[Federal Register Volume 62, Number 173 (Monday, September 8, 1997)]
[Proposed Rules]
[Pages 47167-47178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23722]


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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

[[Page 47168]]

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.

[[Page 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 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

[[Page 47170]]

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

[[Page 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 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

[[Page 47172]]

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