use or
Occupancy?
Final § 3715.4–3 describes the actions
BLM may take after inspection if it
determines that your use or occupancy,
or portion thereof, is not reasonably
incident. Final § 3715.4–3 consolidates
provisions proposed at §§ 3715.6 (b) and
(c) as they apply to existing operations.
BLM moved proposed § 3715.6(c) to
final § 3715.4–3(b) because it deals with
existing use and occupancy. BLM
received no comments on this part of
the proposal, which is adopted with
minor editorial changes into the final
rule.
Section 3715.4–4 What if There is a
Dispute Over the Fee Simple Title to the
Lands on Which My Existing Occupancy
is Located?
Final § 3715.4–4 describes BLM’s
discretion in deferring a determination
regarding the status of your occupancy
if the lands on which the occupancy
occurs are involved in a title dispute
with the United States regarding the
underlying fee simple title to the land.
This provision was not part of the
proposal, but BLM added it to the final
rule to make it clear that BLM has
discretion to defer the point at which it
deals with occupancy on lands over
which a title dispute exists.
Section 3715.5 What Standards Apply
to My Use or Occupancy?
Final § 3715.5 describes the laws and
standards which you must comply with
while engaging in any use or occupancy
of the public lands. Paragraph (b) of this
section refers to the federal and state
standards that apply to uses of public
lands under the mining laws. Paragraph
(c) refers to the standards applicable to
occupancies. The paragraphs are

identical, except that occupancies are
subject to the standards of this final
rule, while uses are not.
These provisions were included in the
proposal as §§ 3715.4 (a), (c), (d), and (e)
respectively. One comment addressed
proposed § 3715.4(e), pointing out that,
normally, residential structures need
only be in compliance with building
and other codes in effect at the time of
construction, rather than, as the
proposed rule implied, with current
codes. The final rule has been changed
to require structures to conform with
‘‘applicable’’ state or local codes. If, in
some areas, structures need only be in
compliance with codes in effect at the
time of construction, those codes will be
the only ones applicable.
Several comments objected to BLM’s
adoption of state and local building
codes rather than promulgation of its
own regulatory requirements. BLM does
not agree and did not adopt these
comments in the final rule. State and
local building codes are a function of
the police powers held by state and
local governments. In addition, the
building codes already exist and are
tried and tested.
One comment pointed out that it may
be a burden for state or local officials to
visit remote claims to inspect for code
compliance, and another suggested that
the rule allow BLM to waive compliance
with such codes in truly remote areas.
BLM does not agree and did not adopt
these comments in the final rule. If state
or local agencies wish to waive code
compliance, BLM will recognize that
waiver, but BLM has no authority to
independently allow you to ignore code
requirements.
One comment called on the BLM to
adopt a standard that combines the
reasonably incident standard with a
‘‘required’’ standard, that is, to disallow
use and occupancy that is not required
in order to conduct mining activities.
The comment argued that United States
v. Richardson, 599 F.2d 290 (9th Cir.),
cert. denied, 444 U.S. 1014 (1980),
serves as a precedent for using this
combined standard. BLM chooses to
adopt the standard of ‘‘reasonably
incident to’’ rather than ‘‘required for’’
prospecting, mining, or processing
operations. The statutory language
quoted in the comment is in section 4(c)
of the 1955 Act and relates to the
severance and use of vegetative and
other surface resources. Such use must
be required for mining, prospecting, or
processing operations and uses
reasonably incident thereto. However,
the general standard applied in this rule
is found in section 4(a) of the 1955 Act,
which prohibits the use of the claim
itself for any purposes other than

Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules and Regulations
prospecting, mining or processing
operations and uses reasonably incident
thereto. Under section 4(c) of the 1955
Act, surface resources may be used only
if ‘‘required’’ for uses ‘‘reasonably
incident’’ to mining. The tighter
standard for removal and use of trees
and other surface resources in section
4(c) is built upon the standard in section
4(a). The applicable standard for
activities on the claims is the basic
‘‘reasonably incident’’ standard rather
than the ‘‘required’’ standard that is
applicable only to removal and use of
trees and other surface resources. The
burden of proving that activities are
reasonably incident to mining will
remain on you, as it is under existing
law, and occupancies that are not
reasonably incident will not be allowed.
Section 3715.5–1 What Standards
Apply to Ending My Use or Occupancy?
Final § 3715.5–1 describes what you
must do with structures, material,
equipment or other personal property
placed on the public lands during your
use or occupancy when your use or
occupancy ends.
These provisions were included in the
proposal as §§ 3715.4 (f) and (f)(1)
respectively. BLM received no
comments on this portion of the
proposal, which is adopted with minor
editorial changes into the final rule.
Section 3715.5–2 What Happens to
Property I Leave Behind?
Final § 3715.5–2 describes what BLM
will do with property you leave on the
public lands after your use or
occupancy ends. This provision was
included in the proposal as
§ 3715.4(f)(2). BLM received no
comments on this part of the proposal,
which is adopted with minor editorial
changes into the final rule.
Section 3715.6 What Things Does BLM
Prohibit Under This Subpart?
Final § 3715.6 (proposed § 3715.5)
describes those activities, uses, or
occupancies that are prohibited under
this subpart.
Two comments pointed out drafting
errors in proposed § 3715.5. Paragraph
(a), as proposed, would have required a
violation of both the conditions of
occupancy under proposed § 3715.2 and
one or more of the standards of
occupancy under proposed § 3715.4.
The intent of the rule is that uses or
occupancies are not permitted that
violate any provision of § 3715.2,
§ 3715.2–1 or § 3715.5. Also, paragraph
(b) as proposed could have been read to
imply that occupancy might be initiated
after rejection of a plan of operation.
Paragraphs (a) and (b) of § 3715.6 in the

final rule have been revised to correct
these errors.
Some comments argued that
claimants with claims located before
1955 are not barred from blocking
access to or through the claims. The
Crawford case, supra, at pages 216–217,
stated that section 4(b) of the 1955 Act
substantially changed the mining law
with regard to access. Actions by
owners of such claims to block
reasonable access by the public will,
however, prompt a determination of
surface rights under section 5 of the
1955 Act and 43 CFR part 3710, subpart
3712, and/or a validity examination.
One comment stated that proposed
§ 3715.5(f) would not allow an operator
to exclude the public from hazardous
areas or areas that need to be secure for
proprietary reasons. BLM has corrected
this provision at § 3715.6(f) of the final
rule to allow operators to take
reasonable security measures. Mining
claimants have the right to exclude the
public from use of the land within the
operation in order to prevent material
interference with the operation or to
comply with relevant state or federal
law or regulations.
One comment noted that proposed
§ 3715.5(i) should be amended to
prohibit non-mining related animal
maintenance or pasturage. BLM has
adopted this comment, but has also
revised § 3715.6(i) of the final rule to
make it clear that the acts listed are
prohibited unless they are allowable
under other applicable law or
regulation. For example, a non-mining
activity on a mining claim could be
authorized under 43 CFR part 2920
under appropriate circumstances.
Section 3715.7 How Will BLM Inspect
My Use or Occupancy and Enforce This
Subpart?
Final § 3715.7 provides that BLM field
staff is authorized to physically inspect
all structures, equipment, workings and
uses located on public lands and will
not inspect the inside of structures used
solely as residences without permission
from the occupant or a proper court.
BLM included these provisions in the
proposal at § 3715.6(a). One comment
suggested that proposed § 3715.6(a)
should be amended to provide BLM
with discretion to inspect all
occupancies on public lands rather than
obligate BLM to inspect all such
occupancies. The proposed rule
language was not intended to obligate
BLM to conduct inspections within a
certain timeframe. The language is
merely to establish BLM’s authority to
conduct inspections of all structures,
equipment, workings and uses located
on public lands. Final § 3715.6(a) has

37123

been amended to make it clear that there
is no time limitation placed on BLM for
inspections.
Section 3715.7–1 What Types of
Enforcement Action Can BLM Take if I
Do Not Meet the Requirements of This
Subpart?
Final § 3715.7–1 discusses the four
types of orders that BLM can issue to
you, depending on the circumstances,
for not complying with the provisions of
this subpart.
Final paragraph (a) describes the
circumstance under which BLM can
order an immediate, temporary
suspension of use or occupancy prior to
a hearing if you are not in compliance
with §§ 3715.2, 3715.2–1, 3715.3–1(b),
3715.5 or 3715.5–1, if necessary to
protect health, safety or the
environment. If you fail at any time to
meet any of the standards in paragraphs
§§ 3715.3–1(b) and 3715.5 (b), (c) and
(d), BLM will presume that a risk to
health, safety or the environment exists.
BLM’s assumption that breach of those
sections creates a risk to health, safety,
or the environment is based on the
nature of those requirements. Readers
should note that an appeal of an order
issued under this paragraph does not
stay the effect of the order. This means
that if BLM orders you under this
paragraph to immediately suspend your
occupancy, you must comply even if
you file an appeal. Your activity must
remain suspended until the appeal has
been decided.
Section 3715.3–1(b) requires you to be
in possession of all requisite federal,
state and local mining, reclamation, and
waste disposal permits, approvals, or
other authorizations before beginning an
occupancy. Sections 3715.5 (b) and (c)
require your use or occupancy to
conform to all applicable federal, state
and local environmental standards and
have all requisite permits and
authorizations. In addition, § 3715.5(e)
requires your buildings and structures
to comply with state and local building,
fire and electrical codes and
occupational safety and health and mine
safety standards. To the extent that you
do not possess the proper mining,
reclamation, waste disposal, building,
fire, electrical or occupational safety or
mine safety permits or have not met
related standards, BLM may reasonably
assume that you are creating a risk to
health, safety or the environment. This
provision was included in the proposal
at §§ 3715.3(h)(1) and 3715.6(b). The
final rule has been revised editorially at
§ 3715.7–1(a)(3) to make clear the
corrective actions BLM may require you
to take to correct the noncompliance in

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addition to suspension of the use or
occupancy.
Final paragraph (b) was not included
in the proposal, but BLM added it to the
final rule because, while the final rule
provides for immediate, temporary
suspensions, no provision specifically
provided for cessation of unlawful use
or occupancy, subject to normal appeal
procedures or for failure to comply with
BLM notices of noncompliance.
Final paragraph (c) describes the
circumstances under which BLM can
issue notices of noncompliance. BLM
included paragraph (c) of the final rule
in the proposal at § 3715.6(d). BLM
received no comments on this portion of
the proposal, which is adopted with
minor editorial changes into the final
rule.
Final paragraph (d) describes the
circumstances under which BLM can
order you to apply within 30 days for
authorization under the regulations of
43 CFR Group 2900 or 8300, or, as to
sites in Alaska, 43 CFR part 2560.
Section 3715.7–2 What Happens if I
Do Not Comply With a BLM Order?
Final § 3715.7–2 describes the legal
remedies the Interior Department may
seek if you do not comply with a BLM
order. This relief may be in addition to
the penalties described in § 3715.8. BLM
included this paragraph in the proposal
at § 3715.6(f). BLM received no
comments on this part of the proposal,
which is adopted with minor editorial
changes into the final rule.
Section 3715.8 What Penalties Are
Available to BLM for Violations of This
Subpart?
Final § 3715.8 describes the penalties
BLM may seek against individuals or
corporations for knowingly and
willfully violating requirements of this
subpart.
One comment suggested that the
penalty provisions in proposed § 3715.8
be amended to incorporate the
maximum penalties provided for in the
Sentencing Reform Act of 1984, as
amended (18 U.S.C. 3571 et seq.). BLM
adopted this comment and made the
penalties described in the final rule
consistent with the penalties that a
court could otherwise impose under the
Sentencing Reform Act. Penalty
provisions such as those in both FLPMA
and the Unlawful Occupancy and
Inclosures of Public Lands Act, which
provide for up to a year in jail or a fine
of $1,000 for violations, are classified as
Class A misdemeanors under 18 U.S.C.
3559. The Sentencing Reform Act
authorizes fines for Class A
misdemeanors of up to $100,000 for

individuals and $200,000 for
organizations.
Section 3715.8–1 What Happens if I
Make False Statements to BLM?
Final § 3715.8–1 describes possible
legal consequences if you make false
statements to BLM. BLM included this
paragraph in the proposal at § 3715.8(b).
BLM received no comments on this
portion of the proposal, which is
adopted with minor editorial changes
into the final rule.
Section 3715.9 What Appeal Rights Do
I Have?
Final § 3715.9 describes the way in
which you may appeal BLM decisions,
orders or determinations made under
this subpart.
BLM has removed provisions
included in the proposal which allowed
for appeals to the State Director. This
change is made to make the appeals
provisions in this rule consistent with
BLM’s other appeals provisions. In
addition, because appeals from a BLM
non-concurrence or a cessation order
may require a hearing, an appellant’s
rights are best preserved by providing
an opportunity for a hearing before an
administrative law judge or an
administrative appeals board.
Section 3715.9–1 Does an Appeal to
IBLA Suspend a BLM Decision?
Final § 3715.9–1 describes the
conditions under which a BLM decision
may be suspended while IBLA
considers an appeal of that decision.
BLM included these paragraphs in the
proposal at §§ 3715.9 (b) and (f). BLM
received no comments on this portion of
the proposal and adopts it with minor
editorial changes into the final rule.
BLM did not include proposed
§ 3715.9(g) in the final rule because it is
subsumed in the right to appeal a BLM
decision to IBLA.
III. Procedural Matters
National Environmental Policy Act
BLM has determined that this final
rule does not constitute a major federal
action significantly affecting the quality
of the human environment, and that no
detailed statement pursuant to section
102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C.
4332(2)(C)) is required. BLM has
determined that this final rule is
categorically excluded from further
environmental review pursuant to 516
Departmental Manual (DM), Chapter 2,
Appendix 1, Item 1.10, and that the
proposal would not meet any of the 10
criteria for exceptions to categorical
exclusion listed in 516 DM 2, Appendix
2. This categorical exclusion includes

rules that are of a financial, legal,
technical or procedural nature; or the
environmental effects of which are too
broad, speculative, or conjectural to
lend themselves to meaningful analysis
and will be subject later to the NEPA
process, either collectively or on a caseby-case basis. Under the Council on
Environmental Quality regulations (40
CFR 1508.4) and environmental policies
and procedures of the Department of the
Interior, the term ‘‘categorical
exclusions’’ means a categories of
actions that do not individually or
cumulatively have a significant effect on
the human environment and that have
been found to have no such effect in
procedures adopted by a federal agency
and for which neither an environmental
assessment nor an environmental
impact statement is required.
Executive Order 12866 and Regulatory
Flexibility Act
This rule was not subject to review by
the Office of Management and Budget
under Executive Order 12866. No
discernible economic impacts on
operations involving occupancy are
expected from this final rule. All
operations involving occupancy are
expected to occur under notices or plans
covered by 43 CFR part 3800, subparts
3802 or 3809. The BLM is unaware of
any specific casual use occupancies.
The cost of complying with the
requirements of the final rule is
indistinguishable from the requirements
imposed by the existing surface
management regulations found in 43
CFR part 3800, because the
requirements of the final rule limit uses
and occupancies to those that are
governed by 43 CFR part 3800. Further,
for the same reasons, the Department
has determined under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) that
the rule will not have a significant
economic impact on a substantial
number of small entities. The effect of
the rule will be to curtail occupancy
activities by those whose occupancy of
the public lands is not reasonably
incident to mining, prospecting or
exploration, or processing operations.
Such activities are already, and have
long been, prohibited by law. Therefore,
the only activities that would be
curtailed are those that are already
unlawful.
Federal Paperwork Reduction Act
Under 44 U.S.C. 3507 and the
Paperwork Reduction Act of 1995, the
Office of Management and Budget
(OMB) has approved the information
collection requirements contained in
this subpart. OMB has assigned
clearance number 1004–0169. BLM

Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules and Regulations
collects the information so that it may
manage use and occupancy of the public
lands under the mining laws. A
response is mandatory and required to
obtain the benefit of occupying the
public lands for reasonably incidental
activities.
BLM estimates the public reporting
burden for this information to average
two hours per response, including the
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information. Send
comments regarding this burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing the burden, to
the Information Collection Clearance
Officer (DW–110), Bureau of Land
Management, Building 50, Denver
Federal Center, Denver, Colorado
80225–0047, and the Office of
Management and Budget, Paperwork
Reduction Project, 1004–0169,
Washington, DC 20503.
Executive Order 12630
The Department certifies that this
final rule does not represent a
governmental action capable of
interference with constitutionally
protected property rights. The rule will
not adversely affect lawful occupancies.
Therefore, as required by Executive
Order 12630, the Department of the
Interior has determined that the rule
would not cause a taking of private
property.
Unfunded Mandates Reform Act
BLM has determined that this
regulation is not significant under the
Unfunded Mandates Reform Act of
1995, because it will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year. Further, this rule will
not significantly or uniquely affect small
governments.
Authors
The principal author of this final rule
is Richard E. Deery, Solid Minerals
Group, BLM. Patrick W. Boyd,
Regulatory Management Team, BLM,
prepared the plain English version. Staff
of the Division of Mineral Resources,
Office of the Solicitor, Department of
the Interior, provided assistance.
List of Subjects in 43 CFR Part 3710
Administrative practice and
procedure, Mines, Public lands-mineral
resources.

Dated: May 20, 1996.
Bob Armstrong,
Assistant Secretary, Land and Minerals
Management.

Under the authorities cited below,
and for the reasons stated in the
preamble, part 3710, group 3700,
subchapter C, chapter II, subtitle B, title
43 of the Code of Federal Regulations is
amended by adding a new subpart 3715
to read as follows:
PART 3710—PUBLIC LAW 167; ACT
OF JULY 23, 1955
Subpart 3715—Use and Occupancy Under
the Mining Laws
Sec.
3715.0–1 What are the purpose and the
scope of this subpart?
3715.0–3 What are the legal authorities for
this subpart?
3715.0–5 How are certain terms in this
subpart defined?
3715.0–9 Information collection.
3715.1 Do the regulations in this subpart
apply to my use or occupancy?
3715.2 What activities do I have to be
engaged in to allow me to occupy the
public lands?
3715.2–1 What additional characteristic(s)
must my occupancy have?
3715.2–2 How do I justify occupancy by a
caretaker or watchman?
3715.2–3 Under what circumstances will
BLM allow me to temporarily occupy a
site for more than 14 days?
3715.3 Must I consult with BLM before
occupancy?
3715.3–1 At what point may I begin
occupancy?
3715.3–2 What information must I provide
to BLM about my proposed occupancy?
3715.3–3 How does BLM process the
information I submit about my proposed
occupancy?
3715.3–4 How will BLM notify me of the
outcome of its review process?
3715.3–5 What will BLM’s notification
include?
3715.3–6 May I begin occupancy if I have
not received concurrence from BLM?
3715.4 What if I have an existing use or
occupancy?
3715.4–1 What happens after I give BLM
written notification of my existing
occupancy?
3715.4–2 What if I do not notify BLM of my
existing occupancy?
3715.4–3 What if BLM does not concur in
my existing use or occupancy?
3715.4–4 What if there is a dispute over the
fee simple title to the lands on which my
existing occupancy is located?
3715.5 What standards apply to my use or
occupancy?
3715.5–1 What standards apply to ending
my use or occupancy?
3715.5–2 What happens to property I leave
behind?
3715.6 What things does BLM prohibit
under this subpart?
3715.7 How will BLM inspect my
occupancy and enforce this subpart?

37125

3517.7–1 What types of enforcement action
can BLM take if I do not meet the
requirements of this subpart?
3715.7–2 What happens if I do not comply
with a BLM order?
3715.8 What penalties are available to BLM
for violations of this subpart?
3715.8–1 What happens if I make false
statements to BLM?
3715.9 What appeal rights do I have?
3715.9–1 Does an appeal to IBLA suspend a
BLM decision?

Subpart 3715—Use and Occupancy
Under the Mining Laws
Authority: 18 U.S.C. 1001, 3571 et seq.; 30
U.S.C. 22, 42, 612; 43 U.S.C. 1061 et seq.,
1201, 1457, 1732 (b) and (c), 1733 (a) and (g).
§ 3715.0–1 What are the purpose and the
scope of this subpart?

(a) Purpose. The purpose of this
subpart is to manage the use and
occupancy of the public lands for the
development of locatable mineral
deposits by limiting such use or
occupancy to that which is reasonably
incident. The Bureau of Land
Management (BLM) will prevent abuse
of the public lands while recognizing
valid rights and uses under the Mining
Law of 1872 (30 U.S.C. 22 et seq.) and
related laws governing the public lands,
regardless of when those rights were
created. BLM will take appropriate
action to eliminate invalid uses,
including unauthorized residential
occupancy of the public lands.
(b) Scope. This subpart applies to
public lands BLM administers. They do
not apply to state or private lands in
which the mineral estate has been
reserved to the United States. They do
not apply to Federal lands administered
by other Federal agencies, even though
those lands may be subject to the
operation of the mining laws.
(c) This subpart does not impair the
right of any person to engage in
recreational activities or any other
authorized activity on public lands BLM
administers.
§ 3715.0–3 What are the legal authorities
for this subpart?

The authorities for this subpart are 18
U.S.C. 1001, 3571 et seq.; 30 U.S.C. 22,
42, 612; 43 U.S.C. 1061 et seq., 1201,
1457, 1732 (b) and (c), 1733 (a) and (g).
§ 3715.0–5 How are certain terms in this
subpart defined?

As used in this subpart the term:
Mining laws means all laws that apply
to hardrock mining on public lands and
which make public lands available for
hardrock mineral development. This
includes, but is not limited to, the
general authorities relating to hardrock
mining or to the public lands on which

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this rule is based and case law which
interprets those authorities.
Mining operations means all
functions, work, facilities, and activities
reasonably incident to mining or
processing of mineral deposits. It
includes building roads and other
means of access to a mining claim or
millsite on public lands.
Occupancy means full or part-time
residence on the public lands. It also
means activities that involve residence;
the construction, presence, or
maintenance of temporary or permanent
structures that may be used for such
purposes; or the use of a watchman or
caretaker for the purpose of monitoring
activities. Residence or structures
include, but are not limited to, barriers
to access, fences, tents, motor homes,
trailers, cabins, houses, buildings, and
storage of equipment or supplies.
Permanent structure means a
structure fixed to the ground by any of
the various types of foundations, slabs,
piers, poles, or other means allowed by
building codes. The term also includes
a structure placed on the ground that
lacks foundations, slabs, piers, or poles,
and that can only be moved through
disassembly into its component parts or
by techniques commonly used in house
moving. The term does not apply to
tents or lean-tos.
Public lands means lands open to the
operation of the mining laws which
BLM administers, including lands
covered by unpatented mining claims or
millsites.
Prospecting or exploration means the
search for mineral deposits by
geological, geophysical, geochemical, or
other techniques. It also includes, but is
not limited to, sampling, drilling, or
developing surface or underground

workings to evaluate the type, extent,
quantity, or quality of mineral values
present.
Reasonably incident means the
statutory standard ‘‘prospecting, mining,
or processing operations and uses
reasonably incident thereto’’ (30 U.S.C.
612). It is a shortened version of the
statutory standard. It includes those
actions or expenditures of labor and
resources by a person of ordinary
prudence to prospect, explore, define,
develop, mine, or beneficiate a valuable
mineral deposit, using methods,
structures, and equipment appropriate
to the geological terrain, mineral
deposit, and stage of development and
reasonably related activities.
Substantially regular work means
work on, or that substantially and
directly benefits, a mineral property,
including nearby properties under your
control. The work must be associated
with the search for and development of
mineral deposits or the processing of
ores. It includes active and continuing
exploration, mining, and beneficiation
or processing of ores. It may also
include assembly or maintenance of
equipment, work on physical
improvements, and procurement of
supplies, incidental to activities meeting
the conditions of §§ 3715.2 and 3715.2–
1. It may also include off-site trips
associated with these activities. The
term also includes a seasonal, but
recurring, work program.
Unnecessary or undue degradation, as
applied to unauthorized uses, means
those activities that are not reasonably
incident and are not authorized under
any other applicable law or regulation.
As applied to authorized uses, the term
is used as defined in 43 CFR 3802.0–5
and 3809.0–5.

§ 3715.0–9

Information collection.

(a) BLM has submitted to the Office of
Management and Budget the
information collection requirements
contained in this subpart under 44
U.S.C. 3507 and the Paperwork
Reduction Act of 1995 and assigned
clearance number 1004–0169. BLM
collects the information so that it may
manage use and occupancy of public
lands under the mining laws by
prohibiting unauthorized uses and
occupancies. A response to BLM is
mandatory and required to obtain the
benefit of occupying the public lands for
reasonably incident activities.
(b) BLM estimates the public
reporting burden for this information to
average two hours per response,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Send comments regarding this burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing the burden, to
the Information Collection Clearance
Officer (DW–110), Bureau of Land
Management, Building 50, Denver
Federal Center, Denver, Colorado
80225–0047, and the Office of
Management and Budget, Paperwork
Reduction Project, 1004–0169,
Washington, DC 20503.
§ 3715.1 Do the regulations in this subpart
apply to my use or occupancy?

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

TABLE 1
Applicability of this subpart
If your proposed use of the public lands— ..............................
Includes occupancy and is ‘‘reasonably incident’’ as defined
by this subpart.
Involves the placement, construction, or maintenance of enclosures, gates, fences, or signs.
Is reasonably incident, but does not involve occupancy .........
Is not reasonably incident (involving rights-of-way, for example), but may be allowed under the public land laws.
Is not allowed under the public land laws, the mining laws,
the mineral leasing laws, or other applicable laws.
Involves occupancy of a site, or any subsequent site within a
25-mile radius of the initially occupied site, for 14 days or
less in any 90-day period.

Then—
The provisions of this subpart apply to you. You must seek concurrence from
BLM before beginning this use and comply with all provisions of this subpart.
The provisions of this subpart apply to you. You must seek concurrence from
BLM before beginning this use and comply with all provisions of this subpart.
The provisions of this subpart do not apply to you, except for §§ 3715.4, 3715.5
and 3715.7. You are subject to the applicable regulations in 43 CFR part 3800.
The occupancy consultation provisions of this subpart do not apply to you. Your
use is not allowed under this subpart. You must seek authorization under 43
CFR Group 2900.
Your use is prohibited. You must not begin or continue unauthorized uses.
The provisions of this subpart do not apply to you. Refer to the applicable regulations in 43 CFR part 8360 and pertinent State Director supplementary rules. 43
CFR part 8360 will not otherwise apply to a reasonably incident use or occupancy that this subpart allows.

Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules and Regulations
§ 3715.2 What activities do I have to be
engaged in to allow me to occupy the public
lands?

In order to occupy the public lands
under the mining laws for more than 14
calendar days in any 90-day period
within a 25-mile radius of the initially
occupied site, you must be engaged in
certain activities. Those activities that
are the reason for your occupancy must:
(a) Be reasonably incident;
(b) Constitute substantially regular
work;
(c) Be reasonably calculated to lead to
the extraction and beneficiation of
minerals;
(d) Involve observable on-the-ground
activity that BLM may verify under
§ 3715.7; and
(e) Use appropriate equipment that is
presently operable, subject to the need
for reasonable assembly, maintenance,
repair or fabrication of replacement
parts.
§ 3715.2–1 What additional
characteristic(s) must my occupancy have?

In addition to the requirements
specified in § 3715.2, your occupancy
must involve one or more of the
following:

(a) Protecting exposed, concentrated
or otherwise accessible valuable
minerals from theft or loss;
(b) Protecting from theft or loss
appropriate, operable equipment which
is regularly used, is not readily portable,
and cannot be protected by means other
than occupancy;
(c) Protecting the public from
appropriate, operable equipment which
is regularly used, is not readily portable,
and if left unattended, creates a hazard
to public safety;
(d) Protecting the public from surface
uses, workings, or improvements which,
if left unattended, create a hazard to
public safety; or
(e) Being located in an area so isolated
or lacking in physical access as to
require the mining claimant, operator,
or workers to remain on site in order to
work a full shift of a usual and
customary length. A full shift is
ordinarily 8 hours and does not include
travel time to the site from a community
or area in which housing may be
obtained.
§ 3715.2–2 How do I justify occupancy by
a caretaker or watchman?

If you assert the need for a watchman
or caretaker to occupy the public lands

37127

to protect valuable or hazardous
property, equipment, or workings, you
must show that the need for the
occupancy is both reasonably incident
and continual. You must show that a
watchman or caretaker is required to be
present either whenever the operation is
not active or whenever you or your
workers are not present on the site.
§ 3715.2–3 Under what circumstances will
BLM allow me to temporarily occupy a site
for more than 14 days?

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

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

TABLE 2
Consultation requirements
If you are proposing a use that would involve occupancy .......
Under a plan of operations or a modification submitted under
43 CFR part 3800, subpart 3802 or subpart 3809.

Under the notice provisions of 43 CFR part 3800, subpart
3809.

And is a ‘‘casual use’’ under 43 CFR 3809.1–2 or does not
require a plan of operations under 43 CFR 3802.1–2 and
3809.1–4 or a notice under 43 CFR 3809.1–3.
Or enclosures, fences, gates, or signs intended to exclude
the general public.

§ 3715.3–1 At what point may I begin
occupancy?

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

Then.
You must include in the proposed plan of operations the materials required by
§ 3715.3–2 describing any proposed occupancy for BLM review concurrently
with review of the plan of operation.
BLM will determine whether you have complied with the requirements of this
subpart together with its decision approving or modifying the plan.
You must submit the materials required by § 3715.3–2 together with the materials
submitted under 43 CFR 3809.1–3 for BLM review concurrently with its review
of the proposed activity.
Any activities in the notice that do not involve occupancy and are reasonably incident may proceed in accordance with 43 CFR part 3800, subpart 3809.
You are subject to the consultation provisions of this subpart and must submit
the materials required by § 3715.3–2 to BLM.
Any casual use activities that do not involve occupancy and are reasonably incident may proceed in accordance with 43 CFR part 3800, subpart 3809.
You are subject to the consultation provisions of this subpart and must submit
the materials required by § 3715.3–2 to BLM.

use or occupancy as required under this
subpart.
§ 3715.3–2 What information must I
provide to BLM about my proposed
occupancy?

You must give BLM a detailed map
that identifies the site and the
placement of the items specified in
paragraphs (c), (d), and (e) of this
section, and a written description of the
proposed occupancy that describes in
detail:

(a) How the proposed occupancy is
reasonably incident;
(b) How the proposed occupancy
meets the conditions specified in
§ 3715.2 and § 3715.2–1;
(c) Where you will place temporary or
permanent structures for occupancy;
(d) The location of and reason you
need enclosures, fences, gates, and signs
intended to exclude the general public;
(e) The location of reasonable public
passage or access routes through or
around the area to adjacent public
lands; and

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(f) The estimated period of use of the
structures, enclosures, fences, gates, and
signs, as well as the schedule for
removal and reclamation when
operations end.
§ 3715.3–3 How does BLM process the
information I submit about my proposed
occupancy?

BLM will review all proposed
occupancies and all proposed
enclosures, fences, gates, or signs
intended to exclude the general public
to determine if your proposed
occupancy or use will conform to the
provisions of §§ 3715.2, 3715.2–1 and
3715.5. BLM will complete its review of
a proposed occupancy not involving a
plan of operations within 30 business
days of receipt of the materials, unless
it concludes that the determination
cannot be made until:
(a) 30 business days after it prepares
necessary environmental documents,
and
(b) 30 business days after it has
complied with section 106 of the
National Historic Preservation Act,
Section 7 of the Endangered Species
Act, and/or other applicable statutes, if
applicable.
§ 3715.3–4 How will BLM notify me of the
outcome of its review process?

At the conclusion of the review, BLM
will make a written determination of
concurrence or non-concurrence, and
will send it to you. For operations
conducted under a plan of operations,
BLM will include this written
determination in the decision that
approves, modifies, or rejects the plan.
§ 3715.3–5 What will BLM’s notification
include?

(a) BLM will include in each
determination of concurrence a
statement requiring you to continue to
comply with §§ 3715.2, 3715.2–1 and
3715.5.
(b) BLM will specify in each
determination of non-concurrence how
the proposed occupancy fails to meet
the conditions of § 3715.2, § 3715.2–1 or
§ 3715.5, and will provide you an
opportunity to modify the proposed
occupancy or appeal the determination
under § 3715.9.
§ 3715.3–6 May I begin occupancy if I have
not received concurrence from BLM?

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

§ 3715.4 What if I have an existing use or
occupancy?

(a) By August 18, 1997, all existing
uses and occupancies must meet the
applicable requirements of this subpart.
If not, BLM will either issue you a
notice of noncompliance or order any
existing use or occupancy failing to
meet the requirements of this subpart to
suspend or cease under § 3715.7–1.
BLM will also order you to reclaim the
land under 43 CFR part 3800, subpart
3802 or 3809 to BLM’s satisfaction
within a specified, reasonable time,
unless otherwise expressly authorized.
(b) If you are occupying the public
lands under the mining laws on August
15, 1996, you may continue your
occupancy for one year after that date,
without being subject to the procedures
this subpart imposes, if:
(1) You notify BLM by October 15,
1996 of the existence of the occupancy
using a format specified by BLM; and
(2) BLM has no pending trespass
action against you concerning your
occupancy.
(c) The one-year grace period
provided in paragraph (b) of this section
will not apply if at any time BLM
determines that your use or occupancy
is not reasonably incident and the
continued presence of the use or
occupancy is a threat to health, safety or
the environment. In this situation, BLM
will order an immediate temporary
suspension of activities under § 3715.7–
1(a).
(d) If you have no existing
occupancies, but are engaged in uses of
the public lands under the mining law,
you are subject to the standards in
§ 3715.5. BLM will determine if your
existing uses comply with those
standards during normal inspection
visits to the area and during BLM
review of notices and plans of
operations filed under 43 CFR part
3800.
§ 3715.4–1 What happens after I give BLM
written notification of my existing
occupancy?

(a) BLM will visit your site during the
normal course of inspection to obtain
the information described in § 3715.3–2.
After the visit, BLM will make a
determination of concurrence or nonconcurrence.
(b) You must provide the information
described in § 3715.3–2 to BLM. You
may provide it either in writing or
verbally during a site visit by BLM field
staff.
§ 3715.4–2 What if I do not notify BLM of
my existing occupancy?

If you do not provide the written
notice required in § 3715.4, you will be

subject to the enforcement actions of
§ 3715.7–1, the civil remedies of
§ 3715.7–2, and the criminal penalties of
§ 3715.8.
§ 3715.4–3 What if BLM does not concur in
my existing use or occupancy?

If BLM determines that all or any part
of your existing use or occupancy is not
reasonably incident:
(a) BLM may order a suspension or
cessation of all or part of the use or
occupancy under § 3715.7–1;
(b) BLM may order the land to be
reclaimed to its satisfaction and specify
a reasonable time for completion of
reclamation under 43 CFR part 3800;
and
(c) BLM may order you to apply
within 30 days after the date of notice
from BLM for appropriate authorization
under the regulations in 43 CFR Group
2900.
§ 3715.4–4 What if there is a dispute over
the fee simple title to the lands on which my
existing occupancy is located?

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

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

Federal Register / Vol. 61, No. 137 / Tuesday, July 16, 1996 / Rules and Regulations
Act (42 U.S.C. 6901 et seq.), as required
under this subpart and 43 CFR part
3800.
(d) If your prospecting or exploration
activities involve only surface activities,
you must not place permanent
structures on the public lands. Any
temporary structures you place on the
public lands during prospecting or
exploration will be allowed only for the
duration of the activities, unless BLM
expressly and in writing allows them to
remain longer. If your prospecting or
exploration activities involve subsurface
activities, you may place permanent
structures on the public lands, if BLM
concurs.
(e) All permanent and temporary
structures you place on the public lands
must conform with the applicable state
or local building, fire, and electrical
codes, and occupational safety and
health and mine safety standards. If
state or local codes require, you must
obtain a certificate of occupancy or its
equivalent before you begin use or
occupancy involving permanent
structures. If state or local law requires,
you must also acquire appropriate
sewerage and sanitation permits before
the occupancy or use of a permanent
structure placed on the public lands.
§ 3715.5–1 What standards apply to
ending my use or occupancy?

Unless BLM expressly allows them in
writing to remain on the public lands,
you must remove all permanent
structures, temporary structures,
material, equipment, or other personal
property placed on the public lands
during authorized use or occupancy
under this subpart. You have 90 days
after your operations end to remove
these items. If BLM concurs in writing,
this provision will not apply to seasonal
operations that are temporarily
suspended for less than one year and
expected to continue during the next
operating season or to operations that
are suspended for no longer than one
year due to market or labor conditions.
§ 3715.5–2 What happens to property I
leave behind?

Any property you leave on the public
lands beyond the 90-day period
described in § 3715.5–1 becomes
property of the United States and is
subject to removal and disposition at
BLM’s discretion consistent with
applicable laws and regulations. You are
liable for the costs BLM incurs in
removing and disposing of the property.
§ 3715.6 What things does BLM prohibit
under this subpart?

Except where other applicable laws or
regulations allow, BLM prohibits the
following:

(a) Placing, constructing, maintaining
or using residences or structures for
occupancy not meeting:
(1) The conditions of occupancy
under §§ 3715.2 or 3715.2–1; or
(2) Any of the standards of occupancy
under § 3715.5;
(b) Beginning occupancy before the
filing, review, and approval or
modification of a plan of operation as
required under 43 CFR part 3800,
subparts 3802 or 3809;
(c) Beginning occupancy before
consultation with BLM as required by
§ 3715.3 for activities that do not require
a plan of operations under 43 CFR part
3800, subpart 3802 or that are defined
as casual use or notice activities under
43 CFR part 3800, subpart 3809;
(d) Beginning occupancy without
receiving a determination of
concurrence because the proposed
occupancy or fencing will not conform
to the provisions of § 3715.2, § 3715.2–
1 or § 3715.5;
(e) Not complying with any order
issued under this subpart within the
time frames the order provides;
(f) Preventing or obstructing free
passage or transit over or through the
public lands by force, threats, or
intimidation; provided, however, that
reasonable security and safety measures
in accordance with this subpart are
allowed;
(g) Placing, constructing, or
maintaining enclosures, gates, or fences,
or signs intended to exclude the general
public, without BLM’s concurrence;
(h) Causing a fire or safety hazard or
creating a public nuisance;
(i) Not complying with the
notification and other requirements
under § 3715.4 relating to an existing
occupancy; and
(j) Conducting activities on the public
lands that are not reasonably incident,
including, but not limited to: nonmining related habitation, cultivation,
animal maintenance or pasturage, and
development of small trade or
manufacturing concerns; storage,
treatment, processing, or disposal of
non-mineral, hazardous or toxic
materials or waste that are generated
elsewhere and brought onto the public
lands; recycling or reprocessing of
manufactured material such as scrap
electronic parts, appliances,
photographic film, and chemicals;
searching for buried treasure, treasure
trove or archaeological specimens;
operating hobby and curio shops; cafes;
tourist stands; and hunting and fishing
camps.
§ 3715.7 How will BLM inspect my use or
occupancy and enforce this subpart?

(a) BLM field staff is authorized to
physically inspect all structures,

37129

equipment, workings, and uses located
on the public lands. The inspection may
include verification of the nature of
your use and occupancy to ensure that
your use or occupancy is, or continues
to be, reasonably incident and in
compliance with §§ 3715.2, 3715.2–1,
3715.4–1 and 3715.5.
(b) BLM will not inspect the inside of
structures used solely for residential
purposes, unless an occupant or a court
of competent jurisdiction gives
permission.
§ 3715.7–1 What types of enforcement
action can BLM take if I do not meet the
requirements of this subpart?

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

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

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

(d) Other. If you are conducting an
activity that is not reasonably incident
but may be authorized under 43 CFR
Group 2900 or 8300, or, as to sites in
Alaska, 43 CFR part 2560, BLM may
order you to apply within 30 days from
the date you receive the order for
authorization under the listed
regulations.
§ 3715.7–2 What happens if I do not
comply with a BLM order?

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

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

more than $200,000, or the alternative
fine provided for in the applicable
provisions of 18 U.S.C. 3571.
§ 3715.8–1 What happens if I make false
statements to BLM?

You are subject to arrest and trial
before a United States District Court if,
in any matter under this subpart, you
knowingly and willfully falsify, conceal
or cover up by any trick, scheme or
device a material fact, or make any false,
fictitious or fraudulent statements or
representations, or make or use any false
writings or document knowing the same
to contain any false, fictitious or
fraudulent statement or entry. If you are
convicted, you will be fined not more
than $250,000 or the alternative fine
provided for in the applicable
provisions of 18 U.S.C. 3571, or
imprisoned not more than 5 years, or
both.
§ 3715.9

What appeal rights do I have?

If you are adversely affected by a BLM
decision, order or determination made
under this subpart, you may appeal the
decision, order or determination to the
Interior Board of Land Appeals (IBLA)
under the provisions of 43 CFR part 4.
§ 3715.9–1 Does an appeal to IBLA
suspend a BLM decision?

(a) An appeal to IBLA does not
suspend an order requiring an
immediate, temporary suspension of
occupancy issued under § 3715.7–1(a)
before the appeal or while it is pending.
In this case, the provisions of 43 CFR
4.21(a) do not apply.
(b) The provisions of 43 CFR 4.21(a)
apply to all other BLM decisions, orders
or determinations under this subpart.
[FR Doc. 96–17757 Filed 7–15–96; 8:45 am]
BILLING CODE 4310–84–P