Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules 47167

In consideration of the above, the

Corps is proposing to amend Part 334 of

Title 33 as follows:

PART 334—DANGER ZONE AND

RESTRICTED AREA REGULATIONS

1. The authority citation for part 334

continues to read as follows:

Authority: 40 Stat. 226; (33 U.S.C. 1) and

40 Stat. 892; (33 U.S.C. 3).

2. Section 334.200 is amended by

revising the heading, revising the last

sentence in paragraph (a)(1), revising

paragraphs (b)(2) and (b)(3) and (c), to

read as follows:

§ 334.200 Chesapeake Bay, Point Lookout

to Cedar Point; aerial and surface firing

range areas, U.S. Naval Air Station,

Patuxent River, Maryland, danger zones.

(a) * * *

(1) * * * Aerial and surface firing

and dropping of nonexplosive ordnance

will be conducted throughout the year.

* * * * *

(b) Target areas. * * *

(2) A circular area with a radius of

1,000 yards having its center at latitude

38°02′′18′′, longitude 76°09′26′′,

identified as Hannibal Target.

(3) The regulations. Nonexplosive

projectiles and bombs will be dropped

at frequent intervals in the target areas.

Hooper and Hannibal target areas shall

be closed to navigation at all times,

except for vessels engaged in

operational and maintenance operations

as directed by the Commanding Officer

of the U.S. Naval Air Station, Patuxent

River, Maryland. No person in the

water, vessel or other craft shall enter or

remain in the closed areas or climb

upon the targets, except with prior

written approval of the Commanding

Officer of the U.S. Naval Air Station,

Patuxent River, Maryland.

(c) The regulations in this section

shall be enforced by the Commanding

Officer of the Naval Air Station,

Patuxent River, Maryland, and such

agencies as he/she may designate.

Dated: August 29, 1997

Robert W. Burkhardt,

Colonel, Colonel of Engineers, Executive

Director of Civil Works.

[FR Doc. 97–23384 Filed 9–5–97; 8:45 am]

BILLING CODE 3710–92–M

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.

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 GasquetOrleans 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
47168 Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules

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.
Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules 47169

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

§ 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 § 292.61 define the terms

as they are used in this proposed rule.

Section 292.62, Valid Existing Rights

Proposed § 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 GasquetOrleans Corridor addition to the

Siskiyou Wilderness). These withdrawal

dates are critical in the determination of

valid existing rights.

Proposed § 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 § 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
47170 Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules

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 § 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 § 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 § 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 § 292.63(c) (1), (2), and (3)

would require an operating plan to

address environmental protection

requirements of § 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

§ 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 § 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 § 292.64 establishes the

procedures by which a plan of operation

for mineral operations on mining claims

in the SRNRA would be processed.

Proposed § 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 § 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
Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules 47171

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 § 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 § 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 § 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 § 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 largescale 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 largescale 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 § 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 § 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 § 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 caseby-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 § 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 § 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 § 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 § 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 § 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 § 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
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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

§ 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 § 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 § 292.66(c) (4)

through (7) is needed for the same

reasons set forth in the discussion at

proposed § 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 § 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 § 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 § 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 § 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

§ 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 § 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 § 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 § 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 § 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 § 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 § 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
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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 § 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 § 228.4, an operator

must provide information to support

valid existing rights as part of a plan of

operations. Also, proposed § 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 §§ 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 § 292.63

(c)(1)—(c)(3).

Although §§ 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
Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules 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

§ 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.

§ 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.

§ 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 GasquetOrleans 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
47176 Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules

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 § 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

§ 292.63 Plan of operations supplementary

requirements

(a) Applicability. In addition to the

activities for which a plan of operations

is required under § 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.

§ 292.64 Plan of operations approval.

(a) Timeframe for review. Except as

provided in paragraph (b) of § 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 § 292.62(c) has

been addressed and, pursuant to

§ 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
Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules 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 § 292.64

of this part.

§ 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

§ 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.

§ 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.
47178 Federal Register / Vol. 62, No. 173 / Monday, September 8, 1997 / Proposed Rules

Mineral Materials

§ 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

§ 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

§ 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

POSTAL SERVICE

39 CFR Part 111

Eligibility Requirements for Certain

Nonprofit Standard Mail Matter

AGENCY: Postal Service.

ACTION: Proposed rule.

SUMMARY: This proposed rule will

amend the standards for mail matter

eligible to be sent at the Nonprofit

Standard Mail rates. Specifically, mail

matter that seeks or solicits

contributions or membership dues

payments and offers a premium item

such as a tote bag or umbrella will be

considered eligible for the Nonprofit

Standard Mail rates provided that

certain criteria are met. The Postal

Service has determined that a revision

to the standards in this manner is

consistent with the treatment of similar

solicitations by other agencies, most

notably the Internal Revenue Service

and the Federal Trade Commission.

DATES: Comments must be received on

or before October 8, 1997.

ADDRESSES: Written comments should

be mailed or delivered to Manager,

Business Mail Acceptance, USPS

Headquarters, 475 L’Enfant Plaza SW.,

Washington, DC 20260–6808. Copies of

all written comments will be available

for inspection and photocopying

between 9 a.m. and 4 p.m., Monday

through Friday, in Room 6801 at the

above address.

FOR FURTHER INFORMATION CONTACT:

Jerome M. Lease, 202–268–5188.

SUPPLEMENTARY INFORMATION: Nonprofit

organizations authorized to mail at the

Nonprofit Standard Mail rates

commonly offer premium items when

soliciting contributions or membership

in their organizations. These premiums,

often referred to as ‘‘backend

premiums’’ since they are offered in

return for a contribution, donation, or

membership dues payment, include

such items as tote bags, umbrellas, tshirts, and coffee mugs.

By statute, material that advertises,

promotes, offers, or, for a fee or

consideration, recommends, describes,

or announces the availability of any

product or service, other than separately

restricted travel, insurance, and

financial instruments such as credit

cards, is ineligible for the nonprofit

rates of postage unless certain

prescribed exceptions are met. 39 U.S.C.

3626(j)(1)(D). In accordance with its

responsibility to administer the statute,

the Postal Service promulgated new

standards effective October 1, 1995.

Domestic Mail Manual (DMM)

E670.5.4d. provides that Nonprofit

Standard Mail rates may not be used for

the entry of material that advertises a

product or service unless the sale of the

product or the provision of such service

is substantially related to the exercise or

performance by the organization of one

or more of the purposes used by the

organization to qualify for mailing at the

Nonprofit Standard Mail rates. In the

implementation of these rules, the

Postal Service has concluded that

‘‘utilitarian’’ items such as tote bags,

umbrellas, coffee mugs, t-shirts, and

similar items are not normally

considered substantially related to an

organization’s qualifying purposes.

Since the adoption of the regulations

implementing the statute, the Postal

Service has consistently held that

backend premiums are to be considered

advertising for the product offered as a

premium. This policy was discussed in

Federal Register articles promulgating

the new rules. See 60 FR 22270, 22272

(May 5, 1995); 59 FR 23158, 23162 (May

5, 1994). It has also been followed in

publications such as USPS Publication

417 (Nonprofit Standard Mail

Eligibility) and training in this area.

Backend premiums are similar to typical

advertisements because they invite a

transaction which provides funds to the

sender, but are dissimilar from typical

advertisements because the value of the

premium is usually much less than the

required donation or other payment.

Although cognizant of the argument that

the donor is motivated by eleemosynary

purposes, rather than a desire for the

article, the transaction can also be

viewed as part donation and part sale,

which, in the view of the Postal Service,

makes the offer an advertisement under

the statutory restrictions. This

interpretation of the statute is, at least

in part, supported by IRS policy, which

requires donors declaring charitable

deductions to subtract the value of

premiums from donations.

Recently, the Postal Service has

become aware of new developments

which warrant review of the policy

concerning backend premiums. Notably,

an advisory opinion by the Federal

Trade Commission held that telephone

fundraising calls in which certain

backend premiums are offered are not

‘‘telemarketing’’ because they are not

‘‘conducted to induce the purchase of