National Recreation Areas; Smith River National Recreational Area

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292

RIN 0596-AB39

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 November 7, 1997.

ADDRESSES: Send written comments to Director, Minerals and Geology

Management Staff, MAIL STOP 1126, Forest Service, USDA, PO Box 96090,

Washington, DC 20090-6090. All comments, including names and addresses

when provided, will be placed in the record and are made available for

public inspection and copying.

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 resources * * *.'' 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 fisheries and water quality. Subject to

valid existing rights, Congress prohibited locatable mineral

operations, prohibited mineral leasing (including leasing of geothermal

resources), and limited the extraction of 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 in certain areas specifically excluded from the SRNRA by the

Act.

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. There are also four

areas within the exterior boundary of the SRNRA that are expressly

excluded from the provisions of the Act.

One of the eight management areas established by the Act is the

Siskiyou Wilderness, most of which was established on September 26,

1984. The Gasquet-Orleans Corridor was added to the Siskiyou Wilderness

by the Act in 1990. The Act specified that the Siskiyou Wilderness be

managed pursuant to the provisions of the Wilderness Act. In accordance

with section 4(d)(3) of the Wilderness Act, the federal lands within

the Siskiyou Wilderness (excluding the Gasquet-Orleans Corridor

addition) were withdrawn from the operation of the mining and mineral

leasing laws, subject to valid existing rights, as of September 26,

1984.

The Act also redesignated the following rivers or river segments

and some of their tributaries 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.

These same rivers and most of the designated tributaries had previously

been designated components of the Wild and Scenic Rivers System on

January 19, 1981, pursuant to section 2(a)(ii) of the Wild and Scenic

Rivers Act. The Act designated as wild segments two tributaries which

had not been designated on January 19, 1981--Peridotite Creek,

tributary to the North Fork of the Smith River; and Harrington Creek,

tributary to the South Fork of the Smith River which is within the

Siskiyou Wilderness. The Act also

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changed the classification of some tributaries designated in 1981 from

recreational to scenic or wild. For example, the lower 2.5 mile segment

of Myrtle Creek, tributary to the Middle Fork of the Smith River, was

reclassified as wild. In the Act, Congress directed that these wild and

scenic rivers and their designated tributaries 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

would apply. In accordance with section 9(a)(iii) of the Wild and

Scenic Rivers Act, the federal lands within segments of wild and scenic

rivers classified ``wild'' are withdrawn from the operation of the

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

Consequently, there are three different dates of withdrawal which

apply to federal lands within the SRNRA. Federal lands within segments

of the aforementioned five wild and scenic rivers that were originally

classified ``wild'' were withdrawn from the operation of the mining and

mineral leasing laws subject to valid existing rights on January 19,

1981, pursuant to the Wild and Scenic Rivers Act. Federal lands within

the Siskiyou Wilderness (excluding the Gasquet-Orleans Corridor

addition) not previously withdrawn were withdrawn subject to valid

existing rights on September 26, 1984, pursuant to the Wilderness Act.

The remaining federal lands in the SRNRA (including segments of the

aforementioned wild and scenic rivers that had originally been

classified ``scenic'' or ``recreational'' and the Gasquet-Orleans

Corridor addition to the Siskiyou Wilderness) were withdrawn subject to

valid existing rights on November 16, 1990, pursuant to the Act.

Mining and prospecting for minerals have been an important part of

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

within the Smith River area historically have 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. As of May 1997,

there were approximately 305 mining claims, covering about 7,700 acres

of National Forest System lands within the SRNRA. However, none of

these claims are for mill site locations. There are no active

operations on lands with outstanding mineral rights. As of July 1,

1997, two plans of operations have been approved for the 1997 operating

season.

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

United States mining and mineral leasing laws (including laws governing

the leasing of geothermal resources) subject to valid existing rights.

As noted earlier, the withdrawal would apply only to those federal

lands which had not previously been withdrawn under the authority of

the Wild and Scenic Rivers Act or the Wilderness Act.

Section 8(b) of the Act precluded the issuance of patents for

locations and claims made under United States mining laws prior to the

establishment of the SRNRA.

Section 8(c) of the Act prohibited locatable mineral operations

within the SRNRA except where valid existing rights are present. This

subsection also prohibited the issuance of new mineral leases for lands

in the SRNRA and, except where valid existing rights are present,

prohibited operations on existing mineral leases for lands in the

SRNRA. Section 8(c) further prohibited the issuance of new contracts or

permits for lands in the SRNRA authorizing the extraction of mineral

materials such as stone, sand, and gravel unless those mineral

materials are to be used in the construction and maintenance of roads

and other facilities within the SRNRA and/or the excluded areas.

Finally, section 8(c) prohibited operations conducted pursuant to

existing mineral material contracts and permits, except where valid

existing rights are present.

Section 8(d) directed the Secretary to promulgate supplementary

regulations to promote and protect the purposes for which the SRNRA was

designated.

The only locatable mineral development activities that may occur in

the SRNRA are (1) those for the purpose of gathering information to

confirm or demonstrate a discovery of a valuable mineral deposit made

prior to the date that the lands at issue were withdrawn from the

operation of the United States mining laws; (2) those for the purpose

of obtaining evidence for a mineral contest hearing; and (3) those for

which the Forest Service has confirmed that valid existing rights are

present and for which the Forest Service has issued the required

authorization for the proposed operations.

Mineral material operations may also occur in the SRNRA pursuant to

contracts or permits issued on or after November 16, 1990, providing

that the mineral materials are to be used in the construction and

maintenance of roads and other facilities within the SRNRA and/or the

excluded areas. Exercise of outstanding mineral rights may also occur

in the SRNRA after the Forest Service has confirmed that those rights

are present and has issued any required authorization for those

proposed operations.

On or about November 8, 1994, California Nickel Corporation (the

``Corporation''), the largest mining claim holder in the SRNRA, filed

suit against the Department of Agriculture in the United States

District Court for the Northern District of California alleging

violations of the Act (California Nickel Corporation v. Glickman, No.

C94-3904 DLJ (N.D. Cal.)). Specifically, the Corporation alleged that

the Department had unreasonably delayed in promulgating the subject

regulations which are required under the Act. The Forest Service did

not disagree that Section 8(d) requires the promulgation of

regulations; and, in fact, the agency had made some preliminary

progress in developing regulations prior to the initiation of this

lawsuit.

Following the publication of final supplementary regulations by the

Forest Service in the Federal Register on April 3, 1996, the

Corporation amended its complaint to challenge the substance of the

final regulations. Among other things, the Corporation alleged that the

final rule was arbitrary and capricious and violated the due process

protections afforded under the United States Constitution.

The Government disagreed. However, on March 14, 1997, the district

court agreed with the Corporation and set aside the April 3, 1996,

final supplementary regulations. Specifically, the court held that the

provision in the final rule which limited to five years the period for

which a plan of operations may be approved was arbitrary and

capricious, because the agency had failed to adequately address whether

such a provision might result in a taking of private property. The

court additionally held that the failure to establish a timetable for

the Forest Service's review of plans of operations was arbitrary and

capricious, because the rationale for not having a timetable had not

been adequately presented. Finally, the court held that the Forest

Service's failure to include a provision in the final rule that would

enable an operator to obtain review by the Department of the Interior

of a Forest Service determination that the operator did not possess

valid existing rights was a denial of due process.

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Although the Department respectfully disagrees with the district

court's analysis of the legal sufficiency of the April 3, 1996, final

rule, it chose not to seek an appeal before the Court of Appeals for

the Ninth Circuit, since it would inevitably add more time to what has

already become a lengthy process. Rather, the decision was made to

modify those provisions of the April 3, 1996, final rule which the

district court deemed objectionable, in a way that would ensure that

the purposes for which Congress established the SRNRA would not be

compromised. This new proposed rule reflects that balance.

Provisions of the Proposed Rule

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

the Act and it addresses the concerns identified by the district court

in its March 14, 1997, decision. The proposed rule would supplement

existing Forest Service regulations pertaining to locatable mineral

operations and mineral material 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 be subject not only 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 between this rule and other applicable regulations, this

rule would take precedence to the extent permitted by law.

The proposed rule divides mineral operations in the SRNRA into

three categories--operations for locatable minerals under the United

States mining laws, operations for outstanding mineral rights, and

operations for mineral materials. The Act withdrew all federal lands

within the SRNRA from operation of the mineral leasing laws, including

the laws governing the leasing of geothermal resources, subject to

valid existing rights. Since no new leases can be issued and there are

no existing mineral leases within the SRNRA, leasing will not be

discussed in the proposed rule. In addition, 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

that reserved mineral rights are established at some later date in the

SRNRA, the agency will evaluate the applicable regulations currently

set forth at 36 CFR 251.15 to determine whether sufficient protection

can be afforded for the values for which the SRNRA was established. If

not, then the agency would evaluate the need for further amendments to

this rule.

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 resource

values identified in the SRNRA than would be provided under current

regulations alone. This additional protection would be accomplished

through: (1) The expansion of the types of mineral operations subject

to the requirement for a plan of operations; (2) the establishment of

additional reclamation standards; (3) the recognition that the Forest

Service may disapprove a plan of operations; (4) a procedure to modify

a previously approved plan of operations; and (5) expedited suspension

procedures when 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 rule in 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 mineral

operations on National Forest System lands in the SRNRA. Paragraph (c)

notes that this rule supplements existing Forest Service 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) states that, to the extent allowable 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, paragraph (e) states that certain

mineral operations approved before the effective date of this proposed

rule would continue to operate under the conditions of approval,

including the specified period of operations, providing that those

operations are based on the existence of valid existing rights.

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 this proposed rule.

Section 292.62, Valid Existing Rights

Proposed Sec. 292.62(a) sets forth the definition of ``valid

existing rights'' which the agency will use in making its determination

concerning whether an applicant may engage in mining activity in the

SRNRA. The date of withdrawal of National Forest System lands in the

SRNRA from the operation of the mining and mineral leasing laws differs

depending on whether the lands are within segments of the five wild and

scenic rivers and their tributaries originally classified ``wild'', the

Siskiyou Wilderness (excluding the Gasquet-Orleans Corridor addition),

or the rest of the SRNRA (including the scenic and recreational

segments of the five wild and scenic rivers and their designated

tributaries and the Gasquet-Orleans Corridor addition to the Siskiyou

Wilderness). These withdrawal dates are critical in the determination

of valid existing rights.

Proposed Sec. 292.62(b) clarifies the limitation of a mineral

operation that the operator is permitted to conduct in order to confirm

discovery of a valuable mineral deposit. This provision would authorize

the approval of a plan of operations for limited mineral operations for

the purposes of gathering information to confirm or demonstrate the

discovery of a valuable mineral deposit made prior to the date that the

lands at issue were withdrawn from the operation of the United States

mining laws. Such operations may be necessary in certain circumstances

to meet the requirements of Sec. 292.64(a) or to obtain evidence for an

upcoming mineral contest hearing. Case law discusses the limited

circumstances where an operator may conduct mining operations in areas

withdrawn from mineral entry prior to a final determination of valid

existing rights (United States v. Mavros, 122 IBLA 297 (1992) and

United States v. Crowley, 124 IBLA 374 (1992)). First, an operator must

demonstrate that there has been an exposure of valuable minerals. If

such a showing is made, authorization may be granted for the mining

claimant to enter the claim(s) to gather information to

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substantiate that a discovery existed as of the date of withdrawal and,

if necessary, the date of an impending contest hearing. The scope of

the mineral operations which may be approved pursuant to this section

is limited to confirming the pre-existing discovery of a valuable

mineral deposit and confirming the extent of the mineral deposit.

Mineral operations which constitute prospecting or exploration or any

other type of activity to disclose a deposit not exposed prior to the

withdrawal are not allowed. Examples of the type of limited activities

for information gathering purposes that have been found permissible

include drilling to sample a previously disclosed valuable mineral

deposit or reopening a caved portion of a previously driven adit to

take samples of the mineral that had been exposed prior to withdrawal

of the lands from mineral entry. However, an operator has no right to

conduct any mining activities on land withdrawn from mineral entry to

find mineralization rather than to confirm the existence and extent of

valuable mineral deposits previously found.

Section 292.63, Plan of Operations Supplementary Requirements

Proposed Sec. 292.63(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 may have been

routinely conducted under a notice of intent. For example, to operate

mechanical or motorized 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.

Many information requirements specified in proposed Sec. 292.63(b)

are for 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 the operation of the United States mining laws subject

to valid existing rights. Requiring the operator to 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. 292.63(c) outlines the minimum operating information

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 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.

Proposed Sec. 292.63(c) (1), (2), and (3) would require an

operating plan to address environmental protection requirements of

Sec. 228.2 by identifying hazardous materials, toxic materials, and

similar chemical substances to be used during mineral operations and

how they will be disposed of; identifying the character and composition

of mineral wastes that will be used or generated and a proposed method

or strategy for the placement, control, isolation, or removal of the

wastes; and how public health and safety are to be maintained. Proposed

Sec. 292.63(c) (1), (2) and (3) are proposed in order to protect

natural resources from unnecessary environmental damage and to protect

human health and safety as well as wildlife from unnecessary or

dangerous risk from exposure to hazardous or toxic substances. There

are significant environmental problems associated with past mining

activities and practices that could have been avoided or mitigated if

preliminary waste characterization or the proper storage, use and

disposal of hazardous substances had occurred. For example, mining

activities when sulfide minerals (e.g., pyrite, marcasite, and

pyrrhotite) are present are likely to produce acid rock drainage

resulting in contamination of waters of the United States and

destruction of fish, amphibians, biota, and vegetation. Improper

storage or use of mercury or cyanide in gold recovery operations have

resulted in contamination of soils and surface and ground water and may

adversely affect fish and wildlife, as well as pose a risk to human

health and safety. Suction dredge operations utilize petroleum

products, which if improperly used, stored or disposed of, result in

contamination of soils and water and, potentially, groundwater, as well

as adversely affecting fish and wildlife. The SRNRA has habitat for

threatened and endangered species. It is also a popular recreation

area. If mine waste is characterized at the plan of operations stage,

then that information can be used to determine the appropriate mine

design and to determine the treatment and disposal of waste and

tailings to mitigate impacts and prevent unnecessary environmental

damage and risks to people, fish, and wildlife. Likewise, if hazardous

materials and other toxic materials, including but not limited to

pesticides, herbicides, and petroleum products, are described at the

plan of operations stage, then that information can be used to prevent

improper use, storage, and disposal.

Proposed Sec. 292.63(c)(3) would require reclamation concurrent

with operations to the extent practicable. The existing regulations at

36 CFR 228.8(g) allow the authorized officer several options for

determining when reclamation activities can occur. These activities can

take place upon depletion of the mineral deposit, during the operation

if practicable, or within one 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 allow for

the land disturbed by the mining activity to be reclaimed in the

shortest possible time. This requirement is consistent with the

statutory requirements to protect and preserve the values of the SRNRA.

Section 292.64, Plan of Operations

Proposed Sec. 292.64 establishes the procedures by which a plan of

operation for mineral operations on mining claims in the SRNRA would be

processed.

Proposed Sec. 292.64(a) explains that the first item considered by

the authorized officer, except when the plan is for limited mineral

operations for purposes described in Sec. 292.62(b), is whether the

plan contains sufficient information for the Forest Service's review of

the operator's claim that valid existing rights are present. For

reasons of efficiency, it is logical for the authorized officer to

first determine whether valid existing rights are present before

reviewing that part of the plan which describes how the operator

proposes to develop the mineral deposit. The proposed rule specifies

that within 120 days of the submission of a plan of operations, the

authorized officer must notify the operator in writing whether

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the information provided was sufficient for the Forest Service's review

of the operator's claim that valid existing rights are present. If the

authorized officer concludes that additional information from the

operator is necessary to review the operator's claim that valid

existing rights are present, he or she shall inform the operator of

what information needs to be provided. Upon the submission of all such

information, the authorized officer shall promptly notify the operator

in writing of the anticipated date of completion of the valid existing

rights determination, which shall not be more than two years from the

date of the notice. If the operator fails to provide sufficient

information for the Forest Service's review of the operator's claim

that valid existing rights are present, the Forest Service has no

obligation to evaluate whether the operator has valid existing rights

or to process the operator's proposed plan of operations.

An on-the-ground examination and written report by a certified

mineral examiner is required for the agency to make a determination of

valid existing rights for unpatented mining claims located within the

SRNRA. The field examination and report may often take as much as two

years to complete, due to such factors as the weather, accessibility of

field sites, the availability of qualified personnel, preparation of

environmental documents for sampling, and research and analysis.

The season for conducting field work in the SRNRA in order to

determine valid existing rights is limited to approximately five

months, May through September, due to the weather. This area annually

receives about 80-90 inches of rain, predominantly from October through

April. Back country roads and trails to mining claims may become

impassable, and rain swollen rivers and streams cannot be safely

sampled for gold placer deposits until the waters recede in the spring.

During the winter, the agency determines the schedule for field

examinations of mining claims; therefore, mining plans of operations

that are submitted to the Forest Service during the spring or summer

months cannot be scheduled until the following winter.

The scheduling of mining claim examinations is also greatly

affected by the availability of certified review mineral examiners and

mineral examiners. Forest Service manual direction on locatable

minerals (FSM 2803) requires that only Forest Service certified review

mineral examiners and mineral examiners conduct examinations involving

mining claim validity and valid existing rights determinations. There

are fifty-five (55) certified review mineral examiners and mineral

examiners nationwide, but only five (5) in the Pacific Southwest Region

of the Forest Service where the SRNRA is located. Generally, a

certified mineral examiner schedules a field examination for a case

involving validity with one year advance notice. Complex and/or large-

scale mining cases may require two or more mineral examiners working

together to complete the project. Therefore, the on-the-ground

examination of a mining claim that is required for determination of

valid existing rights may have to be scheduled to take place the

calendar year following the submission of a plan of operations.

Field examination also may have to be preceded by a review of the

environmental impacts associated with the field activity pursuant to

the National Environmental Policy Act. Environmental impacts needs to

be assessed whenever fieldwork entails trenching or some other form of

excavation to prepare the site for sampling that might result in a

disturbance of surface resources. The timeframes for conducting such a

review would typically depend on a number of factors including, among

other things, the magnitude and type of the proposed sampling, the

location and accessibility of the site, other scheduled field

examinations, and budgetary and staff constraints. Generally, however,

a field examination would be scheduled sometime during the field season

of the year after the plan of operations is submitted.

There are only two Certified Review Mineral Examiners in the

Pacific Southwest Region. After the field examination is complete, the

Forest Service must analyze the data collected and prepare a written

report. The analysis typically involves estimating the quantity and

quality of the minerals in the deposit, compiling market data,

calculating development and production costs (including reclamation and

environmental mitigation costs), and preparing discounted cash flow or

similar analyses. Additional time may be needed to prepare maps and

exhibits and to present the data and findings in a written report that

must be approved by a certified review mineral examiner. The report

preparation can take several months, depending upon the complexity of

the case.

Proposed Sec. 292.64(a) also would permit the authorized officer,

upon a finding of good cause, to notify the operator in writing that an

extension of time will be necessary to complete the valid existing

rights determination. Situations which might warrant an extension

include, but are not limited to: (1) Inaccessibility of the mining

claims for a substantial part of a field season from May through

September due to fire, flooding, landslides, or other natural

conditions; (2) unavailability of specialists needed to conduct a

mineral examination or prepare a mineral report due to other non-

discretionary duties or medical leave; and (3) significant delays in

performing surface disturbing activities on the mining claim required

for the mineral examination in order to comply with environmental

statutes and regulations.

Proposed Sec. 292.64(b) explains that if the authorized officer

determines that valid existing rights are not present, that officer

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

determination, that the development activities as stated in the plan of

operations cannot be conducted, and that the Forest Service will

transmit its mineral report to the Bureau of Land Management (BLM) in

the United States Department of the Interior for review along with a

request that the BLM initiate a mineral contest action against the

pertinent mining claims. This is consistent with long-standing agency

practice.

Proposed Sec. 292.64(c) provides that determinations by the

authorized officer that valid existing rights are not present will be

regarded as final agency action not subject to further review or

administrative appeal. This is also consistent with long-standing

agency practice that adverse determinations referred to the Bureau of

Land Management are not decisions subject to appeal since the BLM

retains the statutory authority to make the final determination.

Proposed Sec. 292.64(d) explains that if the authorized officer

determines that valid existing rights are present, then the officer

will notify the operator of the determination and that the review of

the operational details of the plan will proceed. The authorized

officer may, if he or she desires, inform the operator of the estimated

time he or she thinks will be necessary to complete the evaluation of

the plan of operations. Although the agency is committed to processing

the plan of operations as expeditiously as possible, there are two

reasons the proposed rule does not specify the time by which the review

will be completed.

First, the time to complete the review of a plan of operations will

vary dramatically from case to case depending upon the scope of the

mining activity contemplated by the operator and the legal requirements

with which the Forest Service must comply in

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conducting the review. The review of some proposals for small-scale

mining activities that will have a de minimis effect on SRNRA lands and

resources could be completed in a few weeks. The review of proposals

for large-scale mining operations which would have substantial effects

on SRNRA lands and resources, on the other hand, may take a few years

to complete. This disparity is based primarily on the legal

requirements associated with agency evaluation of proposed actions

which could have a major environmental impact. Specifically, compliance

with the requirements of the National Environmental Policy Act (NEPA),

the Endangered Species Act (ESA), and the National Historic

Preservation Act (NHPA), among others, can frequently take several

years.

In most instances, a review of large-scale mining operations in the

SRNRA would necessarily entail the preparation of an environmental

impact statement (EIS) pursuant to NEPA, consultation with the National

Marine Fisheries Service and/or the United States Fish and Wildlife

Service regarding the effect of the proposed operation on threatened

and endangered species pursuant to the ESA, and consultation with the

Advisory Council on Historic Preservation regarding the effect of the

activity on sites included in the National Register of Historic Places

pursaunt to the NHPA. Thus, given the extreme variability in the time

it will take to complete its review, the Forest Service has concluded

that it would be inappropriate to establish in this rule a ``one size

fits all'' timeframe for reviewing plans of operations irrespective of

the type of mining operation proposed or the potential impact the

activity might have on SRNRA lands and resources.

Second, as noted above, where large-scale mining operations are

contemplated, the Forest Service is legally required to consult with

several other federal agencies as part of its review of the plan of

operations. Although these other agencies share the Forest Service's

desire to fulfill their obligations as quickly and efficiently as

possible, the Forest Service recognizes that it has no control over how

these other agencies determine their priorities and allocate their

resources. Thus, it is deemed inappropriate for the Forest Service to

establish a definite time for completing its review of a plan of

operations since completing this task depends, at least in part, on

input from, and consultations with, other agencies that are beyond the

purview of this regulation and outside the Department of Agriculture.

Proposed Sec. 292.64(e) states that after the minimum informational

requirements concerning the operational part of the plan of operations

has been submitted, the authorized officer shall notify the operator in

writing at the conclusion of the review whether the plan has been

approved or disapproved. These information requirements are necessary

for the authorized officer to adequately evaluate the operational

portion of the proposed plan of operations.

Proposed Sec. 292.64(f) would require the authorized officer to

explain the basis for a decision not to approve the plan of operations.

It is current agency policy for the agency to notify the operator

whether the proposed plan of operations is approved or not, and if not,

a written explanation why it can not be approved.

Proposed Sec. 292.64(g) would require the authorized officer to

establish the time period for which a plan of operations would be

approved. The time period would be determined on a case-by-case basis

but would be based upon the minimum amount of time that would be

reasonably necessary to complete the activities set forth in the plan

of operations.

Proposed Sec. 292.64(h) is a provision that would enable the

authorized officer to review and modify a previously approved plan of

operations under a strictly limited set of circumstances. For example,

a modification may be necessary to bring a previously approved plan of

operations into conformance with applicable law and regulation. Or, a

modification may be necessary to address new information such as the

listing of a new species as threatened or endangered which was not

listed the time the plan was approved.

Proposed Sec. 292.64(i) explains that substantive changes to an

already approved plan of operations proposed by the operator 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 292.65, Plan of Operations Suspension

Proposed Sec. 292.65 authorizes the authorized officer to suspend

operations under an approved plan of operations, 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 mineral operation is not in compliance with the

laws, regulations, or the approved plan of operations; specify what the

operator has to do to come into compliance; and specify a reasonable

time period to abate the noncompliance. Generally, the operator will

have at least 30 days from the date of the notice 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. The immediate suspension procedures would allow the authorized

officer to take steps to avoid or minimize the risk of harm to persons

and the environment. Under the immediate suspension procedures, the

authorized officer would be required to notify the operator of the

suspension and provide an opportunity for response only after the harm

or risk of harm has been abated.

Section 292.66, Operating Plan Requirements

Proposed Sec. 292.66 establishes that operating plans are required

for 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. 292.66(a) specifies that all individuals who want to

exercise outstanding mineral rights in the SRNRA must submit an

operating plan to the authorized officer.

Proposed Sec. 292.66(b) specifies the information that an operator

must provide in order to conduct mineral operations involving

outstanding mineral rights where the surface estate is National Forest

System land within the SRNRA. The operating plan must include specific

information, such as: (1) The name and legal mailing address of the

operator, owner, and any lessees, assigns, and designees; (2) evidence

of ownership of the outstanding mineral rights; (3) sketches or maps

showing the location of the outstanding mineral rights, the proposed

area of operations, and the location and size of areas to be disturbed,

including existing or proposed structures, facilities and other

improvements; (4) a description of the type of operations including a

schedule for construction and drilling; (5) identification of the

hazardous materials

[[Page 47173]]

and any other toxic materials to be used during the operation and the

proposed means for disposing of such substances; (6) identification of

the character and composition of the mineral wastes that will be used

or generated and a proposed method or strategy for their handling; and

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

to natural resources resulting from mineral operations, including

descriptions of how public health and safety would be maintained and

how the area of surface disturbance would be reclaimed. The information

required in Sec. 292.66(c) (1) and (2) is needed in order for the

authorized officer to determine that the individuals or entities

proposing the operations hold the mineral rights. The information

required in Sec. 292.66(c)(3) is needed in order for the authorized

officer to determine that the proposed operations would occur on the

mineral estate, as well as what uses off the mineral estate would

require additional authorizations. The information required in

Sec. 292.66(c) (4) through (7) is needed for the same reasons set forth

in the discussion at proposed Sec. 292.63(c) (1) through (3), namely to

protect the land and resources of the SRNRA from unnecessary

environmental damage, protecting humans and wildlife from unnecessary

or dangerous risk from exposure to hazardous or toxic substance, as

well as ensuring that reclamation would return the surface to a

condition or use that is consistent with the Six Rivers National Forest

Land and Resource Management Plan.

Section 292.67, Operating Plan Approval

Proposed Sec. 292.67 establishes the procedures by which operating

plans for outstanding mineral rights in the SRNRA would be processed.

The requirements of the proposed section reflect long-standing agency

administrative practice.

Proposed Sec. 292.67(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

necessary 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 authorized officer

must specify what is needed. If sufficient information has been

submitted, the authorized officer would notify the operator in writing

of the anticipated date that the review would be completed. Before an

operator is allowed to conduct mineral operations in withdrawn lands,

the agency must determine that the operator has a legal right to

conduct the proposed activity. This process has been used by the agency

for many years.

Proposed Sec. 292.67(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. This is the standard operating

procedure used by the agency for many years.

Proposed Sec. 292.67(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 and that

the Forest Service would begin a review of the proposed operating plan.

For the same reasons as set forth in the discussion at proposed

Sec. 292.67(c) with respect to plans of operations, the proposed rule

does not include a time period by which the Forest Service must

complete the review of operating plans involving outstanding minerals

rights. Since the time to review operating plans may vary greatly

depending on the scope of the proposed mining activity, and since other

agencies besides the Forest Service may have a role to play in the

review process, the agency did not think it was appropriate to include

a provision requiring the completion of the review by a date certain.

Again, however, the agency is committed to doing everything within its

authority to process operating plans as quickly as possible subject, of

course, to the legal requirements with which it must comply.

Proposed Sec. 292.67(d) explains that the authorized officer shall

focus the review of the operating plan on whether the proposed

development activities are consistent with the rights granted by the

deed and with this provisions specified in the Six Rivers National

Forest Land and Resource Management plan and whether the development

activities will utilize the least amount of surface lands necessary for

the operations.

Proposed Sec. 292.67(e) would specify that upon completion of the

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

operator of the authorized officer's findings. If the findings indicate

that the proposed operating plan is consistent with the rights granted

by the deed of conveyance, consistent with the Six Rivers National

Forest Land and Resource Management Plan, and uses only that portion of

the surface that is absolutely necessary, the operating plan would be

approved by the Forest Service. If the findings indicate that the

proposed operating plan does not meet one or more of these three

criteria, the authorized officer must explain how the proposed

operating plan is inconsistent with one or more of the three criteria

and negotiate proposed changes with the operator. This is a long-

standing procedure used by the agency to determine whether or not the

operator has a legal right to conduct the proposed minerals activity on

the private land. The intended affect is to ensure that the rights of

the private land owner and the Forest Service are considered in the

decisionmaking process.

Proposed Sec. 292.67(f) would require that another operating plan

be submitted if additional operations, not already included in an

approved operating plan, are proposed and that the process as outlined

in Sec. 292.67(d) would be followed. This provision is similar to

provisions in 36 CFR 228.5(c) and 292.64(i) of the proposed rule. By

requiring similar information and review of operations for outstanding

mineral rights as required for locatable minerals, the Forest Service

can ensure that the values for which the SRNRA was established are

protected. Also, operators can be assured that requirements for

modifications to an operating plan are consistent with requirements of

other mineral activities, and thus compatible with direction in the

forest plan.

Section 292.68, Mineral Material Operations

Proposed Sec. 292.68 provides that disposals of mineral materials

would continue to be governed by the existing mineral material

regulations set forth at 36 CFR part 228, subpart C, but that any

disposals made after the establishment of the SRNRA would be approved

only if the material is not within a designated wilderness area and is

to be used for construction and maintenance of roads and other

facilities within the SRNRA or in one of the four excluded areas

identified by the Act.

Section 292.69, Reclamation

Proposed Sec. 292.69 states that when it is practicable,

reclamation activities will be conducted concurrently for all mineral

operations in the SRNRA. Reclamation was previously addressed under the

plan of operations supplementary requirements, but now is proposed as a

separate section to make it clear that concurrent reclamation is

applicable to all mineral operations and that, in contrast to most

operations, concurrent reclamation is not just an option for

consideration, but is a normal operating procedure in the NRA. This

requirement is consistent with the

[[Page 47174]]

special protection that Congress intended for the area.

Section 292.70, Indemnification

This section would provide a means of protecting the United States

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 incurred by the Forest Service or

other agencies resulting from noncompliance with an approved plan of

operations or an approved operating plan.

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

Forest Service to administer mineral operations on National Forest

System lands even if operations were not being conducted under the

approved conditions. Proposed Sec. 292.70(c) would require those

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

operations or operating plan to pay the costs incurred by the Forest

Service resulting from noncompliance. Congress has specifically allowed

for mineral activities in this special area. This cost provision is a

monetary incentive to help ensure that operators who have the legal

right to conduct mineral operations in the NRA abide by the

requirements approved for their operation.

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

proposed 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, or State and local governments.

This proposed rule will not interfere with an action taken or planned

by another agency and it will not raise new legal or policy issues.

Finally, this action will not alter the budgetary impact of

entitlements, grants, user fees, 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

The Forest Service has reviewed the environmental assessment (EA)

that was prepared for the SRNRA supplementary mining regulations

previously published on April 3, 1996, and determined that no

additional analysis is necessary for this rulemaking because the

proposed changes to the rule will have no effect on the quality of the

human environment. A copy of the EA is available upon request by

calling the contact listed earlier in this rulemaking under FOR FURTHER

INFORMATION CONTACT.

Controlling Paperwork Burdens on the Public

Section 292.63(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. 292.66(b) requires those who wish to exercise outstanding

mineral rights to submit an operating plan. The Office of Management

and Budget approved the information collection, titled 36 CFR part 292,

subpart G--Smith River National Recreation Area, prior to publication

of the final SRNRA supplementary regulations in the Federal Register on

April 3, 1966, and assigned OMB Approval No. 0596-0138. That approval

remains in effect.

Section 292.63 (c)(1)--(c)(3) of this proposed rule specifies that

in addition to the requirements of Secs. 228.4 and 228.8, an operator

must provide information identifying hazardous and toxic materials and

similar chemical substances to be used during the mineral operations

and how they will be disposed of; the character and composition of

mineral wastes that will be used or generated and the proposed method

or strategy for handling those wastes; and how public health and safety

will be maintained. This information requirement was not part of the

final supplementary SRNRA rule published in the Federal Register on

April 3, 1996, and is not covered under other approved information

requirements. Therefore, 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 modifying its description of OMB No. 0596-

0138 and requesting Office of Management and Budget review and approval

of the information that would be required by Sec. 292.63 (c)(1)--

(c)(3).

Although Secs. 292.63 (c)(1)--(c)(3) of the proposed rule requires

the operator to submit more information with a plan of operations than

is required by part 228, subpart A, this is information that the

operator needs to provide in order to conduct the mineral operations.

Therefore, these provisions will require little additional effort by

the operator. 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 the use and disposal of hazardous materials,

the nature and handling of the mineral waters, and maintenance of

public health and safety. Respondents are operators planning mining

operations on federal land in the SRNRA. An estimated 2 respondents

respond each year, resulting in an estimated total annual burden of 4

hours. Reviewers who wish to comment on these information requirements

should submit their views to 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, a Takings Implication Assessment (TIA) of this proposed rule

has been prepared and considered in determining whether to proceed with

the proposed rule as currently drafted. The TIA concluded that the

agency action of publishing a proposed rule for public notice and

comment did not present a risk of a taking.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,

which the President signed into law on March 22, 1995, the Department

has assessed the effects of this rule on State, local, and tribal

governments and the private sector. This rule does not compel the

expenditure of $100 million or more by any State, local, or tribal

governments or anyone in the private sector. Therefore, a statement

under section 202 of the Act is not required.

Civil Justice Reform Act

This proposed rule has been reviewed under Executive Order 12778,

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

and local laws and regulations that are in conflict with this

[[Page 47175]]

proposed rule or which would impede its full implementation would be

preempted; (2) no retroactive effect would be given to his 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 procedures, 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 of scope.

292.61 Definitions.

292.62 Valid existing right.

Locatable Minerals

292.63 Plan of operations supplementary requirements.

292.64 Plan of operations approval.

292.65 Plan of operations suspension.

Outstanding Mineral Rights

292.66 Operating plan requirements--outstanding mineral rights.

292.67 Operating plan approval--outstanding mineral rights.

Mineral Materials

292.68 Mineral material operations.

Other Provisions

292.69 Concurrent Reclamation.

292.70 Indemnification.

Subpart G--Smith River National Recreation Area

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

292.60 Purpose and scope.

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

and 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.

(3) 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. The authorized officer may

permit operations conducted pursuant to:

(1) An operating plan or a plan of operations that was approved

prior to the effective date of these regulations to continue under the

specified conditions of approval or issuance, provided that valid

existing rights to extract the minerals are present or the operations

are for the purposes specified in Sec. 292.62(b), provided further that

the authorized officer requires modification of such operations:

(i) To bring the plan into conformance with changes in applicable

federal law or regulation;

(ii) To respond to new information not available at the time the

authorized officer approved the plan; for example, new listings of

threatened or endangered species; or

(iii) To correct errors or omissions made at the time the plan was

approved; for example, to ensure compliance with applicable federal law

or regulation.

(2) A permit or contract for the disposal of mineral materials

which was issued prior to the effective date of these regulations to

continue under the specified conditions of issuance, provided that the

authorized officer requires the modification of such operations:

(i) To bring the plan into conformance with changes in applicable

federal law or regulations;

(ii) To respond to new information not available at the time the

authorized officer approved the plan; for example, new listings of

threatened or endangered species; or

(iii) To correct errors or omissions made at the time the plan was

approved; for example, to ensure compliance with applicable federal law

or regulation.

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 material means any hazardous substance, pollutant,

contaminant, hazardous waste, and oil or other petroleum products, as

those terms are defined under any Federal, State, or local law or

regulation.

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.

Sec. 292.62 Valid existing rights.

(a) Definition. For the purposes of this subpart, valid existing

rights are defined as follows:

(1) For certain ``Wild'' River segments. The rights associated with

all mining claims on National Forest System lands within the SRNRA in

``wild'' segments of the Wild and Scenic Smith River, Middle Fork Smith

River, North Fork Smith River, Siskiyou Fork Smith River, and South

Fork Smith River, and their designated tributaries, except Peridotite

Creek and the lower 2.5 miles of Myrtle Creek, which:

(i) Were properly located prior to January 19, 1981;

(ii) Were properly maintained thereafter under the applicable law;

(iii) Were supported by a discovery of a valuable mineral deposit

within the meaning of the United States mining laws prior to January

19, 1981, which discovery has been continuously maintained since that

date; and

(iv) Continue to be valid;

(2) For Siskiyou Wilderness. The rights associated with all mining

claims on National Forest System lands within the SRNRA in the Siskiyou

Wilderness except, those within the Gasquet-Orleans Corridor addition

or those rights covered by paragraph (a)(1) of this section which:

(i) Were properly located prior to September 26, 1984;

(ii) Were properly maintained thereafter under the applicable law;

(iii) Were supported by a discovery of a valuable mineral deposit

within the meaning of the United States mining laws prior to September

26, 1984, which discovery has been continuously maintained since that

date; and

(iv) Continue to be valid;

(3) For all other lands. The rights associated with all mining

claims on National Forest System lands in that portion of the SRNRA not

covered by paragraph (a) (1) or (2) of this section which:

(i) Were properly located prior to November 16, 1990;

(ii) Were properly maintained thereafter under the applicable law;

(iii) Were supported by a discovery of a valuable mineral deposit

within the

[[Page 47176]]

meaning of the United States mining laws prior to November 16, 1990,

which discovery has been continuously maintained since that date; and

(iv) Continue to be valid;

(b) Limited operations to confirm discovery. Upon receipt of a

proposed plan of operations as defined in Sec. 292.63 and of sufficient

information from the operator to show an exposure of valuable minerals

on a claim that predates the withdrawal of the federal land from the

operation of the Untied States mining laws, the authorized officer may

authorize limited mineral operations for the purpose of gathering

information to confirm or otherwise demonstrate the discovery of a

valuable mineral deposit consistent with the definition in paragraph

(a) of this section or to obtain evidence for a contest hearing

regarding the claim's validity. Such authorization shall be limited in

scope and duration so as to authorize only those operations that may be

necessary to confirm or demonstrate the discovery of a valuable mineral

deposit prior to the date of withdrawal of the federal land on which

the claim is situated. Pursuant to this paragraph, the authorized

officer shall not authorize any operations which would constitute

prospecting, exploration, or otherwise uncovering or discovering a

valuable mineral deposit.

Locatable Minerals

Sec. 292.63 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 motorized equipment, including a suction dredge

and/or sluice.

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

of operations within the SRNRA must include at least the following

information on the existence of valid existing rights.

(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 affidavits of assessment work or notices 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

or maintenance 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) An identification of the valuable mineral that has been

discovered;

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

deposit has been discovered and exposed;

(8) 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

(9) Evidence of past and present sales of the valuable mineral.

(c) Minimum information on proposed operations. In addition to the

requirements of paragraph (b) of this section, 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

requirements of 36 CFR 228.8 which includes reclamation. In addition, a

plan of operations also must include the following:

(1) An identification of the hazardous materials and any other

toxic materials, petroleum products, insecticides, pesticides, and

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

proposed means for disposing of such substances;

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

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

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

(3) An identification of how public health and safety are to be

maintained.

Sec. 292.64 Plan of operations approval.

(a) Timeframe for review. Except as provided in paragraph (b) of

Sec. 292.62, 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 within one hundred and twenty (120)

days of one of the following situations:

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

provided and the anticipated date by which the valid existing rights

determination will be completed, which shall not be more than two (2)

years after the date of notification; unless the authorized officer,

upon finding of good cause with written notice and explanation to the

operator, extends the time period for completion of the valid existing

rights determination.

(2) That the operator has failed to provide sufficient information

to review a claim of valid existing rights and, therefore, the

authorized officer has no obligation to evaluate whether the operator

has valid existing rights or to process the operator's proposed plan of

operations.

(b) If the authorized officer concludes that there is not

sufficient evidence of valid existing rights, he or she shall so notify

the operator in writing. In the notice, the authorized officer shall

set forth the reasons for the determination, inform the operator that

the proposed mineral operation cannot be conducted, and advise the

operator that the Forest Service will promptly notify the Bureau of

Land Management of its determination and request the initiation of a

mineral contest action against the pertinent mining claims.

(c) An authorized officer's decision pursuant to paragraph (b) that

there is not sufficient evidence of valid existing rights is a final

agency action not subject to further agency or Department of

Agriculture review or administrative appeal.

(d) If the authorized officer concludes that there is sufficient

evidence of valid existing rights, he or she shall so notify the

operator in writing the review of the remainder of the proposed plan

will proceed.

(e) 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 been addressed and, pursuant to Sec. 228.5(a) of

the chapter, notify the operator in writing whether or not the plan of

operations is approved.

(f) If the plan of operations is not approved, the authorized

officer shall explain in writing why the plan of operations can not be

approved.

(g) If the plan of operations is approved, the authorized officer

shall establish a time period for the proposed operations which shall

be for the minimum amount of time reasonably necessary for a prudent

operator to complete the mineral development activities covered by the

approved plan of operations.

(h) An approved plan of operations is subject to review and

modification as follows:

(1) to bring the plan into conformance with changes in applicable

federal law or regulation;

(2) To respond to new information not available at the time the

authorized

[[Page 47177]]

officer approved the plan; for example, new listings of threatened or

endangered species; or

(3) To correct errors or omissions made at the time the plan was

approved; for example, to ensure compliance with applicable federal law

or regulation.

(i) If an operator desires to conduct operations that differ in

type, scope, or duration from those in an approved plan of operations,

and if 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 of the plan for review and approval

by the authorized officer pursuant to Sec. 292.64 of this part.

Sec. 292.65 Plan of operations suspension.

(a) 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.

(1) 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.

(2) Otherwise, 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.

(b) Except as otherwise provided in this section, the authorized

officer shall notify the operator not less than 30 days prior to the

date of the proposed suspension.

Outstanding Mineral Rights

Sec. 292.66 Operating plan requirements--outstanding mineral rights.

(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.

(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 materials and any other

toxic materials, petroleum products, insecticides, pesticides, and

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

proposed 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 proposed method or

strategy for their placement, control, isolation, remediation, or

removal; and

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

damage to natural resources resulting from mineral operations. The plan

must:

(i) Provide reclamation to the extent practicable;

(ii) Show how public health and safety are maintained;

(iii) Identify and describe reclamation measures to include, but

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.

(iv) Demonstrate how the area of surface disturbance will be

reclaimed to a condition or use that is consistent with the Six Rivers

National Forest Land and Resource Management Plan.

Sec. 292.67 Operating plan approval--outstanding mineral rights.

(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 that:

(1) sufficient information on ownership of the outstanding mineral

rights has been provided; or

(2) sufficient information on ownership of outstanding mineral

rights has not been provided, including an explanation of the specific

information that still needs to be provided, and that no further action

on the plan of operations will be taken until the authorized officer's

receipt of the specified information.

(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, explain the

reasons for such a finding, and that the proposed mineral operation

cannot be conducted.

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

verified, the authorized officer must notify the operator in writing

that outstanding mineral rights have been verified and that review of

the proposed operating plan will proceed.

(d) The authorized officer shall review 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 Six Rivers National

Forest Land and Resource 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 of one of the

following:

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

(d)(1) through (d)(3) of this section and, therefore, is approved;

(2) The operating plan does not meet one or more of the criteria in

paragraphs (d)(1) through (d)(3) of this section. Where feasible, the

authorized officer may indicate changes to the operating plan that

would satisfy the criteria in paragraphs (d)(1) through (d)(3) of this

section and, thus, if accepted by the operator, would result in

approval of the operating plan.

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

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

an amended operating plan to the authorized officer at the earliest

practicable date. New operations covered by the proposed amendment may

not begin until the authorized officer has reviewed and responded in

writing to the proposed amendment. The authorized officer shall review

a proposed amendment of an approved operating plan to determine that

the criteria in paragraphs (d)(1) through (d)(3) of this section are

met.

[[Page 47178]]

Mineral Materials

Sec. 292.68 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 or the four excluded areas identified by the Act.

Other Provisions

Sec. 292.69 Concurrent reclamation.

Plans of operations involving locatable minerals, operating plans

involving outstanding mineral rights, and contracts or permits for

mineral materials should all provide, to the maximum extent

practicable, that reclamation proceed concurrently with the mineral

operation.

Indemnification

Sec. 292.70 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 the following:

(a) Costs, damages, claims, liabilities, judgments, injury and

loss, including those incurred from fire suppression efforts, and

environmental response actions and cleanup and abatement costs incurred

by the United States and arising from past, present, and future acts or

omissions of the owner, operator, or lessee in connection with the use

and occupancy of the unpatented mining claim and/or mineral operation.

This includes acts or omissions covered by Federal, State, and local

pollution control and environmental statutes and regulations.

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

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

for fire suppression and environmental response action and cleanup and

abatement costs, which result from past, present, and future acts or

omissions of the owner, operator, or lessee in connection with the use

and occupancy of the unpatented mining claim and/or mineral operations.

(c) Costs incurred by the United States for any action resulting

from noncompliance with an approved plan of operations or activities

outside an approved operating plan. Such costs may include, but need

not be limited to, attorneys' fees and expenses.

Dated: September 2, 1997.

Robert Lewis, Jr.,

Acting Associate Chief.

[FR Doc. 97-23722 Filed 9-5-97; 8:45 am]

BILLING CODE 3410-11-M