Hells Canyon National Recreation AreaFederal Lands

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292

RIN 0596-AB08

Hells Canyon National Recreation Area--Federal Lands

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule implements Sections 10(b)-(e) of the Hells

Canyon National Recreation Area Act of 1975 (hereafter ``the Act'').

The Act established the Hells Canyon National Recreation Area

(hereafter ``the HCNRA'') and directed the Secretary of Agriculture to

promulgate rules and regulations for federal lands in the HCNRA that

would: insure the full protection and preservation of the historic,

archeological, and paleontological resources; provide for the control

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

control of the use and number of motorized and non-motorized river

craft; and, establish standards for the management, utilization, and

disposal of natural resources by timber harvesting, mining and grazing

which are compatible with the provisions of the Act. This rule will

ensure that the HCNRA will be administered in such a way as to protect

the values for which it was established.

EFFECTIVE DATe: This rule is effective July 19, 1994.

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

Designations, Recreation, Cultural Resources, and Wilderness Management

Staff, (202) 205-1423 or Ed Cole, Area Ranger, (503) 426-4978.

SUPPLEMENTARY INFORMATION:

Background

Congress established the HCNRA in the Act in order 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.'' P.L. 94-199, 89 Stat. 1117 at Sec. 1

(codified at 16 U.S.C. Sec. 460gg). While the overarching goals and

objectives of the Act are to preserve and enhance the natural,

historic, paleontologic, recreation, and other values in the HCNRA,

Congress also expressly recognized as ``valid'' certain timber

harvesting, grazing and rivercraft uses of the area that predated the

establishment of the HCNRA. Id. at Secs. 10, 13 (codified at 16 U.S.C.

Secs. 460gg-7, -10).

The HCNRA consists of 625,193 acres of federal land. Included in

this acreage is the Hells Canyon Wilderness which totals 219,500 acreas

and a portion of the Eagle Cap Wilderness which totals 3,553 acres.

Also included in the total HCNRA acreage are 33,767 acres in the Snake,

Rapid, and Imnaha Wild and Scenic River corridors. The Hells Canyon

Wilderness was designated by Congress in Section 2 of the Act; the

Snake and Rapid Wild and Scenic Rivers were designated in Section 3 of

the Act.

Section 10 of the Act authorized the Secretary to promulgate

regulations addressing several issues that were of concern to Congress

when it established the HCNRA in 1975. Section 10(b) authorized the

promulgation of regulations which would ensure the full protection and

preservation of the historic, archeological, and paleontological

resources in the HCNRA. Section 10(c) authorized the promulgation of

regulations which would provide for the control of the use of motorized

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

surface of any Federal land in the HCNRA. Section 10(d) authorized the

promulgation of regulations which would provide for the control of the

use and number of motorized and nonmotorized rivercraft while

recognizing the validity of the use of such craft on the Snake River in

the HCNRA. Section 10(e) authorized the promulgation of regulations

which would establish standards compatible with the provisions of the

Act for the management, utilization, and disposal of natural resources

in the HCNRA through timber harvesting, mining, and grazing.

Parenthetically, it should be noted that Section 10(a) authorized the

Secretary to promulgate regulations which would establish standards for

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

section was the subject of a separate rulemaking in which a final rule

was adopted on June 13, 1994 (59 Federal Register 30492). Accordingly,

it is not discussed further in this proceeding.

Following enactment of the Act in 1975, the Forest Service

construed the authority in Section 10 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 v. Lyng, slip op. No.

88-680PA (D. Or. 1989) (hereafter ``ONRC v. Lyng''). 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 (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 the 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.

Recently, another lawsuit was filed against the Forest Service

alleging that the agency had unreasonably delayed promulgation of the

regulations for the HCNRA following the Ninth Circuit's 1989 decision

in ONRC v. Lyng. Hells Canyon Preservation Council v. Richmond, Slip

Op. Cv. No. 92-1432-ST (D. Or.). The district court agreed that the

Forest Service had unreasonably delayed the promulgation of rules for

the HCNRA and established a schedule for their completion. As it

related to regulations for the federal lands in the HCNRA, the court

directed that a proposed rule be published in the Federal Register not

later than January 20, 1994; that the comment period on the proposed

rule close not later than March 21, 1994; and that a final rule be

adopted and published in the Federal Register not later than July 19,

1994.

On January 19, 1994, the Forest Service published a proposed rule

for the National Forest System lands in the HCNRA pursuant to Sections

10(b)-(e) of the Act (59 FR 2782). The proposed rule consisted of the

following sections: purpose and scope, definitions, management

standards and guidelines, protection and preservation of cultural and

paleontological resources, use of motorized and mechanical equipment,

use of motorized and non-motorized rivercraft, timber harvesting

activities, mining activities, and grazing activities. In recognition

of the proportionately greater protection that Congress felt the

wilderness areas should receive over other parts of the HCNRA, the

proposed rule also divided the HCNRA into Wilderness Lands, consisting

of the approximately 223,000 acres of designated wilderness in the

HCNRA and Other Lands, consisting of the remaining approximately

402,000 acres of federal lands in the HCNRA. This latter category

included the approximately 33,000 acres of federal lands in the Snake,

Rapid, and Imnaha Wild and Scenic River corridors.

Against this backdrop, the proposed rule then established standards

for each of the items identified in Sections 10(b) through (e) of the

Act. Some of the standards varied depending on whether the affected

activity or use occurred on or was contemplated in the Wilderness Lands

or the Other Lands. The standards for the grazing activities were,

however, identical for Wilderness Lands and Other Lands. The standards

for motorized and non-motorized rivercraft use did not differentiate

between Wilderness Lands and Other Lands. Rather, this section of the

proposed rule established standards applicable only to river segments

that had been designated as wild and scenic rivers.

Nineteen letters expressing a variety of viewpoints were received

by the expiration of the 60 day comment period on March 21, 1994. These

letters contained the views of, among others, a utility company, a

recreation group, several environmental groups, a federal agency, a

grazing permittee, an association representing the personal watercraft

industry, a commercial river outfitter and numerous concerned citizens.

Two individuals submitted two separate comments on the proposed rule.

The comments contained in these letters have been considered in the

adoption of this final rule. The Department appreciates the time and

energy the reviewers invested in preparing these letters and

articulating their concerns with the proposed rule.

All comments received are available for review in the Office of the

Director, Recreation, Cultural Resources, and Wilderness Management

Staff, Auditors Building, 4th Floor, 201 14th Street, SE., at

Independence Ave., SW., Washington DC, during regular business hours (8

a.m. to 5 p.m.) Monday through Friday.

Analysis of Public Comment

Comments on the proposed rule dealt with general issues like the

terminology, enforceability, and format of the regulation. Comments

also were made concerning the specific standards enumerated in the

proposed rule. A brief statement of the salient issues, responses, and

modifications in the proposed rule follows.

General Comments on Proposed Subpart E of 36 CFR Part 292

1. The Ambiguity of the Standards in the Proposed Rule

A number of reviewers contended that many of the standards set out

in Secs. 292.43 through 292.48 of the proposed rule were vague and

imprecise. As a result, these reviewers noted, the Forest Service could

exercise unfettered discretion in the administration of the HCNRA.

These reviewers suggested that this could result in arbitrary decisions

allowing or, in some cases, disallowing certain activities or uses in

the HCNRA. They concluded that the standards should be clarified to

further circumscribe the agency's decisionmaking authority. If

additional clarification could not be achieved, then some of the

reviewers recommended that the affected standard simply be eliminated.

Response. The Forest Service generally disfavors the use of rigid

and fixed standards in a rule notwithstanding the fact that such

standards might reduce the potential for arbitrary agency action and

might enhance the agency's and the public's ability to predict whether

certain behavior would be in conformance with them. The reason that the

agency resists this practice is twofold. First, the agency believes

that there is a significant risk that rigid and fixed standards in a

rule, though perhaps appropriate at the time of adoption, may quickly

be rendered obsolete or impractical due to changes or developments in

law, science, technology, or societal norms and understandings. Second,

where such standards are deemed desirable, they can typically be

incorporated in the forest plan or a related document, like the

Comprehensive Management Plan for the HCNRA, which are, by their

nature, more fluid and dynamic and thus better suited than a rule to

respond to evolution and change.

As a result, the Forest Service acknowledges that some discretion

exists in most, if not all, of the standards in the proposed rule. It

is the agency's view that an element of discretion is essential if the

HCNRA is to be successfully administered in conformance with the Act.

Nonetheless, the agency has reviewed the standards of the proposed

rule to determine whether additional clarification can be supplied

without compromising the flexibility necessary to administer the HCNRA.

To the extent a standard might appear to be so vague as to be

unenforceable, additional clarification has been supplied in the rule.

Such clarification is explained in the section-by-section comments that

follow. In many circumstances, additional clarification may also be

supplied in the Comprehensive Management Plan (CMP) for the HCNRA which

will apply the general goals and objectives of the Act in conjunction

with the standards of this rule to the specific uses or activities

occurring in or contemplated on the HCNRA.

Finally, it should be noted that the mere existence of discretion

in an agency decisionmaker does not necessarily mean that the

discretion will be abused. This is neither the purpose nor intent of

this rule. In the event that a party believes that the Forest Service

has acted arbitrarily or capriciously or has otherwise abused its

discretion, judicial review is available in accordance with the

Administrative Procedures Act, 5 U.S.C. Secs. 706 et seq.

2. Absence of a Mechanism in the Proposed Rule To Enforce the Standards

Contained Therein

Many reviewers submitted comments that supported the standards in

the proposed rule with the caveat that the Forest Service implement and

enforce them. One reviewer was concerned that the proposed rule failed

to supply any mechanism by which the standards could be enforced.

Presumably, this reviewer believed that the lack of a viable

enforcement mechanism would make the rule a paper tiger and render it

ineffectual as a means of protecting against depredations in the HCNRA

and enhancing the values for which the HCNRA was established.

Response. Notwithstanding the lack of a specific enforcement

mechanism in the proposed rule, the Forest Service does not consider

the standards of Secs. 292.43 through 292.48 to be unenforceable. The

Forest Service has several tools at its disposal which can help to

ensure compliance with the standards of this rule.

As was noted in Sec. 292.40(b) of the proposed rule, this rule for

the HCNRA would supplement, not supplant, existing statutory and

regulatory authorities generally applicable to National Forest System

lands. This authority includes, but is not limited to, Forest Service

regulations governing prohibitions at 36 CFR part 261 et seq. These

regulations provide for fines of up to $5000 and/or imprisonment of up

to six months for violations of the enumerated prohibitions. At a

minimum, prohibitions in Subpart A of 36 CFR part 261 concerning timber

and other forest products (36 CFR 261.6), livestock (36 CFR 261.7),

property (36 CFR 261.9), occupancy and use (36 CFR 261.10), forest

development roads and trails (36 CFR 261.12), use of vehicles off roads

(36 CFR 261.13), and national forest wilderness (36 CFR 261.16) may

directly apply to the HCNRA and the standards set out herein.

Prohibitions may also be established by order of the Chief,

Regional Forester, or Forest Supervisor pursuant to Subpart B of 36 CFR

261.50 et seq. In the event that such an order was issued, prohibitions

concerning special closures (36 CFR 261.53), forest development roads

(36 CFR 261.54), forest development trails (36 CFR 261.55), use of

vehicles off forest development roads (36 CFR 261.56), national forest

wilderness (36 CFR 261.57), and occupancy and use (36 CFR 261.58) may

directly apply to the HCNRA and the standards set out in this rule.

Furthermore, the authorizations for domestic livestock grazing and

rivercraft use will be dependent upon compliance with, among other

things, the applicable standards in this rule. Thus, violations of the

standards set out herein could result in the loss of grazing privileges

or rivercraft use. This, in and of itself, is a valuable enforcement

mechanism.

In addition to all of the above enforcement tools, the Forest

Service may always pursue a civil enforcement action to enjoin an

offending use or activity.

The Forest Service is currently considering whether the prohibition

regulations at 36 CFR part 261 et seq. should be amended to include a

section specifically related to the HCNRA. If this is deemed advisable,

it would be the subject of a separate rulemaking. In the meantime, to

clarify that the Forest Service may utilize the prohibition regulations

to enforce the standards set out in this rule, a new subsection (c) has

been added to Sec. 292.42.

3. Inconsistency of Certain Standards for Other Lands in the HCNRA With

the Management of Wild and Scenic Rivers

One reviewer contended that several standards for Other Lands in

the HCNRA could result in uses of or activities on wild and scenic

river corridor lands that would otherwise be precluded under the Wild

and Scenic Rivers Act, 16 U.S.C. Secs. 1271 et seq. In particular, this

reviewer noted that standards regarding motorized and mechanical

equipment and timber harvesting could be problematic, especially for

wild and scenic river sections classified ``wild.'' This reviewer

recommended that the Other Lands category be further subdivided into

Wild and Scenic River Areas and Recreation Lands. In splitting this

category, standards could be specifically tailored to wild and scenic

river corridor lands to avoid any potential conflict with the Wild and

Scenic Rivers Act.

Response: As noted above and in the proposed rule, when Congress

established the HCNRA it also designated the Hells Canyon Wilderness

and the Snake and Rapid Wild and Scenic Rivers within the HCNRA.

Portions of the Eagle Cap Wilderness and the Imnaha Wild and Scenic

River are also within the HCNRA boundary. While these wilderness areas

and wild and scenic rivers are within the HCNRA boundaries, they are

administered pursuant to the Wilderness Act and Wild and Scenic Rivers

Act, respectively. Therefore, the standards in this rule as applied to

federal lands within a designated wilderness in the HCNRA can not be in

conflict with the Wilderness Act. So too, the standards in this rule as

applied to federal lands in a designated wild and scenic river corridor

in the HCNRA can not run afoul of the Wild and Scenic Rivers Act.

It was the initial opinion of the Forest Service that the standards

for the Wilderness Lands were consistent with the Wilderness Act and

that the standards for the Other Lands in the proposed rule were

consistent with the Wild and Scenic Rivers Act where wild and scenic

river corridor lands were involved and the Act where the remaining

federal lands in the HCNRA were involved. On further reflection,

however, the Forest Service agrees with the reviewer that some

additional adjustments are necessary to ensure that there is no

inconsistency between activities or uses that may be authorized under

this rule and those that may be authorized under the Wild and Scenic

Rivers Act. To that end, the final rule has split out Wild and Scenic

Rivers from the Other Lands category. This new category includes the

approximately 33,000 acres of federal lands in the Snake, Rapid, and

Imnaha Wild and Scenic River corridors. The standards have been revised

accordingly and are more thoroughly discussed in the section by section

comments which follow. The remaining federal lands in the HCNRA are

still referred to as the Other Lands.

4. Opportunities for Public Involvement in Decisionmaking Should Be

Maximized in the HCNRA

Several reviewers encouraged the Forest Service to involve the

public in decisions affecting the National Forest System lands in the

HCNRA.

Response. The Forest Service remains absolutely committed to

involving the public in decisions affecting the HCNRA to the maximum

extent allowable by law. To that end, the Forest Service has solicited

and will continue to solicit the public's input on the broad array of

resource, recreation, and other issues currently affecting the HCNRA.

Recent examples of public involvement include discussions concerning

the administration of rivercraft on the Snake River and preventing the

spread of disease in bighorn sheep. The agency steadfastly believes

that public involvement is the key to the successful administration of

the HCNRA in conformance with the Act.

5. Regulatory Flexibility Act Analysis

One reviewer was critical of the statement in the proposed rule

that this regulation would ``not have a significant economic impact on

a substantial number of small entities.'' This reviewer classified

himself as one of the ``small entities'' on whom the rule would have a

major effect.

Response. Section 3(a) of the Regulatory Flexibility Act (RFA), 5

U.S.C. Secs. 601 et seq., requires the preparation of a regulatory

flexibility analysis whenever an agency is engaged in a notice and

comment rulemaking. However, section 5(a) of the RFA negates this

requirement if the agency certifies that the rule will not have a

``significant economic impact on a substantial number of small

entities.''

In this instance, the Forest Service determined that preparation of

a regulatory flexibility analysis was not required pursuant to Section

5(a) of the RFA since this rule would neither pose a significant

economic impact nor would it affect a substantial number of small

entities. The economic impact of this rule, if any, would be slight

since it only establishes standards and guidelines for the

administration of the HCNRA. Furthermore, the number of small entities

affected by this rule is not substantial. In fact, the number of

affected small entities is relatively small and generally confined to

businesses that operate in and around the HCNRA.

6. Substitution of Authorized Officer for Area Ranger

The final rule uses the term ``authorized officer'' instead of the

term ``Area Ranger'' that was used in the proposed rule to describe the

agency official responsible for implementing the various provisions of

this rule. This change was deemed necessary in order to avoid any

confusion regarding which Forest Service line officer has the delegated

authority to undertake actions that are authorized by this rule. In

some instances, the authorized officer would be the Area Ranger. In

most other cases, the authorized officer would be the Forest

Supervisor. The use of the term ``authorized officer'' preserves the

status quo of Forest Service line officer authority and ensures that

there will be no confusion regarding whether this rule contains an

implied delegation of authority from the Forest Supervisor to the Area

Ranger. A definition of ``authorized officer'' is supplied in the rule.

Specific Comments on Proposed Subpart E of 36 CFR Part 292

The following is a discussion of comments that were received

pertaining to specific sections of the proposed rule and the changes in

the final rule, if any, resulting therefrom. Section 292.40, Purpose

and Scope, is not specifically covered in this analysis since there

were no comments on or changes made to the provisions of this section.

Additionally, Sec. 292.41, Definitions, and Sec. 292.42, Management

Standards and Guidelines are also not specifically covered in this

analysis because the comments on and modifications to the provisions of

these sections are discussed elsewhere in this analysis. Additions,

deletions, or modifications to definitions in Sec. 292.41 are discussed

in the context of the standards in Secs. 292.43 through 292.48 with

appropriate cross references to Sec. 292.41. The only change to

Sec. 292.42 was the inclusion of a new subsection (c) dealing with

enforcement which was discussed in the General Comment analysis above.

1. Section 292.43, Protection and Preservation of Cultural and

Paleontological Resources

The proposed rule established four standards for the administration

of cultural and paleontological resources in the Other Lands of the

HCNRA. These same four standards and two additional ones were

established for the administration of these resources in the Wilderness

Lands of the HCNRA. Briefly, the standards in the proposed rule were:

(1) that protection should be the Forest Service's primary management

objective for cultural resources in the HCNRA; (2) that management

priorities for cultural resources in the HCNRA should be based on the

significance of the resource; (3) that significant cultural resources

should be protected on-site if possible; (4) that the primary

management objective for paleontological resources should be scientific

study; (5) that information regarding cultural resources on Wilderness

Lands should be provided outside Wilderness Lands; and (6) that trails

may not be developed or relocated in Wilderness Lands solely to gain

access to cultural resources.

Comment: Forest Service administration of cultural resources should

balance protection and education. One reviewer felt that the standards

of the proposed rule could be interpreted by the Forest Service as a

way to justify the exclusion of all humans from any cultural resources

in the HCNRA since any human presence would present a risk of harm.

This reviewer contended that such an interpretation would be contrary

to the legislative history of the Act.

Response: The agency does not believe that exclusion of all persons

is a reasonable interpretation of the standards in the proposed rule.

The proposed rule clearly states that protection of cultural resources

in the HCNRA will be the dominant management objective. However, it

also clearly states that education about cultural resources is an

important management objective. Only in the event of a conflict between

protection of and education about a particular cultural resource, would

the education efforts have to yield.

Comment: Disturbance or removal of paleontological resources. One

reviewer noted that the standard which required prior written

authorization before a paleontological resource could be disturbed or

removed for scientific study could be construed as requiring no such

authorization if the resource was disturbed or removed for any other

reason.

Response: The agency agrees with the reviewer's observation. This

standard in the final rule has been modified to clarify that

disturbance or removal of paleontological resources may only occur in

conjunction with scientific studies. And, even in those cases, prior

written authorization must be obtained.

Comment: Traditional and cultural properties should be added to

archeological and historic properties. Two reviewers urged the Forest

Service to expand the type of properties covered by the standards of

this section to include ``traditional and cultural'' properties. These

terms were not defined.

Response: Section 10(b) of the Act specifically authorizes the

Secretary to promulgate regulations ``to insure the full protection and

preservation of the historic, archeological, and paleontological

resources in the recreation area.'' In developing this rule, the Forest

Service has sought to conform as closely as possible with the precise

language of the Act. Therefore, to the extent that ``traditional and

cultural'' properties referenced in the reviewer's comment may also be

construed as an historic or archaeologic property, then the standards

of this rule would apply. Otherwise, these properties will be

administered in accordance with the other relevant statutory and

regulatory authorities available.

Comment: References to the National Historic Preservation Act

(NHPA), Archeological Resources Protection Act (ARPA), and American

Indian Religious Freedom Act (AIRFA) should be included in the rule. In

light of the Forest Service's responsibilities pursuant to NHPA, ARPA,

and AIRFA, two reviewers suggested that the rule should include

explicit references to ensure that the agency complies with their

provisions in carrying out the provisions of this rule. These reviewers

also urged that the rule include consultation requirements with

affected Indian tribes.

Response: Section 292.42 of the proposed rule acknowledged that the

administration of the HCNRA must be in accordance with all the laws and

regulations applicable to National Forest System lands and resources,

not just those specifically applicable to the HCNRA. The Forest Service

determined that it would be too unwieldy to call out in the text of the

rule each statute and/or regulation that applies to a particular use or

activity in the HCNRA. Consequently, the Supplementary Information

section of the proposed rule referenced those authorities. For

historic, archeological, and paleontological resources, the proposed

rule listed NHPA, ARPA, the Antiquities Act, and regulations at 36 CFR

parts 296, 800. This list should also have included AIRFA. Express

consultation requirements with Indian tribes would be duplicative of

existing authority and thus not necessary in this rule.

Comment: Access to archeological sites should be limited and Forest

Service personnel should be present for interpretation and protection

purposes. One reviewer agreed with the proposed rule that protection

should be the dominant management objective for cultural resources but

attributed two recent acts of vandalism at an archeological site to the

Forest Service's reconstruction of a road to this site and the lack of

protection there. Based on the above, this reviewer suggested that the

rule should be strengthened to include standards which would bar

further development of roads or other access routes to archeological

sites. In addition, this reviewer recommended that all interpretation

activities occur off-site unless a site is already developed and

regularly visited, in which case Forest Service personnel should be

available at the site to interpret it and guard against theft and

vandalism.

Response: The recent incidents of vandalism at Pittsburgh Landing,

a popular recreation site, are truly unfortunate. The Forest Service is

currently evaluating steps that can be taken to prevent a recurrence of

this type of incident in the future. The agency strongly believes that

these incidents are the exception rather than the rule and that

thousands of people enjoy and learn from the historic and archeological

properties in the HCNRA every year.

The agency does not believe that the reviewer's recommended

modifications to the rule would significantly strengthen the protection

afforded cultural resources in the HCNRA. Sufficient authority exists

under the standards of this rule to address problems like the one

experienced at Pittsburgh Landing on a case by case basis. While the

reviewer's recommendations would not necessarily improve the level of

protection afforded under the rule, it would greatly impair efforts to

manage these resources for education and enjoyment. As a result, this

suggestion did not result in a change in the final rule.

Comment: Funding for the protection of cultural resources should be

a priority for the HCNRA and should be written into the rule. One

reviewer noted that funding for the protection of cultural resources

should be one of three funding priorities for the HCNRA and that this

should be explicitly written into the rule.

Response: Funding for the various functions and operations of the

HCNRA, or any other unit of the National Forest System for that matter,

is extremely complicated and depends on, among other things, the annual

budget and appropriations processes. Establishing priorities in a rule

is neither appropriate nor an accepted means of allocating funds.

2. Section 292.44, Use of Motorized and Mechanical Equipment

The proposed rule established four standards for the use of

motorized and mechanical equipment in the Other Lands of the HCNRA.

Briefly, the standards for the Other Lands were: (1) that motorized and

mechanical equipment could be used on Forest Service roads and

airstrips; (2) that motorized and mechanical equipment could be used on

Forest Service trails if the use is compatible with Section 7 of the

Act; (3) that mechanical equipment could be used off roads, airstrips,

and trails if the use is compatible with Section 7 of the Act; and (4)

that motorized equipment would be prohibited off roads, airstrips, and

trails unless it was necessary to comply with Section 7 of the Act. For

the Wilderness Lands in the HCNRA, the proposed rule simply explained

that the use of motorized and mechanical equipment was prohibited

except as provided for under the Wilderness Act. The Wilderness Act

prohibits the use of motorized and mechanical equipment except for

administrative purposes, and to control fire, insects, and disease.

The proposed rule adopted the definitions of ``motorized

equipment'' and ``mechanical transport'' currently located in 36 CFR

293.6 rather than derive a new definition for these terms. The proposed

rule also exempted from these standards administrative functions,

scientific research, public health or safety emergencies, access to

inholdings, and timber harvesting, grazing and mining as authorized

under this rule.

Comment: The definition of motorized and mechanical equipment is

confusing. Several reviewers commented that the definition of motorized

and mechanical equipment in the proposed rule was confusing and that a

specific definition for those terms should be provided rather than

including a cross reference to another section of the Code of Federal

Regulations (CFR). One reviewer suggested that the rule adopt the terms

``motorized equipment'' and ``mechanical transport'' as used in the

Wilderness Act.

Response: The Forest Service agrees and has included a full

definition of motorized and mechanical equipment in Sec. 292.41 of the

final rule rather than a citation to a different section of the CFR.

The meaning of this term is unchanged. The final rule does not

substitute ``motorized equipment'' and ``mechanical transport'' for

``motorized and mechanical equipment'' since the latter term was

specifically used in Section 10(c) of the Act.

Comment: The exceptions to the standards restricting use of

motorized and mechanical equipment in the HCNRA swallow the rule. One

reviewer felt that the exceptions for administration, access, research,

health and safety, timber harvesting, grazing and mining listed at the

beginning of this section rendered the motorized and mechanical

equipment use standards of little force and effect.

Response: The Forest Service disagrees. The exceptions listed in

this section are intended to be narrowly construed. They were deemed

necessary for two reasons. The administrative, access, research, and

health and safety exceptions were thought necessary to meet the

fundamental needs of the Forest Service to administer the HCNRA in

conformance with the Act. The timber harvesting, mining, and grazing

exceptions were deemed necessary to avoid any potential internal

conflict between this section and the sections governing those

activities. That is, conceivably some activities that could be

authorized under the timber harvesting, mining, or grazing activities

sections of the rule could be foreclosed if the use of motorized or

mechanical equipment was required for these activities but prohibited

under this section. Therefore, the Forest Service decided that, in

those limited circumstances prescribed by this rule where timber

harvesting, mining or grazing could occur within the HCNRA, the

standards for use of motorized and mechanical equipment could not

operate to impair or preclude that activity.

Comment: More restrictive conditions should apply to the use of

motorized and mechanical equipment in the HCNRA. Two reviewers urged

that the restrictions on the use of motorized and mechanical equipment

should be more stringent. One reviewer urged that all motorized

equipment should be banned which conflicts with non-motorized use of

the HCNRA. Another reviewer urged that all use of motorized and

mechanical equipment should be prohibited except that necessary for

emergency responses and for the delivery of mail. Another reviewer

suggested that the impacts of the use of motorized and mechanical

equipment on rivers and fish and wildlife habitat should be evaluated

and banned where damage can be documented.

Response: More restrictive conditions on the use of motorized and

mechanical equipment as described above are both unnecessary and

undesirable. The Forest Service believes that conflicts between

motorized and non-motorized use can be better addressed through the

planning process and amendments to the Comprehensive Management Plan

which would designate roads and trails where the use of motorized

equipment can occur. The agency also believes that an outright ban on

all use of motorized and mechanical equipment except to deal with

emergencies and to deliver mail is not a reasonable proposal in light

of the Act's acknowledgment that such use is permissible, the sheer

magnitude of the HCNRA, and the nature of the agency's administrative

and other responsibilities.

Comment: Off Road Vehicles (ORVs), All Terrain Vehicles (ATVs),

Bulldozers, and other Land Disturbing Vehicles should be Specifically

Addressed in the Rule. One reviewer commented that the above types of

vehicles should be expressly dealt with in the rule.

Response: ORVs, ATVs, bulldozers and other land disturbing vehicles

are covered by the definition of motorized equipment. Specific

reference to these types of vehicle is not necessary.

Comment: Activities on or uses of the Other Lands in the HCNRA that

could be authorized under these standards may be contrary to the Wild

and Scenic Rivers Act. As described in the General Comments section

above, one reviewer noted that the standards for Other Lands which

authorized the use of motorized and mechanical equipment off of roads,

trails, and airstrips subject to its consistency with the management

objectives of Section 7 of the Act presented a potential conflict where

wild and scenic river corridor lands were concerned. The potential for

conflict would be exacerbated on wild and scenic river segments

classified as ``wild'' which is defined by the Wild and Scenic Rivers

Act as ``* * * generally inaccessible except by trail, which watersheds

or shorelines essentially primitive.'' 16 U.S.C. Sec. 1274(b).

Response: The Forest Service agrees with this reviewer's

observations and has split out Wild and Scenic Rivers from the Other

Lands category. Accordingly, in Section 292.41, the definition of

``Other Lands'' has been modified to exclude Wild and Scenic Rivers

from its scope and the definition of ``Wild and Scenic Rivers'' has

been modified to clarify that lands within the wild and scenic corridor

are included as part of this category.

In this section, the final rule includes two new standards for wild

and scenic rivers. The first authorizes the use of this equipment on

segments designated ``scenic'' or ``recreational'' provided that such

use is compatible with the Wild and Scenic Rivers Act. The second

authorizes the use of this equipment on segments designated ``wild''

only if this use is necessary to protect and enhance the values for

which the river was designated.

Comment: The role of airstrips in the HCNRA. Several reviewers

objected to the number and use of airstrips in the HCNRA and urged that

standards should be adopted which would reduce or eliminate airstrips

in the HCNRA. One reviewer remarked that the term ``designated'' should

apply to airstrips as well as roads and trails.

Response: There are only eight airstrips in the 625,00 acre HCNRA.

These airstrips have been used for more than 40 years. Of these eight

strips, seven are primitive, two-wheeled routes on naturally flat land

surfaces. Only one is roughly surfaced with rock to allow for water

drainage. The primitive strips do not appear on Forest Service or FAA

maps and are primarily used for low use and emergency landings. The

Forest Service believes that the primitive landing strips are a

necessary adjunct of administering an area as expansive as the HCNRA

and may be an important, though seldom used, safety feature. Whether

and to what extent some or all of these airstrips should be closed is

an issue that should be discussed in the context of the Comprehensive

Management Plan and not this rule. The Forest Service has inserted the

term ``designated'' as a modifier for ``airstrips'' in the final rule.

3. Section 292.45, Use of Motorized and Non-Motorized Rivercraft

The proposed rule established seven standards for the use of

motorized and non-motorized rivercraft in the HCNRA. The standards only

applied to the Snake, Rapid, and Imnaha Wild and Scenic Rivers and any

other rivers in the HCNRA which might be subsequently designated

pursuant to the Wild and Scenic Rivers Act. Briefly, the standards

were: (1) that the use of non-motorized rivercraft was authorized

subject to certain terms and conditions; (2) that the use of motorized

rivercraft was prohibited except on the Snake Wild and Scenic River;

(3) that all rivercraft use is subject to boating safety and

registration laws; (4) that the use of motorized and non-motorized

rivercraft on the Snake River required prior written authorization and

was subject to certain terms and conditions; (5) that the authorization

of motorized and non-motorized rivercraft use on the Snake River must

reasonably accommodate private and commercial users of each type of

rivercraft; (6) that authorization of motorized and non-motorized

rivercraft use on the Snake River must not exceed the user capacity of

the Snake River; and (7) that authorization of motorized and non-

motorized rivercraft use on the Snake River must be done in such a way

as to minimize conflicts between motorized and non-motorized rivercraft

users and between rivercraft users and all other users of the Snake

River.

By far, the greatest number of comments received on the proposed

rule concerned this section. The comments were exceptionally diverse,

generally sound, and frequently included diametrically opposed

solutions to improve the rule. For instance, some reviewers concluded

that no conflict existed between motorized and non-motorized rivercraft

use, others concluded that the conflict threatened the very integrity

of the HCNRA. Some reviewers felt that the commercial users were

principally responsible for the conflict, others concluded that the

private users were as much, if not more, to blame. Some reviewers

wanted to accommodate personal watercraft (jet ski) use in the HCNRA,

others wanted to prohibit it.

Comment: The Forest Service lacks the legal authority to regulate

rivercraft use on the Snake and Salmon Rivers. One reviewer argued that

the Forest Service had vastly exceeded the scope of its legal authority

by developing standards for recreational uses of rivercraft on the

Snake and Salmon Rivers since those rivers are navigable waterways and

thus ``owned'' by the States of Oregon and Idaho. Accordingly, this

reviewer suggested that only Oregon and Idaho could regulate

recreational activities on the Snake and Salmon Rivers. The Forest

Service authority could only extend to activities on those streams that

could be regulated pursuant to the Property and Commerce Clauses of the

Constitution. The only way a standard in this section could be valid

under the Property Clause would be if that standard was ``reasonably

necessary to protect federal land.'' Likewise, the only way a standard

in this section could be valid under the Commerce Clause would be if

that standard was related to and necessary for navigation. The reviewer

noted that standards in the proposed rule dealing with safe use and

enjoyment of the river, seasons of use, noise limits, user capacity,

and conflicts between rivercraft and other users of the HCNRA all

exceeded the federal government's limited authority under the Commerce

and Property Clauses.

Response: The Forest Service disagrees and believes that the

reviewer has adopted an unusually pinched view of the Federal

Government's authority under the Commerce and Property Clauses of the

Constitution.

Congress has defined ``navigable waters'' to include those parts of

streams or other bodies of water over which Congress has jurisdiction

under its authority to regulate commerce with foreign nations and among

the several states, and which either in their natural or improved

condition are used or suitable for use for the transportation of

persons or property in interstate or foreign commerce. 16 U.S.C.

Sec. 796(8). It would appear, based on the above definition, that the

Snake River clearly qualifies as a navigable water of the United

States.

Assuming the Snake River is navigable, the Federal Government has

paramount control over it for purposes or regulating interstate and

foreign commerce. The power of the United States over navigable waters

extends to any matter that may properly be considered a regulation of

interstate or foreign commerce on such waters and is not limited to

control for purposes of navigation only. In United States v.

Appalachian Electric Power Co., 311 U.S. 377, 426 (1941), the Supreme

Court categorically rejected a similar view to that proffered by this

reviewer when it stated,

In our view, it cannot properly be said that the constitutional

power of the United States over its waters is limited to control for

navigation. By navigation, respondent means no more than operation

of boats and improvement of the waterway itself. In truth, the

authority of the United States is the regulation of commerce on its

waters. Navigability, in the sense just stated, is but a part of

this whole. Flood protection, watershed development, recovery of the

cost of improvements through utilization of power are likewise parts

of commerce control.

While the States may exercise substantial control over navigable

waters, they may only do so to the point that it is not inconsistent

with federal actions or functions and does not materially or

unreasonably interfere with or burden commerce.

In this instance, as the reviewer correctly pointed out, the

Federal Government may also regulate under the Property Clause of the

Constitution which enables Congress to ``* * * make all needful rules

and regulations respecting the * * * property of the United States.''

U.S. Const. Art. IV, Sec. 3, cl. 2. The reviewer also correctly noted

that such regulations may regulate conduct on non-federal land when

reasonably necessary to protect adjacent federal property or navigable

waters. United States v. Lindsay, 595 F.2d 5, 6 (9th Cir. 1979).

Inasmuch as a considerable amount of commerce takes place on the

Snake River annually and thousands of acres of National Forest land

surround it, the Forest Service believes that each of the standards

challenged by the reviewer is authorized under either the Commerce

Clause or the Property Clause.

Comment: Because the Forest Service has been unable to demonstrate

that a conflict exists involving motorized and non-motorized

rivercraft, this section should be eliminated. One reviewer commented

that he had repeatedly requested information from the Forest Service

concerning the existence and scope of the conflict between motorized

and non-motorized rivercraft and, to date, had not received a

satisfactory response from the agency. Therefore, this reviewer stated

that this section of the rule is unnecessary and should be deleted.

Response: As a factual matter, there may be some dispute over the

existence of a conflict between motorized and non-motorized rivercraft.

Contrary to this reviewer, several other noted that the conflict

between rivercraft users was extreme.

However, the reviewer misses the point by suggesting that a

conflict must exist in order to justify this regulation. As described

in some detail above, the Act authorized the Secretary to promulgate

regulations for ``the control of the use and number of motorized and

non-motorized rivercraft * * *''. The United State Court of Appeals for

the 9th Circuit concluded that this authority was non-discretionary in

ONRC v. Lyng. Therefore, regardless of the existence or absence of a

conflict, this rule must be promulgated.

Comment: The standards should not distinguish between designated

wild and scenic rivers and other rivers in the HCNRA. Several reviewers

commented that it was confusing and potentially difficult to comply

with the standards in this section that pertained only to rivers in the

HCNRA that had been designated wild and scenic. Most reviewers thought

that the standards should be more broadly applied to all rivers in the

HCNRA regardless of wild and scenic designation. One reviewer felt that

this section improperly overemphasized wild and scenic rivers over the

HCNRA.

Response: The Forest Service agrees that the selective application

of standards to motorized and non-motorized rivercraft use based solely

on the location of the craft on a river might be difficult to comply

with and to administer. This would especially be the case on the Snake

River where one segment of the river is undesignated while the adjacent

segments are designated. Therefore, the scope of the section dealing

with rivercraft use standards will be broadened to apply to rivers

throughout the HCNRA.

Wild and scenic rivers have not been overemphasized in this rule.

It is important to remember, though, that the wild and scenic rivers in

the HCNRA are administered pursuant to the Wild and Scenic Rivers Act,

not the HCNRA Act. The inclusion of this language simply ensures that

the application of these standards to wild and scenic rivers will not

be contrary to direction in the Wild and Scenic River Act.

Comment: Motorized use of the ``wild'' sections of the Snake Wild

and Scenic River should be prohibited. One reviewer noted that

notwithstanding the HCNRA Act's recognition of motorized rivercraft use

as ``valid'' on the Snake River, such use is inconsistent with and

should be prohibited on those segments of the Snake Wild and Scenic

River that are classified as ``wild'' under the Wild and Scenic Rivers

Act.

Response: The legislative history of the Act indicates that a 32.4

mile segment of the Snake River, from Hells Canyon Dam downstream to

Pittsburg Landing is classified as a ``wild'' river under the Wild and

Scenic Rivers Act. 94th Cong., 1st Sess., Comm. on Interior and Insular

Affairs, Rept. No. 153 at 4 (May 22, 1975).

Section 2(b) of the Wild and Scenic Rivers Act defines ``wild'' in

the context of classifying segments of rivers designated under the Wild

and Scenic Rivers Act as ``[t]hose rivers or sections of rivers that

are free of impoundments and generally inaccessible except by trail,

with watersheds or shorelines essentially primitive and waters

unpolluted. These represent vestiges of primitive America.'' 16 U.S.C.

Sec. 1272(b)(1). In the Guidelines for Eligibility, Classification, and

Management of River Areas (hereafter ``Guidelines'') published jointly

by the Department of the Interior and the Department of Agriculture,

the criteria for classifying a river segment as ``wild'' was further

detailed. 47 Federal Register 39454, 39457 (Sept. 7, 1982).

Based on the above, ``wild'' as defined in the Wild and Scenic

Rivers Act and further developed in the Guidelines relates principally

to the quantum and type of development that exists on the shorelines

and in the corridors through which a wild and scenic river traverses.

It does not relate to the type of rivercraft used on the river itself.

Even assuming that the definition of ``wild'' in the Wild and

Scenic Rivers Act could be construed to foreclose or discourage

motorized use on segments so classified, Section 10 of the HCNRA Act

included a clear expression of congressional intent that recognized

motorized rivercraft use of the Snake River as valid. The Forest

Service believes that this clear statement of congressional policy in

the HCNRA Act overcomes any contrary interpretation of the Wild and

Scenic Rivers Act and Guidelines which might be proffered as a means of

categorically prohibiting motorized rivercraft use on the Snake River.

Comment: Specific standards for motorized rivercraft use of the

Snake River should include provisions for slowing for floaters, speed

limits for specific locations, noise level limits, no-wake zones, use

of music or sound devices, water skiing, visible identification

numbers, limited jet boat runs, defining jet boat launches, prohibiting

operation while under the influence of intoxicants, requiring fuel

leakage reduction, rights of way for floaters in rapids, prohibiting

jet skis and other nontraditional rivercraft. One reviewer argued that

the proposed rule, in general, is ``grossly inadequate'' and this

section, in particular, ``completely fails to satisfy the requirement

of the NRA Act * * *''. This reviewer interpreted the 9th Circuit

decision in ONRC v. Lyng as requiring site specific standards tailored

to the unique situation on the Snake River where both motorized and

non-motorized rivercraft use is present. The proposed regulations,

however, ``simply defer to another undescribed forum, and have

virtually no force in carrying out the requirements of the Act.'' To

remedy this flaw, this reviewer asserted that the above lengthy and

nearly exhaustive list of standards should be included in this section

and posted at all portals. Furthermore, the reviewer stated that all

jet boat operators should be required to sign a statement that they

have read and understood these standards.

Response: The scope and extent of standards which this reviewer

seeks to include in this rule is not legally mandated under either the

Act or the 9th Circuit's decision in ONRC v. Lyng. The Act authorized

regulations ``for the control of the use and number of motorized and

non-motorized rivercraft; Provided that the use of such craft is hereby

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

area.'' 16 U.S.C. Sec. 460gg-7(d). The 9th Circuit decision in ONRC v.

Lyng merely interpreted the Act as mandating the promulgation of

``nonduplicative regulations of the sort described by Sections 10(a)

through (e).'' Neither the Act nor the 9th Circuit prescribed the form

or content that those regulations should take.

Not only are the adoption of standards in this rule such as those

recommended by this reviewer not legally required, they are also not

conducive to prudent and responsible land and resource management. The

Forest Service believes that the inclusion in rule form of these

standards would hamstring their ability to administer the HCNRA in

conformance with the Act. For instance, the inclusion of these

standards in this rule might require the agency to allocate scarce

resources for enforcement of matters which rate relatively low in an

overall scale of management priorities. Furthermore, the standards

would inevitably become obsolete at some point in the future. That

point could come in six weeks, six months, or six years and could

depend on advances in science, technology, or the law. It could also

simply be dependent on changing social norms. Once the point of

obsolescence was reached, however, another rulemaking would be

necessary. This is a poor way to address and respond to development

which requires a shift in management emphasis.

Far better from the agency's point of view that these developments

be accommodated in the Comprehensive Management Plan. This document can

be amended and revised more expeditiously than a regulation which

requires notice and comment under the Administrative Procedures Act. Of

course, as was noted in the proposed rule, management direction in the

Comprehensive Management Plan would necessarily have to conform with

the provisions of the Act and the standards in this rule.

Finally, the agency wishes to point out that one of the standards

in the proposed rule required compliance with all Federal and State

boating safety and registration laws. This would include, but not be

limited to the Idaho Safe Boating Act, I.C. Secs. 67-7001 et seq., and

the Oregon Small Watercraft Act, O.R.S. Secs. 830.005 et seq. Many of

the items that the reviewer wanted to include as explicit standards in

this rule are amply treated in these enactments and may be enforced in

the HCNRA pursuant to this provision in the rule.

Comment: Rivercraft use standards should not discriminate against

users of personal watercraft in the HCNRA. One reviewer wrote to ensure

that standards for the use of motorized rivercraft not unfairly

discriminate against personal watercraft which are commonly, though

incorrectly, referred to as ``jet skis.'' This reviewer acknowledged

that the proposed rule did not, on its face, include any such

discrimination and encouraged that any further refinement of these

standards in the final rule or Comprehensive Management Plan classify

and treat personal watercraft just like any other form of motorized

rivercraft.

Response: The reviewer is correct that no attempt is made in this

rule to consider personal watercraft separately from other forms of

motorized rivercraft. However, the inclusion of personal watercraft,

jet boats, motor boats, and other vessels as ``motorized rivercraft''

in this rule does not mean that they are identical or should be treated

identically in all situations that may arise in the future. Clearly,

there are differences in the size, weight, speed, maneuverability, and

other features of these vessels which may suggest, or indeed dictate,

that they be under different management regimes in order to protect the

HCNRA or to protect public health and safety. Those management

decisions will be made in the context of the Comprehensive Management

Plan. In the event such management decisions distinguishing between the

various types of motorized rivercraft are made, they would be well-

reasoned, based on credible evidence, and would include the benefit of

public involvement.

Comment: The term ``carrying capacity'' should be used instead of

``user capacity.'' Several reviewers urged that the term ``carrying

capacity,'' rather than the term ``user capacity,'' be employed in the

section concerning standards for rivercraft use. One reviewer felt that

the phrase ``limits of acceptable change'' would be preferable to

``user capacity'' or ``carrying capacity'' for determining the

benchmark for rivercraft use. The reviewers encouraged that these terms

should be defined.

Response: The Forest Service agrees with the reviewers who felt

that the term ``carrying capacity'' was more appropriate in this rule

and has substituted that term for ``user capacity'' in the final rule.

However, since this is a well understood term in the planning and

recreation professions and would not be subject to a special meaning

under this rule, a definition is deemed unnecessary.

Comment: Definitions should be included in the rule for

``numbers,'' ``values,'' ``user conflicts,'' ``seasons,'' ``noise

limits,'' ``private users,'' and ``commercial users.'' One reviewer

noted that several key terms in this section of the rule should be

specifically defined. Presumably, this reviewer felt that definitions

would be necessary to ensure that the Forest Service's interpretation

is not unreasonable, is not changed over time, or is not selectively

applied.

Response: The above terms are neither unusual nor do they have a

special connotation as applied in this rule. Common sense will be the

guide in defining these terms. Special definitions in this rule are

unnecessary for these terms.

Comment: Rivercraft use levels should be restricted to the levels

in existence as of 1975, the date of establishment of the HCNRA. Two

reviewers commented that rivercraft use has greatly expanded since

Congress designated the HCNRA in 1975 and that this rule should be used

to scale back the amount of rivercraft use to 1975 levels.

Response: In enacting the Act, Congress authorized regulations for

``the control of the use and number of motorized and non-motorized

rivercraft; Provided that the use of such craft is hereby recognized as

a valid use of the Snake River within the recreation area.'' There is

no indication in the Act that Congress intended to restrict the use of

rivercraft to the level that existed in 1975. Clearly, Congress could

have included such a condition if it had been so inclined.

Absent clear congressional expressions in the Act stipulating that

rivercraft use be locked into 1975 levels, the Forest Service has

adopted the well-reasoned and balanced approach that the amount of

rivercraft use will depend on what use can be sustained while meeting

the management goals and objectives of the Act and the Wild and Scenic

Rivers Act. Therefore, the Forest Service declines to modify the rule

in the manner recommended by these reviewers.

Comment: The authorization of motorized rivercraft use should

extend to that portion of the Salmon River in the HCNRA. One reviewer

mentioned that a short \1/4\ mile segment of the Salmon River is

located within the HCNRA and that motorized rivercraft are currently

used on this segment. This reviewer urged that the standards be revised

to extend the authorization of motorized rivercraft to this \1/4\ mile

segment of the Salmon River.

Response: The Forest Service agrees that the standard which

prohibits motorized rivercraft use in the HCNRA should exclude both the

Snake River and that portion of the Salmon River in the HCNRA. The rule

has been changed accordingly.

Comment: Violations of the standards of this section should result

in forfeiture of private land. One reviewer explained that compliance

with the provisions of this section is as important as compliance with

the land uses set out in the private rules. Therefore, this reviewer

queried why violations of the motorized rivercraft standards shouldn't

also result in the forfeiture of private land.

Responses: The ``private rules'' referred to by this reviewer are

the recently adopted final regulations under Section 10(a) of the Act

which established standards for the use and development of private

land. That rule established standards and guidelines for development of

privately-owned land in the HCNRA which, if violated, could lead to the

Forest Service's acquisition of the land or an interest therein with or

without the landowner's consent. Acquisition without the landowner's

consent is technically referred to as ``condemnation,'' not

``forfeiture.'' Since the Forest Service may not regulate private land

uses per se, condemnation was deemed to be the most effective means by

which the agency could ensure that private land uses and developments

would not compromise the integrity of the HCNRA. Condemnation of

private land would be a highly inappropriate response to violations of

the motorized rivercraft use standards. Condemnation is available only

to acquire lands used in a manner inconsistent with the private land

use regulations. Use of watercraft has nothing to do with private

lands. The rule already includes a sufficient array of mechanisms by

which the standards of this section can be enforced. These enforcement

mechanisms include issuing citations under 36 CFR Secs. 261 et seq.,

revoking the authorization for rivercraft use, or pursuing an

injunction in a civil enforcement action.

4. Section 292.46, Timber Harvesting Activities

The proposed rule established two standards for timber harvesting

in the Other Lands of the HCNRA. Briefly, the standards for the Other

Lands were: (1) that timber could only be harvested to protect and

enhance ecosystem health and wildlife habitat, promote recreational

activities, remove hazard trees, or in response to disease or pest

infestation, fire, flood, earthquake, or similar natural events; and

(2) that where authorized, the harvesting could be accomplished only by

means of selective or intermediate cuttings in which the openings

created by the cutting would be limited to the minimum size and number

necessary to accomplish the purpose of the harvest. For the Wilderness

Lands in the HCNRA, the proposed rule simply explained that timber

harvesting was prohibited except in accordance with the provisions of

the Wilderness Act.

Comment: The rule should expressly include a standard stating that

timber will not be harvested principally for commercial purposes. Two

reviewers noted that in the preamble to the proposed rule it was noted

that timber would not be harvested solely for commercial gain but that

this statement was not reiterated in the text of the proposed rule.

These reviewers recommended that the text of the regulation include

this language. One of these reviewers also noted that the primary

objective of these standards should be to overrule and void the

provision in the Comprehensive Managemment Plan that includes forests

in the HCNRA as part of the regulated component of the Wallowa-Whitman

National Forest timber base.

Response. The Forest Service agrees and has revised the first

standard in this section to explain that timber may ``only'' be

harvested for the reasons set out in this standard. In so doing, the

Forest Service expects that the situations where timber harvesting may

be authorized will be better understood. It should be noted, however,

that in those instances where timber harvesting is consistent with the

standards in this rule, it will usually be accomplished by means of a

commercial harvest. That is, the Forest Service will identify the area

where harvesting is desired and the conditions under which the

harvesting can occur. Then a written agreement would be entered into

with a timber purchaser who would carry out the harvest in accordance

with the terms and conditions of the agreement.

The inclusion of a specific standard overruling that portion of the

Comprehensive Management Plan is unnecessary since Sec. 292.42 clearly

states that ``[t]he standards and guidelines of this [rule] 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.''

Comment: Timber harvesting by means of intermediate cutting should

be eliminated. Several reviewers were critical of the inclusion of

``intermediate cutting'' as a viable means of harvesting timber where

that activity would be authorized under the standards for the HCNRA.

They urged that the term be removed.

Response: Where authorized under the standards in this rule, the

Forest Service will restrict timber harvesting to selective cutting in

conformance with the standards in this rule. All references to

``intermediate cutting'' have been removed from the final rule.

Comment: Insect infestation, rather than pest infestation, should

be listed as a recognized purpose of timber harvesting in the HCNRA.

One reviewer felt that it was more appropriate and less pejorative to

use the term ``insect infestation'' instead of ``pest infestation'' to

describe one of the purposes for which timber harvesting may be engaged

in the HCNRA.

Response: The Forest Service agrees and has inserted the term

``insect'' for the term ``pest'' in the final rule.

Comment: Timber harvesting should be authorized only in situations

where hazard trees threaten popular sites and where fires threaten

campgrounds or picnic areas. One reviewer was concerned that the

exceptions under which timber harvesting could be authorized were too

broad and would be abused by the Forest Service. This reviewer

suggested that timber harvesting should only occur to remove hazard

trees from popular areas or to protect campgrounds or picnic areas from

fire. Otherwise, there should be no further logging in the HCNRA.

Response: Section 13 of the Act recognizes the harveting of timber

as a valid use of the HCNRA. Section 10 of the Act authorizes

regulations for timber harvesting as are consistent with the management

objectives of the HCNRA which include, among other things, the

protection of free-flowing streams, the conservation of scenic,

wilderness, cultural, and scientific values, the preservation of

biologically unique features, the protection of fish and wildlife

habitat, the protection of archeological and paleontologic sites, and

the preservation and restoration of historic sites.

The standards in this section fully comply with the management

objectives of the Act. Furthermore, additional limitations on

situations where harvesting could be authorized may severely impair the

agency's ability to administer the HCNRA in conformance with the Act.

As a case in point, consider the windstorm that blew down several acres

of spruce trees in a roadless area just outside the HCNRA boundary a

few years ago. There, a decision was made not to harvest those tree.

Subsequently, an endemic spruce bark beetle population grew to epidemic

proportions, spreading out from the site of the original blowdown and

killing most of the spruce trees in the HCNRA. Many of these spruce

trees were located near streams and in riparian areas which have

suffered in their absence from the loss of critical shade which kept

the streams cool and root systems which kept the streambanks

stabilized. In hingsight, it is worth considering whether this loss of

trees and resultant damage to riparian areas could have been averted by

the prompt removal of the windthrown trees.

These standards will enable the agency to address this type of

situation efficiently and with due regard for the resources in the

HCNRA and objectives for which they are to be managed.

Comment: Where timber harvesting is to be authorized it should be

done sensitively, holistically, or by using non-mechanized equipment

like draft horses. Several reviewers urged that in those cases where

timber harvesting would be authorized under the standards in this rule,

it should be accomplished in the most sensitive manner possible. For

example, these reviewers recommended that draft horse logging could be

required as an alternative to the construction of costly and

environmentally damaging logging roads.

Response. When authorized under this rule, timber harvesting

activities will be conducted using the most appropriate technique that

fits the particular situation. Clearly, in some instances logging by

means of draft horses would be feasible and entirely appropriate. In

other cases, harvesting by mechanized and/or motorized equipment may be

necessary due to the location of the harvest and/or the urgency

associated with it. All of these factors will be duly considered in

fashioning the harvest method.

Timber harvesting will be conducted using an ecological approach to

management, subject to the limits imposed by this rule, and will

generally be designed to maintain or create forest vegetation patterns

and landscapes that mimic those from historic natural disturbances.

Comment: Standards for timber harvesting activities within wild and

scenic river corridors in the HCNRA are inconsistent with the Wild and

Scenic Rivers Act. One reviewer remarked that the timber harvesting

standards for Other Lands in the HCNRA would result in the

authorization of certain timber harvesting activities within wild and

scenic river corridors that exceed the legal authority for such

activities under the Wild and Scenic Rivers Act. This would

particularly be the case on wild and scenic river segments classified

``wild'' under the Wild and Scenic Rivers Act.

Response. The Forest Service believes that the standards in the

proposed rule for Other Lands were sufficiently restrictive that they

would pass muster under the Wild and Scenic River Act where wild and

scenic river corridor lands were involved. However, in order to

maintain consistency with the other sections of this rule, separate

timber harvesting standards have been developed in the final rule for

wild and scenic river corridor lands and the other non-wilderness

National Forest Lands in the HCNRA.

For river segments classified ``scenic'' or ``recreational,''

timber may be harvested only when to do so would protect and enhance

the values for which the river was designated. For river segments

classified ``wild,'' timber could only be harvested to provide for

recreational facilities like trails, remove hazard trees, or to respond

to natural events. In those cases where timber harvesting would be

authorized within the corridors of wild and scenic rivers, the harvest

would be conducted in the same manner as harvests on the Other Lands of

the HCNRA.

5. Section 292.47, Mining Activities

The proposed rule established four standards for mining activities

in the Other Lands of the HCNRA. These same four standards and an

additional one were established for mining activities in the Wilderness

Lands in the HCNRA. Briefly those standards were: (1) That all mining

activities were prohibited subject to valid existing rights; (2) that

the impact of mining activities would be limited and directed away from

Wilderness Lands and Wild and Scenic Rivers; (3) that mineral materials

may be used in the HCNRA only for the construction and maintenance of

roads, airfields, trails, and recreation developments; (4) that sources

of mineral materials should be located outside the HCNRA unless the

costs are significant or the transportation presents a safety concern;

and (5) that the extraction of mineral materials is prohibited on

Wilderness Lands.

Comment: Restrictions by the United States on mining activities in

the bed and banks of navigable rivers in the HCNRA are impermissible

since that land is owned and controlled by the States of Oregon and

Idaho. One reviewer contended that the bed and banks of the Snake River

below the mean high water line are owned by the States of Oregon and

Idaho and therefore any mining activities occurring thereon would be

subject to the control of the state, not the federal, government. This

reviewer encouraged the Forest Service to clarify the ownership of

these lands in the final rule in order to avoid future confusion.

Response: At the outset, it should be noted that no provision in

the proposed rule purported to prohibit or restrict mining activities

on non-National Forest System lands. Section 292.42(b) of the proposed

rule specifically stated that the standards in the rule applied only to

National Forest System lands in the HCNRA. Obviously, lands owned by

the States of Oregon and Idaho would not fall under the provisions of

this rule.

The Forest Service agrees that clarifying the issue of who owns the

bed and banks of navigable rivers in the HCNRA and who has regulatory

authority over them would be beneficial and may reduce the potential

for controversy and confusion in the future. However, such

clarification cannot be done in this Federal Regulation since it may

involve the adjudication of property rights.

The reviewer is correct that the rights and interests in the beds

and banks of navigable waters are owned by the state in which they are

located, and that the regulation of the land under navigable waters is

properly the subject of the state's police power regulatory authority.

However, the state's regulatory authority over these matters is not

absolute. Rather, as is the case with navigable waters, lands

underneath navigable waters are also subject to the paramount authority

of the United States. This paramount authority is derived from the

Commerce and Property Clauses and extends to matters involving

commerce, navigation, and protection of Federal lands, among other

things. Mining would clearly fall into the category of activities that

could be regulated by the United States under this paramount authority.

Comment: By including activities under the Materials Act of 1947 in

the definition of ``mining,'' there is an inconsistency in the

standards which prohibit all mining activities but provide for certain

mineral material extraction activities. One reviewer noted that the

standards for mining activities were confusing based on the definition

of ``mining'' in the rule which encompassed activities under the

Materials Act. By including the Materials Act in the definition of

mining, the first standard of Sec. 292.47(a) would be read to prohibit

all mineral material extraction activities. However, the third and

fourth standards specifically treat mineral material extraction

activities.

Response: The Forest Service agrees that there is an internal

conflict in the standards of this section based on the definition of

``mining.'' As a result, the definition of ``mining'' in the final rule

has been modified to delete references to the Materials Act. The

standards of the Mining Activities section remain unchanged.

Comment: Gold panning is a legitimate recreational activity that

should be accommodated in the rule. One reviewer criticized the

proposed rule's prohibition of gold panning subject to valid existing

rights. This reviewer contended that panning was a recreational

activity, not a mining activity, that could be accomplished without

threatening the HCNRA if it was limited to hand work and no tools

except the pan itself. Therefore, this reviewer felt it was

inappropriate to prohibit this activity.

Response: Individuals engaged in the extraction of minerals from

federal lands whether it be by pan, sluice box, suction dredge, or some

other means, are subject to the applicable federal and state mining

laws. It is immaterial that the underlying purpose of the mineral

extraction activity is recreational. It is also immaterial that the

impact of the mineral extraction activity would not negatively impact

the HCNRA.

In this case, Section 11 of the HCNRA Act withdrew all federal

lands in the HCNRA from the operation of the mining and mineral leasing

laws subject to valid existing rights. Similar withdrawal provisions

exist in Section 9 of the Wild and Scenic Rivers Act and Section

4(d)(3) of the Wilderness Act. This provision did not make an exception

for mining conducted for recreational purposes nor did it make an

exception for mining that would not threaten the values for which the

HCNRA was established.

Therefore, in order to engage in panning or any other mining

activity for recreational purposes on federal lands in the HCNRA, it is

necessary to demonstrate that the individual wishing to engage in that

activity held valid existing rights prior to the date of withdrawal.

Comment: If the Mining Law of 1872 is amended, royalties derived

from mining activities in the HCNRA should go to the HCNRA. One

reviewer suggested that if the Mining Law of 1872 is amended to provide

for the payment of royalties, all royalties derived from mining

activities in the HCNRA should be returned there and be used in the

administration of the area.

Response. Currently, as this reviewer indicated, there is no legal

authority under the Mining Law of 1872 to adopt this reviewer's

position. Since this comment is based on pure conjecture over whether,

and to what extent, the Mining Law of 1872 will be amended, it is

premature to address this comment at this time.

Comment: No additional gravel pits should be constructed in the

HCNRA. One reviewer recommended that any mineral materials removed from

the HCNRA should be taken from existing gravel pits and that no new

gravel pits should be excavated.

Response. The proposed rule greatly reduced the potential for

additional excavation of gravel pits in the HCNRA. It did not, however,

completely eliminate that possibility. Where non-wilderness HCNRA lands

are involved, Sec. 292.47(a)(4) of the proposed rule required that

development of gravel pits or other sites for mineral materials should

first be considered on lands outside the HCNRA. This section also

provided that sites within the HCNRA would only be considered if there

were significant economic or safety reasons militating in its favor.

Additionally, the proposed rule required that mineral materials used

inside the HCNRA must be for constructing or maintaining facilities

that are consistent with and in furtherance of the management

objectives of the Act. If the mineral materials are used outside the

HCNRA, it must be for a project which has a direct benefit to the

HCNRA. Finally, this section directed that a mineral material

extraction site inside the HCNRA must be reclaimed to its original

condition, or as close to that condition as is practicable, upon the

completion of the extraction activities. Section 292.47(b)(2) prohibits

the extraction of mineral materials in the wilderness lands of the

HCNRA.

Given the preference for development of gravel pits and other

mineral material extraction sites on non-HCNRA lands and the stringent

controls on the uses to which such mineral materials may be applied and

the reclamation requirements, the Forest Service does not think it is

necessary to completely foreclose all potential future development of

these sites inside the HCNRA. There may come a time when the

development of a mineral material extraction site inside the HCNRA is

necessary and appropriate and fully consistent with the purposes for

which the HCNRA was established. This provision preserves that

possibility.

Comment: Additional specifications for revegetation should be

provided in the rule. One reviewer noted that the standard in

Sec. 292.47(a)(4) requiring land contouring and reestablishing

vegetation failed to inform the reader as to the extent of such

activities that would be required following the extraction of mineral

materials. This reviewer contended that this provision would be abused

by those seeking to minimize the responsibility and cost associated

with such activities. This reviewer recommended that the rule include a

standard directing that land contouring, revegetation, and other

appropriate measures be required as necessary to restore the area to

its original condition.

Response: The Forest Service agrees that additional clarification

to this standard is desirable. However, it may be impossible to return

every mineral material site precisely to its original condition. As a

result, the new standard will require the party responsible for the

extraction of mineral materials to reclaim the site to its original

condition, or as reasonably close thereto as is practicable, by land

contouring and revegetation. The Forest Service believes that this will

clarify the purpose of the revegetation and land contouring without

creating an insurmountable obstacle to mineral material extraction

activities.

Comment: Performance bonds should be required prior to the

initiation of any ground disturbing activity related to mining. One

reviewer recommended that the rule include a specific provision

requiring a miner to post a bond which would be sufficient to enable

the Forest Service to restore the mining site to its original condition

if the miner does not and to serve as security for compliance with

other environmental protection requirements.

Response: Bonding is specifically required by the Forest Service

for the extraction and development of locatable minerals and mineral

materials on National Forest System lands with a few minor exceptions.

These requirements are set forth in 36 CFR 228.13 and 228.51,

respectively. Since this rule supplements existing authority, it was

deemed unnecessary to incorporate a specific bonding provision in this

rule.

Comment: Geothermal development should be prohibited in the HCNRA.

One reviewer suggested that the rule should contain a provision

prohibiting geothermal development in the HCNRA.

Response: Section 15 of the Geothermal Steam Leasing Act of 1970,

30 U.S.C. 1014, precludes the issuance of geothermal leases by the

Secretary of the Interior on National Forest System lands located

within a national recreation area. Since existing law already precludes

this type of development in the HCNRA, it was deemed unnecessary to

include an express provision in the rule reiterating that prohibition.

Comment: All valid existing rights in the HCNRA should be bought

out by the Forest Service. Two reviewers suggested that the Forest

Service consider buying out all current valid existing rights.

Presumably, in this fashion the Forest Service could consolidate

landownership patterns, improve administration of the HCNRA, and

eliminate a potentially incompatible land use from the HCNRA.

Response: Acquisition of mining lands, or interests therein, in the

HCNRA is governed by the regulations which established standards for

the use and development of private lands in the HCNRA which were

promulgated pursuant to Section 10(a) of the Act. Briefly, those

regulations are consistent with Section 9(g) of the Act which

authorized the Secretary to acquire all mining lands in the HCNRA with

or without the consent of the landowner.

Although the authority exists to acquire all valid existing mineral

interests in the HCNRA, it is not viewed by the Forest Service as a

prudent step to take at this time in light of the prohibitive potential

cost associated with such acquisitions and the very limited acquisition

funds available. At this juncture, it is preferable to regulate such

activity where it exists to protect HCNRA values.

6. Section 292.48, Grazing Activities

The proposed rule established four standards for the administration

of domestic livestock grazing activities in the HCNRA. These standards

applied to both the Other Lands and the Wilderness Lands of the HCNRA.

Briefly, the standards were: (1) That grazing could only occur on

rangeland suitable for grazing and in satisfactory condition; (2) that

domestic livestock grazing practices would be modified if they are

incompatible with preserving fish and wildlife habitat, recreation

uses, or other natural resource values and that the grazing would be

terminated if the incompatibility couldn't be eliminated; (3) that

range improvements must be designed and located in such a way as to

minimize their impact on scenic, natural, and other values in the

HCNRA; and (4) that grazing permits must include provisions to protect

and conserve riparian areas.

Comment: Additional restrictions on domestic livestock grazing

should be instituted in the HCNRA in this rule. Several reviewers

encouraged the Forest Service to include additional and express

restrictions on all forms of domestic livestock grazing activity in the

HCNRA. For instance, one reviewer recommended that all grazing should

be terminated in the HCNRA and all permits should be ``bought out'' by

the Forest Service. Another reviewer recommended that grazing in

designated wilderness areas in the HCNRA should be phased out gradually

through annual 10% reductions in the numbers of livestock.

Response. Section 13 of the HCNRA Act states that ``[r]anching

[and] grazing, * * * are recognized as traditional and valid uses of

the recreation area.''

Section 4(d)(4)(2) of the Wilderness Act states that ``the grazing

of livestock, where established prior to the effective date of this

Act, shall be permitted to continue subject to such reasonable

regulations as are deemed necessary by the Secretary of Agriculture.''

In the legislative history to the Colorado Wilderness Act of 1980,

Congress interpreted this provision to mean that grazing permits and

privileges will not be curtailed or phased out in an area simply

because that area is designated as wilderness. In a nationwide

guideline and statement of legislative policy, Congress declared

There shall be no curtailments of grazing in wilderness areas

simply because an area is, or has been designated as wilderness, nor

should wilderness designations be used as an excuse by

administrators to slowly ``phase out'' grazing. Any adjustments in

the numbers of livestock permitted to graze in wilderness areas

should be made as a result of revisions in the normal grazing and

land management planning and policy setting process, giving

consideration to legal mandates, range condition, and the protection

of the range resource from deterioration.

(Designating Certain National Forest System Lands in the National

Wilderness Preservation System, and for Other Purposes, H. Rept. 617,

96th Cong., 1st Sess. at 11 (Nov. 14, 1979)).

Based on the above statutes and legislative history, reductions in

or outright termination of livestock grazing in the HCNRA or designated

wilderness in the HCNRA cannot occur simply by virtue of the

designation of these areas as a national recreation area or a

wilderness area. Furthermore, even if such a course of action were an

option, the Forest Service would not have to ``buy out'' the permits.

Permits to graze on federal lands have been recognized by Congress and

the courts for almost a century as only conferring a license or

privilege to graze upon the permittee. As a result, except in extremely

limited circumstances, cancellation or revocation of grazing permits

does not require the payment of compensation.

Based on the above, these reviewers' suggestions are not adopted

and no change in the rule is necessary.

Comment: Future of livestock grazing activities in conflict with

natural, scenic, resource and other values for which the HCNRA

established. One reviewer suggested that the provision in the proposed

rule enabling a permittee to modify his or her livestock grazing

practices to avoid a conflict with the values for which the HCNRA was

established should be stricken. This reviewer argued that wherever a

conflict exists, the grazing activity should be terminated since, in

many instances, the modification proposed to avoid the conflict has an

equally deleterious impact on the HCNRA. Another reviewer argued in

favor of allowing the permittee to make the adjustments in the grazing

area necessary to avoid the conflict while allowing the grazing

activity to continue.

Response. Section 13 of the HCNRA Act states that ``[r]anching

[and] grazing, * * * are recognized as traditional and valid uses of

the recreation area.'' This section of the proposed rule, developed

pursuant to section 10(e) of the Act, establishes standards for the

continuation of grazing in the HCNRA which are compatible with the

provisions of the HCNRA Act.

The Forest Service believes that a reasonable interpretation of the

HCNRA Act, is to work with the grazing permittees and other interested

parties to determine whether the grazing activity could be adjusted to

avoid conflicts. This provision of the rule remains unchanged.

Comment: Grazing should only occur if the rangeland is in

excellent, not satisfactory, condition. Two reviewers noted that the

standard limiting grazing to rangelands lands in satisfactory

condition, while an improvement over existing management of the HCNRA,

was still inadequate under Section 7 of the HCNRA Act which requires,

among other things, that the HCNRA be administered in a manner

compatible with the ``conservation of scenic, wilderness, cultural,

scientific and other values contributing to the public benefit.''

According to this reviewer, that objective can be achieved only if the

rule is revised to accommodate grazing on rangeland which is at or

above 76% Potential Natural Vegetation (PNV), or 76% of the natural

vegetation community that would exist if the area remained ungrazed.

This is typically referred to by the Forest Service as ``excellent

condition.''

Response. The Forest Service disagrees with the reviewer's

proposition that the only way to ensure that the scenic, wilderness,

cultural, scientific and other values of the HCNRA are conserved is to

require rangelands to be in excellent condition prior to the

authorization of any grazing activities. The Forest Service believes

that authorizing grazing on rangelands in satisfactory condition is

fully consistent with each of the management objectives in Section 7 of

the HCNRA Act including the one referenced by this reviewer. The

satisfactory condition requirement is also in conformance with Section

13 of the HCNRA Act which recognizes ranching and grazing as

traditional and valid uses of the HCNRA. Arguably, limiting grazing to

rangelands deemed to be in excellent condition may be inconsistent with

this provision.

Finally, it bears mentioning that the satisfactory condition is a

minimum threshold which must be maintained throughout the duration of

the permit term which is normally ten years. As a result, assuming

rangelands are in satisfactory condition in the first year of the

permit, the grazing activity and the allotment must be managed in such

a way as to ensure that the rangelands do not fall below this minimum

threshold. If such a threat exists, it may necessitate adjustments in

livestock numbers, seasons of use, locations of grazing, and the

development of range improvements during the permit term. It may even

require the partial or total removal of livestock from the area if the

other management options are unavailing.

Thus, the rule which requires that rangelands be maintained in

satisfactory condition, at a minimum, throughout the term of the

authorized grazing activity, is consistent with Sections 7 and 13 of

the HCNRA Act. No additional changes to the proposed rule are warranted

based on this comment.

Comment: Grazing should be authorized not only on rangelands that

are currently in satisfactory condition, but also on rangelands that

are moving toward satisfactory condition. One reviewer noted that

limiting domestic livestock grazing only to rangelands in satisfactory

condition might be unnecessarily restrictive and might result in the

cessation of grazing even in those instances where the rangelands may

not be in satisfactory condition at the time the rule goes into effect,

but there have been demonstrable strides towards achieving that

condition.

Response: The Forest Service agrees. In many situations, livestock

grazing may be occurring on rangelands that might be deemed to be in

less than satisfactory condition. The status of some of these

rangelands may be due not so much to the absence of vegetation and

forage, but rather due to the type of vegetation and forage. In other

words, the presence of invader species of vegetation may result in an

allotment being classified as in unsatisfactory condition. In many of

these cases, the elimination of the invader species can only be

accomplished through burning or closely monitored livestock grazing.

The intent is not to allow continued grazing on allotments that

exhibit an unsatisfactory condition without an aggressively scheduled

effort to reach ``satisfactory'' in a reasonable period of time. The

comprehensive plan will identify goals, objectives, and schedules to

bring unsuitable lands into a healthy condition, defining

``satisfactory.''

Therefore, while satisfactory condition is an important benchmark

and one which the Forest Service hopes will be achieved on all

allotments in the HCNRA in the future, some flexibility should be built

into the rule to allow for the continuation of livestock grazing, even

on lands that may be in less than satisfactory condition, if that

activity results in the rangelands moving towards the satisfactory

condition benchmark. In order to determine whether the rangelands are

indeed moving towards satisfactory condition, the Forest Service will

evaluate the rangelands and the grazing against the specific standards

and guidelines related to this activity that are included in the forest

plan. Section 292.49(a) has been changed to provide this flexibility.

Comment: The Forest Service should immediately conduct studies to

determine the condition of rangelands in the HCNRA and all grazing

activities should be prohibited pending their completion. One reviewer

was comfortable with the Forest Service's use of satisfactory condition

as the threshold condition beyond which livestock grazing in the HCNRA

may be authorized. However, this reviewer was concerned that the Forest

Service did not possess all the necessary monitoring and other

information at this time to determine whether the rangelands were in

satisfactory or better condition. Therefore, this reviewer suggested

that all grazing be terminated pending the completion of studies

indicating the condition of all the rangelands in the HCNRA.

Response. The Forest Service is currently conducting analysis on

active allotments. Much of this activity is actually a re-analysis

updating information previously gathered. This information is

supplemented through range administration and monitoring which is

conducted on a regular basis. Each allotment has an annual operating

plan which is part of the permit and included the Forest Plan standards

and guidelines as well as any new standards developed for resource

management reasons. In addition to the range analysis and monitoring,

other resource areas such as fish, wildlife, botany, and silviculture

are also gathering resource data within the allotments. The data

collected from these studies adds to the cumulative picture of the

condition of resources within the allotment. Terminating all livestock

grazing activities pending the completion of these studies would result

in a harsh and unreasonable penalty for many permittees by halting

grazing activities on allotments which are in compliance with the terms

of the permits and the standards and guidelines of the forest plan.

The Forest Service is aware that if the standards in this section

are to be successful in protecting and conserving the HCNRA as well as

allowing traditional and valid grazing activities, the studies of range

condition must continue. To that end, the Forest Service will, subject

to the availability of appropriated funds, continue to take steps to

analyze range condition and trend in the HCNRA following the final

adoption of this rule. Priorities of the agency for range condition

studies will be those areas which appear to be in less than

satisfactory condition and those areas that are associated with permits

that are scheduled to expire in the near future. No changes to the

proposed rule are warranted based on this comment.

Comment: A definition of rangelands in ``satisfactory condition''

should be supplied in the rule. Four reviewers encouraged the Forest

Service to include a definition for ``satisfactory condition'' to

further delineate the federal lands in the HCNRA where grazing by

domestic livestock may occur. Two of the four reviewers offered

criteria that could be used in a definition of ``satisfactory

condition.''

Response: The Forest Service determines rangeland conditions based

on a professional review and assessment of forage and soil conditions,

among other things. The precise contours of what constitutes

``satisfactory condition'' may change over time as techniques for the

review and assessment of forage and soil conditions change, as new

information is discovered, or even as changes in societal norms and

understandings occur. Accordingly, the appropriate location for the

definition of satisfactory condition, like many other terms used in

this rule, is in the Comprehensive Management Plan which can more

readily address and respond to these potential future developments. Due

to their rigidity and relative difficulty to amend, regulations are

notoriously poor documents to set out definitions of terms which may

change over time. Accordingly, the definition of ``satisfactory

condition'' will appear in the Comprehensive Management Plan for the

HCNRA rather than these regulations. The agency intends to identify

goals, objectives, and standards pertaining to ``satisfactory

condition'' when the Comprehensive Management Plan is revised. The

public will have an opportunity to review and comment in the

development of the plans.

Comment: The rule should expressly exclude certain types of

rangelands as ``suitable'' for grazing. One reviewer recommended that

riparian areas, highly erodible lands, and threatened and endangered

species habitat should be expressly declared as not ``suitable'' for

grazing in the rule.

Response: The Forest Service believes that the types of land listed

by this reviewer may or may not be unsuitable for grazing depending on

a variety of factors including, but not limited to, the type and amount

of forage available, the impact of the grazing activity on the lands,

and the management regime under which the livestock grazing activity is

conducted. In many cases, grazing on riparian areas, highly erodible

lands, and land that is habitat for threatened and endangered species

may not negatively impact these areas. Therefore, a categorical

exclusion in this rule of these areas from rangelands deemed suitable

for livestock grazing would be inappropriate.

Comment: Recreation livestock should not be covered by the

standards in this section. One reviewer noted that the proposed rule

failed to distinguish recreation livestock used in conjunction with

recreational activities like hunting or trail riding from domestic

livestock which are authorized by a grazing permit. This reviewer

asserted that the standards of this rule should be applied only to

domestic livestock grazing activities and should exclude recreational

livestock grazing activities from its coverage.

Response. The proposed rule was not intended to exclude recreation

livestock from its coverage. It was intended to cover all domestic

livestock grazing activities occurring on the HCNRA, regardless of the

underlying purpose for that activity.

The reviewer fails to offer any additional information upon which

the Forest Service could discern a rational basis for distinguishing

recreation livestock from other forms of livestock on the HCNRA and

exempt them from the provisions of this rule. It may be that in a given

situation, the determination of whether an incompatibility exists may

differ between recreation livestock and other forms of livestock due to

the nature, amount, and location of grazing use. This would be a fact

dependent inquiry and would be made on a case-by-case basis. However,

once an incompatibility is found to exist between livestock grazing and

other listed values for which the HCNRA was established, it matters

little whether the grazing is in furtherance of a commercial ranching

operation or a commercial recreational enterprise. Under this rule,

that livestock grazing activity will have to be modified or abolished.

No additional modification of the proposed rule is warranted.

Comment: The standard requiring rangelands to be in satisfactory

condition before grazing may be authorized is insufficient for wild and

scenic river corridors where that activity must be shown to protect and

enhance the values for which the river was designated. Using the Forest

Service's definition of ``satisfactory condition'' in the Forest

Service Manual, one reviewer noted that this standard was adequate for

federal lands in the HCNRA outside designated wild and scenic river

corridors. Once on wild and scenic river corridor lands, however, this

reviewer explained that the satisfactory condition standard failed to

take into account Section 10 of the Wild and Scenic Rivers Act which

requires designated rivers to be administered to protect and enhance

the values which caused them to be added to the system. For the Snake

and Imnaha Rivers, these values included, among others, vegetation.

Merely maintaining the rangeland in satisfactory condition does not

equate to ``protecting and enhancing'' the vegetation of these rivers.

Response: The Forest Service disagrees for two reasons. The first

reason is that the Forest Service Manual definition of ``satisfactory

condition'' provided by this reviewer is sufficiently protective of

wild and scenic river values. The Forest Service Manual (FSM 2210.5)

defines ``satisfactory condition'' as ``[t]he condition in which * * *

forage species composition and production meets forest plan objectives

* * *''. The forest plan in this case is the Wallowa-Whitman National

Forest Land and Resource Management Plan (LRMP). Under Section 6(f) of

the National Forest Management Act, a LRMP is a forestwide document

that establishes management direction for all National Forest System

lands within its boundaries. As a forestwide document, it must, by

necessity, take into account and be consistent with specially

designated conservation system units that are within its boundaries.

For the Wallowa-Whitman National Forest, this would mean that the LRMP

must incorporate management direction for, among other areas, the

HCNRA, the Hells Canyon Wilderness, and the Snake, Rapid, and Imnaha

Wild and Scenic Rivers. This management direction for these ares may

not be inconsistent with the statutes under which these units were

established. In this case that would include the HCNRA Act, Wilderness

Act, and Wild and Scenic Rivers Act. Consequently, the Wallowa-Whitman

LRMP objectives for forage species composition and production take into

account the different conservation system units located within the

Forest. To that end, the objectives may, but need not be, different.

The second reason that the Forest Service considers this section to

be sufficient as applied to wild and scenic river corridor lands is

based on the identification of the traditional ranching use of this

area as one of the outstanding remarkable values for which the rivers

in the HCNRA were designated. For instance, the Environmental

Assessment for the Imnaha River Wild and Scenic River Management Plan

states

The Imnaha River canyon represents a living vestige typifying

the economic and social history of the region and the American West.

It is very difficult to describe the mystique which glorifies the

frontier cowboy west that is so important to the American psyche.

More specifically, and worthy of recognition -and protection, is the

fact that the Imnaha River setting is a unique remnant of Euro-

American adaptation of the mountainous inland Northwest. [This] * *

* is a value that meets the legislative intent of ``historical,

cultural, or other similar value,'' of the Wild and Scenic Rivers

Act and therefore is an Outstandingly Remarkable Value of the Imnaha

Wild and Scenic River.

(Imnaha River EA, App. C. pp. 12-14 (Jan. 1993)). Based on the fact

that both traditional ranching use and vegetation are outstandingly

remarkable values for which rivers in the HCNRA may have been

designated, the Forest Service considers the standards of this section

to be a reasonable attempt to reconcile conflicts that may arise in

administering the rivers to protect and enhance these values. No change

to the proposed rule is warranted based on this comment.

Comment: Concentrated livestock feeding areas should be closed in

the HCNRA. One reviewer felt that the rule should specifically deal

with confined animal feeding operations (CAFOs) that exist in the

HCNRA. There are two CAFOs in the HCNRA, each of which exceeds 100

acres. Cattle may occupy CAFOs anywhere from one to four months.

According to this reviewer, CAFOs negatively impact the nearby fish and

wildlife habitat, scenic, biological, recreation, and other values for

which the HCNRA was established. This reviewer suggested that another

standard should be added to this section but failed to note what it

should say. Based on the tenor of this reviewer's comments, the

proposed standard would prohibit all existing and proposed CAFOs within

the HCNRA. Another reviewer inquired as to whether and how these CAFOs

would be handled under this section.

Response. The Forest Service does not have any CAFOs on National

Forest System lands in the HCNRA. There are two allotments in the HCNRA

where animals can be fed during part of the grazing season authorized

by the grazing permit. On one allotment, this activity is for emergency

purposes only when winter weather conditions or animal health require

feeding for short periods of time. on the other allotment, cattle are

moved to a pasture and are fed hay during calving. After calving, the

cattle are moved to other pastures in the allotment in accordance with

the terms of the grazing permit. It should be noted that both of these

operations have been reviewed by the Environmental Protection Agency

and neither fits the definition of a CAFO.

If these grazing activities present a problem, the incompatibility

provisions of Sec. 292.48(b) would apply and require a review of the

operation to determine what modifications, if any, could be implemented

to avoid the incompatibility. As this section expressly noted, if the

incompatibility could not be avoided, the grazing activity would have

to terminate. The Forest Service does not consider the addition of

another standard addressing this situation to be necessary.

Comment: Domestic sheep grazing should be terminated in the HCNRA.

One reviewer noted that disease transmission from domestic to bighorn

sheep has resulted in the decimation of bighorn herds in the HCNRA.

Based on this impact, this reviewer recommended that the rule include a

standard which prohibits domestic sheep grazing in the HCNRA.

Response. As in the discussion concerning CAFOs above, this issue

could be easily addressed through Sec. 292.48(b) which requires the

modification of livestock grazing activity if it is incompatible with,

among other things, the maintenance of wildlife and/or their habitat in

the HCNRA. If the incompatibility persists even after the modification,

then the grazing activity would have to cease. Accordingly, a specific

standard prohibiting domestic sheep grazing in the HCNRA is

unnecessary.

It should also be noted that on June 10, 1994, the Forest

Supervisor of the Wallowa-Whitman National Forest signed a decision to

cancel all domestic sheep grazing permits in the HCNRA. This decision

was made after a thorough review of all the research on the

transmission of disease between domestic sheep and bighorn sheep. The

conclusion drawn from this review was that continuation of domestic

sheep grazing as that activity is currently conducted would likely

result in the death of bighorn sheep in the future. This decision is

fully consistent with the Act which recognized grazing as a traditional

and valid use and provided for its continuation only to the extent that

it did not impair the values, including protection of wildlife and

their habitat, for which the HCNRA was established.

Comment: The standard requiring that grazing permit include terms

and conditions to protect and conserve riparian areas should be more

specific. One reviewer noted that the standard directing that terms and

conditions be included in grazing permits provide for the protection

and conservation of riparian areas was ``another step in the right

direction but [] essentially meaningless * * *''. This reviewer thought

that specific criteria for grazing permits should be included as

standards in this rule including compliance with state Best Management

Practices, seasons of use, removal or exclusion of livestock, numbers

of animals to be grazed, buffer zones, and unsuitable locations.

Response. As with many of the other responses to comments made on

the proposed rule, the Forest Service does not consider a regulation to

be the appropriate document to include the level of detail sought by

this reviewer. The regulation embodies the standard to which the agency

must adhere. How the Forest Service meets this standard may vary and

some flexibility must be built into this process to accommodate it.

This is especially true in this situation where the variability of the

affected riparian areas and management practices that can be employed

at a given site may lead to a number of ways in which these areas can

be protected and conserved. In this way, the agency can tailor the

protection and conservation measures individually, recognizing that not

all measures may be appropriate in all situations.

Comment: Range improvement standard is inconsistent with the HCNRA

Act. One reviewer contended that the standard in Sec. 292.48(c)

concerning range improvements was contrary to the HCNRA Act's direction

that any livestock grazing occurring in the HCNRA must be compatible

with the protection of cultural and natural values for which the area

was established. Specifically, this section required that range

improvements be designed and located to have, to the extent

practicable, the minimal impact on scenic, cultural, fish and wildlife

and other values in the HCNRA. As an alternative, this reviewer

suggested that the standard should be modified to simply prohibit any

range improvement that has the potential to impact the ecological,

recreational, or cultural values of the HCNRA.

Response. As noted earlier in this discussion, Congress expressly

recognized in Section 13 of the HCNRA Act that ranching and grazing

were ``traditional and valid'' uses of the HCNRA. In keeping with this

recognition, the Forest Service has formulated standards for grazing

which will enable it to be continued in perpetuity provided that it is

compatible with the management objectives for the HCNRA as articulated

in Section 7 of the Act. In other words, this section provides for the

continuation of grazing unless it is incompatible with the scenic, fish

and wildlife, and other values for which the HCNRA was established. In

that case, as the proposed rule makes clear, the ranching or grazing

activity must yield.

One means by which incompatibilities between grazing and HCNRA

values can potentially be avoided is through the use of range

improvements. Range improvements may either be structural or

nonstructural in nature and are defined as

[A]ny activity or program on or relating to rangelands which is

designed to improve production of forage; change vegetative

composition; control patterns of use; provide water; stabilize soil

and water conditions; and provide habitat for livestock and

wildlife.

(Forest Service Manual 2240.5(8). One example of a range improvement is

a fence. Fences can be installed in order to limit access to important

riparian areas or to facilitate the rotation of livestock to different

parts of an allotment thereby avoiding overuse in any one area. Another

example of a range improvement are water tanks or troughs which can be

situated in such a way as to entice livestock away from natural water

sources like streams and ponds. Suffice it to say that it would be

extremely difficult to run a successful livestock operation without

using at least some range improvements.

This section of the rule provides that where range improvements are

a necessary component of a successful livestock operation, they will

have as little impact as possible on the scenic, fish and wildlife and

other values for which the HCNRA was established while still

accomplishing the objective of the improvement. The impact of range

improvements can be reduced through, among other things, the use of

special materials, locating the site of the improvement to blend in

with the natural topography, and constructing the improvement at

special times of the year.

The reviewer's suggestion which would bar all range improvements

based simply on their ``potential impact'' to the HCNRA resources is

unreasonable and would inevitably lead to the partial or complete

elimination of grazing in the HCNRA due to the exacerbation of

incompatibilities between grazing and the other resource values in the

HCNRA. No change to the rule has been made based on this reviewer's

comment.

Comment: Environmental analysis is necessary prior to the

authorization of livestock grazing on allotments that are currently

vacant as well as those where grazing activity is occurring. One

reviewer noted that the rule should include two express provisions

regarding the circumstances under which grazing may be authorized on an

allotment in the HCNRA. The first case dealt with allotments currently

being grazed. There, this reviewer explained that the rule should

authorize grazing only when there has been current environmental

analysis that considers range condition and the effects of past

livestock use of the allotment. The second case dealt with allotments

where no grazing is currently occurring. In this case, this reviewer

noted that the rule should include a standard requiring a new

environmental analysis prior to the authorization of livestock grazing

which would justify that activity on that allotment.

Response. Through the forest planning process, a schedule was

established for updating all of the allotment management plans on the

Wallowa-Whitman National Forest, including those in the HCNRA. It was

recognized that funding would not be available to update all of these

plans at once. Therefore, the allotments were prioritized for updating.

Allotments with the highest priority were those where evidence

suggested that some resource damage had occurred or was occurring.

Allotments are also required to be in compliance with the relevant

standards and guidelines in the forest plan. These standards and

guidelines, as well as any updates, are built into the annual operating

plans which become a term of the grazing permit.

Permits for vacant allotments are not issued until the range

analysis, NEPA documentation and the allotment management plan are

complete.

Regulatory Impact

This final rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This rule will not have

an annual effect of $100 million or more on the economy nor adversely

affect productivity, competition, jobs, the environment, public health

or safety, nor State or local governments. This rule will not interfere

with an action taken or planned by another agency nor raise new legal

or policy issues. Finally, this action will not alter the budgetary

impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients of such programs. In short, little

or no effect on the National economy will result from this rule, since

it affects only public lands within the HCNRA. Accordingly, this final

rule is not subject to OMB review under Executive Order 12866.

Moreover, this final rule 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. To

the extent that the rule imposes additional requirements on any small

entity, these requirements are the minimum necessary to protect the

public interest, are not administratively burdensome or costly to meet,

and are well within the capability of small entities to perform.

Takings Implication

This rule has been reviewed by the agency under Executive Order

12630 to determine whether its adoption presents the risk of a taking

which would require the payment of just compensation under the 5th

Amendment to the United States Constitution. Because this rule

primarily involves the administration of federal lands, neither the

adoption of this rule nor its implementation presents the risk of a

taking. Furthermore, where mining activities are concerned, the

prohibitions contained herein are subject to valid existing rights

which also insulates the government against the risk of an adverse

decision in a takings claim.

Executive Order 12778, Civil Justice Reform Act

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. Accordingly, (1) all state and local laws and

regulations that are in conflict with this rule or which impede its

full implementation are preempted; (2) no retroactive effect will be

given to this rule; and (3) it will not require administrative

proceedings before parties could file suit in court challenging its

provisions.

Environmental Impact

This rule was discussed as a proposed rule in the final

Environmental Impact Statement and Comprehensive Management Plan for

the Hells Canyon National Recreation Area, pages 155-158. 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 (pages 1-2). 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.

Controlling Paperwork Burdens on the Public

As outlined in the proposed rule, prior written authorization will

be required under this rule for certain activities related to the

scientific research of paleontological resources in the HCNRA and the

use of motorized and non-motorized rivercraft use on the Snake and

Salmon Rivers in the HCNRA. The information that will need to be

submitted to the authorized officer represents a new information

requirement as defined in 5 CFR Part 1320, Controlling Paperwork

Burdens on the Public. In accordance with those regulations and the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq., the Forest Service has

requested the review and approval of the information required. The

agency estimates that a private individual preparing seeking

authorization under the provisions of this rule will spend an average

of 5 hours to gather, prepare, and submit the application for

authorization.

List of Subjects in 36 CFR Part 292

National recreation areas.

Therefore, for the reasons set forth in the preamble, part 292 of

chapter II of title 36 of the Code of Federal Regulations is hereby

amended 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: 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,

archeological, and paleontological resources, the use of motorized and

mechanical equipment, the use of motorized and non-motorized

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 of

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.

``Authorized Officer'' is a Forest Service line officer who has

been delegated the authority to take certain actions pursuant to the

provisions of this subpart.

``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 archeological resources.

``HCNRA'' is the abbreviation for the Hells Canyon National

Recreation Area.

``Mechanical equipment'' means any contrivance which travels over

ground, snow or water on wheels, tracks, skids, or by flotation that is

powered by a living source. This term does not include non-motorized

rivercraft which is defined separately herein, wheelchairs, or other

similar devices used solely to assist persons with disabilities.

``Mining'' means any activity related to the discovery, extraction

and exploitation of minerals under the Mining Act of 1872, 30 U.S.C. 22

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

through the use of, among other things, hydraulic equipment, pans,

ground sluicing, sluice boxes, rockers, or suction dredges.

``Motorized equipment'' means any machine powered by a nonliving

source. This term does not include motorized rivercraft which is

defined separately herein or small, hand-held devices such as

flashlights, shavers, wristwatches, and Geiger counters.

``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 National Forest System lands in the HCNRA

except for Wild and Scenic Rivers and Wilderness Lands.

``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.

``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, with

the sustainability and improvement of the forest using an ecosystem

approach to management being 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 segments of the Snake, Rapid,

and Imnaha Rivers designated as components of the National Wild and

Scenic Rivers System and any other river or segment thereof in the

HCNRA hereafter designated. Wild and Scenic Rivers include all National

Forest System lands within the designated Wild and Scenic River

corridor.

``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,

Wild and Scenic Rivers, 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.

(c) The standards and guidelines of this subpart may be enforced by

the authorized officer pursuant to 36 CFR part 261.

Sec. 292.43 Protection and preservation of cultural and

paleontological resources.

(a) Other Lands and Wild and Scenic Rivers. The following standards

and guidelines of this section apply to the protection and preservation

of cultural and paleontological resources on the Other Lands and the

Wild and Scenic Rivers in 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

scientific research, public education and enjoyment. Where

interpretation of these sites for public benefit and knowledge is

developed, it shall be compatible with the protection of cultural

resources.

(2) The authorized officer 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 authorized officer determines that off-site protection is

preferable because adequate protection cannot be provided on-site, the

resource is already adequately represented and protected on-site

elsewhere, protection on-site is not consistent with the administration

of 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

scientific research. Paleontological resources may only be disturbed or

removed in conjunction with scientific research and only upon the

issuance of prior written authorization of the disturbance or removal

activity.

(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 and Wild and

Scenic Rivers 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 use of such

equipment in 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

Sec. Sec. 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 roads, trails, and airstrips subject to terms and

conditions deemed necessary by the authorized officer for the safe use

of such facilities.

(2) The use of motorized and mechanical equipment is prohibited off

of designated Forest Service roads, trails, and airstrips unless

authorized by the authorized officer subject to terms and conditions

deemed necessary by the authorized officer for the safe use of such

equipment and to ensure that its use is compatible with the Act.

(b) Wild and Scenic Rivers. The following standards and guidelines

apply to the use of motorized and mechanical equipment in the Wild and

Scenic Rivers category in the HCNRA.

(1) The use of motorized and mechanical equipment on designated

Forest Service roads, trails and airstrips is permissible on wild and

scenic river segments classified ``scenic'' or ``recreational'' subject

to terms and conditions necessary for safe use of such equipment and to

ensure its use is compatible with the Wild and Scenic Rivers Act.

(2) The use of motorized and mechanical equipment on designated

Forest Service roads, trails, and airstrips is prohibited on wild and

scenic river segments classified ``wild'' except as provided for by the

authorized officer upon a determination that such use is necessary for

the administration of the river or to protect and enhance the values

for which river was designated.

(c) 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 rivers within the HCNRA.

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

restrictions on size, type of craft, numbers, duration, seasons, or

other matters which may be deemed by the authorized officer to be

necessary to ensure the safe use and enjoyment of the rivers: Provided,

that where wild and scenic rivers are concerned, the authorized officer

may impose such additional terms and conditions as may be necessary to

protect and enhance the values for which the river was designated.

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

Snake River and that portion of the Salmon River in the HCNRA

administered by the Forest Service where such activity may be permitted

subject to restrictions on size, type of craft, numbers, noise limits,

duration, seasons or other matters which may be deemed by the

authorized officer necessary for the safe use and enjoyment of the

rivers: Provided, that where wild and scenic rivers are involved, the

authorized officer may impose such additional terms and conditions as

may be necessary to protect and enhance the values for which the river

was designated.

(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

River and that portion of the Salmon River in the HCNRA administered by

the Forest Service requires prior written authorization from the

authorized officer.

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

rivercraft on the Snake River, the authorized officer 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 River, the authorized officer must ensure that

the carrying capacity of the river is not exceeded.

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

rivercraft on the Snake River, the authorized officer 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 only to protect and enhance ecosystem

health, wildlife habitat, or recreational and scenic 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 insect infestation.

(2) Where authorized, trees may be harvested by selective 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) Wild and Scenic Rivers. The following standards and guidelines

apply to timber harvesting activities in the Wild and Scenic Rivers

category of the HNCRA.

(1) Timber may be harvested on river segments classified ``scenic''

or ``recreational'' to protect and enhance the values for which the

river was designated.

(2) Timber may be harvested on river segments classified ``wild''

only when necessary to provide for recreational facilities such as

trails, to reduce the risk of hazard trees, or to respond to natural

events provided that the activity is consistent with the Wild and

Scenic Rivers Act.

(3) Where authorized, timber harvesting activities on wild and

scenic rivers may be conducted in accordance with and using the same

methods as prescribed in section (a)(2) above.

(c) 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 as of December 31, 1975.

(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, 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 presents a safety hazard. When mineral materials are obtained

from inside the HCNRA, the environmental effects at the source of

extraction must be mitigated by site reclamation upon the termination

of the extraction activity. Site reclamation may include contouring the

land, re-establishing vegetation, and other measures deemed appropriate

by the authorized officer to blend the site into the surrounding

environment to the extent practicable. 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 and Wild and Scenic Rivers. The standards and

guidelines of this section apply to mining activities in the Wilderness

Lands and Wild and Scenic Rivers categories 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 and Wild

and Scenic Rivers.

(2) Extraction of mineral materials is prohibited on Wilderness

Lands and Wild and Scenic Rivers subject to valid existing rights.

Sec. 292.48 Grazing activities.

The following standards and guidelines apply to domestic livestock

grazing activities on Other Lands, Wild and Scenic Rivers, and

Wilderness Lands in the HCNRA.

(a) Grazing may be authorized only on rangeland determined by the

authorized officer to be suitable for grazing and meeting or moving

towards satisfactory condition and meeting the conditions described in

paragraph (b) of this section.

(b) Where domestic livestock grazing is incompatible with the

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

habitats; public outdoor recreation; conservation of scenic,

wilderness, and scientific values; rare combinations of outstanding

ecosystems, or the protection and enhancement of the values for which a

wild and scenic river was designated, 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.

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

must provide for terms and conditions which protect and conserve

riparian areas.

Dated: July 13, 1994.

James R. Lyons,

Assistant Secretary, Natural Resources and Environment.

[FR Doc. 94-17521 Filed 7-18-94; 8:45 am]

BILLING CODE 3410-11-M