[Federal Register Volume 59, Number 12 (Wednesday, January 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1035]


[[Page Unknown]]

[Federal Register: January 19, 1994]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292

RIN 0596-AB08

 

Hells Canyon National Recreation Area; Public Lands

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish management standards and 
guidelines for the protection and preservation of historic, 
archeological, and paleontological resources; the use of motorized and 
mechanical equipment; the use of motorized and nonmotorized rivercraft; 
and the degree and type of timber harvesting, mining, and grazing 
permissible on National Forest System lands in the Hells Canyon 
National Recreation Area. The intended effect is to ensure the 
protection, preservation, and enjoyment of the Area as directed by 
statute.

DATES: Comments must be received in writing by March 21, 1994.

ADDRESSES: Send written comments to Director, Recreation, Cultural 
Resources and Wilderness Management Staff, Forest Service, USDA, P.O. 
Box 96090, Washington, DC 20090-6090.
    The public may inspect comments received on this proposed rule in 
the Office of the Director, fourth floor, central wing, Auditors 
Building 201 Fourteenth Street SW., Washington, DC, between the hours 
of 8:30 a.m. and 4:30 p.m. Those wishing to inspect comments are 
encouraged to call ahead (202) 205-1423 to facilitate entry into the 
building.

FOR FURTHER INFORMATION CONTACT: Tom Lennon, Branch Chief, Special 
Designations, Recreation, Cultural Resources, and Wilderness Management 
Staff (2300) (202) 205-1423 or Ed Cole, Ranger, Hells Canyon National 
Recreation Area (503) 426-4978.

SUPPLEMENTARY INFORMATION:

Background

    The Act of December 31, 1975 (the ``Act''), established the Hells 
Canyon National Recreation Area (the ``HCNRA'') ``to assure that the 
natural beauty, and historical and archeological values of the Hells 
Canyon area * * * are preserved for this and future generations, and 
that the recreational and ecologic values and public enjoyment of the 
area are thereby enhanced.'' 89 Stat. 1117; 16 U.S.C. 460gg et seq. 
While the Act's overall thrust is to protect and enhance the identified 
resource values within the HCNRA, Congress acknowledged in Section 13 
of the Act that ``ranching, grazing, farming, timber harvesting, and 
the occupation of homes and lands associated therewith, as they exist 
on the date of enactment of this Act, are recognized as traditional and 
valid uses of the recreation area.''
    The HCNRA covers 658,457 acres. Almost 95% of the HCNRA, or 625,193 
acres, is in federal ownership. Within the HCNRA is the Hells Canyon 
Wilderness, totalling 219,500 acres of National Forest System land, and 
a small section of the Eagle Cap Wilderness, totalling 3,553 acres of 
National Forest System land. Also within the HCNRA are the Snake, 
Rapid, and Imnaha Wild and Scenic Rivers, the corridors of which 
include 33,767 acres of National Forest System lands.
    Section 7 of the Act stipulates that the HCNRA shall be 
administered for public outdoor recreation in a manner compatible with 
the following objectives:
    (1) The maintenance and protection of the free-flowing nature of 
the rivers within the recreation area;
    (2) Conservation of scenic, wilderness, cultural, scientific, and 
other values contributing to the public benefit;
    (3) Preservation, especially in the area generally known as Hells 
Canyon, of all features and peculiarities believed to be biologically 
unique including, but not limited to, rare and endemic plant species, 
rare combinations of aquatic, terrestrial, and atmospheric habitats, 
and the rare combinations of outstanding and diverse ecosystems and 
parts of ecosystems associated therewith;
    (4) Protection and maintenance of fish and wildlife habitat;
    (5) Protection of archeological and paleontological sites and 
interpretation of these sites for the public benefit and knowledge 
insofar as it is compatible with protection;
    (6) Preservation and restoration of historic sites associated with 
and typifying the economic and social history of the region and the 
American West; and
    (7) Such management, utilization, and disposal of natural resources 
on federally owned lands, including, but not limited to, timber 
harvesting by selective cutting, mining, and grazing and the 
continuation of such existing uses and developments as are compatible 
with the provisions of the Act.
    Section 10 of the Act authorizes the Secretary to promulgate rules 
and regulations necessary to accomplish the purposes of the Act. 
Section 10 expressly lists several subjects as possible topics for 
rulemaking, including the following:
    (1) Standards and guidelines to insure the full protection and 
preservation of the historic, archeological, and paleontological 
resources in the recreation area;
    (2) Provision for the control of the use of the use of motorized 
and mechanical equipment for transportation over, or alteration of, the 
surface of any Federal land within the recreation area;
    (3) Provision for the control of the use and number of motorized 
and nonmotorized rivercraft: Provided, that the use of such craft is 
hereby recognized as a valid use of the Snake River within the 
recreation area; and
    (4) Standards for such management, utilization, and disposal of 
natural resources on federally owned lands, including, but not limited 
to, timber harvesting by selective cutting, mining and grazing and the 
continuation of such existing uses and developments as are compatible 
with the provisions of this Act.
    Section 10 also authorized rulemaking to establish standards for 
the use and development of privately owned property in the HCNRA. This 
is the subject of a separate rulemaking and, thus, is not included in 
this proposed rule.
    Following enactment of the Act in 1975, the Forest Service 
construed Section 10's authority to promulgate regulations as 
discretionary and that the issues identified therein could be 
adequately addressed under existing statutory and regulatory authority. 
This interpretation was challenged in a 1988 lawsuit which contended 
that the regulatory authority in Section 10 was mandatory, not 
discretionary. Oregon Natural Resources Council (ONRC) v. Lyng, slip 
op. No. 88-680PA (D. Or. 1989). The district court in Oregon rejected 
ONRC's argument that the Secretary had a non-discretionary duty to 
issue regulations under Section 10 and dismissed the case. On appeal, 
however, the Ninth Circuit, reversed the district court and concluded 
that the regulations were, in fact, required by Section 10. According 
to the Ninth Circuit, Section 10 ``compels the Secretary to promulgate 
nonduplicative regulations of the sort described by subsections 10(a) 
through 10(e).'' ONRC v. Lyng, 882 F.2d 1417, 1421 (9th Cir. 1989).
    Within three months of the 9th Circuit's decision in ONRC v. Lyng, 
an interim rule establishing standards and guidelines for federal lands 
in the HCNRA had been adopted and public comment solicited (54 FR 
41089; Oct. 5, 1989). Only two comments were received on the interim 
rule. The interim rule has never been published as a final rule. Due to 
the length of time that has passed since the issuance of the interim 
rule, and the recognition that substantial modifications to the interim 
rule would be required, the agency has decided to issue a new proposed 
rule for public comment. Accordingly, an agency response to the 
comments submitted on the 1989 interim rule is not needed.
    For ease of reference, the proposed rule divides the HCNRA into two 
categories--Wilderness Lands and Other Lands. Consistent with Congress' 
recognition that the wilderness portions of the HCNRA should receive 
substantially more protection than the rest of the HCNRA, some 
standards and guidelines are more protective in the Wilderness Lands 
category than in the Other Lands category. In other instances, however, 
the standards and guidelines are the same.

Section-By-Section Explanation of the Proposed Rule

    This proposed rule would established a new Subpart F of Part 292, 
Hells Canyon National Recreation Area--Public Lands, in Title 36 of the 
Code of Federal Regulations. A section-by-section explanation of the 
proposed rule follows:

Section 292.40  Purpose and Scope.

    Paragraph (a) of proposed Sec. 292.40 explains that the purpose of 
this rule is to establish specific standards and guidelines for the use 
of the National Forest System lands that comprise the Hells Canyon 
National Recreation Area (HCNRA). The topics that are the subject of 
these standards and guidelines correspond with the topics in Section 10 
of the Act, except for the use and development of privately owned 
property which, as previously noted, is the subject of a separate 
rulemaking and not addressed herein. Paragraph (b) explains that, 
unless directly in conflict with the standards and guidelines set forth 
in the rule, all of the existing authorities generally applicable to 
National Forest System lands are specifically applicable to the 
National Forest System lands in the HCNRA. It also states that the 
specific regulatory authority for the HCNRA embodied in the rule's 
standards and guidelines would prevail over the Forest Service's 
general regulatory authority for National Forest System lands, if a 
conflict between the two should arise.

Section 292.41  Definitions

    Proposed Sec. 292.41 defines terms used in the proposed rule.

Section 292.42  Management Standards and Guidelines

    Proposed Sec. 292.42 would establish several guiding principles 
that apply to the standards and guidelines called for in Section 10 of 
the Act and set out in Secs. 292.43 through 292.48. These principles 
include the recognition that the rule is a supplement to, not a 
substitute for, existing regulatory authority; that uses or activities 
authorized under the rule's standards and guidelines might require 
additional site-specific environmental analysis; that programmatic 
direction in the Comprehensive Management Plan must conform to the 
standards and guidelines of the rule; and, that the standards and 
guidelines for a given use or activity may vary depending on whether 
that use or activity is located inside or outside the designated 
wilderness in the HCNRA.

Section 292.43  Protection and Preservation of Cultural and 
Paleontological Resources

    Proposed Sec. 292.43 would create seven standards to guide Forest 
Service administration of cultural and paleontological resources in the 
HCNRA. Proposed paragraphs (a) (1)-(4) set forth the standards and 
guidelines for cultural and paleontological resources on the Other 
Lands in the HCNRA; proposed paragraphs (b) (1)-(3) set forth the 
standards and guidelines for cultural and paleontological resources 
located on the Wilderness Lands in the HCNRA. For ease of reference, 
``cultural resources'' includes historic and archeological resources in 
the HCNRA. Though not explicitly referenced, the relevant provisions of 
the National Historic Preservation Act, 16 U.S.C. 470 et seq., the 
Archeological Resources Protection Act, 16 U.S.C. 470AA et seq., and 
the Antiquities Act, 16 U.S.C. 431 et seq. and the accompanying 
regulations at 36 CFR parts 296 and 800 would also apply.
    Paragraph (a)(1) would establish protection as the primary 
management objective for cultural resources in the HCNRA. It would 
additionally provide for public education and information opportunities 
about cultural resources as a management objective unless this would 
unreasonably interfere with protection efforts. This standard 
acknowledges the importance of cultural resource protection and 
education for the vast storehouse of information in the HCNRA but 
recognizes that educating the public about cultural resources must be 
secondary to protection and must occur only if the resources can be 
adequately protected.
    Proposed paragraph (a)(2) requires that the Ranger establish 
management priorities for cultural resources based, in part, on whether 
the appropriate State Historic Preservation Office has concurred with 
the Forest Service's determination that a cultural resource is 
``significant.'' By establishing priorities, the Ranger will be able to 
allocate available moneys for protection, education, and enjoyment 
based on the historical or scientific importance of a cultural 
resource. The Ranger also may take into account the relative risk of 
damage or destruction to the resource and steps that could be taken to 
avoid or minimize that risk.
    Paragraph (a)(3) would apply to cultural resources which meet the 
significance threshold. It would require that information from these 
resources be documented and favor on-site over off-site protection. The 
Ranger may select off-site protection under certain conditions. For 
instance, the Ranger may decide off-site protection is appropriate if 
the resource is located on NRA Wilderness Lands and protecting it on-
site would significantly intrude on the wilderness resource. Another 
example of when off-site protection might be preferred is if the cost 
is less than on-site protection and significant cultural resources with 
identical or similar values have already been protected on-site.
    Proposed paragraph (a)(4) applies to all paleontological resources 
in the HCNRA and would establish protection for scientific study as the 
primary objective. Prior written authorization would be required before 
any individual could disturb or remove a paleontological resource in 
connection with scientific study activities.
    Paragraph (b)(1) would incorporate the standards and guidelines for 
Other Lands and apply them to the Wilderness Lands. This would ensure 
consistency of Forest Service cultural and paleontological resource 
administration within the HCNRA and, more importantly, the protection 
of these resources into the future.
    Paragraphs (b) (2) and (3) would establish two additional standards 
for Wilderness Lands in recognition of the Agency's dual management 
objectives of protecting cultural resources and minimizing impacts on 
the wilderness. This would be accomplished by requiring that 
information and education activities related to cultural resources on 
Wilderness Lands be conducted outside of the wilderness and by 
precluding the development of new or relocated trails on Wilderness 
Lands which would be used primarily as a means of securing public 
access to cultural resources. This will enable visitors to experience 
cultural resources in their natural setting, unencumbered by the signs, 
guided tours, or other devices normally used to inform and educate the 
visitor about our past.

Section 292.44  The Use of Motorized and Mechanical Equipment

    Proposed Sec. 292.44 would create five standards to guide Forest 
Service administration of motorized and mechanical equipment on 
National Forest System lands in the HCNRA. Proposed paragraphs (a)(1)-
(4) set forth the standards and guidelines for motorized and mechanical 
equipment use in the Other Lands; proposed paragraph (b) would 
establish the standard for such use in the Wilderness Lands. For ease 
of reference, the term ``motorized and mechanical equipment'' in this 
rule has the same meaning as ``motorized equipment'' and ``mechanical 
transport'' which are defined in regulations promulgated under the 
Wilderness Act at 36 CFR part 293 except that it would not include 
motorized wheelchairs or other devices used solely to assist people 
with disabilities. Nor would it include motorized or nonmotorized 
rivercraft which are defined in and regulated under a separate 
provision of this rule. Though not explicitly referenced, the relevant 
provisions of the Wilderness Act, 16 U.S.C. 1131 et seq., and 
regulations at 36 CFR parts 212, 261, 293, and 295 would also apply.
    Paragraph (a)(1) would authorize the use of motorized and 
mechanical equipment on any Forest Service roads or airfields within 
the HCNRA subject to terms and conditions necessary to ensure the safe 
use of these facilities. This provision applies to all Forest Service 
transportation development facilities as that term is currently defined 
in 36 CFR 212.1, except for Forest Service trails which are the subject 
of paragraph (a)(2). This provision also does not purport to regulate 
the use of motorized and mechanical equipment on public roads or 
highways which are under the jurisdiction of a state or local 
transportation authority.
    Paragraph (a)(2) would authorize the use of motorized and 
mechanical equipment on Forest Service trails subject to terms and 
conditions necessary to ensure the safe use of these facilities and 
when compatible with the management objectives identified in section 7 
of the Act. As envisioned in the proposed rule, motorized and 
mechanical equipment could only be used on Forest Service trails in the 
non-wilderness portions of the HCNRA pursuant to a finding that such 
use was compatible with, among other things, the protection of free-
flowing rivers, the conservation of wilderness and other values, the 
maintenance of fish and wildlife habitat, and/or the protection of 
historic, archeologic, and paleontologic sites. If a particular 
proposed use was compatible with some of the management objectives but 
not with others, the Ranger would have to decide whether, on balance, 
the compatibility outweighed the incompatibility and the use could 
proceed.
    Paragraph (a)(3) would authorize the use of mechanical equipment 
off National Forest airstrips, roads, or trails only if such use is 
compatible with the management objectives of section 7 of the Act.
    Paragraph (a)(4) would prohibit the use of motorized equipment off 
Forest Service airstrips, roads, and trails except in those cases where 
it is reasonably necessary to attain one or more of the management 
objectives set out in section 7. Under this standard, use of an off-
road vehicle (ORV) might only be permitted if it were necessary to 
protect fish and wildlife habitat or preserve historic resources. ORV 
use also might be allowable if it were necessary to conduct the types 
of timber harvesting, mining, and grazing that are provided for in the 
proposed rule. It will be the responsibility of the proponent of such 
use to demonstrate its necessity related to the management objectives 
in section 7.
    These standards, when read together, establish a three-tiered 
system governing motorized and mechanical equipment use in the non-
wilderness portion of the HCNRA. The requirements by which use may be 
authorized become increasingly rigorous depending on whether the 
proposed use is contemplated on Forest Service roads/airfields, Forest 
Service trails, or off Forest Service airstrips, roads, or trails. This 
provision recognizes that off-road travel is generally not tolerated 
within the HCNRA due to the fragile and difficult terrain, impacts to 
wildlife and their habitat, and other issues associated with resource 
protection.
    Proposed paragraph (b) explains that there are no non-duplicative 
regulations needed for managing motorized and mechanical equipment in 
wilderness areas of the HCNRA since such use is already prohibited by 
the Wilderness Act. Accordingly, the proposed rule would merely restate 
the exiting prohibition and provide cross-references to exceptions 
permitted in the Wilderness Act.
    The proposed rule would exempt from its coverage all uses related 
to Forest Service administration which might include, at a minimum, 
research activities and public health and safety responses. It also 
would exclude uses necessary to access privately owned lands or 
interests in land wholly within the HCNRA.

Section 292.45  Use of Motorized and Non-Motorized Rivercraft

    Proposed Sec. 292.45 would establish seven standards to guide 
Forest Service administration of the use of motorized and non-motorized 
rivercraft in the HCNRA. These standards and guidelines are only 
applicable to those rivers or river segments that have been designated 
as components of the Federal Wild and Scenic Rivers System. Though not 
explicitly referenced, the relevant provisions of the Wild and Scenic 
Rivers Act, 16 U.S.C. 1271 et seq., and regulations at 36 CFR part 297, 
would also apply.
    Paragraph (a) would authorize the use of non-motorized rivercraft 
on Wild and Scenic Rivers subject to such rules and regulations the 
Ranger deems necessary to protect and enhance the values which caused 
the river to be designated wild and scenic or to ensure the public's 
safe use and enjoyment of the river.
    Paragraph (b) would prohibit the use of motorized rivercraft on all 
Wild and Scenic Rivers except for the Snake River. This prohibition 
will not prevent the exercise of any type of currently authorized 
motorized rivercraft use in the HCNRA; rather, it will simply provide 
for management of this use which is currently limited to the Snake 
River. It does, however, effectively preclude expansion of motorized 
rivercraft use to other Wild and Scenic Rivers which will facilitate 
the protection and enhancement of the values which caused those rivers 
to be designated.
    Paragraph (c) would require that all authorized rivercraft use on 
Wild and Scenic Rivers in the HCNRA be in compliance with State and/or 
Federal boating safety and registration laws.
    Proposed paragraph (d) establishes a requirement that all users of 
motorized and non-motorized rivercraft on the Snake Wild and Scenic 
River must receive prior written authorization for such use from the 
Ranger. It also explains that such authorization may include terms and 
conditions on numbers, duration, seasons of use, noise, or other 
matters that will protect and enhance the river resource and ensure a 
high quality river experience for users of all types.
    Paragraphs (e) and (f) are extensions of paragraph (d) and would 
require the Ranger, as part of the written authorization process for 
the Snake Wild and Scenic River, to make sure that both private and 
commercial rivercraft users are reasonably accommodated, and that the 
user capacity of the river is not exceeded, respectively.
    Finally, paragraph (g) would require the Ranger to identify and 
minimize to the extent practicable any existing or potential conflicts 
between motorized and non-motorized rivercraft users or between 
rivercraft users in general and other individuals like fishermen or 
researchers who may use or enjoy the Wild and Scenic Rivers in the 
HCNRA.
    These standards and guidelines have been narrowly tailored to 
address those specific types of rivercraft use on those specific river 
segments where the greatest potential risk exists to the agency's 
ability to administer the HCNRA in such a way as to protect and enhance 
its natural, cultural, recreational, fishery and other resource values. 
With respect to the use of rivercraft, the greatest risk is currently 
presented by the use of motorized rivercraft on the Snake Wild and 
Scenic River. As a result, most of the standards and guidelines in this 
section pertain to that use on that river. Though the authority exists, 
it was deemed unnecessary to establish additional standards for other 
Wild and Scenic Rivers or other rivers in the HCNRA at this time to 
address future contingencies which may or may not ultimately 
materialize.

Section 292.46  Timber Harvesting Activities

    Proposed Sec. 292.46 would establish three standards to guide 
Forest Service administration of timber harvesting activities on 
National Forest System lands in the HCNRA. Proposed paragraphs (a)(1)-
(2) set forth the standards and guidelines for timber harvesting 
activities in the Other Lands category of the HCNRA; proposed paragraph 
(b) establishes the standard in the Wilderness Lands. Though not 
explicitly referenced, the relevant provisions of the Wilderness Act, 
16 U.S.C. 1131 et seq., and regulations at 36 CFR part 223, 261 and 293 
would also apply.
    Paragraph (a)(1) would specify that timber will not be harvested 
solely for commercial gain but, rather, will be harvested only in 
conjunction with other, non-commercial purposes including maintenance 
or improvement of ecosystem health, wildlife habitat, or the 
recreational use and enjoyment of the HCNRA. Trees could also be 
removed to eliminate hazards to persons or their property. Finally, 
timber harvesting could also be employed as an appropriate and measured 
response to natural events including, but not limited to, fire, flood, 
and disease or pest infestation. The significance of this provision is 
that it does not provide for timber production in and of itself to be 
an objective of the timber harvesting activity.
    In those instances where one or more of the purposes for which 
timber may be harvested is recognized, paragraph (a)(2) conditions the 
manner by which the timber may be harvested. These silvicultural 
prescriptions authorize timber harvesting only by means of selective or 
intermediate cuttings. For the purpose of this proposed rule, the term 
``selective cutting'' means ``selection cutting'' as that term is 
defined by the Society of American Foresters. The Agency believes that 
the Act, in discussing the permissible types of silvicultural 
prescriptions in the HCNRA, incorrectly used the term ``selective 
cutting'' which is a type of exploitation cutting generally referred to 
as ``creaming'', ``culling'', or ``high-grading''. For that reason, the 
Agency defined ``selective cutting'' as ``selection cutting'' which is, 
in all likelihood, the term Congress intended to use in the Act and 
which means the annual or periodic removal of trees individually or in 
small groups. The other types of authorized cuttings are well 
understood within the forestry profession and are defined in the 
proposed rule as they appear in the book, Terminology of Forest Science 
Technology Practice and Products, published by the Society of American 
Foresters. These types of cuttings represent the most ecologically 
sensitive methods by which harvesting can be accomplished. Additional 
proposed restrictions on harvesting in this proposed section include 
requirements that the smallest area and least number of clearings be 
created, and that the clearings blend into the natural landscape to the 
extent practicable. These provisions would ensure that any timber 
harvesting allowable within the HCNRA would proceed as unobtrusively as 
possible.
    Proposed paragraph (b) explains that there are no non-duplicative 
regulations needed for managing timber harvesting activities in 
wilderness areas of the HCNRA since such use is already generally 
prohibited by the Wilderness Act. Accordingly, it merely restates the 
existing prohibition and provides cross references to exceptions 
permitted in the Wilderness Act.

Section 292.47  Mining Activities

    Proposed 292.47 would establish six standards to guide Forest 
Service administration of mining activities throughout the entire 
HCNRA. Proposed paragraphs (a)(1)-(4) set forth the standards and 
guidelines for mining activities in the Other Lands category of the 
HCNRA; proposed paragraphs (b)(1)-(2) establish the standards for the 
Wilderness Lands category. Though not explicitly referenced, the 
relevant provisions of the 1872 Mining Law, 30 U.S.C. 22 et seq., the 
Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., the Mineral 
Materials Act of 1947, 30 U.S.C. 601 et seq., the Wilderness Act, 16 
U.S.C. 1131 et seq., the Wild and Scenic Rivers Act, 16 U.S.C. 1271 et 
seq., and regulations at 36 CFR parts 228 and 293 would also apply.
    Paragraph (a) prohibits mining activities in the HCNRA subject to 
valid existing rights. This is a restatement of Section 11 of the Act 
which withdrew all federal lands within the HCNRA from the operation of 
the mining and mineral leasing laws subject to valid existing rights. 
Accordingly, the only authorized mining activities that may occur in 
the HCNRA are those in which the valid existing rights have been 
established. Holders of mining claims and mineral leases must 
demonstrate that they have valid existing rights before land disturbing 
activities can be initiated. This requirement would also extend to what 
in common parlance has become known as ``recreational mining.'' There 
is no authority for recreational mining other than the statutes cited 
in the preceding paragraph. Thus, even if an operator claims that an 
activity involving the exploration and/or extraction of mineral 
resources is ``recreational'' in nature, that operator must prove that 
he or she has valid existing rights to conduct that activity under one 
of the aforementioned statutes.
    Paragraph (b) proposes that the impact of mining activities be 
directed away from the Wilderness Lands and Wild and Scenic Rivers to 
the extent practicable. This would enable the impacts of developmental 
drilling operations and the construction of access routes, among other 
things, to be concentrated on lands which may be better suited to such 
uses or which may not possess the number or degree of resource values 
exhibited on Wilderness Lands or Wild and Scenic Rivers.
    Paragraphs (c) and (d) concern the extraction and use of mineral 
materials in the HCNRA. Mineral materials include, but are not limited 
to, common varieties of sand, gravel, and stone and are governed by the 
Mineral Materials Act of 1947, 30 U.S.C. 601 et seq., rather than the 
mining and mineral leasing laws. As a result, activities related to 
mineral materials are not subject to the withdrawal of federal lands 
from the operation of the mining and mineral leasing laws in Section 11 
of the Act. These standards, in addition to the applicable provisions 
of Subpart C of 36 CFR part 228, specify the circumstances under which 
exploration, extraction and use of common variety mineral materials may 
occur in the HCNRA. Paragraph (c) would provide that mineral materials 
may only be used in the HCNRA for the purpose of constructing or 
maintaining facilities such as roads, existing airfields, trails and 
other recreation developments.
    Paragraph (d) would require that mineral materials needed for use 
in the HCNRA for one of the enumerated purposes in paragraph (c) or for 
use outside the HCNRA on a project with specific and identifiable 
benefits for the HCNRA must come from sources located outside the HCNRA 
unless (1) the cost associated with using non-HCNRA mineral materials 
adds significantly to the costs of the material, or (2) the 
transportation of mineral materials from outside the HCNRA presents a 
safety hazard to the motoring public.When mineral materials are 
obtained from inside the HCNRA, environmental impact at the source must 
be mitigated by contouring the land, re-establishing vegetation, and 
other appropriate measures. This paragraph would further prohibit the 
extraction of mineral materials from sources inside the HCNRA if the 
use would be outside the HCNRA and would not directly benefit the 
HCNRA.
    Proposed paragraph (b)(1) would incorporate the standards and 
guidelines in paragraphs (a)(1) and (a)(2) for Other Lands and apply 
them to Wilderness Lands. This would ensure the consistency of Forest 
Service administration of mining activities within the HCNRA and 
further the protection and enhancement of the values which caused 
Congress to designate the HCNRA.
    Paragraph (b)(2) would prohibit the extraction of mineral materials 
from the Wilderness Lands. This is a restatement of existing authority 
in 36 CFR 293.14(c).
    The effect of the foregoing standards is to provide for the 
continued maintenance and development of facilities and transportation 
routes necessary for the administration and safe use and enjoyment of 
the HCNRA while at the same time minimizing the impacts of such 
activities on HCNRA lands and directing such activities to non-HCNRA 
lands wherever possible.

Section 292.48  Grazing Activities

    Proposed Sec. 292.48 would create four standards to guide Forest 
Service administration of grazing activities on National Forest System 
lands throughout the entire HCNRA. The agency felt that one set of 
standards and guidelines for the entire HCNRA would be simpler to 
administer and would adequately provide for the continuation of grazing 
and the protection and enhancement of the HCNRA resource values. Though 
not expressly referenced, the relevant provisions of the Granger-Thye 
Act, 16 U.S.C. 580 et seq., the Federal Land Policy and Management Act, 
43 U.S.C. 1701 et seq., the Public Rangelands Improvement Act, 43 
U.S.C. 1901 et seq., and regulations at 36 CFR part 222 would also 
apply.
    Paragraph (a) would authorize the grazing of domestic livestock 
only on National Forest rangeland that has been found to be in 
satisfactory condition. In those situations where the land is suitable 
and in satisfactory conditions, livestock grazing could only take place 
in such numbers, seasons, and methods which will ensure that the 
satisfactory condition is maintained. This provision will ensure that 
domestic livestock grazing will not occur on rangelands that are 
currently in substandard condition nor will it occur in such a way as 
to degrade rangelands that are currently in satisfactory condition.
    Proposed paragraph (b) requires the Forest Service to administer 
the grazing program to minimize or eliminate conflicts between domestic 
livestock and fish and wildlife, outdoor recreation, and the 
preservation and conservation of the other natural values for which the 
HCNRA was established by adjusting the level, type of livestock, or 
manner of grazing. This paragraph further requires that the domestic 
livestock grazing must cease in the event that the adjustment in the 
grazing activity has failed to eliminate the conflict. This ensures 
that grazing will not continue if it can not be conducted in a manner 
that is compatible with the purposes for which the HCNRA was 
established.
    Paragraph (c) would require that range improvements constructed or 
implemented on National Forest System lands must be as unobtrusive as 
possible while still accomplishing the purposes for which the 
improvement was required. This could involve fences or water storage 
facilities being constructed in a visually inconspicuous fashion or the 
use of vegetative treatments in an environmentally sensitive manner.
    Paragraph (d) would require that in administering the domestic 
livestock grazing program, measures must be instituted to protect and 
conserve riparian areas. This could take the form of restrictions on 
place, time, or manner of livestock grazing and would be in furtherance 
of protecting and enhancing fish and wildlife habitat which is one of 
the management objectives of the HCNRA.

Summary

    The proposed rule establishes standards for National Forest System 
lands within the HCNRA to ensure that the activities which occur on the 
National Forest System lands within the HCNRA are compatible with the 
purposes for which the HCNRA was created. The proposed regulations have 
been carefully drafted to include only those management standards and 
guidelines which are nonduplicative.
    Except in those instances in which there would be a direct and 
irreconcilable conflict, this proposed rule would not supplant the 
Forest Service's existing regulatory authority related to National 
Forest System lands. This regulatory authority covers a panoply of 
subjects including, but not limited to, range management (36 CFR part 
222), timber (36 CFR part 223), minerals (36 CFR part 228), off-road 
vehicle use (36 CFR part 295), archeological resources (36 CFR part 
296), and historic and cultural properties (36 CFR part 800).
    Nor would this proposed rule simply restate the current regulatory 
authority of the Forest Service to administer the National Forest 
System lands. Instead, this proposed rule would augment existing 
regulatory authority to establish standards and guidelines that would 
address the subject matter areas identified in section 10 that were of 
particular concern to Congress when the HCNRA was established in 1975. 
Public comment is invited and will be considered in adoption of a final 
rule.
    In summary, these standards and guidelines will protect and 
preserve historic, archeologic, and paleontologic resources; provide 
for the use of motorized and mechanical equipment; provide for the use 
of motorized and nonmotorized rivercraft; and establish the permissible 
scope and extent of timber harvesting, mining, and grazing on National 
Forest System lands in the HCNRA. In so doing, the Forest Service will 
be able to ensure that the natural beauty, historical, and 
archeological values of the HCNRA are preserved for this and future 
generations, and that the recreational and ecological values and public 
enjoyment of the area are thereby enhanced.

Regulatory Impact

    This rule has been reviewed under Executive Order 12866 on 
``Regulatory Planning and Review.'' It has been determined that this is 
not a significant rule.
    This rule also 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.

Environmental Impact

    This proposed rule is promulgated in accordance with section 10 of 
the Act, 16 U.S.C. 460gg-7. The affected environment and consequences 
of implementing management alternatives for the HCNRA were analyzed and 
disclosed in the Environmental Impact Statement for the Comprehensive 
Management Plan that was implemented by the Chief of the Forest Service 
on May 23, 1981. The analysis completed for the Comprehensive 
Management Plan was revalidated in April 1990 with the signing of the 
Wallowa-Whitman National Forest Land and Resource Management Plan 
Record of Decision (page 1). A review of this proposed rule indicates 
no potential for significant effect on the quality of the human 
environmental other than that previously disclosed in the Environmental 
Impact Statement. The environmental consequences of any future projects 
will be subject to site specific analysis pursuant to Forest Service 
National Environmental Policy Act procedures (Forest Service Manual 
Chapter 1950, Forest Service Handbook 1909.15). Therefore, no 
additional environmental documentation is deemed needed on this rule. 
Information pertaining to the environmental analysis may be obtained by 
writing or calling the persons or offices listed under ADDRESSES and 
FOR FURTHER INFORMATION CONTACT.

Takings Implication

    In compliance with Executive Order 12630 and the Attorney General's 
Guidelines for the Evaluation of Risk and Avoidance of Unanticipated 
Takings, the takings implications of this proposed rule have been 
reviewed and considered. It has been determined that there is no risk 
of a taking.

Executive Order 12778, Civil Justice Reform Act

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. If this proposed rule were adopted, (1) all state 
and local laws and regulations that are in conflict with this proposed 
rule or which would impede its full implementation would be preempted; 
(2) no retroactive effect would be given to this proposed rule; and (3) 
it would not require administrative proceedings before parties could 
file suit in court challenging its provisions.

Paperwork Reduction

    This rule will not result in additional paperwork not already 
approved for use. Therefore, the review provisions of the Paperwork 
Reduction Act of 1980 (44 U.S.C. 3507) and implementing regulations at 
5 CFR part 1320 do not apply.

List of Subjects in Part 292

    National recreation areas.

    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 revising Subpart F to read as follows:

PART 292--NATIONAL RECREATION AREAS

Subpart F--Hells Canyon National Recreation Area--Federal Lands
Sec.
292.40  Purpose and scope.
292.41  Definitions.
292.42  Management standards and guidelines.
292.43  Protection and preservation of cultural and paleontological 
resources.
292.44  Use of motorized and mechanical equipment.
292.45  Use of motorized and non-motorized rivercraft.
292.46  Timber harvesting activities.
292.47  Mining activities.
292.48  Grazing activities.

Subpart F--Hells Canyon National Recreation Area--Federal Lands

    Authority: Sec. 10, Public Law 94-199, 89 Stat. 1117 (16 U.S.C. 
460gg-7).


Sec. 292.40  Purpose and scope.

    (a) Purpose. The rules of this subpart establish standards and 
guidelines for the protection and preservation of historic, 
archaeological, and paleontological resources, the use of motorized and 
mechanical equipment, the use of motorized and nonmotorized rivercraft, 
and the management, utilization, and disposal of natural resources by 
timber harvesting, mining and grazing on National Forest System lands 
that comprise the Hells Canyon National Recreation Area located in the 
Wallowa-Whitman, Nez Perce, and Payette National Forests in the States 
of Idaho and Oregon as established by the Act of December 31, 1975, as 
amended (89 Stat. 1117, 16 U.S.C. 460gg et seq.).
    (b) Scope. Management of National Forest System lands within the 
Hells Canyon National Recreation Area is subject to all laws, rules, 
and regulations applicable to the National Forest System, except as 
otherwise provided in this subpart. In the event of a conflict or 
inconsistency between rules of this subpart and other rules within this 
title, the rules of this subpart shall take precedence to the extent 
permitted by law.


Sec. 292.41  Definitions.

    Special terms used in this subpart are defined as follows:
    Act means the Act of December 31, 1975, as amended (Pub. L. 94-199, 
89 Stat. 1117) which established the Hells Canyon National Recreation 
Area.
    Comprehensive Management Plan is the document that establishes the 
array, levels, and manner of resource uses within the HCNRA. It is 
incorporated as part of the Wallowa-Whitman National Forest Land and 
Resource Management Plan.
    Cultural Resources means historic and archaeological resources.
    HCNRA is the abbreviation for the Hells Canyon National Recreation 
Area.
    Intermediate Cutting means any removal of trees from a stand 
between the time of its formation and the harvest cutting. Examples of 
intermediate cutting include, but are not limited to, cleaning, 
thinning, liberation, improvement, hazard removal, salvage and 
sanitation cuttings.
    Mining means any activity related to the discovery, extraction and 
exploitation of minerals or mineral materials including, but not 
limited to, actions taken pursuant to the Mining Act of 1872, 30 U.S.C. 
22 et seq., the Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., the 
Mineral Materials Act of 1947, 30 U.S.C. 601 et seq., or any other 
activity using hydraulic equipment, pans, ground sluicing, sluice 
boxes, rockers, or suction dredges.
    Motorized and Mechanical Equipment has the same meaning as 
``mechanical transport'' and ``motorized equipment'' in 36 CFR 293.6(a) 
and (b), except that this term does not include either motorized or 
nonmotorized rivercraft or motorized wheelchairs or other devices used 
solely to assist persons with disabilities.
    Motorized Rivercraft means any boat capable of being mechanically 
propelled by propeller(s) or jet pump(s) upstream through rapids.
    Non-Motorized Rivercraft means any boat which is not a motorized 
rivercraft.
    Other Lands means all nonwilderness National Forest Systems lands 
in the HCNRA.
    Paleontological Resources means any remains, trace, or imprint of a 
plant or animal that has been preserved in the Earth's crust prior to 
the Holocene epoch.
    Ranger is the HCNRA Area Ranger, Wallowa-Whitman National Forest, 
with offices located in Enterprise, Oregon, Riggins, Idaho, and 
Clarkston, Washington, except for the Rapid Wild and Scenic River where 
the term refers to the Salmon River District Ranger, Nez Perce National 
Forest, located in Whitebird, Idaho.
    Selective Cutting means single tree or group selection cutting and 
is the periodic removal of trees individually or in small groups from 
an uneven aged forest in order to maintain diverse stands of irregular 
constitution and for which the management of the forest ecosystem is a 
primary consideration.
    Suitable means it is appropriate to apply certain resource 
management practices to a particular area of land, as determined by an 
ecological and environmental analysis of the land. A unit of land may 
be suitable for a variety of individual or combined management 
practices.
    Wild and Scenic Rivers means the designated segments of the Snake, 
Rapid, Imnaha and any other river or segment thereof in the HCNRA 
hereafter designated as components of the National Wild and Scenic 
Rivers System.
    Wilderness Lands means the Hells Canyon Wilderness, that portion of 
the Eagle Cap Wilderness in the HCNRA, and any other wilderness in the 
HCNRA hereafter designated as components of the National Wilderness 
Preservation System.


Sec. 292.42  Management standards and guidelines.

    (a) In addition to existing statutory and regulatory authority 
governing administration of National Forest System lands and resources, 
the standards and guidelines in Secs. 292.43 to 292.48 of this subpart 
prescribe the scope and extent of certain activities that may occur in 
the HCNRA. These standards and guidelines are consistent with the 
overall objective of administering the HCNRA to preserve its natural 
beauty, historical and archaeological values and enhance its 
recreational and ecological values and the public's enjoyment. The 
standards and guidelines may vary depending on whether the land where 
the proposed activity is contemplated is within the Wilderness Lands or 
the Other Lands.
    (b) The standards and guidelines of this subpart govern the 
previous programmatic direction in the Comprehensive Management Plan 
that has been incorporated into the Wallowa-Whitman National Forest 
Land and Resource Management Plan. Site specific environmental analysis 
may be required even in those situations where a use or activity is 
permissible under the standards and guidelines set forth in this 
subpart.


Sec. 292.43  Protection and preservation of cultural and 
paleontological resources.

    (a) Other Lands. The following standards and guidelines of this 
section apply to the protection and preservation of cultural and 
paleontological resources in the Other Lands category of the HCNRA:
    (1) The primary objective of managing cultural resources is the 
protection of the resource from damage or destruction. To the extent 
consistent with protection, cultural resources may also be managed for 
public education and enjoyment.
    (2) The Ranger shall establish priorities for management emphasis 
and protection of cultural resources based, in part, on whether the 
appropriate State Historic Preservation Office has concurred with the 
Forest Service's determination that a cultural resource is significant.
    (3) Significant cultural resources are to be protected on-site, 
unless the Ranger determines that off-site protection is preferable 
because the resource is already adequately represented and protected 
on-site elsewhere, is within Wilderness Lands, or for other good cause 
shown. Information about significant cultural resources shall be 
documented.
    (4) The primary objective of managing paleontological resources is 
for scientific study. Written authorization from the Ranger must be 
secured before paleontological resources can be disturbed or removed in 
conjunction with scientific study.
    (b) Wilderness Lands. The following standards and guidelines apply 
to the protection and preservation of cultural and paleontological 
resources in the Wilderness Lands category of the HCNRA:
    (1) The standards and guidelines for Other Lands in paragraph (a) 
of this section also apply to Wilderness Lands.
    (2) Public education and information activities concerning cultural 
resources on Wilderness Lands may not be offered or established inside 
Wilderness Lands.
    (3) New trails and relocations of existing trails may not be 
developed for the sole purpose of providing public access to cultural 
resource sites on Wilderness Lands.


Sec. 292.44  Use of motorized and mechanical equipment.

    The standards and guidelines of this section apply to the use of 
motorized and mechanical equipment in the HCNRA. These standards and 
guidelines shall not be construed to impair or preclude the Forest 
Service's administration of the HCNRA; authorized scientific and other 
research activities within the HCNRA; timber harvesting, mining, or 
grazing activities as authorized in Secs. 292.46-292.48 of this 
subpart; responses by the Forest Service or any other federal, state, 
or local agency to public health or safety emergencies; or access to 
private inholdings within the HCNRA.
    (a) Other Lands. The following standards and guidelines apply to 
the use of motorized and mechanical equipment in the Other Lands 
category of the HCNRA:
    (1) Motorized and mechanical equipment may be used on designated 
Forest Service access roads and existing airstrips subject to terms and 
conditions necessary for the safe use of such facilities.
    (2) The use of motorized and mechanical equipment is permissible on 
designated National Forest trails subject to terms and conditions 
necessary for the safe use of such facilities and if such use is 
compatible with the management objectives set forth in Section 7 of the 
Act.
    (3) Use of mechanical equipment off designated Forest Service 
access roads, National Forest trails, and existing airstrips is 
permissible subject to terms and conditions necessary for the safe use 
of such equipment and if such use is compatible with the management 
objectives set forth in Section 7 of the Act.
    (4) Use of motorized equipment is prohibited off designated Forest 
Service access roads, National Forest trails, and existing airstrips 
unless it is reasonably necessary to attain one or more of the 
management objectives set forth in Section 7 of the Act.
    (b) Wilderness Lands. Except as provided for in Sections 4 (c) and 
(d) of the Wilderness Act and regulations at 36 CFR parts 261 and 293, 
the use of motorized and mechanical equipment is prohibited on 
Wilderness Lands.


Sec. 292.45   Use of motorized and non-motorized rivercraft.

    The standards and guidelines of this section apply to the use of 
motorized and non-motorized rivercraft on the Wild and Scenic Rivers 
within the HCNRA.
    (a) The use of non-motorized rivercraft may be permitted subject to 
restrictions on numbers, duration, seasons, or other matters which may 
be deemed by the Ranger necessary to protect and enhance the values for 
which the rivers were designated wild and scenic or to ensure the safe 
use and enjoyment of the rivers.
    (b) The use of motorized rivercraft is prohibited, except on the 
Snake River.
    (c) The use of motorized and non-motorized rivercraft is subject to 
all Federal and State boating registration and safety laws.
    (d) The use of motorized or non-motorized rivercraft on the Snake 
Wild and Scenic River requires prior written authorization from the 
Ranger and may be subject to limitations on numbers, duration, seasons, 
or noise limits, or other restrictions which may be deemed by the 
Ranger necessary to protect and enhance the values for which the Snake 
River was designated wild and scenic or to ensure the safe use and 
enjoyment of the river.
    (e) In authorizing the use of motorized and non-motorized 
rivercraft on the Snake Wild and Scenic River, the Ranger must 
reasonably accommodate both private and commercial users of each type 
of rivercraft.
    (f) In authorizing the use of motorized and non-motorized 
rivercraft on the Snake Wild and Scenic River, the Ranger must ensure 
that the user capacity of the river is not exceeded.
    (g) In authorizing the use of motorized and non-motorized 
rivercraft on the Snake Wild and Scenic River, the Ranger shall seek to 
minimize, where practicable, conflicts between motorized and non-
motorized rivercraft users and between both types of rivercraft users 
and all other users of the river.


Sec. 292.46   Timber harvesting activities.

    (a) Other Lands. The standards and guidelines of this section apply 
to timber harvesting activities in the Other Lands category of the 
HCNRA.
    (1) Timber may be harvested in order to protect and enhance 
ecosystem health, wildlife habitat, or recreational uses; to reduce the 
risk of harm posed by hazard trees; or to respond to natural events 
such as wildfire, flood, earthquake, volcanic eruption, high winds, and 
disease or pest infestation.
    (2) Where authorized, trees may be removed by selective or 
intermediate cuttings. Openings created by the timber harvesting 
activity must be limited in size and number to the minimum necessary to 
accomplish the purpose of the harvest, and must blend with the natural 
landscape to the extent practicable.
    (b) Wilderness Lands. Except as provided for in Sections 4 (c) and 
(d) of the Wilderness Act and regulations at 36 CFR part 293, timber 
harvesting is prohibited on Wilderness Lands.


Sec. 292.47   Mining activities.

    (a) Other Lands. The standards and guidelines of this section apply 
to mining activities in the Other Lands category of the HCNRA.
    (1) All mining activities are prohibited subject to valid existing 
rights.
    (2) The impact of mining activities including, but not limited to, 
drilling and the development of ingress and egress routes, must be 
minimized and directed away from Wilderness Lands and Wild and Scenic 
Rivers to the extent practicable.
    (3) Mineral materials including, but not limited to common 
varieties of gravel, sand, or stone may be used only within the HCNRA 
for the purpose of construction and maintenance of facilities 
including, but not limited to, roads, existing airfields, trails, and 
recreation developments.
    (4) Sources of mineral materials should be located outside the 
HCNRA. Sources for mineral materials that may be used to benefit the 
HCNRA may be located inside the HCNRA if the cost of obtaining the 
materials outside the HCNRA adds significantly to the costs of the 
materials, or the transportation of mineral materials from outside the 
HCNRA present a safety hazard to the motoring public. When mineral 
materials are obtained from inside the HCNRA, environmental impact at 
the mineral source must be mitigated by contouring the land; re-
establishing vegetation, and other appropriate measures. The HCNRA 
shall not be the source of mineral materials for use outside the HCNRA 
for projects that do not directly benefit the HCNRA.
    (b) Wilderness Lands. The standards and guidelines of this section 
apply to mining activities in the Wilderness Lands category of the 
HCNRA.
    (1) The standards and guidelines for Other Lands in paragraphs 
(a)(1) and (2) of this section also apply to Wilderness Lands.
    (2) Extraction of mineral materials is prohibited on Wilderness 
Lands.


Sec. 292.48  Grazing activities.

    The following standards and guidelines apply to domestic livestock 
grazing activities in the HCNRA:
    (a) Grazing may occur only on rangeland determined to be suitable 
for grazing and to be in satisfactory condition.
    (b) Where domestic livestock grazing is incompatible with the 
protection, restoration, and/or maintenance of fish and wildlife or 
their habitats; public outdoor recreation; conservation of scenic, 
wilderness, and scientific values; or rare combinations of outstanding 
ecosystems, the livestock use shall be modified as necessary to 
eliminate or avoid the incompatibility. In the event an incompatibility 
persists after the modification, or modification is not feasible, the 
livestock use shall be terminated.
    (c) Range improvements must be designed and located to minimize 
their impact on scenic, cultural, fish and wildlife, and other 
resources in the HCNRA to the extent practicable.
    (d) The authorization of grazing use, through a grazing permit, 
must provide for terms and conditions which protect and conserve 
riparian areas.

    Dated: December 23, 1993.
William L. McLeese,
Acting Chief.
[FR Doc. 94-1035 Filed 1-18-94; 8:45 am]
BILLING CODE 3410-11-M