[Federal Register Volume 62, Number 214 (Wednesday, November 5, 1997)]
[Rules and Regulations]
[Pages 59821-59822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29281]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3710

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


Use and Occupancy Under the Mining Laws

AGENCY: Bureau of Land Management, Interior.

ACTION: Correcting amendments.

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SUMMARY: This document contains corrections to the final regulations 
published in the Federal Register on Tuesday, July 16, 1996 (61 FR 
37116). The regulations addressed the unlawful use and occupancy of 
unpatented mining claims for non-mining purposes.

DATES: The corrections are effective on November 5, 1997.

FOR FURTHER INFORMATION CONTACT: Richard E. Deery, (202) 452-0353.
SUPPLEMENTARY INFORMATION: On July 16, 1996, BLM published a final rule 
addressing the unlawful use and occupancy of unpatented mining claims 
for non-mining purposes. The definitions section of the final rule and 
its accompanying preamble contain the undefined phrases ``hardrock 
mining'' and ``hardrock mineral development.'' Another section of the 
final rule and its accompanying preamble contain an erroneous cross 
reference. BLM must clarify the undefined phrases and correct the 
cross-referencing errors to avoid confusing those people whose 
activities are subject to the regulations.
    Final Sec. 3715.0-5 defines the term ``mining laws'' to mean, in 
pertinent part, ``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 
this rule is based and case law which interprets those authorities.'' 
(Emphasis added.) Since the final rule became effective, BLM has 
learned from its field staff that use of the undefined terms, 
``hardrock mining'' and ``hardrock mineral development'' in the 
definition of ``mining laws'' is causing confusion among some people 
whose activities are subject to the regulations. These people are 
arguing that BLM used these terms to exclude activities associated with 
mining of placer claims from the scope of these regulations. BLM does 
not agree with this position. Final Sec. 3715.0-1 states in pertinent 
part that, ``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. (Emphasis added.) It is well settled that the framework for 
locating valuable mineral deposits set up by the mining laws applies to 
claims both to minerals in veins or lodes (hardrock) and to minerals in 
alluvial, glacial, or marine deposits (placer). See 30 U.S.C. 23 and 35 
respectively. However, to alleviate any possible confusion, both now 
and in the future, BLM is removing the undefined ``hardrock'' phrases 
and replacing them with phrases incorporating the concept of locatable 
minerals. This action will ensure consistency between the purpose and 
definitions sections and eliminate any confusion over the scope of the 
regulations.
    The final rule also contains a provision that describes the four 
kinds of enforcement actions BLM can take if an occupant of an 
unpatented mining

[[Page 59822]]

claim does not meet the requirements of the use and occupancy 
regulations. See 43 CFR 3715.7-1.
    Paragraph (a)(2) of the cited section provides, in pertinent part, 
that BLM may order an immediate, temporary suspension of a use or 
occupancy if necessary to protect health, safety, or the environment. 
Paragraph (a)(2)(ii) specifies that failure to meet any of the 
standards in 43 CFR 3715.3-1(b) or 3715.5(b), (c), or (d) will result 
in a presumption that a risk to health, safety, or the environment 
exists and issuance of an immediate, temporary suspension. (Emphasis 
added.). See 61 FR 37129, third column. The reference to 43 CFR 
3715.5(d) is incorrect. The reference should be to 43 CFR 3715.5(e). 
The preamble to final section 3715.7-1 contains the same error. See 61 
FR 37123, third column, third paragraph.
    The effect of this correction is to provide that if a permanent or 
temporary structure placed on public lands fails to conform with the 
applicable State or local building, fire, or electrical codes; 
occupational safety and health standards; or mine safety standards, BLM 
will presume that health, safety, or the environment is at risk and 
will order the user or occupant of the structure to immediately suspend 
use or occupancy.
    Under the Administrative Procedure Act, an agency does not have to 
issue a notice of proposed rulemaking when the agency for good cause 
finds that notice and public procedure are ``impracticable, 
unnecessary, or contrary to the public interest.'' See 5 U.S.C. 553(b). 
Because the amendments adopted today are technical corrections to 
clarify the applicability of the final rule, BLM finds that publishing 
the amendments for comment would be unnecessary. BLM adopted the rules 
being amended after notice and the opportunity for public comment. The 
proposed rule did not contain the cross-reference error. See proposed 
Sec. 3715.6(b) (57 FR 41846, Sept. 11, 1992). The changes are 
responsive to concerns raised with BLM relating to ambiguity in the 
current language of the rules created by use of the undefined 
``hardrock'' phrases and the erroneous cross reference. If BLM delayed 
making these changes so as to allow notice and the opportunity for 
comment, there is the danger of confusion regarding the applicability 
of regulations and the type of enforcement action BLM will take if a 
person fails to comply with State and local building, fire, and 
electrical codes; occupational safety and health standards; or mine 
safety standards for permanent and temporary structures placed on 
public lands.
    Under the Administrative Procedure Act, an agency must publish a 
substantive rule not less than 30 days before its effective date, 
except as otherwise provided by the agency for good cause. See 5 U.S.C. 
553(d). For the same reasons described above with respect to notice and 
opportunity for comment, BLM finds that there is good cause for having 
these correcting amendments become effective immediately on publication 
in the Federal Register.

List of Subjects in 43 CFR Part 3710

    Administrative practice and procedure, Mines, Public lands-mineral 
resources.

    Dated: October 28, 1997.
Sylvia V. Baca,
Deputy Assistant Secretary, Land and Minerals Management.

    Accordingly, BLM is correcting 43 CFR 3710 by making the following 
correcting amendments:

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

Subpart 3715--Use and Occupancy under the Mining Laws

    1. The authority citation for subpart 3715 continues to read as 
follows:

    Authority: 18 U.S.C. 1001, 3571 et seq.; 30 U.S.C. 22, 42, 612; 
and 43 U.S.C. 1061 et seq., 1201, 1457, 1732(b) and (c), 1733(a) and 
(g).

    2. In Sec. 3715.0-5, revise the definition of ``Mining laws'' to 
read as follows:


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

* * * * *
    Mining laws means all laws that apply to mining of locatable 
minerals on public lands and which make public lands available for 
development of locatable minerals. This includes, but is not limited 
to, the general authorities relating to mining of locatable minerals or 
to the public lands on which this subpart is based and case law which 
interprets those authorities.
* * * * *
    3. In Sec. 3715.7-1, revise paragraph (a)(2)(ii) to read as 
follows:


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

    (a) * * *
    (2) * * *
    (ii) You fail at any time to meet any of the standards in 
Sec. 3715.3-1(b) or Sec. 3715.5(b), (c), or (e).
* * * * *
[FR Doc. 97-29281 Filed 11-4-97; 8:45 am]
BILLING CODE 4310-84-P