National Recreation Areas; Smith River National Recreational Area

[[Page 32633]]

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292

National Recreation Areas; Smith River National Recreational Area

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This notice of proposed rulemaking sets forth the procedures

by which the Forest Service proposes to regulate mineral operations on

National Forest System lands within the Smith River National Recreation

Area. Required by statute, this proposed rule would supplement existing

Forest Service mineral regulations. The intended effect is to allow for

mineral operations in a manner consistent with the purposes for which

Congress established the Smith River National Recreation Area.

DATES: Comments must be received in writing by August 22, 1995.

ADDRESSES: Send written comments to Director, Minerals and Geology

Management Staff (2800--AUD Bldg, 4 CEN), Forest Service, USDA, PO Box

96090, Washington, DC 20090-6090.

The public may inspect comments received on this proposed rule in

the office of the Director, Fourth floor, Central Wing, Auditors

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

of 8:30 am and 4:30 pm. Those wishing to inspect comments are

encouraged to call (202) 205-1535 ahead of time to facilitate entry

into the building.

FOR FURTHER INFORMATION CONTACT:

Sam Hotchkiss, Minerals and Geology Management Staff, (202) 205-1535.

SUPPLEMENTARY INFORMATION: The Smith River National Recreation Area

(SRNRA) was established by the Smith River National Recreation Area Act

of 1990 (the Act) (16 U.S.C. 460bbb et seq.). The purposes of the Act

are to ensure, ``* * * the preservation, protection, enhancement, and

interpretation for present and future generations of the Smith River

Watershed's outstanding wild and scenic rivers, ecological diversity,

and recreation opportunities while providing for the wise use and

sustained productivity of its natural * * *'' In order to meet the

purposes of the Act, Congress directed the Forest Service to administer

the SRNRA to, among other things, provide for a broad range of

recreation uses and improve fishery and water quality. Congress

prohibited mining subject to valid existing rights and limited

extraction of common variety mineral materials within the SRNRA to

situations where the material extracted is used for construction and

maintenance of roads and other facilities within the SRNRA and the

excluded areas.

The SRNRA consists of approximately 300,000 acres of National

Forest System lands in the Six Rivers National Forest in northern

California. The Act divided the SRNRA into eight distinct management

areas and specified a management emphasis for each management area. One

of these eight areas is the Congressionally designated Siskiyou

Wilderness which the Act specifies is to be administered pursuant to

the provisions of the Wilderness Act.

The Act also designated the following rivers or river segments as

components of the National Wild and Scenic Rivers System: (1) The Smith

River; (2) the Middle Fork of the Smith River; (3) the North Fork of

the Smith River; (4) the Siskiyou Fork of the Smith River; and (5) the

South Fork of the Smith River. For these wild and scenic rivers,

Congress directed that they be administered in accordance with the Act

and the Wild and Scenic Rivers Act. In the event of a conflict between

the provisions of these two statutes, Congress specified that

provisions of the more restrictive statute apply. Finally, there are

four areas that lie within the boundary of the SRNRA expressly excluded

from the SRNRA.

Prospecting for minerals and mining has been an important part of

the history of the Smith River area since the 1850's. Mining operations

within the Smith River area have historically been small-scale placer

gold exploration and recovery operations within the bed and banks of

the Smith River and its main tributaries. Panning, sluicing, and

dredging operations occur predominantly during the summer months. In

recent years, large, low-grade nickel-cobalt resources in the uplands

of the Smith River watershed have attracted attention. Currently, there

are approximately 5,000 mining claims covering about 30,000 acres of

National Forest System lands within the SRNRA. In addition, there are

outstanding mineral rights within the SRNRA. However, as of early June

1995, there are no operators conducting operations.

In section 8 of the Act, Congress addressed to what extent mineral

operations would be authorized within the SRNRA. Section 8(a) of the

Act withdrew all federal lands in the SRNRA from the operation of the

mining, mineral leasing, and geothermal leasing laws subject to valid

existing rights. Section 8(b) of the Act precluded the issuance of

patents for locations and claims made prior to the establishment of the

SRNRA. Section 8(c) of the Act prohibited all mineral operations within

the SRNRA except where valid existing rights are established. Section

8(c) also prohibited the extraction of common variety minerals such as

stone, sand, and gravel except if it is used in the construction and

maintenance of roads and other facilities within the SRNRA and the

excluded areas. Finally, section 8(d) directed the Secretary to

promulgate supplementary mineral regulations to promote and protect the

purposes for which the SRNRA was designated.

Provisions of the Proposed Rule

This proposed rule has been prepared pursuant to section 8(d) of

the Act and would supplement existing Forest Service regulations

pertaining to locatable mineral operations in the SRNRA and provide new

regulations pertaining to outstanding mineral rights on National Forest

System lands in the SRNRA. Accordingly, mineral operations in the SRNRA

would not only be subject to the provisions of this rule but also to

the applicable provisions of 36 CFR parts 228, 251, and 261, among

others. The proposed rule clearly states that if there is a conflict or

inconsistency with provision of other applicable regulations, the

provisions of this rule would take precedence to the extent permitted

by law.

The proposed rule divides mineral operations in the SRNRA into

three categories--operations under the General Mining Laws, operations

pursuant to outstanding mineral rights, and extraction of common

variety mineral materials. There are no reserved mineral rights in the

SRNRA, consequently, there is no need to address this category of

mineral ownership in the proposed rule. In the event of a land

acquisition that results in reserved mineral rights in the SRNRA, the

current regulations at 36 CFR 251.15 provide sufficient direction to

govern this activity and to protect the values for which the SRNRA was

established.

The proposed rule is specifically designed to supplement existing

locatable mineral regulations at 36 CFR part 228, subpart A, and thus

to provide a greater degree of protection for the natural resources in

the SRNRA than would be provided under 36 CFR part 228, subpart A,

alone. This additional protection would be accomplished in several

ways: (1) By the expansion of the types of mineral operations subject

to the requirement for a plan of operations; (2) by setting additional

reclamation standards; and (3) [[Page 32634]] providing expedited

suspension procedures where harm or damage to resources or to people is

imminent or is occurring. These and the other provisions of the

proposed rule would enable the Forest Service to administer mineral

operations in the SRNRA consistent with the purposes for which the area

was established.

Section-by-Section Explanation of the Proposed Rule

This proposed rule would establish a new subpart G, Smith River

National Recreation Area, in part 292 of Title 36 of the Code of

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

rule follows.

Section 292.60, Purpose and scope. Paragraph (a) of the proposed

Sec. 292.60 explains that the purpose of this rule is to establish the

rules and procedures for regulating mineral operations on National

Forest System lands in the SRNRA so that they are in conformance with

the Act. Paragraph (b) explains that rules and procedures in this rule

apply only to National Forest System lands in the SRNRA. Paragraph (c)

notes that this rule supplements existing Forest Service mineral

regulations and that mineral operations on National Forest System lands

in the SRNRA will continue to be subject to other applicable

regulations governing these activities, particularly parts 228, 251,

and 261 of this chapter. Paragraph (d) provides that, to the extent

provided by law, the provisions of this rule shall take precedence over

the provisions of other applicable regulations if there is a conflict

or inconsistency between them. Finally, the last paragraph states that

mineral operations approved or determined to be acceptable before the

effective date of this proposed rule would continue to operate under

the conditions of approval or acceptability including the specified

period of operations. While there are no known operations at the time

of publication of this proposed rule, that could change by the time of

adoption of a final rule; thus, a transitional provision is needed.

Section 292.61, Definitions. This section defines special terms

used in the proposed rule, some of which have been previously

established or used in other rules or directives. However, the

definitions included in the proposed Sec. 292.61 define the terms as

they are used in the proposed rule.

Section 292.62, Plan of operations requirements. Proposed

Sec. 292.62(a) would reduce the amount of discretion that the

authorized officer currently has under 36 CFR 228.4(a) in determining

whether a plan of operations or a notice of intent is required for a

proposed mineral operation. In addition to the requirements of 36 CFR

228.4 for submitting a plan of operations or a notice of intent, this

proposed rule would require a plan of operations for some mineral

operations that in other locations have been routinely conducted under

a notice of intent. For example, to operate mechanical or mechanized

equipment such as a suction dredge and sluice under the proposed rule

would require a plan of operations. Given the special status of the

SRNRA and the special statutory management direction for the area set

by Congress, further regulation of these kinds of operations is

necessary in order to maintain the resource values which prompted its

designation.

The information requirements specified in proposed Sec. 292.62(b)

are the same information that has been routinely gathered by the Forest

Service from Bureau of Land Management records, county records, and the

operator when a plan of operations is submitted for an area withdrawn

from disposition under the General Mining Laws. The burden of gathering

this information is now being shifted from the Forest Service to the

operator since this information should be readily available to the

operator if it does exist. The requirement to have the operator submit

this information as part of the plan of operations should decrease the

cost and the amount of time it takes for the Forest Service to collect

the information, and, thereby, to make a valid existing rights

determination.

Proposed Sec. 292.62(c) outlines the minimum operating elements

that must be included in a plan of operations in the SRNRA. The

information requirements found at 36 CFR 228.4(c) and 228.8 that are

generally applicable for a plan of operations on National Forest System

lands are also applicable to a plan of operations proposed within the

SRNRA. In addition to these specific information requirements, this

proposed rule for the SRNRA would require an operator, who is not the

claim owner, to submit a copy of the authorization granting the

operator permission to conduct operations on a mining claim owned by

another party. The existing regulations at 36 CFR 228.8(g) allow the

authorized officer several options as to when reclamation activities

can occur. These activities can take place upon depletion of the

mineral deposit or sometime during the operation when it is practicable

or within 1 year after the operations have concluded, unless the

authorized officer allows for a longer time. In contrast, reclamation

activities for mineral operations under the proposed rule would occur

concurrently with the mineral operations whenever practicable. A

requirement for concurrent reclamation would restore the land to

another useful productivity in the shortest possible time. This

requirement is essential to meet the statutory requirements to protect

and preserve the values of the SRNRA.

Section 292.63, Plan of operations. Proposed Sec. 292.63

establishes the procedures by which a plan of operation for mineral

operations on mining claims in the SRNRA would be processed.

Proposed Sec. 292.63(a) explains that the first item considered by

the authorized officer is whether the operator has furnished the

information required by Sec. 292.62(b) to help substantiate valid

existing rights. For reasons of efficiency, it is logical for the

authorized officer to first determine whether the operator has

discovered a valuable ore deposit before undertaking a review of that

part of the plan of operations which describes in detail how the

deposit is to be developed. Following the initial review, the

authorized officer must notify the operator in writing whether the

information required in Sec. 292.62(b) has been provided or whether

additional information still needs to be provided. Once the information

required by Sec. 292.62(b) has been provided, the authorized officer

notifies the operator when the valid existing rights determination is

expected to be completed.

Proposed Sec. 292.63(b) explains that if the determination finds

valid existing rights have not been established, the authorized officer

must notify the operator of the determination, the reasons for such a

determination, and that the development activities as contemplated in

the plan of operations cannot be conducted.

Proposed Sec. 292.63(c) explains that if the determination finds

valid existing rights have been established, the authorized officer

notifies the operator that this determination has been made and that

the Forest Service is beginning a review of the proposed plan of

operations and specifies the date when the Forest Service expects to

complete the review.

Proposed Sec. 292.63(d) directs that upon completion of the review

of that part of the plan of operations that contains the operational

and reclamation elements specified in proposed Sec. 292.62(c), the

authorized officer must notify the operator in writing the results of

the review as specified in Sec. 228.5(a).

Proposed Sec. 292.63(e) would limit the maximum period for which a

plan of operations is approved to five years; for operations beyond 5

years, the operator [[Page 32635]] would have to submit a new plan in

accordance with the specifications of Sec. 292.62 of this proposed

rule. The 5-year limit was chosen with large projects in mind. It would

provide the authorized officer a more frequent and consistent approach

to reviewing and updating operating conditions and ensuring the

approved plan of operations remains consistent with the purposes for

which the SRNRA was established. The 5-year limit will have little to

no effect on the typical small-scale operation which last only one or

two years from start to finish.

Proposed Sec. 292.63(f) explains that substantive changes to an

approved plan of operations must be reviewed and approved by the

authorized officer. Under this paragraph, the operator has the option

to submit a modification of an approved plan of operations, as provided

for in 36 CFR 228.4(e), which clearly identifies the elements that are

different from the previously approved plan of operations, or to submit

a supplemental plan of operations pursuant to 36 CFR 228.4(d).

Section 292.64, Plan of operations suspension. Proposed Sec. 292.64

authorizes the suspension of mineral operations under an approved plan

of operations by the Forest Service authorized officer, if the operator

is not in compliance with applicable law, regulations, or the terms and

conditions of the approved plan. If an operator is found to be in

noncompliance, the authorized officer must provide the operator with

the reasons why the plan of operations is not in compliance with the

laws, regulations, or the approved plan of operations and a reasonable

time to abate the noncompliance. Generally, the operator will have at

least 30 days after the notice of noncompliance is issued to correct

the noncompliance before a suspension becomes effective. However, for

those instances that present an imminent threat of harm to public

health, safety, or the environment or where such harm is already

occurring, the authorized officer can take immediate action to

alleviate the threat or damage. This immediate suspension authority

would allow the authorized officer to take steps to avoid or minimize

the risk of harm to persons and the environment. Only after the harm or

risk of harm has been abated would the authorized officer be required

to notify the operator of the suspension and provide him or her with an

opportunity to respond.

Section 292.65, Operating plan requirements. Proposed Sec. 292.65

establishes that operating plans are required for mineral operations

involving outstanding mineral rights; that is, mineral rights owned by

a party other than the surface owner at the time the surface estate was

conveyed to the Federal government.

Proposed Sec. 292.65(a) specifies that all individuals who want to

exercise outstanding mineral rights in the SRNRA must submit an

operating plan to the authorized officer at least 60 days in advance of

surface occupancy.

Proposed Sec. 292.65(b) specifies the information that an operator

must provide in order to conduct mineral operations involving

outstanding mineral rights where the surface estate is within the

SRNRA. The operating plan must include information such as: (1)

Evidence of ownership of the outstanding mineral rights, (2) the name

of a designated field representative, (3) a map showing the location

and dimension of all improvements, (4) a plan of operations including a

schedule for construction and drilling, and (5) a soil erosion and

sedimentation control plan.

Section 292.66, Operating plan acceptance. Proposed Sec. 292.66

establishes the procedures by which operating plans in the SRNRA would

be processed.

Proposed Sec. 292.66(a) requires the authorized officer to review

that portion of the operating plan related to substantiating

outstanding mineral rights and notify the operator whether the

information required to substantiate ownership of outstanding mineral

rights has been provided to the Forest Service. If more information

must be provided by the operator, the Forest Service would specify what

is needed. If no more information is necessary for the Forest Service

to complete its review, the authorized officer would indicate when the

review is expected to be completed.

Proposed Sec. 292.66(b) would specify that if outstanding mineral

rights have not been verified, the authorized officer would notify the

operator of the finding, the reasons for such a finding, and that the

proposed operation cannot be conducted.

Proposed Sec. 292.66(c) would specify that if outstanding mineral

rights have been verified, the authorized officer would notify the

operator that outstanding mineral rights have been verified, that the

Forest Service would begin a review of the proposed operating plan, and

the date when the Forest Service would expect to complete the review.

Proposed Sec. 292.66(d) explains that the authorized officer will

focus the review of the operating plan on whether the development

activities proposed are consistent with the rights granted by the deed,

consistent with the SRNRA Management Plan, and whether the development

activities will utilize the least amount of surface lands necessary for

the operation.

Proposed Sec. 292.66(e) would specify that upon completion of the

review of the operating plan, the authorized officer would notify the

operator of the findings. If the findings indicate that the proposed

operating plan is consistent with the rights granted by the deed of

conveyance, consistent with the SRNRA Management Plan, and uses only

that portion of the surface as is absolutely necessary, the operating

plan would be determined to be acceptable to the Forest Service. If the

findings indicate that the proposed operating plan does not meet all

three criteria listed at Sec. 292.66 (d)(1) through (d)(3), the

authorized officer must specify the reasons why the proposed operating

plan does not meet the three listed criteria, propose changes to the

operating plan to make it consistent with the three criteria, and

attempt to negotiate the proposed changes with the operator.

Proposed Sec. 292.66(f) would require that another operating plan

be submitted if additional operations not included in an acceptable

operating plan are proposed and that the process as outlined in

Sec. 292.66 would be followed. This provision is similar to that in

Sec. 228.5(c) and Sec. 292.63(f) of the proposed rule.

By requiring parallel information and review of operations under

outstanding mineral rights, the Forest Service can ensure that the

values for which the SRNRA was established are protected, and operators

can be assured that requirements for negotiating modifications to an

operating plan are consistent with those required of other mineral

programs.

Section 292.67, Mineral material operations. Proposed Sec. 292.67

states that the disposal of common variety mineral materials would be

governed by the existing mineral material regulations set forth at 36

CFR part 228, subpart C, and would require that proposals for the

extraction and removal of common variety mineral materials within the

SRNRA would be approved only if the material is used within the SRNRA

or in one of the four excluded areas identified by the Act.

Section 292.68, Indemnification. This section would provide a means

of protecting the United States Government from liability as a result

of claims, demands, losses, or judgments caused by an operator's use or

occupancy. In addition, the operator would be required to pay the costs

[[Page 32636]] incurred by the Forest Service or other agencies

resulting from noncompliance with an approved plan of operations or an

agreed to operating plan.

Operators have not had to bear any of the costs incurred by the

Forest Service to administer mineral projects on National Forest System

lands even if operations were not being conducted under the conditions

approved or agreed upon. Proposed Sec. 292.68(c) would require those

operators who do not abide by the conditions of an approved plan of

operations or agreed upon operating plan to pay the costs incurred by

the Forest Service resulting from noncompliance. It is believed that if

an operator was required to reimburse the Forest Service for the costs

incurred by the Forest Service resulting from noncompliance, there

would be less noncompliance.

Regulatory Impact

This proposed rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this regulation 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.

Accordingly, this proposed rule is not subject to OMB review under

Executive Order 12866.

Moreover, this proposed 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

because of its limited scope and application. Also, this proposed rule

does not adversely affect competition, employment, investment,

productivity, innovation, or the ability of United States based

enterprises to compete in local or foreign markets.

Environmental Impact

Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;

September 18, 1992) excludes from documentation in an environmental

assessment or impact statement ``rules, regulations, or policies to

establish Service-wide administrative procedures, program processes, or

instructions.'' The agency's preliminary assessment is that this rule

falls within this category of actions and that no extraordinary

circumstances exist which would require preparation of an environmental

assessment or environmental impact statement. A final determination

will be made simultaneously with adoption of the final rule.

Controlling Paperwork Burdens on the Public

Section 292.62(b) of this proposed rule specifies that in addition

to the requirements of Sec. 228.4, an operator must provide information

to support valid existing rights as part of a plan of operations. Also,

proposed Sec. 292.65(b) requires those who wish to exercise outstanding

mineral rights to submit an operating plan. The provisions of the

proposed rule applicable to locatable minerals are supplementary to the

existing information required by 36 CFR 228.4 which still apply for

plans of operations. The provisions of the proposed rule applicable to

outstanding mineral rights represent new information requirements as

defined in 5 CFR part 1320, Controlling Paperwork Burdens on the

Public. Although the proposed rule requires the operator to submit more

information with a plan of operations than applies under part 228,

subpart A, the information is readily available to the operator and

does not require additional effort or information that the operator

does not already have to acquire to conduct operations.

In accordance with the rules of 5 CFR part 1320 and the Paperwork

Reduction Act of 1980 as amended (44 U.S.C. 3507), the Forest Service

is requesting Office of Management and Budget review and approval of

the information required to be addressed in a plan of operations or an

operating plan. The agency estimates that an operator preparing a plan

of operations will spend an average of 2 hours gathering and submitting

the information related to valid existing rights and another 2 hours

preparing and submitting the minimal information on the proposed

operation for Forest Service review and approval. The agency also

estimates that an operator preparing an operating plan will spend an

average of 2 hours gathering and submitting the information related to

outstanding mineral rights and the operation itself for acceptability.

Reviewers who wish to comment on these information requirements should

submit their views to the Chief of the Forest Service at the address

listed earlier in this document as well as to the: Forest Service Desk

Officer, Office of Information and Regulatory Affairs, Office of

Management and Budget, Washington, DC 20503.

No Takings Implications

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

Guidelines for the Evaluation of Risk and Avoidance of Unanticipated

Takings, the takings implication of this proposed rule have been

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

of a taking.

Civil Justice Reform Act

This proposed rule has been reviewed under Executive Order 12778,

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

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

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

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

would not require administrative proceedings before parties could file

suit in court challenging its provisions.

List of Subjects in Part 292

Administrative practice and procedure, Environmental protection,

Mineral resources, National forests, National recreation areas, and

Surety bonds.

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

proposed to amend part 292 of chapter II of title 36 of the Code of

Federal Regulations by adding a new subpart G to read as follows:

PART 292--NATIONAL RECREATION AREAS

Subpart G--Smith River National Recreation Area

Sec.

292.60 Purpose and scope.

292.61 Definitions.

Valid Existing Rights

292.62 Plan of operations supplementary requirements.

292.63 Plan of operations approval.

292.64 Plan of operations suspension.

Outstanding Mineral Rights

292.65 Operating plan requirements.

292.66 Operating plan acceptance.

Mineral Materials

292.67 Mineral material operations.

Indemnification

292.68 Indemnification.

Subpart G--Smith River National Recreation Area

Authority: 16 U.S.C. 460bbb et seq.

Sec. 292.60 Purpose and scope.

(a) Purpose. The regulations of this subpart set forth the rules

and [[Page 32637]] procedures by which the Forest Service regulates

mineral operations on National Forest System lands within the Smith

River National Recreation Area as established by Congress in the Smith

River National Recreation Area Act of 1990 (16 U.S.C. 460bbb et seq.).

(b) Scope. The rules of this subpart apply only to mineral

operations on National Forest System lands within the Smith River

National Recreation Area.

(c) Applicability of other rules. The rules of this subpart

supplement existing forest Service regulations concerning the review,

approval, and administration of mineral operations on National Forest

System lands including, but not limited to, those set forth at parts

228, 251, and 261 of this chapter.

(d) Conflicts. In the event of conflict or inconsistency between

the rules of this subpart and other parts of this chapter, the rules of

this subpart take precedence, to the extent allowable by law.

(e) Applicability to ongoing operations. Operations under an

acceptable operating plan or an approved plan of operations in effect

prior to the effective date of these regulations shall be for a limited

time not to exceed 5 years. If operations have a shorter specified

operating time, the shorter operating time shall remain in effect.

Sec. 292.61 Definitions.

The special terms used in this subpart have the following meaning:

Act means the Smith River National Recreation Area Act of 1990 (16

U.S.C. 460bbb et seq.).

Authorized officer means the Forest Service officer to whom

authority has been delegated to take actions pursuant to the provisions

of this subpart.

Hazardous substance means any substance so classified under the

Comprehensive Environmental Response, Compensation, and Liability Act

of 1980, as amended (42 U.S.C. 9601).

Operating plan means the document submitted in writing by the owner

or lessee, or a representative acting on behalf of an owner or lessee,

to exercise outstanding mineral rights for minerals underlying National

Forest System lands.

Outstanding mineral rights means the rights owned by a party other

than the surface owner at the time the surface was conveyed to the

United States.

SRNRA is the abbreviation for the Smith River National Recreation

Area, located within the Six Rivers National Forest, California.

Valid existing rights for the purposes of this subpart means all

mining claims on National Forest system lands in the SRNRA which: (1)

Were properly located prior to November 16, 1990, for a mineral that

was locatable at that time; (2) were properly maintained thereafter

under the applicable law; (3) were supported by a discovery of a

valuable mineral deposit within the meaning of the general mining law

prior to November 16, 1990, which discovery has been continuously

maintained since that date; and (4) continue to be valid.

Valid Existing Rights

Sec. 292.62 Plan of operations supplementary requirements.

(a) Applicability. In addition to the activities for which a plan

of operations is required under Sec. 228.4 of this part, a plan of

operations is required when a proposed operation within the SRNRA

involves mechanical or mechanized equipment, including a suction dredge

and sluice.

(b) Information to support valid existing rights. A plan of

operations within the SRNRA must include at least the following

information relevant to the existence of valid existing rights for the

period from November 16, 1990, to the present except as otherwise

specified:

(1) The mining claim recordation serial number assigned by the

Bureau of Land Management;

(2) A copy of the original location notice and conveyance deeds, if

ownership has changed since the date of location;

(3) A copy of the affidavit of assessment work or notice of

intention to hold the mining claim since the date of recordation with

the Bureau of Land Management;

(4) Verification by the Bureau of Land Management that the holding

fees have been paid or have been exempted;

(5) Sketches or maps showing the location of past and present

mineral workings on the claims and information sufficient to locate and

define the mining claim corners and boundaries on the ground;

(6) For lode and placer mining claims--

(i) An identification of the valuable mineral that has been

discovered;

(ii) An identification of the site within the claims where the

deposit has been discovered and exposed;

(iii) Information on the quantity and quality of the deposit

including copies of assays or test reports, the width, locations of

veins, the size and extent of any deposit; and

(iv) Evidence of past and present sales of the valuable mineral;

and

(7) For millsite claims, information proving that the millsite is

associated with a valid mining claim and that the millsite is used or

occupied for mining or milling purposes.

(c) Minimum information on proposed operations. A plan of

operations must include the information required at 36 CFR 228.4 (c)(1)

through (c)(3) which includes information about the proponent and a

detailed description of the proposed operation. In addition, if the

operator and claim owner are different, the operator must submit a copy

of the authorization or agreement under which the proposed operations

are to be conducted. A plan of operations must also address the

environmental protection requirements of 36 CFR 228.8 which includes

reclamation. In addition, when practicable, reclamation will proceed

concurrently with the mineral operation.

Sec. 292.63 Plan of operations approval.

(a) Upon receipt of a plan of operations, the authorized officer

shall review the information related to valid existing rights and

notify the operator in writing that one of the following circumstances

apply:

(1) That sufficient information on valid existing rights has been

provided and the date by which the forest Service expects to complete

the valid existing rights determination; or

(2) That sufficient information on valid existing rights has not

been provided and the specific information that still needs to be

provided.

(b) If upon receipt, review, and verification of all requested

information, the authorized officer finds that there is not sufficient

evidence of valid existing rights, the authorized officer shall so

notify the operator in writing, providing the reasons for the

determination, and advise that the proposed mineral operation cannot be

conducted.

(c) If upon receipt, review, and verification of all requested

information, the authorized officer finds that there is sufficient

evidence of valid existing rights, the authorized officer shall so

notify the operator in writing, that a review of the proposed plan of

operations is underway, and the date by which the review is expected to

be completed. A prior determination that there is sufficient evidence

of valid existing rights shall not bar the authorized officer from

requesting the Department of the Interior to file a mineral contest

against a mining claim if the authorized officer has a reasonable basis

to question that determination.

(d) Upon completion of the review of the plan of operations, the

authorized officer shall ensure that the minimum information required

by Sec. 292.62(c) has [[Page 32638]] been addressed and, pursuant to

Sec. 228.5(b) of this chapter, notify the operator in writing whether

or not the plan of operations is approved.

(e) The period for which a plan of operations is approved may not

exceed five years and must be explicitly identified by the authorized

officer in giving notice of approval of a plan of operations.

(f) If an operator desires to make substantive changes in the type,

scope, or duration of mineral operations from those described in an

approved plan of operations and those changes will result in resource

impacts not anticipated when the original plan was approved, the

operator must submit a supplemental plan or a modification for review

and approval of the authorized officer pursuant to Sec. 292.62 of this

proposed rule.

Sec. 292.64 Plan of operations suspension.

The authorized officer may suspend mineral operations due to an

operator's noncompliance with applicable statutes, regulations, or

terms and conditions of the approved plan of operations. Except as

otherwise provided in this paragraph, prior to suspending operations,

the authorized officer must first notify the operator in writing of the

basis for the suspension and provide the operator with a reasonably

sufficient time to respond to the notice of the authorized officer or

to bring the mineral operations into conformance with applicable laws,

regulations, or the terms and conditions of the approved plan of

operations. Generally, the authorized officer shall notify the operator

not less than thirty days prior to the date of the proposed suspension;

however, in those cases that present a threat of imminent harm to

public health, safety, or the environment, or where such harm is

already occurring, the authorized officer may take immediate action to

stop the threat or damage without prior notice. In such case, written

notice and explanation of the action taken, shall be given the operator

as soon as reasonably practicable following the suspension.

Outstanding Mineral Rights

Sec. 292.65 Operating plan requirements.

(a) Proposals for mineral operations involving outstanding mineral

rights within the SRNRA must be documented in an operating plan and

submitted in writing to the authorized officer for review at least 60

days in advance of surface occupancy.

(b) An operating plan for operations involving outstanding mineral

rights within the SRNRA must include the following:

(1) The name and legal mailing address of the operator, owner, and

any lessees, assigns, and designees;

(2) A copy of the deed or other legal instrument that conveyed the

outstanding mineral rights;

(3) Sketches or maps showing the location of the outstanding

mineral rights, the proposed area of operations, including but not

limited to, existing and/or proposed roads or access routes identified

for use, any new proposed road construction, and the approximate

location and size of the areas to be disturbed, including existing or

proposed structures, facilities, and other improvements to be used;

(4) A description of the type of operations which includes, at a

minimum, a list of the type, size, location, and number of structures,

facilities, and other improvements to be used;

(5) An identification of the hazardous substances and any other

toxic materials, petroleum products, insecticides, pesticides, and

herbicides that will be used during the mineral operation, and the

means for disposing of such substances;

(6) An identification of the character and composition of the

mineral wastes that will be used or generated and a method or strategy

for their placement, control, isolation, or removal; and

(7) A reclamation plan to reduce or control on-site and off-site

damage to natural resources resulting from mineral operations.

(i) The plan should provide, to the extent practicable, that

reclamation proceed concurrently with the mineral operations and must

show how public health and safety are maintained.

(ii) Reclamation measures to be identified and described in the

plan include, but are not limited to, the following:

(A) Reduction and/or control of erosion, landslides, and water

runoff;

(B) Rehabilitation of wildlife and fisheries habitat to be

disturbed by the proposed mineral operation; and

(C) Protection of water quality.

(iii) The area of surface disturbance must be reclaimed to a

condition or use that is consistent with the SRNRA Management Plan.

Sec. 292.66 Operating plan acceptance.

(a) Upon receipt of an operating plan, the authorized officer must

review the information related to the ownership of the outstanding

mineral rights and notify the operator in writing that one of the

following circumstances apply:

(1) That sufficient information on ownership of the outstanding

mineral rights has been provided and the date by which the review is

expected to be completed; or

(2) That sufficient information on ownership of outstanding

minerals rights has not been provided and the specific information that

still needs to be provided.

(b) If the review shows outstanding mineral rights have not been

verified, the authorized officer must notify the operator in writing

that outstanding mineral rights have not been verified, the reasons for

such a finding, and that the proposed mineral operation cannot be

conducted.

(c) If the review shows outstanding mineral rights have been

verified, the authorized officer must notify the operator in writing

that outstanding mineral rights have been verified, that review of the

proposed operating plan is underway, and the date by which the review

is expected to be completed.

(d) The authorized officer shall focus review of the operating plan

to determine if all of the following criteria are met:

(1) The operating plan is consistent with the rights granted by the

deed;

(2) The operating plan is consistent with the SRNRA Management

Plan; and

(3) The operating plan uses only so much of the surface as is

necessary for the proposed mineral operations.

(e) Upon completion of the review of the operating plan, the

authorized officer shall notify the operator in writing that one of the

following two circumstances apply.

(1) The operating plan meets the criteria of paragraphs (d)(1)

through (d)(3) of this section, and, therefore, the Forest Service has

no objections to commencement of operations and that the Forest Service

intends to monitor operations to ensure that operations conform to the

operating plan; or

(2) The operating plan does not meet all of the criteria in

paragraphs (d)(1) through (d)(3) of this section and the reasons why

the operating plan does not meet the criteria. In this event, the

authorized officer shall propose changes to the operating plan and

attempt to negotiate modifications that will enable the operating plan

to meet the criteria in paragraphs (d)(1) through (d)(3) of this

section.

(f) To conduct mineral operations beyond those described in an

acceptable operating plan, the owner or lessee must submit in writing

an amended operating plan to the authorized officer at the earliest

practicable date. The authorized officer shall have at least 60 days in

which to review and respond to a proposed amendment before the new

operations begin. The review will be conducted in accordance with

[[Page 32639]] paragraphs (d)(1) through (d)(3) of this section.

Mineral Materials

Sec. 292.67 Mineral material operations.

Subject to the provisions of part 228, subpart C and part 293 of

this chapter, the authorized officer may approve contracts and permits

for the sale or other disposal of mineral materials, including but not

limited to, common varieties of gravel, sand, or stone. However, such

contracts and permits may be approved only if the material is not

within a designated wilderness area and is to be used for the

construction and maintenance of roads and other facilities within the

SRNRA and the four areas identified by the Act that are within the

exterior boundaries of the SRNRA but are not classified as part of the

SRNRA.

Indemnification

Sec. 292.68 Indemnification.

The owner and/or operator of mining claims and the owner and/or

lessee of outstanding mineral rights are jointly and severally liable

in accordance with Federal and State laws for indemnifying the United

States for:

(a) Injury, loss, or damage, including fire suppression costs,

which the United States incurs as a result of the mineral operations;

(b) Payments made by the United States in satisfaction of claims,

demands or judgments for an injury, loss, or damage, including fire

suppression costs, which result from the mineral operations; and

(c) Cost incurred by the Untied States for any action resulting

from noncompliance with an approved plan of operations or activities

outside a mutually agreed to operating plan.

Dated: June 9, 1995.

David G. Unger,

Associate Chief.

[FR Doc. 95-15360 Filed 6-22-95; 8:45 am]

BILLING CODE 3410-11-M