Hells Canyon National Recreation Area; Public Lands

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292

RIN 0596-AB08

Hells Canyon National Recreation Area; Public Lands

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish management standards and

guidelines for the protection and preservation of historic,

archeological, and paleontological resources; the use of motorized and

mechanical equipment; the use of motorized and nonmotorized rivercraft;

and the degree and type of timber harvesting, mining, and grazing

permissible on National Forest System lands in the Hells Canyon

National Recreation Area. The intended effect is to ensure the

protection, preservation, and enjoyment of the Area as directed by

statute.

DATES: Comments must be received in writing by March 21, 1994.

ADDRESSES: Send written comments to Director, Recreation, Cultural

Resources and Wilderness Management Staff, Forest Service, USDA, P.O.

Box 96090, Washington, DC 20090-6090.

The public may inspect comments received on this proposed rule in

the Office of the Director, fourth floor, central wing, Auditors

Building 201 Fourteenth Street SW., Washington, DC, between the hours

of 8:30 a.m. and 4:30 p.m. Those wishing to inspect comments are

encouraged to call ahead (202) 205-1423 to facilitate entry into the

building.

FOR FURTHER INFORMATION CONTACT: Tom Lennon, Branch Chief, Special

Designations, Recreation, Cultural Resources, and Wilderness Management

Staff (2300) (202) 205-1423 or Ed Cole, Ranger, Hells Canyon National

Recreation Area (503) 426-4978.

SUPPLEMENTARY INFORMATION:

Background

The Act of December 31, 1975 (the ``Act''), established the Hells

Canyon National Recreation Area (the ``HCNRA'') ``to assure that the

natural beauty, and historical and archeological values of the Hells

Canyon area * * * are preserved for this and future generations, and

that the recreational and ecologic values and public enjoyment of the

area are thereby enhanced.'' 89 Stat. 1117; 16 U.S.C. 460gg et seq.

While the Act's overall thrust is to protect and enhance the identified

resource values within the HCNRA, Congress acknowledged in Section 13

of the Act that ``ranching, grazing, farming, timber harvesting, and

the occupation of homes and lands associated therewith, as they exist

on the date of enactment of this Act, are recognized as traditional and

valid uses of the recreation area.''

The HCNRA covers 658,457 acres. Almost 95% of the HCNRA, or 625,193

acres, is in federal ownership. Within the HCNRA is the Hells Canyon

Wilderness, totalling 219,500 acres of National Forest System land, and

a small section of the Eagle Cap Wilderness, totalling 3,553 acres of

National Forest System land. Also within the HCNRA are the Snake,

Rapid, and Imnaha Wild and Scenic Rivers, the corridors of which

include 33,767 acres of National Forest System lands.

Section 7 of the Act stipulates that the HCNRA shall be

administered for public outdoor recreation in a manner compatible with

the following objectives:

(1) The maintenance and protection of the free-flowing nature of

the rivers within the recreation area;

(2) Conservation of scenic, wilderness, cultural, scientific, and

other values contributing to the public benefit;

(3) Preservation, especially in the area generally known as Hells

Canyon, of all features and peculiarities believed to be biologically

unique including, but not limited to, rare and endemic plant species,

rare combinations of aquatic, terrestrial, and atmospheric habitats,

and the rare combinations of outstanding and diverse ecosystems and

parts of ecosystems associated therewith;

(4) Protection and maintenance of fish and wildlife habitat;

(5) Protection of archeological and paleontological sites and

interpretation of these sites for the public benefit and knowledge

insofar as it is compatible with protection;

(6) Preservation and restoration of historic sites associated with

and typifying the economic and social history of the region and the

American West; and

(7) Such management, utilization, and disposal of natural resources

on federally owned lands, including, but not limited to, timber

harvesting by selective cutting, mining, and grazing and the

continuation of such existing uses and developments as are compatible

with the provisions of the Act.

Section 10 of the Act authorizes the Secretary to promulgate rules

and regulations necessary to accomplish the purposes of the Act.

Section 10 expressly lists several subjects as possible topics for

rulemaking, including the following:

(1) Standards and guidelines to insure the full protection and

preservation of the historic, archeological, and paleontological

resources in the recreation area;

(2) Provision for the control of the use of the use of motorized

and mechanical equipment for transportation over, or alteration of, the

surface of any Federal land within the recreation area;

(3) Provision for the control of the use and number of motorized

and nonmotorized rivercraft: Provided, that the use of such craft is

hereby recognized as a valid use of the Snake River within the

recreation area; and

(4) Standards for such management, utilization, and disposal of

natural resources on federally owned lands, including, but not limited

to, timber harvesting by selective cutting, mining and grazing and the

continuation of such existing uses and developments as are compatible

with the provisions of this Act.

Section 10 also authorized rulemaking to establish standards for

the use and development of privately owned property in the HCNRA. This

is the subject of a separate rulemaking and, thus, is not included in

this proposed rule.

Following enactment of the Act in 1975, the Forest Service

construed Section 10's authority to promulgate regulations as

discretionary and that the issues identified therein could be

adequately addressed under existing statutory and regulatory authority.

This interpretation was challenged in a 1988 lawsuit which contended

that the regulatory authority in Section 10 was mandatory, not

discretionary. Oregon Natural Resources Council (ONRC) v. Lyng, slip

op. No. 88-680PA (D. Or. 1989). The district court in Oregon rejected

ONRC's argument that the Secretary had a non-discretionary duty to

issue regulations under Section 10 and dismissed the case. On appeal,

however, the Ninth Circuit, reversed the district court and concluded

that the regulations were, in fact, required by Section 10. According

to the Ninth Circuit, Section 10 ``compels the Secretary to promulgate

nonduplicative regulations of the sort described by subsections 10(a)

through 10(e).'' ONRC v. Lyng, 882 F.2d 1417, 1421 (9th Cir. 1989).

Within three months of the 9th Circuit's decision in ONRC v. Lyng,

an interim rule establishing standards and guidelines for federal lands

in the HCNRA had been adopted and public comment solicited (54 FR

41089; Oct. 5, 1989). Only two comments were received on the interim

rule. The interim rule has never been published as a final rule. Due to

the length of time that has passed since the issuance of the interim

rule, and the recognition that substantial modifications to the interim

rule would be required, the agency has decided to issue a new proposed

rule for public comment. Accordingly, an agency response to the

comments submitted on the 1989 interim rule is not needed.

For ease of reference, the proposed rule divides the HCNRA into two

categories--Wilderness Lands and Other Lands. Consistent with Congress'

recognition that the wilderness portions of the HCNRA should receive

substantially more protection than the rest of the HCNRA, some

standards and guidelines are more protective in the Wilderness Lands

category than in the Other Lands category. In other instances, however,

the standards and guidelines are the same.

Section-By-Section Explanation of the Proposed Rule

This proposed rule would established a new Subpart F of Part 292,

Hells Canyon National Recreation Area--Public Lands, in Title 36 of the

Code of Federal Regulations. A section-by-section explanation of the

proposed rule follows:

Section 292.40 Purpose and Scope.

Paragraph (a) of proposed Sec. 292.40 explains that the purpose of

this rule is to establish specific standards and guidelines for the use

of the National Forest System lands that comprise the Hells Canyon

National Recreation Area (HCNRA). The topics that are the subject of

these standards and guidelines correspond with the topics in Section 10

of the Act, except for the use and development of privately owned

property which, as previously noted, is the subject of a separate

rulemaking and not addressed herein. Paragraph (b) explains that,

unless directly in conflict with the standards and guidelines set forth

in the rule, all of the existing authorities generally applicable to

National Forest System lands are specifically applicable to the

National Forest System lands in the HCNRA. It also states that the

specific regulatory authority for the HCNRA embodied in the rule's

standards and guidelines would prevail over the Forest Service's

general regulatory authority for National Forest System lands, if a

conflict between the two should arise.

Section 292.41 Definitions

Proposed Sec. 292.41 defines terms used in the proposed rule.

Section 292.42 Management Standards and Guidelines

Proposed Sec. 292.42 would establish several guiding principles

that apply to the standards and guidelines called for in Section 10 of

the Act and set out in Secs. 292.43 through 292.48. These principles

include the recognition that the rule is a supplement to, not a

substitute for, existing regulatory authority; that uses or activities

authorized under the rule's standards and guidelines might require

additional site-specific environmental analysis; that programmatic

direction in the Comprehensive Management Plan must conform to the

standards and guidelines of the rule; and, that the standards and

guidelines for a given use or activity may vary depending on whether

that use or activity is located inside or outside the designated

wilderness in the HCNRA.

Section 292.43 Protection and Preservation of Cultural and

Paleontological Resources

Proposed Sec. 292.43 would create seven standards to guide Forest

Service administration of cultural and paleontological resources in the

HCNRA. Proposed paragraphs (a) (1)-(4) set forth the standards and

guidelines for cultural and paleontological resources on the Other

Lands in the HCNRA; proposed paragraphs (b) (1)-(3) set forth the

standards and guidelines for cultural and paleontological resources

located on the Wilderness Lands in the HCNRA. For ease of reference,

``cultural resources'' includes historic and archeological resources in

the HCNRA. Though not explicitly referenced, the relevant provisions of

the National Historic Preservation Act, 16 U.S.C. 470 et seq., the

Archeological Resources Protection Act, 16 U.S.C. 470AA et seq., and

the Antiquities Act, 16 U.S.C. 431 et seq. and the accompanying

regulations at 36 CFR parts 296 and 800 would also apply.

Paragraph (a)(1) would establish protection as the primary

management objective for cultural resources in the HCNRA. It would

additionally provide for public education and information opportunities

about cultural resources as a management objective unless this would

unreasonably interfere with protection efforts. This standard

acknowledges the importance of cultural resource protection and

education for the vast storehouse of information in the HCNRA but

recognizes that educating the public about cultural resources must be

secondary to protection and must occur only if the resources can be

adequately protected.

Proposed paragraph (a)(2) requires that the Ranger establish

management priorities for cultural resources based, in part, on whether

the appropriate State Historic Preservation Office has concurred with

the Forest Service's determination that a cultural resource is

``significant.'' By establishing priorities, the Ranger will be able to

allocate available moneys for protection, education, and enjoyment

based on the historical or scientific importance of a cultural

resource. The Ranger also may take into account the relative risk of

damage or destruction to the resource and steps that could be taken to

avoid or minimize that risk.

Paragraph (a)(3) would apply to cultural resources which meet the

significance threshold. It would require that information from these

resources be documented and favor on-site over off-site protection. The

Ranger may select off-site protection under certain conditions. For

instance, the Ranger may decide off-site protection is appropriate if

the resource is located on NRA Wilderness Lands and protecting it on-

site would significantly intrude on the wilderness resource. Another

example of when off-site protection might be preferred is if the cost

is less than on-site protection and significant cultural resources with

identical or similar values have already been protected on-site.

Proposed paragraph (a)(4) applies to all paleontological resources

in the HCNRA and would establish protection for scientific study as the

primary objective. Prior written authorization would be required before

any individual could disturb or remove a paleontological resource in

connection with scientific study activities.

Paragraph (b)(1) would incorporate the standards and guidelines for

Other Lands and apply them to the Wilderness Lands. This would ensure

consistency of Forest Service cultural and paleontological resource

administration within the HCNRA and, more importantly, the protection

of these resources into the future.

Paragraphs (b) (2) and (3) would establish two additional standards

for Wilderness Lands in recognition of the Agency's dual management

objectives of protecting cultural resources and minimizing impacts on

the wilderness. This would be accomplished by requiring that

information and education activities related to cultural resources on

Wilderness Lands be conducted outside of the wilderness and by

precluding the development of new or relocated trails on Wilderness

Lands which would be used primarily as a means of securing public

access to cultural resources. This will enable visitors to experience

cultural resources in their natural setting, unencumbered by the signs,

guided tours, or other devices normally used to inform and educate the

visitor about our past.

Section 292.44 The Use of Motorized and Mechanical Equipment

Proposed Sec. 292.44 would create five standards to guide Forest

Service administration of motorized and mechanical equipment on

National Forest System lands in the HCNRA. Proposed paragraphs (a)(1)-

(4) set forth the standards and guidelines for motorized and mechanical

equipment use in the Other Lands; proposed paragraph (b) would

establish the standard for such use in the Wilderness Lands. For ease

of reference, the term ``motorized and mechanical equipment'' in this

rule has the same meaning as ``motorized equipment'' and ``mechanical

transport'' which are defined in regulations promulgated under the

Wilderness Act at 36 CFR part 293 except that it would not include

motorized wheelchairs or other devices used solely to assist people

with disabilities. Nor would it include motorized or nonmotorized

rivercraft which are defined in and regulated under a separate

provision of this rule. Though not explicitly referenced, the relevant

provisions of the Wilderness Act, 16 U.S.C. 1131 et seq., and

regulations at 36 CFR parts 212, 261, 293, and 295 would also apply.

Paragraph (a)(1) would authorize the use of motorized and

mechanical equipment on any Forest Service roads or airfields within

the HCNRA subject to terms and conditions necessary to ensure the safe

use of these facilities. This provision applies to all Forest Service

transportation development facilities as that term is currently defined

in 36 CFR 212.1, except for Forest Service trails which are the subject

of paragraph (a)(2). This provision also does not purport to regulate

the use of motorized and mechanical equipment on public roads or

highways which are under the jurisdiction of a state or local

transportation authority.

Paragraph (a)(2) would authorize the use of motorized and

mechanical equipment on Forest Service trails subject to terms and

conditions necessary to ensure the safe use of these facilities and

when compatible with the management objectives identified in section 7

of the Act. As envisioned in the proposed rule, motorized and

mechanical equipment could only be used on Forest Service trails in the

non-wilderness portions of the HCNRA pursuant to a finding that such

use was compatible with, among other things, the protection of free-

flowing rivers, the conservation of wilderness and other values, the

maintenance of fish and wildlife habitat, and/or the protection of

historic, archeologic, and paleontologic sites. If a particular

proposed use was compatible with some of the management objectives but

not with others, the Ranger would have to decide whether, on balance,

the compatibility outweighed the incompatibility and the use could

proceed.

Paragraph (a)(3) would authorize the use of mechanical equipment

off National Forest airstrips, roads, or trails only if such use is

compatible with the management objectives of section 7 of the Act.

Paragraph (a)(4) would prohibit the use of motorized equipment off

Forest Service airstrips, roads, and trails except in those cases where

it is reasonably necessary to attain one or more of the management

objectives set out in section 7. Under this standard, use of an off-

road vehicle (ORV) might only be permitted if it were necessary to

protect fish and wildlife habitat or preserve historic resources. ORV

use also might be allowable if it were necessary to conduct the types

of timber harvesting, mining, and grazing that are provided for in the

proposed rule. It will be the responsibility of the proponent of such

use to demonstrate its necessity related to the management objectives

in section 7.

These standards, when read together, establish a three-tiered

system governing motorized and mechanical equipment use in the non-

wilderness portion of the HCNRA. The requirements by which use may be

authorized become increasingly rigorous depending on whether the

proposed use is contemplated on Forest Service roads/airfields, Forest

Service trails, or off Forest Service airstrips, roads, or trails. This

provision recognizes that off-road travel is generally not tolerated

within the HCNRA due to the fragile and difficult terrain, impacts to

wildlife and their habitat, and other issues associated with resource

protection.

Proposed paragraph (b) explains that there are no non-duplicative

regulations needed for managing motorized and mechanical equipment in

wilderness areas of the HCNRA since such use is already prohibited by

the Wilderness Act. Accordingly, the proposed rule would merely restate

the exiting prohibition and provide cross-references to exceptions

permitted in the Wilderness Act.

The proposed rule would exempt from its coverage all uses related

to Forest Service administration which might include, at a minimum,

research activities and public health and safety responses. It also

would exclude uses necessary to access privately owned lands or

interests in land wholly within the HCNRA.

Section 292.45 Use of Motorized and Non-Motorized Rivercraft

Proposed Sec. 292.45 would establish seven standards to guide

Forest Service administration of the use of motorized and non-motorized

rivercraft in the HCNRA. These standards and guidelines are only

applicable to those rivers or river segments that have been designated

as components of the Federal Wild and Scenic Rivers System. Though not

explicitly referenced, the relevant provisions of the Wild and Scenic

Rivers Act, 16 U.S.C. 1271 et seq., and regulations at 36 CFR part 297,

would also apply.

Paragraph (a) would authorize the use of non-motorized rivercraft

on Wild and Scenic Rivers subject to such rules and regulations the

Ranger deems necessary to protect and enhance the values which caused

the river to be designated wild and scenic or to ensure the public's

safe use and enjoyment of the river.

Paragraph (b) would prohibit the use of motorized rivercraft on all

Wild and Scenic Rivers except for the Snake River. This prohibition

will not prevent the exercise of any type of currently authorized

motorized rivercraft use in the HCNRA; rather, it will simply provide

for management of this use which is currently limited to the Snake

River. It does, however, effectively preclude expansion of motorized

rivercraft use to other Wild and Scenic Rivers which will facilitate

the protection and enhancement of the values which caused those rivers

to be designated.

Paragraph (c) would require that all authorized rivercraft use on

Wild and Scenic Rivers in the HCNRA be in compliance with State and/or

Federal boating safety and registration laws.

Proposed paragraph (d) establishes a requirement that all users of

motorized and non-motorized rivercraft on the Snake Wild and Scenic

River must receive prior written authorization for such use from the

Ranger. It also explains that such authorization may include terms and

conditions on numbers, duration, seasons of use, noise, or other

matters that will protect and enhance the river resource and ensure a

high quality river experience for users of all types.

Paragraphs (e) and (f) are extensions of paragraph (d) and would

require the Ranger, as part of the written authorization process for

the Snake Wild and Scenic River, to make sure that both private and

commercial rivercraft users are reasonably accommodated, and that the

user capacity of the river is not exceeded, respectively.

Finally, paragraph (g) would require the Ranger to identify and

minimize to the extent practicable any existing or potential conflicts

between motorized and non-motorized rivercraft users or between

rivercraft users in general and other individuals like fishermen or

researchers who may use or enjoy the Wild and Scenic Rivers in the

HCNRA.

These standards and guidelines have been narrowly tailored to

address those specific types of rivercraft use on those specific river

segments where the greatest potential risk exists to the agency's

ability to administer the HCNRA in such a way as to protect and enhance

its natural, cultural, recreational, fishery and other resource values.

With respect to the use of rivercraft, the greatest risk is currently

presented by the use of motorized rivercraft on the Snake Wild and

Scenic River. As a result, most of the standards and guidelines in this

section pertain to that use on that river. Though the authority exists,

it was deemed unnecessary to establish additional standards for other

Wild and Scenic Rivers or other rivers in the HCNRA at this time to

address future contingencies which may or may not ultimately

materialize.

Section 292.46 Timber Harvesting Activities

Proposed Sec. 292.46 would establish three standards to guide

Forest Service administration of timber harvesting activities on

National Forest System lands in the HCNRA. Proposed paragraphs (a)(1)-

(2) set forth the standards and guidelines for timber harvesting

activities in the Other Lands category of the HCNRA; proposed paragraph

(b) establishes the standard in the Wilderness Lands. Though not

explicitly referenced, the relevant provisions of the Wilderness Act,

16 U.S.C. 1131 et seq., and regulations at 36 CFR part 223, 261 and 293

would also apply.

Paragraph (a)(1) would specify that timber will not be harvested

solely for commercial gain but, rather, will be harvested only in

conjunction with other, non-commercial purposes including maintenance

or improvement of ecosystem health, wildlife habitat, or the

recreational use and enjoyment of the HCNRA. Trees could also be

removed to eliminate hazards to persons or their property. Finally,

timber harvesting could also be employed as an appropriate and measured

response to natural events including, but not limited to, fire, flood,

and disease or pest infestation. The significance of this provision is

that it does not provide for timber production in and of itself to be

an objective of the timber harvesting activity.

In those instances where one or more of the purposes for which

timber may be harvested is recognized, paragraph (a)(2) conditions the

manner by which the timber may be harvested. These silvicultural

prescriptions authorize timber harvesting only by means of selective or

intermediate cuttings. For the purpose of this proposed rule, the term

``selective cutting'' means ``selection cutting'' as that term is

defined by the Society of American Foresters. The Agency believes that

the Act, in discussing the permissible types of silvicultural

prescriptions in the HCNRA, incorrectly used the term ``selective

cutting'' which is a type of exploitation cutting generally referred to

as ``creaming'', ``culling'', or ``high-grading''. For that reason, the

Agency defined ``selective cutting'' as ``selection cutting'' which is,

in all likelihood, the term Congress intended to use in the Act and

which means the annual or periodic removal of trees individually or in

small groups. The other types of authorized cuttings are well

understood within the forestry profession and are defined in the

proposed rule as they appear in the book, Terminology of Forest Science

Technology Practice and Products, published by the Society of American

Foresters. These types of cuttings represent the most ecologically

sensitive methods by which harvesting can be accomplished. Additional

proposed restrictions on harvesting in this proposed section include

requirements that the smallest area and least number of clearings be

created, and that the clearings blend into the natural landscape to the

extent practicable. These provisions would ensure that any timber

harvesting allowable within the HCNRA would proceed as unobtrusively as

possible.

Proposed paragraph (b) explains that there are no non-duplicative

regulations needed for managing timber harvesting activities in

wilderness areas of the HCNRA since such use is already generally

prohibited by the Wilderness Act. Accordingly, it merely restates the

existing prohibition and provides cross references to exceptions

permitted in the Wilderness Act.

Section 292.47 Mining Activities

Proposed 292.47 would establish six standards to guide Forest

Service administration of mining activities throughout the entire

HCNRA. Proposed paragraphs (a)(1)-(4) set forth the standards and

guidelines for mining activities in the Other Lands category of the

HCNRA; proposed paragraphs (b)(1)-(2) establish the standards for the

Wilderness Lands category. Though not explicitly referenced, the

relevant provisions of the 1872 Mining Law, 30 U.S.C. 22 et seq., the

Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., the Mineral

Materials Act of 1947, 30 U.S.C. 601 et seq., the Wilderness Act, 16

U.S.C. 1131 et seq., the Wild and Scenic Rivers Act, 16 U.S.C. 1271 et

seq., and regulations at 36 CFR parts 228 and 293 would also apply.

Paragraph (a) prohibits mining activities in the HCNRA subject to

valid existing rights. This is a restatement of Section 11 of the Act

which withdrew all federal lands within the HCNRA from the operation of

the mining and mineral leasing laws subject to valid existing rights.

Accordingly, the only authorized mining activities that may occur in

the HCNRA are those in which the valid existing rights have been

established. Holders of mining claims and mineral leases must

demonstrate that they have valid existing rights before land disturbing

activities can be initiated. This requirement would also extend to what

in common parlance has become known as ``recreational mining.'' There

is no authority for recreational mining other than the statutes cited

in the preceding paragraph. Thus, even if an operator claims that an

activity involving the exploration and/or extraction of mineral

resources is ``recreational'' in nature, that operator must prove that

he or she has valid existing rights to conduct that activity under one

of the aforementioned statutes.

Paragraph (b) proposes that the impact of mining activities be

directed away from the Wilderness Lands and Wild and Scenic Rivers to

the extent practicable. This would enable the impacts of developmental

drilling operations and the construction of access routes, among other

things, to be concentrated on lands which may be better suited to such

uses or which may not possess the number or degree of resource values

exhibited on Wilderness Lands or Wild and Scenic Rivers.

Paragraphs (c) and (d) concern the extraction and use of mineral

materials in the HCNRA. Mineral materials include, but are not limited

to, common varieties of sand, gravel, and stone and are governed by the

Mineral Materials Act of 1947, 30 U.S.C. 601 et seq., rather than the

mining and mineral leasing laws. As a result, activities related to

mineral materials are not subject to the withdrawal of federal lands

from the operation of the mining and mineral leasing laws in Section 11

of the Act. These standards, in addition to the applicable provisions

of Subpart C of 36 CFR part 228, specify the circumstances under which

exploration, extraction and use of common variety mineral materials may

occur in the HCNRA. Paragraph (c) would provide that mineral materials

may only be used in the HCNRA for the purpose of constructing or

maintaining facilities such as roads, existing airfields, trails and

other recreation developments.

Paragraph (d) would require that mineral materials needed for use

in the HCNRA for one of the enumerated purposes in paragraph (c) or for

use outside the HCNRA on a project with specific and identifiable

benefits for the HCNRA must come from sources located outside the HCNRA

unless (1) the cost associated with using non-HCNRA mineral materials

adds significantly to the costs of the material, or (2) the

transportation of mineral materials from outside the HCNRA presents a

safety hazard to the motoring public.When mineral materials are

obtained from inside the HCNRA, environmental impact at the source must

be mitigated by contouring the land, re-establishing vegetation, and

other appropriate measures. This paragraph would further prohibit the

extraction of mineral materials from sources inside the HCNRA if the

use would be outside the HCNRA and would not directly benefit the

HCNRA.

Proposed paragraph (b)(1) would incorporate the standards and

guidelines in paragraphs (a)(1) and (a)(2) for Other Lands and apply

them to Wilderness Lands. This would ensure the consistency of Forest

Service administration of mining activities within the HCNRA and

further the protection and enhancement of the values which caused

Congress to designate the HCNRA.

Paragraph (b)(2) would prohibit the extraction of mineral materials

from the Wilderness Lands. This is a restatement of existing authority

in 36 CFR 293.14(c).

The effect of the foregoing standards is to provide for the

continued maintenance and development of facilities and transportation

routes necessary for the administration and safe use and enjoyment of

the HCNRA while at the same time minimizing the impacts of such

activities on HCNRA lands and directing such activities to non-HCNRA

lands wherever possible.

Section 292.48 Grazing Activities

Proposed Sec. 292.48 would create four standards to guide Forest

Service administration of grazing activities on National Forest System

lands throughout the entire HCNRA. The agency felt that one set of

standards and guidelines for the entire HCNRA would be simpler to

administer and would adequately provide for the continuation of grazing

and the protection and enhancement of the HCNRA resource values. Though

not expressly referenced, the relevant provisions of the Granger-Thye

Act, 16 U.S.C. 580 et seq., the Federal Land Policy and Management Act,

43 U.S.C. 1701 et seq., the Public Rangelands Improvement Act, 43

U.S.C. 1901 et seq., and regulations at 36 CFR part 222 would also

apply.

Paragraph (a) would authorize the grazing of domestic livestock

only on National Forest rangeland that has been found to be in

satisfactory condition. In those situations where the land is suitable

and in satisfactory conditions, livestock grazing could only take place

in such numbers, seasons, and methods which will ensure that the

satisfactory condition is maintained. This provision will ensure that

domestic livestock grazing will not occur on rangelands that are

currently in substandard condition nor will it occur in such a way as

to degrade rangelands that are currently in satisfactory condition.

Proposed paragraph (b) requires the Forest Service to administer

the grazing program to minimize or eliminate conflicts between domestic

livestock and fish and wildlife, outdoor recreation, and the

preservation and conservation of the other natural values for which the

HCNRA was established by adjusting the level, type of livestock, or

manner of grazing. This paragraph further requires that the domestic

livestock grazing must cease in the event that the adjustment in the

grazing activity has failed to eliminate the conflict. This ensures

that grazing will not continue if it can not be conducted in a manner

that is compatible with the purposes for which the HCNRA was

established.

Paragraph (c) would require that range improvements constructed or

implemented on National Forest System lands must be as unobtrusive as

possible while still accomplishing the purposes for which the

improvement was required. This could involve fences or water storage

facilities being constructed in a visually inconspicuous fashion or the

use of vegetative treatments in an environmentally sensitive manner.

Paragraph (d) would require that in administering the domestic

livestock grazing program, measures must be instituted to protect and

conserve riparian areas. This could take the form of restrictions on

place, time, or manner of livestock grazing and would be in furtherance

of protecting and enhancing fish and wildlife habitat which is one of

the management objectives of the HCNRA.

Summary

The proposed rule establishes standards for National Forest System

lands within the HCNRA to ensure that the activities which occur on the

National Forest System lands within the HCNRA are compatible with the

purposes for which the HCNRA was created. The proposed regulations have

been carefully drafted to include only those management standards and

guidelines which are nonduplicative.

Except in those instances in which there would be a direct and

irreconcilable conflict, this proposed rule would not supplant the

Forest Service's existing regulatory authority related to National

Forest System lands. This regulatory authority covers a panoply of

subjects including, but not limited to, range management (36 CFR part

222), timber (36 CFR part 223), minerals (36 CFR part 228), off-road

vehicle use (36 CFR part 295), archeological resources (36 CFR part

296), and historic and cultural properties (36 CFR part 800).

Nor would this proposed rule simply restate the current regulatory

authority of the Forest Service to administer the National Forest

System lands. Instead, this proposed rule would augment existing

regulatory authority to establish standards and guidelines that would

address the subject matter areas identified in section 10 that were of

particular concern to Congress when the HCNRA was established in 1975.

Public comment is invited and will be considered in adoption of a final

rule.

In summary, these standards and guidelines will protect and

preserve historic, archeologic, and paleontologic resources; provide

for the use of motorized and mechanical equipment; provide for the use

of motorized and nonmotorized rivercraft; and establish the permissible

scope and extent of timber harvesting, mining, and grazing on National

Forest System lands in the HCNRA. In so doing, the Forest Service will

be able to ensure that the natural beauty, historical, and

archeological values of the HCNRA are preserved for this and future

generations, and that the recreational and ecological values and public

enjoyment of the area are thereby enhanced.

Regulatory Impact

This rule has been reviewed under Executive Order 12866 on

``Regulatory Planning and Review.'' It has been determined that this is

not a significant rule.

This rule also has been considered in light of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq., and it has been determined that

this action will not have a significant economic impact on a

substantial number of small entities as defined by that act.

Environmental Impact

This proposed rule is promulgated in accordance with section 10 of

the Act, 16 U.S.C. 460gg-7. The affected environment and consequences

of implementing management alternatives for the HCNRA were analyzed and

disclosed in the Environmental Impact Statement for the Comprehensive

Management Plan that was implemented by the Chief of the Forest Service

on May 23, 1981. The analysis completed for the Comprehensive

Management Plan was revalidated in April 1990 with the signing of the

Wallowa-Whitman National Forest Land and Resource Management Plan

Record of Decision (page 1). A review of this proposed rule indicates

no potential for significant effect on the quality of the human

environmental other than that previously disclosed in the Environmental

Impact Statement. The environmental consequences of any future projects

will be subject to site specific analysis pursuant to Forest Service

National Environmental Policy Act procedures (Forest Service Manual

Chapter 1950, Forest Service Handbook 1909.15). Therefore, no

additional environmental documentation is deemed needed on this rule.

Information pertaining to the environmental analysis may be obtained by

writing or calling the persons or offices listed under ADDRESSES and

FOR FURTHER INFORMATION CONTACT.

Takings Implication

In compliance with Executive Order 12630 and the Attorney General's

Guidelines for the Evaluation of Risk and Avoidance of Unanticipated

Takings, the takings implications of this proposed rule have been

reviewed and considered. It has been determined that there is no risk

of a taking.

Executive Order 12778, Civil Justice Reform Act

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. If this proposed rule were adopted, (1) all state

and local laws and regulations that are in conflict with this proposed

rule or which would impede its full implementation would be preempted;

(2) no retroactive effect would be given to this proposed rule; and (3)

it would not require administrative proceedings before parties could

file suit in court challenging its provisions.

Paperwork Reduction

This rule will not result in additional paperwork not already

approved for use. Therefore, the review provisions of the Paperwork

Reduction Act of 1980 (44 U.S.C. 3507) and implementing regulations at

5 CFR part 1320 do not apply.

List of Subjects in Part 292

National recreation areas.

Therefore, for the reasons set forth in the preamble, it is

proposed to amend Part 292 of Chapter II of Title 36 of the Code of

Federal Regulations by revising Subpart F to read as follows:

PART 292--NATIONAL RECREATION AREAS

Subpart F--Hells Canyon National Recreation Area--Federal Lands

Sec.

292.40 Purpose and scope.

292.41 Definitions.

292.42 Management standards and guidelines.

292.43 Protection and preservation of cultural and paleontological

resources.

292.44 Use of motorized and mechanical equipment.

292.45 Use of motorized and non-motorized rivercraft.

292.46 Timber harvesting activities.

292.47 Mining activities.

292.48 Grazing activities.

Subpart F--Hells Canyon National Recreation Area--Federal Lands

Authority: Sec. 10, Public Law 94-199, 89 Stat. 1117 (16 U.S.C.

460gg-7).

Sec. 292.40 Purpose and scope.

(a) Purpose. The rules of this subpart establish standards and

guidelines for the protection and preservation of historic,

archaeological, and paleontological resources, the use of motorized and

mechanical equipment, the use of motorized and nonmotorized rivercraft,

and the management, utilization, and disposal of natural resources by

timber harvesting, mining and grazing on National Forest System lands

that comprise the Hells Canyon National Recreation Area located in the

Wallowa-Whitman, Nez Perce, and Payette National Forests in the States

of Idaho and Oregon as established by the Act of December 31, 1975, as

amended (89 Stat. 1117, 16 U.S.C. 460gg et seq.).

(b) Scope. Management of National Forest System lands within the

Hells Canyon National Recreation Area is subject to all laws, rules,

and regulations applicable to the National Forest System, except as

otherwise provided in this subpart. In the event of a conflict or

inconsistency between rules of this subpart and other rules within this

title, the rules of this subpart shall take precedence to the extent

permitted by law.

Sec. 292.41 Definitions.

Special terms used in this subpart are defined as follows:

Act means the Act of December 31, 1975, as amended (Pub. L. 94-199,

89 Stat. 1117) which established the Hells Canyon National Recreation

Area.

Comprehensive Management Plan is the document that establishes the

array, levels, and manner of resource uses within the HCNRA. It is

incorporated as part of the Wallowa-Whitman National Forest Land and

Resource Management Plan.

Cultural Resources means historic and archaeological resources.

HCNRA is the abbreviation for the Hells Canyon National Recreation

Area.

Intermediate Cutting means any removal of trees from a stand

between the time of its formation and the harvest cutting. Examples of

intermediate cutting include, but are not limited to, cleaning,

thinning, liberation, improvement, hazard removal, salvage and

sanitation cuttings.

Mining means any activity related to the discovery, extraction and

exploitation of minerals or mineral materials including, but not

limited to, actions taken pursuant to the Mining Act of 1872, 30 U.S.C.

22 et seq., the Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., the

Mineral Materials Act of 1947, 30 U.S.C. 601 et seq., or any other

activity using hydraulic equipment, pans, ground sluicing, sluice

boxes, rockers, or suction dredges.

Motorized and Mechanical Equipment has the same meaning as

``mechanical transport'' and ``motorized equipment'' in 36 CFR 293.6(a)

and (b), except that this term does not include either motorized or

nonmotorized rivercraft or motorized wheelchairs or other devices used

solely to assist persons with disabilities.

Motorized Rivercraft means any boat capable of being mechanically

propelled by propeller(s) or jet pump(s) upstream through rapids.

Non-Motorized Rivercraft means any boat which is not a motorized

rivercraft.

Other Lands means all nonwilderness National Forest Systems lands

in the HCNRA.

Paleontological Resources means any remains, trace, or imprint of a

plant or animal that has been preserved in the Earth's crust prior to

the Holocene epoch.

Ranger is the HCNRA Area Ranger, Wallowa-Whitman National Forest,

with offices located in Enterprise, Oregon, Riggins, Idaho, and

Clarkston, Washington, except for the Rapid Wild and Scenic River where

the term refers to the Salmon River District Ranger, Nez Perce National

Forest, located in Whitebird, Idaho.

Selective Cutting means single tree or group selection cutting and

is the periodic removal of trees individually or in small groups from

an uneven aged forest in order to maintain diverse stands of irregular

constitution and for which the management of the forest ecosystem is a

primary consideration.

Suitable means it is appropriate to apply certain resource

management practices to a particular area of land, as determined by an

ecological and environmental analysis of the land. A unit of land may

be suitable for a variety of individual or combined management

practices.

Wild and Scenic Rivers means the designated segments of the Snake,

Rapid, Imnaha and any other river or segment thereof in the HCNRA

hereafter designated as components of the National Wild and Scenic

Rivers System.

Wilderness Lands means the Hells Canyon Wilderness, that portion of

the Eagle Cap Wilderness in the HCNRA, and any other wilderness in the

HCNRA hereafter designated as components of the National Wilderness

Preservation System.

Sec. 292.42 Management standards and guidelines.

(a) In addition to existing statutory and regulatory authority

governing administration of National Forest System lands and resources,

the standards and guidelines in Secs. 292.43 to 292.48 of this subpart

prescribe the scope and extent of certain activities that may occur in

the HCNRA. These standards and guidelines are consistent with the

overall objective of administering the HCNRA to preserve its natural

beauty, historical and archaeological values and enhance its

recreational and ecological values and the public's enjoyment. The

standards and guidelines may vary depending on whether the land where

the proposed activity is contemplated is within the Wilderness Lands or

the Other Lands.

(b) The standards and guidelines of this subpart govern the

previous programmatic direction in the Comprehensive Management Plan

that has been incorporated into the Wallowa-Whitman National Forest

Land and Resource Management Plan. Site specific environmental analysis

may be required even in those situations where a use or activity is

permissible under the standards and guidelines set forth in this

subpart.

Sec. 292.43 Protection and preservation of cultural and

paleontological resources.

(a) Other Lands. The following standards and guidelines of this

section apply to the protection and preservation of cultural and

paleontological resources in the Other Lands category of the HCNRA:

(1) The primary objective of managing cultural resources is the

protection of the resource from damage or destruction. To the extent

consistent with protection, cultural resources may also be managed for

public education and enjoyment.

(2) The Ranger shall establish priorities for management emphasis

and protection of cultural resources based, in part, on whether the

appropriate State Historic Preservation Office has concurred with the

Forest Service's determination that a cultural resource is significant.

(3) Significant cultural resources are to be protected on-site,

unless the Ranger determines that off-site protection is preferable

because the resource is already adequately represented and protected

on-site elsewhere, is within Wilderness Lands, or for other good cause

shown. Information about significant cultural resources shall be

documented.

(4) The primary objective of managing paleontological resources is

for scientific study. Written authorization from the Ranger must be

secured before paleontological resources can be disturbed or removed in

conjunction with scientific study.

(b) Wilderness Lands. The following standards and guidelines apply

to the protection and preservation of cultural and paleontological

resources in the Wilderness Lands category of the HCNRA:

(1) The standards and guidelines for Other Lands in paragraph (a)

of this section also apply to Wilderness Lands.

(2) Public education and information activities concerning cultural

resources on Wilderness Lands may not be offered or established inside

Wilderness Lands.

(3) New trails and relocations of existing trails may not be

developed for the sole purpose of providing public access to cultural

resource sites on Wilderness Lands.

Sec. 292.44 Use of motorized and mechanical equipment.

The standards and guidelines of this section apply to the use of

motorized and mechanical equipment in the HCNRA. These standards and

guidelines shall not be construed to impair or preclude the Forest

Service's administration of the HCNRA; authorized scientific and other

research activities within the HCNRA; timber harvesting, mining, or

grazing activities as authorized in Secs. 292.46-292.48 of this

subpart; responses by the Forest Service or any other federal, state,

or local agency to public health or safety emergencies; or access to

private inholdings within the HCNRA.

(a) Other Lands. The following standards and guidelines apply to

the use of motorized and mechanical equipment in the Other Lands

category of the HCNRA:

(1) Motorized and mechanical equipment may be used on designated

Forest Service access roads and existing airstrips subject to terms and

conditions necessary for the safe use of such facilities.

(2) The use of motorized and mechanical equipment is permissible on

designated National Forest trails subject to terms and conditions

necessary for the safe use of such facilities and if such use is

compatible with the management objectives set forth in Section 7 of the

Act.

(3) Use of mechanical equipment off designated Forest Service

access roads, National Forest trails, and existing airstrips is

permissible subject to terms and conditions necessary for the safe use

of such equipment and if such use is compatible with the management

objectives set forth in Section 7 of the Act.

(4) Use of motorized equipment is prohibited off designated Forest

Service access roads, National Forest trails, and existing airstrips

unless it is reasonably necessary to attain one or more of the

management objectives set forth in Section 7 of the Act.

(b) Wilderness Lands. Except as provided for in Sections 4 (c) and

(d) of the Wilderness Act and regulations at 36 CFR parts 261 and 293,

the use of motorized and mechanical equipment is prohibited on

Wilderness Lands.

Sec. 292.45 Use of motorized and non-motorized rivercraft.

The standards and guidelines of this section apply to the use of

motorized and non-motorized rivercraft on the Wild and Scenic Rivers

within the HCNRA.

(a) The use of non-motorized rivercraft may be permitted subject to

restrictions on numbers, duration, seasons, or other matters which may

be deemed by the Ranger necessary to protect and enhance the values for

which the rivers were designated wild and scenic or to ensure the safe

use and enjoyment of the rivers.

(b) The use of motorized rivercraft is prohibited, except on the

Snake River.

(c) The use of motorized and non-motorized rivercraft is subject to

all Federal and State boating registration and safety laws.

(d) The use of motorized or non-motorized rivercraft on the Snake

Wild and Scenic River requires prior written authorization from the

Ranger and may be subject to limitations on numbers, duration, seasons,

or noise limits, or other restrictions which may be deemed by the

Ranger necessary to protect and enhance the values for which the Snake

River was designated wild and scenic or to ensure the safe use and

enjoyment of the river.

(e) In authorizing the use of motorized and non-motorized

rivercraft on the Snake Wild and Scenic River, the Ranger must

reasonably accommodate both private and commercial users of each type

of rivercraft.

(f) In authorizing the use of motorized and non-motorized

rivercraft on the Snake Wild and Scenic River, the Ranger must ensure

that the user capacity of the river is not exceeded.

(g) In authorizing the use of motorized and non-motorized

rivercraft on the Snake Wild and Scenic River, the Ranger shall seek to

minimize, where practicable, conflicts between motorized and non-

motorized rivercraft users and between both types of rivercraft users

and all other users of the river.

Sec. 292.46 Timber harvesting activities.

(a) Other Lands. The standards and guidelines of this section apply

to timber harvesting activities in the Other Lands category of the

HCNRA.

(1) Timber may be harvested in order to protect and enhance

ecosystem health, wildlife habitat, or recreational uses; to reduce the

risk of harm posed by hazard trees; or to respond to natural events

such as wildfire, flood, earthquake, volcanic eruption, high winds, and

disease or pest infestation.

(2) Where authorized, trees may be removed by selective or

intermediate cuttings. Openings created by the timber harvesting

activity must be limited in size and number to the minimum necessary to

accomplish the purpose of the harvest, and must blend with the natural

landscape to the extent practicable.

(b) Wilderness Lands. Except as provided for in Sections 4 (c) and

(d) of the Wilderness Act and regulations at 36 CFR part 293, timber

harvesting is prohibited on Wilderness Lands.

Sec. 292.47 Mining activities.

(a) Other Lands. The standards and guidelines of this section apply

to mining activities in the Other Lands category of the HCNRA.

(1) All mining activities are prohibited subject to valid existing

rights.

(2) The impact of mining activities including, but not limited to,

drilling and the development of ingress and egress routes, must be

minimized and directed away from Wilderness Lands and Wild and Scenic

Rivers to the extent practicable.

(3) Mineral materials including, but not limited to common

varieties of gravel, sand, or stone may be used only within the HCNRA

for the purpose of construction and maintenance of facilities

including, but not limited to, roads, existing airfields, trails, and

recreation developments.

(4) Sources of mineral materials should be located outside the

HCNRA. Sources for mineral materials that may be used to benefit the

HCNRA may be located inside the HCNRA if the cost of obtaining the

materials outside the HCNRA adds significantly to the costs of the

materials, or the transportation of mineral materials from outside the

HCNRA present a safety hazard to the motoring public. When mineral

materials are obtained from inside the HCNRA, environmental impact at

the mineral source must be mitigated by contouring the land; re-

establishing vegetation, and other appropriate measures. The HCNRA

shall not be the source of mineral materials for use outside the HCNRA

for projects that do not directly benefit the HCNRA.

(b) Wilderness Lands. The standards and guidelines of this section

apply to mining activities in the Wilderness Lands category of the

HCNRA.

(1) The standards and guidelines for Other Lands in paragraphs

(a)(1) and (2) of this section also apply to Wilderness Lands.

(2) Extraction of mineral materials is prohibited on Wilderness

Lands.

Sec. 292.48 Grazing activities.

The following standards and guidelines apply to domestic livestock

grazing activities in the HCNRA:

(a) Grazing may occur only on rangeland determined to be suitable

for grazing and to be in satisfactory condition.

(b) Where domestic livestock grazing is incompatible with the

protection, restoration, and/or maintenance of fish and wildlife or

their habitats; public outdoor recreation; conservation of scenic,

wilderness, and scientific values; or rare combinations of outstanding

ecosystems, the livestock use shall be modified as necessary to

eliminate or avoid the incompatibility. In the event an incompatibility

persists after the modification, or modification is not feasible, the

livestock use shall be terminated.

(c) Range improvements must be designed and located to minimize

their impact on scenic, cultural, fish and wildlife, and other

resources in the HCNRA to the extent practicable.

(d) The authorization of grazing use, through a grazing permit,

must provide for terms and conditions which protect and conserve

riparian areas.

Dated: December 23, 1993.

William L. McLeese,

Acting Chief.

[FR Doc. 94-1035 Filed 1-18-94; 8:45 am]

BILLING CODE 3410-11-M