[Federal Register Volume 59, Number 137 (Tuesday, July 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17521]


[[Page Unknown]]

[Federal Register: July 19, 1994]


_______________________________________________________________________

Part III





Department of Agriculture





_______________________________________________________________________



Forest Service



_______________________________________________________________________



36 CFR Part 292



Hells Canyon National Recreation Area, Federal Lands; Final Rule
=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292

RIN 0596-AB08

 

Hells Canyon National Recreation Area--Federal Lands

AGENCY: Forest Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule implements Sections 10(b)-(e) of the Hells 
Canyon National Recreation Area Act of 1975 (hereafter ``the Act''). 
The Act established the Hells Canyon National Recreation Area 
(hereafter ``the HCNRA'') and directed the Secretary of Agriculture to 
promulgate rules and regulations for federal lands in the HCNRA that 
would: insure the full protection and preservation of the historic, 
archeological, and paleontological resources; provide for the control 
of the use of motorized and mechanical equipment; provide for the 
control of the use and number of motorized and non-motorized river 
craft; and, establish standards for the management, utilization, and 
disposal of natural resources by timber harvesting, mining and grazing 
which are compatible with the provisions of the Act. This rule will 
ensure that the HCNRA will be administered in such a way as to protect 
the values for which it was established.

EFFECTIVE DATe: This rule is effective July 19, 1994.

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

SUPPLEMENTARY INFORMATION:

Background

    Congress established the HCNRA in the Act in order 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.'' P.L. 94-199, 89 Stat. 1117 at Sec. 1 
(codified at 16 U.S.C. Sec. 460gg). While the overarching goals and 
objectives of the Act are to preserve and enhance the natural, 
historic, paleontologic, recreation, and other values in the HCNRA, 
Congress also expressly recognized as ``valid'' certain timber 
harvesting, grazing and rivercraft uses of the area that predated the 
establishment of the HCNRA. Id. at Secs. 10, 13 (codified at 16 U.S.C. 
Secs. 460gg-7, -10).
    The HCNRA consists of 625,193 acres of federal land. Included in 
this acreage is the Hells Canyon Wilderness which totals 219,500 acreas 
and a portion of the Eagle Cap Wilderness which totals 3,553 acres. 
Also included in the total HCNRA acreage are 33,767 acres in the Snake, 
Rapid, and Imnaha Wild and Scenic River corridors. The Hells Canyon 
Wilderness was designated by Congress in Section 2 of the Act; the 
Snake and Rapid Wild and Scenic Rivers were designated in Section 3 of 
the Act.
    Section 10 of the Act authorized the Secretary to promulgate 
regulations addressing several issues that were of concern to Congress 
when it established the HCNRA in 1975. Section 10(b) authorized the 
promulgation of regulations which would ensure the full protection and 
preservation of the historic, archeological, and paleontological 
resources in the HCNRA. Section 10(c) authorized the promulgation of 
regulations which would provide for the control of the use of motorized 
and mechanical equipment for transportation over, or alteration of, the 
surface of any Federal land in the HCNRA. Section 10(d) authorized the 
promulgation of regulations which would provide for the control of the 
use and number of motorized and nonmotorized rivercraft while 
recognizing the validity of the use of such craft on the Snake River in 
the HCNRA. Section 10(e) authorized the promulgation of regulations 
which would establish standards compatible with the provisions of the 
Act for the management, utilization, and disposal of natural resources 
in the HCNRA through timber harvesting, mining, and grazing. 
Parenthetically, it should be noted that Section 10(a) authorized the 
Secretary to promulgate regulations which would establish standards for 
the use and development of privately owned lands in the HCNRA. This 
section was the subject of a separate rulemaking in which a final rule 
was adopted on June 13, 1994 (59 Federal Register 30492). Accordingly, 
it is not discussed further in this proceeding.
    Following enactment of the Act in 1975, the Forest Service 
construed the authority in Section 10 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 v. Lyng, slip op. No. 
88-680PA (D. Or. 1989) (hereafter ``ONRC v. Lyng''). 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 (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 the 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.
    Recently, another lawsuit was filed against the Forest Service 
alleging that the agency had unreasonably delayed promulgation of the 
regulations for the HCNRA following the Ninth Circuit's 1989 decision 
in ONRC v. Lyng. Hells Canyon Preservation Council v. Richmond, Slip 
Op. Cv. No. 92-1432-ST (D. Or.). The district court agreed that the 
Forest Service had unreasonably delayed the promulgation of rules for 
the HCNRA and established a schedule for their completion. As it 
related to regulations for the federal lands in the HCNRA, the court 
directed that a proposed rule be published in the Federal Register not 
later than January 20, 1994; that the comment period on the proposed 
rule close not later than March 21, 1994; and that a final rule be 
adopted and published in the Federal Register not later than July 19, 
1994.
    On January 19, 1994, the Forest Service published a proposed rule 
for the National Forest System lands in the HCNRA pursuant to Sections 
10(b)-(e) of the Act (59 FR 2782). The proposed rule consisted of the 
following sections: purpose and scope, definitions, management 
standards and guidelines, protection and preservation of cultural and 
paleontological resources, use of motorized and mechanical equipment, 
use of motorized and non-motorized rivercraft, timber harvesting 
activities, mining activities, and grazing activities. In recognition 
of the proportionately greater protection that Congress felt the 
wilderness areas should receive over other parts of the HCNRA, the 
proposed rule also divided the HCNRA into Wilderness Lands, consisting 
of the approximately 223,000 acres of designated wilderness in the 
HCNRA and Other Lands, consisting of the remaining approximately 
402,000 acres of federal lands in the HCNRA. This latter category 
included the approximately 33,000 acres of federal lands in the Snake, 
Rapid, and Imnaha Wild and Scenic River corridors.
    Against this backdrop, the proposed rule then established standards 
for each of the items identified in Sections 10(b) through (e) of the 
Act. Some of the standards varied depending on whether the affected 
activity or use occurred on or was contemplated in the Wilderness Lands 
or the Other Lands. The standards for the grazing activities were, 
however, identical for Wilderness Lands and Other Lands. The standards 
for motorized and non-motorized rivercraft use did not differentiate 
between Wilderness Lands and Other Lands. Rather, this section of the 
proposed rule established standards applicable only to river segments 
that had been designated as wild and scenic rivers.
    Nineteen letters expressing a variety of viewpoints were received 
by the expiration of the 60 day comment period on March 21, 1994. These 
letters contained the views of, among others, a utility company, a 
recreation group, several environmental groups, a federal agency, a 
grazing permittee, an association representing the personal watercraft 
industry, a commercial river outfitter and numerous concerned citizens. 
Two individuals submitted two separate comments on the proposed rule. 
The comments contained in these letters have been considered in the 
adoption of this final rule. The Department appreciates the time and 
energy the reviewers invested in preparing these letters and 
articulating their concerns with the proposed rule.
    All comments received are available for review in the Office of the 
Director, Recreation, Cultural Resources, and Wilderness Management 
Staff, Auditors Building, 4th Floor, 201 14th Street, SE., at 
Independence Ave., SW., Washington DC, during regular business hours (8 
a.m. to 5 p.m.) Monday through Friday.

Analysis of Public Comment

    Comments on the proposed rule dealt with general issues like the 
terminology, enforceability, and format of the regulation. Comments 
also were made concerning the specific standards enumerated in the 
proposed rule. A brief statement of the salient issues, responses, and 
modifications in the proposed rule follows.

General Comments on Proposed Subpart E of 36 CFR Part 292

1. The Ambiguity of the Standards in the Proposed Rule

    A number of reviewers contended that many of the standards set out 
in Secs. 292.43 through 292.48 of the proposed rule were vague and 
imprecise. As a result, these reviewers noted, the Forest Service could 
exercise unfettered discretion in the administration of the HCNRA. 
These reviewers suggested that this could result in arbitrary decisions 
allowing or, in some cases, disallowing certain activities or uses in 
the HCNRA. They concluded that the standards should be clarified to 
further circumscribe the agency's decisionmaking authority. If 
additional clarification could not be achieved, then some of the 
reviewers recommended that the affected standard simply be eliminated.
    Response. The Forest Service generally disfavors the use of rigid 
and fixed standards in a rule notwithstanding the fact that such 
standards might reduce the potential for arbitrary agency action and 
might enhance the agency's and the public's ability to predict whether 
certain behavior would be in conformance with them. The reason that the 
agency resists this practice is twofold. First, the agency believes 
that there is a significant risk that rigid and fixed standards in a 
rule, though perhaps appropriate at the time of adoption, may quickly 
be rendered obsolete or impractical due to changes or developments in 
law, science, technology, or societal norms and understandings. Second, 
where such standards are deemed desirable, they can typically be 
incorporated in the forest plan or a related document, like the 
Comprehensive Management Plan for the HCNRA, which are, by their 
nature, more fluid and dynamic and thus better suited than a rule to 
respond to evolution and change.
    As a result, the Forest Service acknowledges that some discretion 
exists in most, if not all, of the standards in the proposed rule. It 
is the agency's view that an element of discretion is essential if the 
HCNRA is to be successfully administered in conformance with the Act.
    Nonetheless, the agency has reviewed the standards of the proposed 
rule to determine whether additional clarification can be supplied 
without compromising the flexibility necessary to administer the HCNRA. 
To the extent a standard might appear to be so vague as to be 
unenforceable, additional clarification has been supplied in the rule. 
Such clarification is explained in the section-by-section comments that 
follow. In many circumstances, additional clarification may also be 
supplied in the Comprehensive Management Plan (CMP) for the HCNRA which 
will apply the general goals and objectives of the Act in conjunction 
with the standards of this rule to the specific uses or activities 
occurring in or contemplated on the HCNRA.
    Finally, it should be noted that the mere existence of discretion 
in an agency decisionmaker does not necessarily mean that the 
discretion will be abused. This is neither the purpose nor intent of 
this rule. In the event that a party believes that the Forest Service 
has acted arbitrarily or capriciously or has otherwise abused its 
discretion, judicial review is available in accordance with the 
Administrative Procedures Act, 5 U.S.C. Secs. 706 et seq.

2. Absence of a Mechanism in the Proposed Rule To Enforce the Standards 
Contained Therein

    Many reviewers submitted comments that supported the standards in 
the proposed rule with the caveat that the Forest Service implement and 
enforce them. One reviewer was concerned that the proposed rule failed 
to supply any mechanism by which the standards could be enforced. 
Presumably, this reviewer believed that the lack of a viable 
enforcement mechanism would make the rule a paper tiger and render it 
ineffectual as a means of protecting against depredations in the HCNRA 
and enhancing the values for which the HCNRA was established.
    Response. Notwithstanding the lack of a specific enforcement 
mechanism in the proposed rule, the Forest Service does not consider 
the standards of Secs. 292.43 through 292.48 to be unenforceable. The 
Forest Service has several tools at its disposal which can help to 
ensure compliance with the standards of this rule.
    As was noted in Sec. 292.40(b) of the proposed rule, this rule for 
the HCNRA would supplement, not supplant, existing statutory and 
regulatory authorities generally applicable to National Forest System 
lands. This authority includes, but is not limited to, Forest Service 
regulations governing prohibitions at 36 CFR part 261 et seq. These 
regulations provide for fines of up to $5000 and/or imprisonment of up 
to six months for violations of the enumerated prohibitions. At a 
minimum, prohibitions in Subpart A of 36 CFR part 261 concerning timber 
and other forest products (36 CFR 261.6), livestock (36 CFR 261.7), 
property (36 CFR 261.9), occupancy and use (36 CFR 261.10), forest 
development roads and trails (36 CFR 261.12), use of vehicles off roads 
(36 CFR 261.13), and national forest wilderness (36 CFR 261.16) may 
directly apply to the HCNRA and the standards set out herein.
    Prohibitions may also be established by order of the Chief, 
Regional Forester, or Forest Supervisor pursuant to Subpart B of 36 CFR 
261.50 et seq. In the event that such an order was issued, prohibitions 
concerning special closures (36 CFR 261.53), forest development roads 
(36 CFR 261.54), forest development trails (36 CFR 261.55), use of 
vehicles off forest development roads (36 CFR 261.56), national forest 
wilderness (36 CFR 261.57), and occupancy and use (36 CFR 261.58) may 
directly apply to the HCNRA and the standards set out in this rule.
    Furthermore, the authorizations for domestic livestock grazing and 
rivercraft use will be dependent upon compliance with, among other 
things, the applicable standards in this rule. Thus, violations of the 
standards set out herein could result in the loss of grazing privileges 
or rivercraft use. This, in and of itself, is a valuable enforcement 
mechanism.
    In addition to all of the above enforcement tools, the Forest 
Service may always pursue a civil enforcement action to enjoin an 
offending use or activity.
    The Forest Service is currently considering whether the prohibition 
regulations at 36 CFR part 261 et seq. should be amended to include a 
section specifically related to the HCNRA. If this is deemed advisable, 
it would be the subject of a separate rulemaking. In the meantime, to 
clarify that the Forest Service may utilize the prohibition regulations 
to enforce the standards set out in this rule, a new subsection (c) has 
been added to Sec. 292.42.

3. Inconsistency of Certain Standards for Other Lands in the HCNRA With 
the Management of Wild and Scenic Rivers

    One reviewer contended that several standards for Other Lands in 
the HCNRA could result in uses of or activities on wild and scenic 
river corridor lands that would otherwise be precluded under the Wild 
and Scenic Rivers Act, 16 U.S.C. Secs. 1271 et seq. In particular, this 
reviewer noted that standards regarding motorized and mechanical 
equipment and timber harvesting could be problematic, especially for 
wild and scenic river sections classified ``wild.'' This reviewer 
recommended that the Other Lands category be further subdivided into 
Wild and Scenic River Areas and Recreation Lands. In splitting this 
category, standards could be specifically tailored to wild and scenic 
river corridor lands to avoid any potential conflict with the Wild and 
Scenic Rivers Act.
    Response: As noted above and in the proposed rule, when Congress 
established the HCNRA it also designated the Hells Canyon Wilderness 
and the Snake and Rapid Wild and Scenic Rivers within the HCNRA. 
Portions of the Eagle Cap Wilderness and the Imnaha Wild and Scenic 
River are also within the HCNRA boundary. While these wilderness areas 
and wild and scenic rivers are within the HCNRA boundaries, they are 
administered pursuant to the Wilderness Act and Wild and Scenic Rivers 
Act, respectively. Therefore, the standards in this rule as applied to 
federal lands within a designated wilderness in the HCNRA can not be in 
conflict with the Wilderness Act. So too, the standards in this rule as 
applied to federal lands in a designated wild and scenic river corridor 
in the HCNRA can not run afoul of the Wild and Scenic Rivers Act.
    It was the initial opinion of the Forest Service that the standards 
for the Wilderness Lands were consistent with the Wilderness Act and 
that the standards for the Other Lands in the proposed rule were 
consistent with the Wild and Scenic Rivers Act where wild and scenic 
river corridor lands were involved and the Act where the remaining 
federal lands in the HCNRA were involved. On further reflection, 
however, the Forest Service agrees with the reviewer that some 
additional adjustments are necessary to ensure that there is no 
inconsistency between activities or uses that may be authorized under 
this rule and those that may be authorized under the Wild and Scenic 
Rivers Act. To that end, the final rule has split out Wild and Scenic 
Rivers from the Other Lands category. This new category includes the 
approximately 33,000 acres of federal lands in the Snake, Rapid, and 
Imnaha Wild and Scenic River corridors. The standards have been revised 
accordingly and are more thoroughly discussed in the section by section 
comments which follow. The remaining federal lands in the HCNRA are 
still referred to as the Other Lands.

4. Opportunities for Public Involvement in Decisionmaking Should Be 
Maximized in the HCNRA

    Several reviewers encouraged the Forest Service to involve the 
public in decisions affecting the National Forest System lands in the 
HCNRA.
    Response. The Forest Service remains absolutely committed to 
involving the public in decisions affecting the HCNRA to the maximum 
extent allowable by law. To that end, the Forest Service has solicited 
and will continue to solicit the public's input on the broad array of 
resource, recreation, and other issues currently affecting the HCNRA. 
Recent examples of public involvement include discussions concerning 
the administration of rivercraft on the Snake River and preventing the 
spread of disease in bighorn sheep. The agency steadfastly believes 
that public involvement is the key to the successful administration of 
the HCNRA in conformance with the Act.

5. Regulatory Flexibility Act Analysis

    One reviewer was critical of the statement in the proposed rule 
that this regulation would ``not have a significant economic impact on 
a substantial number of small entities.'' This reviewer classified 
himself as one of the ``small entities'' on whom the rule would have a 
major effect.
    Response. Section 3(a) of the Regulatory Flexibility Act (RFA), 5 
U.S.C. Secs. 601 et seq., requires the preparation of a regulatory 
flexibility analysis whenever an agency is engaged in a notice and 
comment rulemaking. However, section 5(a) of the RFA negates this 
requirement if the agency certifies that the rule will not have a 
``significant economic impact on a substantial number of small 
entities.''
    In this instance, the Forest Service determined that preparation of 
a regulatory flexibility analysis was not required pursuant to Section 
5(a) of the RFA since this rule would neither pose a significant 
economic impact nor would it affect a substantial number of small 
entities. The economic impact of this rule, if any, would be slight 
since it only establishes standards and guidelines for the 
administration of the HCNRA. Furthermore, the number of small entities 
affected by this rule is not substantial. In fact, the number of 
affected small entities is relatively small and generally confined to 
businesses that operate in and around the HCNRA.

6. Substitution of Authorized Officer for Area Ranger

    The final rule uses the term ``authorized officer'' instead of the 
term ``Area Ranger'' that was used in the proposed rule to describe the 
agency official responsible for implementing the various provisions of 
this rule. This change was deemed necessary in order to avoid any 
confusion regarding which Forest Service line officer has the delegated 
authority to undertake actions that are authorized by this rule. In 
some instances, the authorized officer would be the Area Ranger. In 
most other cases, the authorized officer would be the Forest 
Supervisor. The use of the term ``authorized officer'' preserves the 
status quo of Forest Service line officer authority and ensures that 
there will be no confusion regarding whether this rule contains an 
implied delegation of authority from the Forest Supervisor to the Area 
Ranger. A definition of ``authorized officer'' is supplied in the rule.

Specific Comments on Proposed Subpart E of 36 CFR Part 292

    The following is a discussion of comments that were received 
pertaining to specific sections of the proposed rule and the changes in 
the final rule, if any, resulting therefrom. Section 292.40, Purpose 
and Scope, is not specifically covered in this analysis since there 
were no comments on or changes made to the provisions of this section. 
Additionally, Sec. 292.41, Definitions, and Sec. 292.42, Management 
Standards and Guidelines are also not specifically covered in this 
analysis because the comments on and modifications to the provisions of 
these sections are discussed elsewhere in this analysis. Additions, 
deletions, or modifications to definitions in Sec. 292.41 are discussed 
in the context of the standards in Secs. 292.43 through 292.48 with 
appropriate cross references to Sec. 292.41. The only change to 
Sec. 292.42 was the inclusion of a new subsection (c) dealing with 
enforcement which was discussed in the General Comment analysis above.

1. Section 292.43, Protection and Preservation of Cultural and 
Paleontological Resources

    The proposed rule established four standards for the administration 
of cultural and paleontological resources in the Other Lands of the 
HCNRA. These same four standards and two additional ones were 
established for the administration of these resources in the Wilderness 
Lands of the HCNRA. Briefly, the standards in the proposed rule were: 
(1) that protection should be the Forest Service's primary management 
objective for cultural resources in the HCNRA; (2) that management 
priorities for cultural resources in the HCNRA should be based on the 
significance of the resource; (3) that significant cultural resources 
should be protected on-site if possible; (4) that the primary 
management objective for paleontological resources should be scientific 
study; (5) that information regarding cultural resources on Wilderness 
Lands should be provided outside Wilderness Lands; and (6) that trails 
may not be developed or relocated in Wilderness Lands solely to gain 
access to cultural resources.
    Comment: Forest Service administration of cultural resources should 
balance protection and education. One reviewer felt that the standards 
of the proposed rule could be interpreted by the Forest Service as a 
way to justify the exclusion of all humans from any cultural resources 
in the HCNRA since any human presence would present a risk of harm. 
This reviewer contended that such an interpretation would be contrary 
to the legislative history of the Act.
    Response: The agency does not believe that exclusion of all persons 
is a reasonable interpretation of the standards in the proposed rule. 
The proposed rule clearly states that protection of cultural resources 
in the HCNRA will be the dominant management objective. However, it 
also clearly states that education about cultural resources is an 
important management objective. Only in the event of a conflict between 
protection of and education about a particular cultural resource, would 
the education efforts have to yield.
    Comment: Disturbance or removal of paleontological resources. One 
reviewer noted that the standard which required prior written 
authorization before a paleontological resource could be disturbed or 
removed for scientific study could be construed as requiring no such 
authorization if the resource was disturbed or removed for any other 
reason.
    Response: The agency agrees with the reviewer's observation. This 
standard in the final rule has been modified to clarify that 
disturbance or removal of paleontological resources may only occur in 
conjunction with scientific studies. And, even in those cases, prior 
written authorization must be obtained.
    Comment: Traditional and cultural properties should be added to 
archeological and historic properties. Two reviewers urged the Forest 
Service to expand the type of properties covered by the standards of 
this section to include ``traditional and cultural'' properties. These 
terms were not defined.
    Response: Section 10(b) of the Act specifically authorizes the 
Secretary to promulgate regulations ``to insure the full protection and 
preservation of the historic, archeological, and paleontological 
resources in the recreation area.'' In developing this rule, the Forest 
Service has sought to conform as closely as possible with the precise 
language of the Act. Therefore, to the extent that ``traditional and 
cultural'' properties referenced in the reviewer's comment may also be 
construed as an historic or archaeologic property, then the standards 
of this rule would apply. Otherwise, these properties will be 
administered in accordance with the other relevant statutory and 
regulatory authorities available.
    Comment: References to the National Historic Preservation Act 
(NHPA), Archeological Resources Protection Act (ARPA), and American 
Indian Religious Freedom Act (AIRFA) should be included in the rule. In 
light of the Forest Service's responsibilities pursuant to NHPA, ARPA, 
and AIRFA, two reviewers suggested that the rule should include 
explicit references to ensure that the agency complies with their 
provisions in carrying out the provisions of this rule. These reviewers 
also urged that the rule include consultation requirements with 
affected Indian tribes.
    Response: Section 292.42 of the proposed rule acknowledged that the 
administration of the HCNRA must be in accordance with all the laws and 
regulations applicable to National Forest System lands and resources, 
not just those specifically applicable to the HCNRA. The Forest Service 
determined that it would be too unwieldy to call out in the text of the 
rule each statute and/or regulation that applies to a particular use or 
activity in the HCNRA. Consequently, the Supplementary Information 
section of the proposed rule referenced those authorities. For 
historic, archeological, and paleontological resources, the proposed 
rule listed NHPA, ARPA, the Antiquities Act, and regulations at 36 CFR 
parts 296, 800. This list should also have included AIRFA. Express 
consultation requirements with Indian tribes would be duplicative of 
existing authority and thus not necessary in this rule.
    Comment: Access to archeological sites should be limited and Forest 
Service personnel should be present for interpretation and protection 
purposes. One reviewer agreed with the proposed rule that protection 
should be the dominant management objective for cultural resources but 
attributed two recent acts of vandalism at an archeological site to the 
Forest Service's reconstruction of a road to this site and the lack of 
protection there. Based on the above, this reviewer suggested that the 
rule should be strengthened to include standards which would bar 
further development of roads or other access routes to archeological 
sites. In addition, this reviewer recommended that all interpretation 
activities occur off-site unless a site is already developed and 
regularly visited, in which case Forest Service personnel should be 
available at the site to interpret it and guard against theft and 
vandalism.
    Response: The recent incidents of vandalism at Pittsburgh Landing, 
a popular recreation site, are truly unfortunate. The Forest Service is 
currently evaluating steps that can be taken to prevent a recurrence of 
this type of incident in the future. The agency strongly believes that 
these incidents are the exception rather than the rule and that 
thousands of people enjoy and learn from the historic and archeological 
properties in the HCNRA every year.
    The agency does not believe that the reviewer's recommended 
modifications to the rule would significantly strengthen the protection 
afforded cultural resources in the HCNRA. Sufficient authority exists 
under the standards of this rule to address problems like the one 
experienced at Pittsburgh Landing on a case by case basis. While the 
reviewer's recommendations would not necessarily improve the level of 
protection afforded under the rule, it would greatly impair efforts to 
manage these resources for education and enjoyment. As a result, this 
suggestion did not result in a change in the final rule.
    Comment: Funding for the protection of cultural resources should be 
a priority for the HCNRA and should be written into the rule. One 
reviewer noted that funding for the protection of cultural resources 
should be one of three funding priorities for the HCNRA and that this 
should be explicitly written into the rule.
    Response: Funding for the various functions and operations of the 
HCNRA, or any other unit of the National Forest System for that matter, 
is extremely complicated and depends on, among other things, the annual 
budget and appropriations processes. Establishing priorities in a rule 
is neither appropriate nor an accepted means of allocating funds.

2. Section 292.44, Use of Motorized and Mechanical Equipment

    The proposed rule established four standards for the use of 
motorized and mechanical equipment in the Other Lands of the HCNRA. 
Briefly, the standards for the Other Lands were: (1) that motorized and 
mechanical equipment could be used on Forest Service roads and 
airstrips; (2) that motorized and mechanical equipment could be used on 
Forest Service trails if the use is compatible with Section 7 of the 
Act; (3) that mechanical equipment could be used off roads, airstrips, 
and trails if the use is compatible with Section 7 of the Act; and (4) 
that motorized equipment would be prohibited off roads, airstrips, and 
trails unless it was necessary to comply with Section 7 of the Act. For 
the Wilderness Lands in the HCNRA, the proposed rule simply explained 
that the use of motorized and mechanical equipment was prohibited 
except as provided for under the Wilderness Act. The Wilderness Act 
prohibits the use of motorized and mechanical equipment except for 
administrative purposes, and to control fire, insects, and disease.
    The proposed rule adopted the definitions of ``motorized 
equipment'' and ``mechanical transport'' currently located in 36 CFR 
293.6 rather than derive a new definition for these terms. The proposed 
rule also exempted from these standards administrative functions, 
scientific research, public health or safety emergencies, access to 
inholdings, and timber harvesting, grazing and mining as authorized 
under this rule.
    Comment: The definition of motorized and mechanical equipment is 
confusing. Several reviewers commented that the definition of motorized 
and mechanical equipment in the proposed rule was confusing and that a 
specific definition for those terms should be provided rather than 
including a cross reference to another section of the Code of Federal 
Regulations (CFR). One reviewer suggested that the rule adopt the terms 
``motorized equipment'' and ``mechanical transport'' as used in the 
Wilderness Act.
    Response: The Forest Service agrees and has included a full 
definition of motorized and mechanical equipment in Sec. 292.41 of the 
final rule rather than a citation to a different section of the CFR. 
The meaning of this term is unchanged. The final rule does not 
substitute ``motorized equipment'' and ``mechanical transport'' for 
``motorized and mechanical equipment'' since the latter term was 
specifically used in Section 10(c) of the Act.
    Comment: The exceptions to the standards restricting use of 
motorized and mechanical equipment in the HCNRA swallow the rule. One 
reviewer felt that the exceptions for administration, access, research, 
health and safety, timber harvesting, grazing and mining listed at the 
beginning of this section rendered the motorized and mechanical 
equipment use standards of little force and effect.
    Response: The Forest Service disagrees. The exceptions listed in 
this section are intended to be narrowly construed. They were deemed 
necessary for two reasons. The administrative, access, research, and 
health and safety exceptions were thought necessary to meet the 
fundamental needs of the Forest Service to administer the HCNRA in 
conformance with the Act. The timber harvesting, mining, and grazing 
exceptions were deemed necessary to avoid any potential internal 
conflict between this section and the sections governing those 
activities. That is, conceivably some activities that could be 
authorized under the timber harvesting, mining, or grazing activities 
sections of the rule could be foreclosed if the use of motorized or 
mechanical equipment was required for these activities but prohibited 
under this section. Therefore, the Forest Service decided that, in 
those limited circumstances prescribed by this rule where timber 
harvesting, mining or grazing could occur within the HCNRA, the 
standards for use of motorized and mechanical equipment could not 
operate to impair or preclude that activity.
    Comment: More restrictive conditions should apply to the use of 
motorized and mechanical equipment in the HCNRA. Two reviewers urged 
that the restrictions on the use of motorized and mechanical equipment 
should be more stringent. One reviewer urged that all motorized 
equipment should be banned which conflicts with non-motorized use of 
the HCNRA. Another reviewer urged that all use of motorized and 
mechanical equipment should be prohibited except that necessary for 
emergency responses and for the delivery of mail. Another reviewer 
suggested that the impacts of the use of motorized and mechanical 
equipment on rivers and fish and wildlife habitat should be evaluated 
and banned where damage can be documented.
    Response: More restrictive conditions on the use of motorized and 
mechanical equipment as described above are both unnecessary and 
undesirable. The Forest Service believes that conflicts between 
motorized and non-motorized use can be better addressed through the 
planning process and amendments to the Comprehensive Management Plan 
which would designate roads and trails where the use of motorized 
equipment can occur. The agency also believes that an outright ban on 
all use of motorized and mechanical equipment except to deal with 
emergencies and to deliver mail is not a reasonable proposal in light 
of the Act's acknowledgment that such use is permissible, the sheer 
magnitude of the HCNRA, and the nature of the agency's administrative 
and other responsibilities.
    Comment: Off Road Vehicles (ORVs), All Terrain Vehicles (ATVs), 
Bulldozers, and other Land Disturbing Vehicles should be Specifically 
Addressed in the Rule. One reviewer commented that the above types of 
vehicles should be expressly dealt with in the rule.
    Response: ORVs, ATVs, bulldozers and other land disturbing vehicles 
are covered by the definition of motorized equipment. Specific 
reference to these types of vehicle is not necessary.
    Comment: Activities on or uses of the Other Lands in the HCNRA that 
could be authorized under these standards may be contrary to the Wild 
and Scenic Rivers Act. As described in the General Comments section 
above, one reviewer noted that the standards for Other Lands which 
authorized the use of motorized and mechanical equipment off of roads, 
trails, and airstrips subject to its consistency with the management 
objectives of Section 7 of the Act presented a potential conflict where 
wild and scenic river corridor lands were concerned. The potential for 
conflict would be exacerbated on wild and scenic river segments 
classified as ``wild'' which is defined by the Wild and Scenic Rivers 
Act as ``* * * generally inaccessible except by trail, which watersheds 
or shorelines essentially primitive.'' 16 U.S.C. Sec. 1274(b).
    Response: The Forest Service agrees with this reviewer's 
observations and has split out Wild and Scenic Rivers from the Other 
Lands category. Accordingly, in Section 292.41, the definition of 
``Other Lands'' has been modified to exclude Wild and Scenic Rivers 
from its scope and the definition of ``Wild and Scenic Rivers'' has 
been modified to clarify that lands within the wild and scenic corridor 
are included as part of this category.
    In this section, the final rule includes two new standards for wild 
and scenic rivers. The first authorizes the use of this equipment on 
segments designated ``scenic'' or ``recreational'' provided that such 
use is compatible with the Wild and Scenic Rivers Act. The second 
authorizes the use of this equipment on segments designated ``wild'' 
only if this use is necessary to protect and enhance the values for 
which the river was designated.
    Comment: The role of airstrips in the HCNRA. Several reviewers 
objected to the number and use of airstrips in the HCNRA and urged that 
standards should be adopted which would reduce or eliminate airstrips 
in the HCNRA. One reviewer remarked that the term ``designated'' should 
apply to airstrips as well as roads and trails.
    Response: There are only eight airstrips in the 625,00 acre HCNRA. 
These airstrips have been used for more than 40 years. Of these eight 
strips, seven are primitive, two-wheeled routes on naturally flat land 
surfaces. Only one is roughly surfaced with rock to allow for water 
drainage. The primitive strips do not appear on Forest Service or FAA 
maps and are primarily used for low use and emergency landings. The 
Forest Service believes that the primitive landing strips are a 
necessary adjunct of administering an area as expansive as the HCNRA 
and may be an important, though seldom used, safety feature. Whether 
and to what extent some or all of these airstrips should be closed is 
an issue that should be discussed in the context of the Comprehensive 
Management Plan and not this rule. The Forest Service has inserted the 
term ``designated'' as a modifier for ``airstrips'' in the final rule.

3. Section 292.45, Use of Motorized and Non-Motorized Rivercraft

    The proposed rule established seven standards for the use of 
motorized and non-motorized rivercraft in the HCNRA. The standards only 
applied to the Snake, Rapid, and Imnaha Wild and Scenic Rivers and any 
other rivers in the HCNRA which might be subsequently designated 
pursuant to the Wild and Scenic Rivers Act. Briefly, the standards 
were: (1) that the use of non-motorized rivercraft was authorized 
subject to certain terms and conditions; (2) that the use of motorized 
rivercraft was prohibited except on the Snake Wild and Scenic River; 
(3) that all rivercraft use is subject to boating safety and 
registration laws; (4) that the use of motorized and non-motorized 
rivercraft on the Snake River required prior written authorization and 
was subject to certain terms and conditions; (5) that the authorization 
of motorized and non-motorized rivercraft use on the Snake River must 
reasonably accommodate private and commercial users of each type of 
rivercraft; (6) that authorization of motorized and non-motorized 
rivercraft use on the Snake River must not exceed the user capacity of 
the Snake River; and (7) that authorization of motorized and non-
motorized rivercraft use on the Snake River must be done in such a way 
as to minimize conflicts between motorized and non-motorized rivercraft 
users and between rivercraft users and all other users of the Snake 
River.
    By far, the greatest number of comments received on the proposed 
rule concerned this section. The comments were exceptionally diverse, 
generally sound, and frequently included diametrically opposed 
solutions to improve the rule. For instance, some reviewers concluded 
that no conflict existed between motorized and non-motorized rivercraft 
use, others concluded that the conflict threatened the very integrity 
of the HCNRA. Some reviewers felt that the commercial users were 
principally responsible for the conflict, others concluded that the 
private users were as much, if not more, to blame. Some reviewers 
wanted to accommodate personal watercraft (jet ski) use in the HCNRA, 
others wanted to prohibit it.
    Comment: The Forest Service lacks the legal authority to regulate 
rivercraft use on the Snake and Salmon Rivers. One reviewer argued that 
the Forest Service had vastly exceeded the scope of its legal authority 
by developing standards for recreational uses of rivercraft on the 
Snake and Salmon Rivers since those rivers are navigable waterways and 
thus ``owned'' by the States of Oregon and Idaho. Accordingly, this 
reviewer suggested that only Oregon and Idaho could regulate 
recreational activities on the Snake and Salmon Rivers. The Forest 
Service authority could only extend to activities on those streams that 
could be regulated pursuant to the Property and Commerce Clauses of the 
Constitution. The only way a standard in this section could be valid 
under the Property Clause would be if that standard was ``reasonably 
necessary to protect federal land.'' Likewise, the only way a standard 
in this section could be valid under the Commerce Clause would be if 
that standard was related to and necessary for navigation. The reviewer 
noted that standards in the proposed rule dealing with safe use and 
enjoyment of the river, seasons of use, noise limits, user capacity, 
and conflicts between rivercraft and other users of the HCNRA all 
exceeded the federal government's limited authority under the Commerce 
and Property Clauses.
    Response: The Forest Service disagrees and believes that the 
reviewer has adopted an unusually pinched view of the Federal 
Government's authority under the Commerce and Property Clauses of the 
Constitution.
    Congress has defined ``navigable waters'' to include those parts of 
streams or other bodies of water over which Congress has jurisdiction 
under its authority to regulate commerce with foreign nations and among 
the several states, and which either in their natural or improved 
condition are used or suitable for use for the transportation of 
persons or property in interstate or foreign commerce. 16 U.S.C. 
Sec. 796(8). It would appear, based on the above definition, that the 
Snake River clearly qualifies as a navigable water of the United 
States.
    Assuming the Snake River is navigable, the Federal Government has 
paramount control over it for purposes or regulating interstate and 
foreign commerce. The power of the United States over navigable waters 
extends to any matter that may properly be considered a regulation of 
interstate or foreign commerce on such waters and is not limited to 
control for purposes of navigation only. In United States v. 
Appalachian Electric Power Co., 311 U.S. 377, 426 (1941), the Supreme 
Court categorically rejected a similar view to that proffered by this 
reviewer when it stated,

    In our view, it cannot properly be said that the constitutional 
power of the United States over its waters is limited to control for 
navigation. By navigation, respondent means no more than operation 
of boats and improvement of the waterway itself. In truth, the 
authority of the United States is the regulation of commerce on its 
waters. Navigability, in the sense just stated, is but a part of 
this whole. Flood protection, watershed development, recovery of the 
cost of improvements through utilization of power are likewise parts 
of commerce control.

While the States may exercise substantial control over navigable 
waters, they may only do so to the point that it is not inconsistent 
with federal actions or functions and does not materially or 
unreasonably interfere with or burden commerce.
    In this instance, as the reviewer correctly pointed out, the 
Federal Government may also regulate under the Property Clause of the 
Constitution which enables Congress to ``* * * make all needful rules 
and regulations respecting the * * * property of the United States.'' 
U.S. Const. Art. IV, Sec. 3, cl. 2. The reviewer also correctly noted 
that such regulations may regulate conduct on non-federal land when 
reasonably necessary to protect adjacent federal property or navigable 
waters. United States v. Lindsay, 595 F.2d 5, 6 (9th Cir. 1979).
    Inasmuch as a considerable amount of commerce takes place on the 
Snake River annually and thousands of acres of National Forest land 
surround it, the Forest Service believes that each of the standards 
challenged by the reviewer is authorized under either the Commerce 
Clause or the Property Clause.
    Comment: Because the Forest Service has been unable to demonstrate 
that a conflict exists involving motorized and non-motorized 
rivercraft, this section should be eliminated. One reviewer commented 
that he had repeatedly requested information from the Forest Service 
concerning the existence and scope of the conflict between motorized 
and non-motorized rivercraft and, to date, had not received a 
satisfactory response from the agency. Therefore, this reviewer stated 
that this section of the rule is unnecessary and should be deleted.
    Response: As a factual matter, there may be some dispute over the 
existence of a conflict between motorized and non-motorized rivercraft. 
Contrary to this reviewer, several other noted that the conflict 
between rivercraft users was extreme.
    However, the reviewer misses the point by suggesting that a 
conflict must exist in order to justify this regulation. As described 
in some detail above, the Act authorized the Secretary to promulgate 
regulations for ``the control of the use and number of motorized and 
non-motorized rivercraft * * *''. The United State Court of Appeals for 
the 9th Circuit concluded that this authority was non-discretionary in 
ONRC v. Lyng. Therefore, regardless of the existence or absence of a 
conflict, this rule must be promulgated.
    Comment: The standards should not distinguish between designated 
wild and scenic rivers and other rivers in the HCNRA. Several reviewers 
commented that it was confusing and potentially difficult to comply 
with the standards in this section that pertained only to rivers in the 
HCNRA that had been designated wild and scenic. Most reviewers thought 
that the standards should be more broadly applied to all rivers in the 
HCNRA regardless of wild and scenic designation. One reviewer felt that 
this section improperly overemphasized wild and scenic rivers over the 
HCNRA.
    Response: The Forest Service agrees that the selective application 
of standards to motorized and non-motorized rivercraft use based solely 
on the location of the craft on a river might be difficult to comply 
with and to administer. This would especially be the case on the Snake 
River where one segment of the river is undesignated while the adjacent 
segments are designated. Therefore, the scope of the section dealing 
with rivercraft use standards will be broadened to apply to rivers 
throughout the HCNRA.
    Wild and scenic rivers have not been overemphasized in this rule. 
It is important to remember, though, that the wild and scenic rivers in 
the HCNRA are administered pursuant to the Wild and Scenic Rivers Act, 
not the HCNRA Act. The inclusion of this language simply ensures that 
the application of these standards to wild and scenic rivers will not 
be contrary to direction in the Wild and Scenic River Act.
    Comment: Motorized use of the ``wild'' sections of the Snake Wild 
and Scenic River should be prohibited. One reviewer noted that 
notwithstanding the HCNRA Act's recognition of motorized rivercraft use 
as ``valid'' on the Snake River, such use is inconsistent with and 
should be prohibited on those segments of the Snake Wild and Scenic 
River that are classified as ``wild'' under the Wild and Scenic Rivers 
Act.
    Response: The legislative history of the Act indicates that a 32.4 
mile segment of the Snake River, from Hells Canyon Dam downstream to 
Pittsburg Landing is classified as a ``wild'' river under the Wild and 
Scenic Rivers Act. 94th Cong., 1st Sess., Comm. on Interior and Insular 
Affairs, Rept. No. 153 at 4 (May 22, 1975).
    Section 2(b) of the Wild and Scenic Rivers Act defines ``wild'' in 
the context of classifying segments of rivers designated under the Wild 
and Scenic Rivers Act as ``[t]hose rivers or sections of rivers that 
are free of impoundments and generally inaccessible except by trail, 
with watersheds or shorelines essentially primitive and waters 
unpolluted. These represent vestiges of primitive America.'' 16 U.S.C. 
Sec. 1272(b)(1). In the Guidelines for Eligibility, Classification, and 
Management of River Areas (hereafter ``Guidelines'') published jointly 
by the Department of the Interior and the Department of Agriculture, 
the criteria for classifying a river segment as ``wild'' was further 
detailed. 47 Federal Register 39454, 39457 (Sept. 7, 1982).
    Based on the above, ``wild'' as defined in the Wild and Scenic 
Rivers Act and further developed in the Guidelines relates principally 
to the quantum and type of development that exists on the shorelines 
and in the corridors through which a wild and scenic river traverses. 
It does not relate to the type of rivercraft used on the river itself.
    Even assuming that the definition of ``wild'' in the Wild and 
Scenic Rivers Act could be construed to foreclose or discourage 
motorized use on segments so classified, Section 10 of the HCNRA Act 
included a clear expression of congressional intent that recognized 
motorized rivercraft use of the Snake River as valid. The Forest 
Service believes that this clear statement of congressional policy in 
the HCNRA Act overcomes any contrary interpretation of the Wild and 
Scenic Rivers Act and Guidelines which might be proffered as a means of 
categorically prohibiting motorized rivercraft use on the Snake River.
    Comment: Specific standards for motorized rivercraft use of the 
Snake River should include provisions for slowing for floaters, speed 
limits for specific locations, noise level limits, no-wake zones, use 
of music or sound devices, water skiing, visible identification 
numbers, limited jet boat runs, defining jet boat launches, prohibiting 
operation while under the influence of intoxicants, requiring fuel 
leakage reduction, rights of way for floaters in rapids, prohibiting 
jet skis and other nontraditional rivercraft. One reviewer argued that 
the proposed rule, in general, is ``grossly inadequate'' and this 
section, in particular, ``completely fails to satisfy the requirement 
of the NRA Act * * *''. This reviewer interpreted the 9th Circuit 
decision in ONRC v. Lyng as requiring site specific standards tailored 
to the unique situation on the Snake River where both motorized and 
non-motorized rivercraft use is present. The proposed regulations, 
however, ``simply defer to another undescribed forum, and have 
virtually no force in carrying out the requirements of the Act.'' To 
remedy this flaw, this reviewer asserted that the above lengthy and 
nearly exhaustive list of standards should be included in this section 
and posted at all portals. Furthermore, the reviewer stated that all 
jet boat operators should be required to sign a statement that they 
have read and understood these standards.
    Response: The scope and extent of standards which this reviewer 
seeks to include in this rule is not legally mandated under either the 
Act or the 9th Circuit's decision in ONRC v. Lyng. The Act authorized 
regulations ``for the control of the use and number of motorized and 
non-motorized rivercraft; Provided that the use of such craft is hereby 
recognized as a valid use of the Snake River within the recreation 
area.'' 16 U.S.C. Sec. 460gg-7(d). The 9th Circuit decision in ONRC v. 
Lyng merely interpreted the Act as mandating the promulgation of 
``nonduplicative regulations of the sort described by Sections 10(a) 
through (e).'' Neither the Act nor the 9th Circuit prescribed the form 
or content that those regulations should take.
    Not only are the adoption of standards in this rule such as those 
recommended by this reviewer not legally required, they are also not 
conducive to prudent and responsible land and resource management. The 
Forest Service believes that the inclusion in rule form of these 
standards would hamstring their ability to administer the HCNRA in 
conformance with the Act. For instance, the inclusion of these 
standards in this rule might require the agency to allocate scarce 
resources for enforcement of matters which rate relatively low in an 
overall scale of management priorities. Furthermore, the standards 
would inevitably become obsolete at some point in the future. That 
point could come in six weeks, six months, or six years and could 
depend on advances in science, technology, or the law. It could also 
simply be dependent on changing social norms. Once the point of 
obsolescence was reached, however, another rulemaking would be 
necessary. This is a poor way to address and respond to development 
which requires a shift in management emphasis.
    Far better from the agency's point of view that these developments 
be accommodated in the Comprehensive Management Plan. This document can 
be amended and revised more expeditiously than a regulation which 
requires notice and comment under the Administrative Procedures Act. Of 
course, as was noted in the proposed rule, management direction in the 
Comprehensive Management Plan would necessarily have to conform with 
the provisions of the Act and the standards in this rule.
    Finally, the agency wishes to point out that one of the standards 
in the proposed rule required compliance with all Federal and State 
boating safety and registration laws. This would include, but not be 
limited to the Idaho Safe Boating Act, I.C. Secs. 67-7001 et seq., and 
the Oregon Small Watercraft Act, O.R.S. Secs. 830.005 et seq. Many of 
the items that the reviewer wanted to include as explicit standards in 
this rule are amply treated in these enactments and may be enforced in 
the HCNRA pursuant to this provision in the rule.
    Comment: Rivercraft use standards should not discriminate against 
users of personal watercraft in the HCNRA. One reviewer wrote to ensure 
that standards for the use of motorized rivercraft not unfairly 
discriminate against personal watercraft which are commonly, though 
incorrectly, referred to as ``jet skis.'' This reviewer acknowledged 
that the proposed rule did not, on its face, include any such 
discrimination and encouraged that any further refinement of these 
standards in the final rule or Comprehensive Management Plan classify 
and treat personal watercraft just like any other form of motorized 
rivercraft.
    Response: The reviewer is correct that no attempt is made in this 
rule to consider personal watercraft separately from other forms of 
motorized rivercraft. However, the inclusion of personal watercraft, 
jet boats, motor boats, and other vessels as ``motorized rivercraft'' 
in this rule does not mean that they are identical or should be treated 
identically in all situations that may arise in the future. Clearly, 
there are differences in the size, weight, speed, maneuverability, and 
other features of these vessels which may suggest, or indeed dictate, 
that they be under different management regimes in order to protect the 
HCNRA or to protect public health and safety. Those management 
decisions will be made in the context of the Comprehensive Management 
Plan. In the event such management decisions distinguishing between the 
various types of motorized rivercraft are made, they would be well-
reasoned, based on credible evidence, and would include the benefit of 
public involvement.
    Comment: The term ``carrying capacity'' should be used instead of 
``user capacity.''  Several reviewers urged that the term ``carrying 
capacity,'' rather than the term ``user capacity,'' be employed in the 
section concerning standards for rivercraft use. One reviewer felt that 
the phrase ``limits of acceptable change'' would be preferable to 
``user capacity'' or ``carrying capacity'' for determining the 
benchmark for rivercraft use. The reviewers encouraged that these terms 
should be defined.
    Response: The Forest Service agrees with the reviewers who felt 
that the term ``carrying capacity'' was more appropriate in this rule 
and has substituted that term for ``user capacity'' in the final rule. 
However, since this is a well understood term in the planning and 
recreation professions and would not be subject to a special meaning 
under this rule, a definition is deemed unnecessary.
    Comment: Definitions should be included in the rule for 
``numbers,'' ``values,'' ``user conflicts,'' ``seasons,'' ``noise 
limits,'' ``private users,'' and ``commercial users.'' One reviewer 
noted that several key terms in this section of the rule should be 
specifically defined. Presumably, this reviewer felt that definitions 
would be necessary to ensure that the Forest Service's interpretation 
is not unreasonable, is not changed over time, or is not selectively 
applied.
    Response: The above terms are neither unusual nor do they have a 
special connotation as applied in this rule. Common sense will be the 
guide in defining these terms. Special definitions in this rule are 
unnecessary for these terms.
    Comment: Rivercraft use levels should be restricted to the levels 
in existence as of 1975, the date of establishment of the HCNRA. Two 
reviewers commented that rivercraft use has greatly expanded since 
Congress designated the HCNRA in 1975 and that this rule should be used 
to scale back the amount of rivercraft use to 1975 levels.
    Response: In enacting the Act, Congress authorized regulations for 
``the control of the use and number of motorized and non-motorized 
rivercraft; Provided that the use of such craft is hereby recognized as 
a valid use of the Snake River within the recreation area.'' There is 
no indication in the Act that Congress intended to restrict the use of 
rivercraft to the level that existed in 1975. Clearly, Congress could 
have included such a condition if it had been so inclined.
    Absent clear congressional expressions in the Act stipulating that 
rivercraft use be locked into 1975 levels, the Forest Service has 
adopted the well-reasoned and balanced approach that the amount of 
rivercraft use will depend on what use can be sustained while meeting 
the management goals and objectives of the Act and the Wild and Scenic 
Rivers Act. Therefore, the Forest Service declines to modify the rule 
in the manner recommended by these reviewers.
    Comment: The authorization of motorized rivercraft use should 
extend to that portion of the Salmon River in the HCNRA. One reviewer 
mentioned that a short \1/4\ mile segment of the Salmon River is 
located within the HCNRA and that motorized rivercraft are currently 
used on this segment. This reviewer urged that the standards be revised 
to extend the authorization of motorized rivercraft to this \1/4\ mile 
segment of the Salmon River.
    Response: The Forest Service agrees that the standard which 
prohibits motorized rivercraft use in the HCNRA should exclude both the 
Snake River and that portion of the Salmon River in the HCNRA. The rule 
has been changed accordingly.
    Comment: Violations of the standards of this section should result 
in forfeiture of private land. One reviewer explained that compliance 
with the provisions of this section is as important as compliance with 
the land uses set out in the private rules. Therefore, this reviewer 
queried why violations of the motorized rivercraft standards shouldn't 
also result in the forfeiture of private land.
    Responses: The ``private rules'' referred to by this reviewer are 
the recently adopted final regulations under Section 10(a) of the Act 
which established standards for the use and development of private 
land. That rule established standards and guidelines for development of 
privately-owned land in the HCNRA which, if violated, could lead to the 
Forest Service's acquisition of the land or an interest therein with or 
without the landowner's consent. Acquisition without the landowner's 
consent is technically referred to as ``condemnation,'' not 
``forfeiture.'' Since the Forest Service may not regulate private land 
uses per se, condemnation was deemed to be the most effective means by 
which the agency could ensure that private land uses and developments 
would not compromise the integrity of the HCNRA. Condemnation of 
private land would be a highly inappropriate response to violations of 
the motorized rivercraft use standards. Condemnation is available only 
to acquire lands used in a manner inconsistent with the private land 
use regulations. Use of watercraft has nothing to do with private 
lands. The rule already includes a sufficient array of mechanisms by 
which the standards of this section can be enforced. These enforcement 
mechanisms include issuing citations under 36 CFR Secs. 261 et seq., 
revoking the authorization for rivercraft use, or pursuing an 
injunction in a civil enforcement action.

4. Section 292.46, Timber Harvesting Activities

    The proposed rule established two standards for timber harvesting 
in the Other Lands of the HCNRA. Briefly, the standards for the Other 
Lands were: (1) that timber could only be harvested to protect and 
enhance ecosystem health and wildlife habitat, promote recreational 
activities, remove hazard trees, or in response to disease or pest 
infestation, fire, flood, earthquake, or similar natural events; and 
(2) that where authorized, the harvesting could be accomplished only by 
means of selective or intermediate cuttings in which the openings 
created by the cutting would be limited to the minimum size and number 
necessary to accomplish the purpose of the harvest. For the Wilderness 
Lands in the HCNRA, the proposed rule simply explained that timber 
harvesting was prohibited except in accordance with the provisions of 
the Wilderness Act.
    Comment: The rule should expressly include a standard stating that 
timber will not be harvested principally for commercial purposes. Two 
reviewers noted that in the preamble to the proposed rule it was noted 
that timber would not be harvested solely for commercial gain but that 
this statement was not reiterated in the text of the proposed rule. 
These reviewers recommended that the text of the regulation include 
this language. One of these reviewers also noted that the primary 
objective of these standards should be to overrule and void the 
provision in the Comprehensive Managemment Plan that includes forests 
in the HCNRA as part of the regulated component of the Wallowa-Whitman 
National Forest timber base.
    Response. The Forest Service agrees and has revised the first 
standard in this section to explain that timber may ``only'' be 
harvested for the reasons set out in this standard. In so doing, the 
Forest Service expects that the situations where timber harvesting may 
be authorized will be better understood. It should be noted, however, 
that in those instances where timber harvesting is consistent with the 
standards in this rule, it will usually be accomplished by means of a 
commercial harvest. That is, the Forest Service will identify the area 
where harvesting is desired and the conditions under which the 
harvesting can occur. Then a written agreement would be entered into 
with a timber purchaser who would carry out the harvest in accordance 
with the terms and conditions of the agreement.
    The inclusion of a specific standard overruling that portion of the 
Comprehensive Management Plan is unnecessary since Sec. 292.42 clearly 
states that ``[t]he standards and guidelines of this [rule] 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.''
    Comment: Timber harvesting by means of intermediate cutting should 
be eliminated. Several reviewers were critical of the inclusion of 
``intermediate cutting'' as a viable means of harvesting timber where 
that activity would be authorized under the standards for the HCNRA. 
They urged that the term be removed.
    Response: Where authorized under the standards in this rule, the 
Forest Service will restrict timber harvesting to selective cutting in 
conformance with the standards in this rule. All references to 
``intermediate cutting'' have been removed from the final rule.
    Comment: Insect infestation, rather than pest infestation, should 
be listed as a recognized purpose of timber harvesting in the HCNRA. 
One reviewer felt that it was more appropriate and less pejorative to 
use the term ``insect infestation'' instead of ``pest infestation'' to 
describe one of the purposes for which timber harvesting may be engaged 
in the HCNRA.
    Response: The Forest Service agrees and has inserted the term 
``insect'' for the term ``pest'' in the final rule.
    Comment: Timber harvesting should be authorized only in situations 
where hazard trees threaten popular sites and where fires threaten 
campgrounds or picnic areas. One reviewer was concerned that the 
exceptions under which timber harvesting could be authorized were too 
broad and would be abused by the Forest Service. This reviewer 
suggested that timber harvesting should only occur to remove hazard 
trees from popular areas or to protect campgrounds or picnic areas from 
fire. Otherwise, there should be no further logging in the HCNRA.
    Response: Section 13 of the Act recognizes the harveting of timber 
as a valid use of the HCNRA. Section 10 of the Act authorizes 
regulations for timber harvesting as are consistent with the management 
objectives of the HCNRA which include, among other things, the 
protection of free-flowing streams, the conservation of scenic, 
wilderness, cultural, and scientific values, the preservation of 
biologically unique features, the protection of fish and wildlife 
habitat, the protection of archeological and paleontologic sites, and 
the preservation and restoration of historic sites.
    The standards in this section fully comply with the management 
objectives of the Act. Furthermore, additional limitations on 
situations where harvesting could be authorized may severely impair the 
agency's ability to administer the HCNRA in conformance with the Act. 
As a case in point, consider the windstorm that blew down several acres 
of spruce trees in a roadless area just outside the HCNRA boundary a 
few years ago. There, a decision was made not to harvest those tree. 
Subsequently, an endemic spruce bark beetle population grew to epidemic 
proportions, spreading out from the site of the original blowdown and 
killing most of the spruce trees in the HCNRA. Many of these spruce 
trees were located near streams and in riparian areas which have 
suffered in their absence from the loss of critical shade which kept 
the streams cool and root systems which kept the streambanks 
stabilized. In hingsight, it is worth considering whether this loss of 
trees and resultant damage to riparian areas could have been averted by 
the prompt removal of the windthrown trees.
    These standards will enable the agency to address this type of 
situation efficiently and with due regard for the resources in the 
HCNRA and objectives for which they are to be managed.
    Comment: Where timber harvesting is to be authorized it should be 
done sensitively, holistically, or by using non-mechanized equipment 
like draft horses. Several reviewers urged that in those cases where 
timber harvesting would be authorized under the standards in this rule, 
it should be accomplished in the most sensitive manner possible. For 
example, these reviewers recommended that draft horse logging could be 
required as an alternative to the construction of costly and 
environmentally damaging logging roads.
    Response. When authorized under this rule, timber harvesting 
activities will be conducted using the most appropriate technique that 
fits the particular situation. Clearly, in some instances logging by 
means of draft horses would be feasible and entirely appropriate. In 
other cases, harvesting by mechanized and/or motorized equipment may be 
necessary due to the location of the harvest and/or the urgency 
associated with it. All of these factors will be duly considered in 
fashioning the harvest method.
    Timber harvesting will be conducted using an ecological approach to 
management, subject to the limits imposed by this rule, and will 
generally be designed to maintain or create forest vegetation patterns 
and landscapes that mimic those from historic natural disturbances.
    Comment: Standards for timber harvesting activities within wild and 
scenic river corridors in the HCNRA are inconsistent with the Wild and 
Scenic Rivers Act. One reviewer remarked that the timber harvesting 
standards for Other Lands in the HCNRA would result in the 
authorization of certain timber harvesting activities within wild and 
scenic river corridors that exceed the legal authority for such 
activities under the Wild and Scenic Rivers Act. This would 
particularly be the case on wild and scenic river segments classified 
``wild'' under the Wild and Scenic Rivers Act.
    Response. The Forest Service believes that the standards in the 
proposed rule for Other Lands were sufficiently restrictive that they 
would pass muster under the Wild and Scenic River Act where wild and 
scenic river corridor lands were involved. However, in order to 
maintain consistency with the other sections of this rule, separate 
timber harvesting standards have been developed in the final rule for 
wild and scenic river corridor lands and the other non-wilderness 
National Forest Lands in the HCNRA.
    For river segments classified ``scenic'' or ``recreational,'' 
timber may be harvested only when to do so would protect and enhance 
the values for which the river was designated. For river segments 
classified ``wild,'' timber could only be harvested to provide for 
recreational facilities like trails, remove hazard trees, or to respond 
to natural events. In those cases where timber harvesting would be 
authorized within the corridors of wild and scenic rivers, the harvest 
would be conducted in the same manner as harvests on the Other Lands of 
the HCNRA.

5. Section 292.47, Mining Activities

    The proposed rule established four standards for mining activities 
in the Other Lands of the HCNRA. These same four standards and an 
additional one were established for mining activities in the Wilderness 
Lands in the HCNRA. Briefly those standards were: (1) That all mining 
activities were prohibited subject to valid existing rights; (2) that 
the impact of mining activities would be limited and directed away from 
Wilderness Lands and Wild and Scenic Rivers; (3) that mineral materials 
may be used in the HCNRA only for the construction and maintenance of 
roads, airfields, trails, and recreation developments; (4) that sources 
of mineral materials should be located outside the HCNRA unless the 
costs are significant or the transportation presents a safety concern; 
and (5) that the extraction of mineral materials is prohibited on 
Wilderness Lands.
    Comment: Restrictions by the United States on mining activities in 
the bed and banks of navigable rivers in the HCNRA are impermissible 
since that land is owned and controlled by the States of Oregon and 
Idaho. One reviewer contended that the bed and banks of the Snake River 
below the mean high water line are owned by the States of Oregon and 
Idaho and therefore any mining activities occurring thereon would be 
subject to the control of the state, not the federal, government. This 
reviewer encouraged the Forest Service to clarify the ownership of 
these lands in the final rule in order to avoid future confusion.
    Response: At the outset, it should be noted that no provision in 
the proposed rule purported to prohibit or restrict mining activities 
on non-National Forest System lands. Section 292.42(b) of the proposed 
rule specifically stated that the standards in the rule applied only to 
National Forest System lands in the HCNRA. Obviously, lands owned by 
the States of Oregon and Idaho would not fall under the provisions of 
this rule.
    The Forest Service agrees that clarifying the issue of who owns the 
bed and banks of navigable rivers in the HCNRA and who has regulatory 
authority over them would be beneficial and may reduce the potential 
for controversy and confusion in the future. However, such 
clarification cannot be done in this Federal Regulation since it may 
involve the adjudication of property rights.
    The reviewer is correct that the rights and interests in the beds 
and banks of navigable waters are owned by the state in which they are 
located, and that the regulation of the land under navigable waters is 
properly the subject of the state's police power regulatory authority. 
However, the state's regulatory authority over these matters is not 
absolute. Rather, as is the case with navigable waters, lands 
underneath navigable waters are also subject to the paramount authority 
of the United States. This paramount authority is derived from the 
Commerce and Property Clauses and extends to matters involving 
commerce, navigation, and protection of Federal lands, among other 
things. Mining would clearly fall into the category of activities that 
could be regulated by the United States under this paramount authority.
    Comment: By including activities under the Materials Act of 1947 in 
the definition of ``mining,'' there is an inconsistency in the 
standards which prohibit all mining activities but provide for certain 
mineral material extraction activities. One reviewer noted that the 
standards for mining activities were confusing based on the definition 
of ``mining'' in the rule which encompassed activities under the 
Materials Act. By including the Materials Act in the definition of 
mining, the first standard of Sec. 292.47(a) would be read to prohibit 
all mineral material extraction activities. However, the third and 
fourth standards specifically treat mineral material extraction 
activities.
    Response: The Forest Service agrees that there is an internal 
conflict in the standards of this section based on the definition of 
``mining.'' As a result, the definition of ``mining'' in the final rule 
has been modified to delete references to the Materials Act. The 
standards of the Mining Activities section remain unchanged.
    Comment: Gold panning is a legitimate recreational activity that 
should be accommodated in the rule. One reviewer criticized the 
proposed rule's prohibition of gold panning subject to valid existing 
rights. This reviewer contended that panning was a recreational 
activity, not a mining activity, that could be accomplished without 
threatening the HCNRA if it was limited to hand work and no tools 
except the pan itself. Therefore, this reviewer felt it was 
inappropriate to prohibit this activity.
    Response: Individuals engaged in the extraction of minerals from 
federal lands whether it be by pan, sluice box, suction dredge, or some 
other means, are subject to the applicable federal and state mining 
laws. It is immaterial that the underlying purpose of the mineral 
extraction activity is recreational. It is also immaterial that the 
impact of the mineral extraction activity would not negatively impact 
the HCNRA.
    In this case, Section 11 of the HCNRA Act withdrew all federal 
lands in the HCNRA from the operation of the mining and mineral leasing 
laws subject to valid existing rights. Similar withdrawal provisions 
exist in Section 9 of the Wild and Scenic Rivers Act and Section 
4(d)(3) of the Wilderness Act. This provision did not make an exception 
for mining conducted for recreational purposes nor did it make an 
exception for mining that would not threaten the values for which the 
HCNRA was established.
    Therefore, in order to engage in panning or any other mining 
activity for recreational purposes on federal lands in the HCNRA, it is 
necessary to demonstrate that the individual wishing to engage in that 
activity held valid existing rights prior to the date of withdrawal.
    Comment: If the Mining Law of 1872 is amended, royalties derived 
from mining activities in the HCNRA should go to the HCNRA. One 
reviewer suggested that if the Mining Law of 1872 is amended to provide 
for the payment of royalties, all royalties derived from mining 
activities in the HCNRA should be returned there and be used in the 
administration of the area.
    Response. Currently, as this reviewer indicated, there is no legal 
authority under the Mining Law of 1872 to adopt this reviewer's 
position. Since this comment is based on pure conjecture over whether, 
and to what extent, the Mining Law of 1872 will be amended, it is 
premature to address this comment at this time.
    Comment: No additional gravel pits should be constructed in the 
HCNRA. One reviewer recommended that any mineral materials removed from 
the HCNRA should be taken from existing gravel pits and that no new 
gravel pits should be excavated.
    Response. The proposed rule greatly reduced the potential for 
additional excavation of gravel pits in the HCNRA. It did not, however, 
completely eliminate that possibility. Where non-wilderness HCNRA lands 
are involved, Sec. 292.47(a)(4) of the proposed rule required that 
development of gravel pits or other sites for mineral materials should 
first be considered on lands outside the HCNRA. This section also 
provided that sites within the HCNRA would only be considered if there 
were significant economic or safety reasons militating in its favor. 
Additionally, the proposed rule required that mineral materials used 
inside the HCNRA must be for constructing or maintaining facilities 
that are consistent with and in furtherance of the management 
objectives of the Act. If the mineral materials are used outside the 
HCNRA, it must be for a project which has a direct benefit to the 
HCNRA. Finally, this section directed that a mineral material 
extraction site inside the HCNRA must be reclaimed to its original 
condition, or as close to that condition as is practicable, upon the 
completion of the extraction activities. Section 292.47(b)(2) prohibits 
the extraction of mineral materials in the wilderness lands of the 
HCNRA.
    Given the preference for development of gravel pits and other 
mineral material extraction sites on non-HCNRA lands and the stringent 
controls on the uses to which such mineral materials may be applied and 
the reclamation requirements, the Forest Service does not think it is 
necessary to completely foreclose all potential future development of 
these sites inside the HCNRA. There may come a time when the 
development of a mineral material extraction site inside the HCNRA is 
necessary and appropriate and fully consistent with the purposes for 
which the HCNRA was established. This provision preserves that 
possibility.
    Comment: Additional specifications for revegetation should be 
provided in the rule. One reviewer noted that the standard in 
Sec. 292.47(a)(4) requiring land contouring and reestablishing 
vegetation failed to inform the reader as to the extent of such 
activities that would be required following the extraction of mineral 
materials. This reviewer contended that this provision would be abused 
by those seeking to minimize the responsibility and cost associated 
with such activities. This reviewer recommended that the rule include a 
standard directing that land contouring, revegetation, and other 
appropriate measures be required as necessary to restore the area to 
its original condition.
    Response: The Forest Service agrees that additional clarification 
to this standard is desirable. However, it may be impossible to return 
every mineral material site precisely to its original condition. As a 
result, the new standard will require the party responsible for the 
extraction of mineral materials to reclaim the site to its original 
condition, or as reasonably close thereto as is practicable, by land 
contouring and revegetation. The Forest Service believes that this will 
clarify the purpose of the revegetation and land contouring without 
creating an insurmountable obstacle to mineral material extraction 
activities.
    Comment: Performance bonds should be required prior to the 
initiation of any ground disturbing activity related to mining. One 
reviewer recommended that the rule include a specific provision 
requiring a miner to post a bond which would be sufficient to enable 
the Forest Service to restore the mining site to its original condition 
if the miner does not and to serve as security for compliance with 
other environmental protection requirements.
    Response: Bonding is specifically required by the Forest Service 
for the extraction and development of locatable minerals and mineral 
materials on National Forest System lands with a few minor exceptions. 
These requirements are set forth in 36 CFR 228.13 and 228.51, 
respectively. Since this rule supplements existing authority, it was 
deemed unnecessary to incorporate a specific bonding provision in this 
rule.
    Comment: Geothermal development should be prohibited in the HCNRA. 
One reviewer suggested that the rule should contain a provision 
prohibiting geothermal development in the HCNRA.
    Response: Section 15 of the Geothermal Steam Leasing Act of 1970, 
30 U.S.C. 1014, precludes the issuance of geothermal leases by the 
Secretary of the Interior on National Forest System lands located 
within a national recreation area. Since existing law already precludes 
this type of development in the HCNRA, it was deemed unnecessary to 
include an express provision in the rule reiterating that prohibition.
    Comment: All valid existing rights in the HCNRA should be bought 
out by the Forest Service. Two reviewers suggested that the Forest 
Service consider buying out all current valid existing rights. 
Presumably, in this fashion the Forest Service could consolidate 
landownership patterns, improve administration of the HCNRA, and 
eliminate a potentially incompatible land use from the HCNRA.
    Response: Acquisition of mining lands, or interests therein, in the 
HCNRA is governed by the regulations which established standards for 
the use and development of private lands in the HCNRA which were 
promulgated pursuant to Section 10(a) of the Act. Briefly, those 
regulations are consistent with Section 9(g) of the Act which 
authorized the Secretary to acquire all mining lands in the HCNRA with 
or without the consent of the landowner.
    Although the authority exists to acquire all valid existing mineral 
interests in the HCNRA, it is not viewed by the Forest Service as a 
prudent step to take at this time in light of the prohibitive potential 
cost associated with such acquisitions and the very limited acquisition 
funds available. At this juncture, it is preferable to regulate such 
activity where it exists to protect HCNRA values.

6. Section 292.48, Grazing Activities

    The proposed rule established four standards for the administration 
of domestic livestock grazing activities in the HCNRA. These standards 
applied to both the Other Lands and the Wilderness Lands of the HCNRA. 
Briefly, the standards were: (1) That grazing could only occur on 
rangeland suitable for grazing and in satisfactory condition; (2) that 
domestic livestock grazing practices would be modified if they are 
incompatible with preserving fish and wildlife habitat, recreation 
uses, or other natural resource values and that the grazing would be 
terminated if the incompatibility couldn't be eliminated; (3) that 
range improvements must be designed and located in such a way as to 
minimize their impact on scenic, natural, and other values in the 
HCNRA; and (4) that grazing permits must include provisions to protect 
and conserve riparian areas.
    Comment: Additional restrictions on domestic livestock grazing 
should be instituted in the HCNRA in this rule. Several reviewers 
encouraged the Forest Service to include additional and express 
restrictions on all forms of domestic livestock grazing activity in the 
HCNRA. For instance, one reviewer recommended that all grazing should 
be terminated in the HCNRA and all permits should be ``bought out'' by 
the Forest Service. Another reviewer recommended that grazing in 
designated wilderness areas in the HCNRA should be phased out gradually 
through annual 10% reductions in the numbers of livestock.
    Response. Section 13 of the HCNRA Act states that ``[r]anching 
[and] grazing, * * * are recognized as traditional and valid uses of 
the recreation area.''
    Section 4(d)(4)(2) of the Wilderness Act states that ``the grazing 
of livestock, where established prior to the effective date of this 
Act, shall be permitted to continue subject to such reasonable 
regulations as are deemed necessary by the Secretary of Agriculture.'' 
In the legislative history to the Colorado Wilderness Act of 1980, 
Congress interpreted this provision to mean that grazing permits and 
privileges will not be curtailed or phased out in an area simply 
because that area is designated as wilderness. In a nationwide 
guideline and statement of legislative policy, Congress declared

    There shall be no curtailments of grazing in wilderness areas 
simply because an area is, or has been designated as wilderness, nor 
should wilderness designations be used as an excuse by 
administrators to slowly ``phase out'' grazing. Any adjustments in 
the numbers of livestock permitted to graze in wilderness areas 
should be made as a result of revisions in the normal grazing and 
land management planning and policy setting process, giving 
consideration to legal mandates, range condition, and the protection 
of the range resource from deterioration.

(Designating Certain National Forest System Lands in the National 
Wilderness Preservation System, and for Other Purposes, H. Rept. 617, 
96th Cong., 1st Sess. at 11 (Nov. 14, 1979)).
    Based on the above statutes and legislative history, reductions in 
or outright termination of livestock grazing in the HCNRA or designated 
wilderness in the HCNRA cannot occur simply by virtue of the 
designation of these areas as a national recreation area or a 
wilderness area. Furthermore, even if such a course of action were an 
option, the Forest Service would not have to ``buy out'' the permits. 
Permits to graze on federal lands have been recognized by Congress and 
the courts for almost a century as only conferring a license or 
privilege to graze upon the permittee. As a result, except in extremely 
limited circumstances, cancellation or revocation of grazing permits 
does not require the payment of compensation.
    Based on the above, these reviewers' suggestions are not adopted 
and no change in the rule is necessary.
    Comment: Future of livestock grazing activities in conflict with 
natural, scenic, resource and other values for which the HCNRA 
established. One reviewer suggested that the provision in the proposed 
rule enabling a permittee to modify his or her livestock grazing 
practices to avoid a conflict with the values for which the HCNRA was 
established should be stricken. This reviewer argued that wherever a 
conflict exists, the grazing activity should be terminated since, in 
many instances, the modification proposed to avoid the conflict has an 
equally deleterious impact on the HCNRA. Another reviewer argued in 
favor of allowing the permittee to make the adjustments in the grazing 
area necessary to avoid the conflict while allowing the grazing 
activity to continue.
    Response. Section 13 of the HCNRA Act states that ``[r]anching 
[and] grazing, * * * are recognized as traditional and valid uses of 
the recreation area.'' This section of the proposed rule, developed 
pursuant to section 10(e) of the Act, establishes standards for the 
continuation of grazing in the HCNRA which are compatible with the 
provisions of the HCNRA Act.
    The Forest Service believes that a reasonable interpretation of the 
HCNRA Act, is to work with the grazing permittees and other interested 
parties to determine whether the grazing activity could be adjusted to 
avoid conflicts. This provision of the rule remains unchanged.
    Comment: Grazing should only occur if the rangeland is in 
excellent, not satisfactory, condition. Two reviewers noted that the 
standard limiting grazing to rangelands lands in satisfactory 
condition, while an improvement over existing management of the HCNRA, 
was still inadequate under Section 7 of the HCNRA Act which requires, 
among other things, that the HCNRA be administered in a manner 
compatible with the ``conservation of scenic, wilderness, cultural, 
scientific and other values contributing to the public benefit.'' 
According to this reviewer, that objective can be achieved only if the 
rule is revised to accommodate grazing on rangeland which is at or 
above 76% Potential Natural Vegetation (PNV), or 76% of the natural 
vegetation community that would exist if the area remained ungrazed. 
This is typically referred to by the Forest Service as ``excellent 
condition.''
    Response. The Forest Service disagrees with the reviewer's 
proposition that the only way to ensure that the scenic, wilderness, 
cultural, scientific and other values of the HCNRA are conserved is to 
require rangelands to be in excellent condition prior to the 
authorization of any grazing activities. The Forest Service believes 
that authorizing grazing on rangelands in satisfactory condition is 
fully consistent with each of the management objectives in Section 7 of 
the HCNRA Act including the one referenced by this reviewer. The 
satisfactory condition requirement is also in conformance with Section 
13 of the HCNRA Act which recognizes ranching and grazing as 
traditional and valid uses of the HCNRA. Arguably, limiting grazing to 
rangelands deemed to be in excellent condition may be inconsistent with 
this provision.
    Finally, it bears mentioning that the satisfactory condition is a 
minimum threshold which must be maintained throughout the duration of 
the permit term which is normally ten years. As a result, assuming 
rangelands are in satisfactory condition in the first year of the 
permit, the grazing activity and the allotment must be managed in such 
a way as to ensure that the rangelands do not fall below this minimum 
threshold. If such a threat exists, it may necessitate adjustments in 
livestock numbers, seasons of use, locations of grazing, and the 
development of range improvements during the permit term. It may even 
require the partial or total removal of livestock from the area if the 
other management options are unavailing.
    Thus, the rule which requires that rangelands be maintained in 
satisfactory condition, at a minimum, throughout the term of the 
authorized grazing activity, is consistent with Sections 7 and 13 of 
the HCNRA Act. No additional changes to the proposed rule are warranted 
based on this comment.
    Comment: Grazing should be authorized not only on rangelands that 
are currently in satisfactory condition, but also on rangelands that 
are moving toward satisfactory condition. One reviewer noted that 
limiting domestic livestock grazing only to rangelands in satisfactory 
condition might be unnecessarily restrictive and might result in the 
cessation of grazing even in those instances where the rangelands may 
not be in satisfactory condition at the time the rule goes into effect, 
but there have been demonstrable strides towards achieving that 
condition.
    Response: The Forest Service agrees. In many situations, livestock 
grazing may be occurring on rangelands that might be deemed to be in 
less than satisfactory condition. The status of some of these 
rangelands may be due not so much to the absence of vegetation and 
forage, but rather due to the type of vegetation and forage. In other 
words, the presence of invader species of vegetation may result in an 
allotment being classified as in unsatisfactory condition. In many of 
these cases, the elimination of the invader species can only be 
accomplished through burning or closely monitored livestock grazing.
    The intent is not to allow continued grazing on allotments that 
exhibit an unsatisfactory condition without an aggressively scheduled 
effort to reach ``satisfactory'' in a reasonable period of time. The 
comprehensive plan will identify goals, objectives, and schedules to 
bring unsuitable lands into a healthy condition, defining 
``satisfactory.''
    Therefore, while satisfactory condition is an important benchmark 
and one which the Forest Service hopes will be achieved on all 
allotments in the HCNRA in the future, some flexibility should be built 
into the rule to allow for the continuation of livestock grazing, even 
on lands that may be in less than satisfactory condition, if that 
activity results in the rangelands moving towards the satisfactory 
condition benchmark. In order to determine whether the rangelands are 
indeed moving towards satisfactory condition, the Forest Service will 
evaluate the rangelands and the grazing against the specific standards 
and guidelines related to this activity that are included in the forest 
plan. Section 292.49(a) has been changed to provide this flexibility.
    Comment: The Forest Service should immediately conduct studies to 
determine the condition of rangelands in the HCNRA and all grazing 
activities should be prohibited pending their completion. One reviewer 
was comfortable with the Forest Service's use of satisfactory condition 
as the threshold condition beyond which livestock grazing in the HCNRA 
may be authorized. However, this reviewer was concerned that the Forest 
Service did not possess all the necessary monitoring and other 
information at this time to determine whether the rangelands were in 
satisfactory or better condition. Therefore, this reviewer suggested 
that all grazing be terminated pending the completion of studies 
indicating the condition of all the rangelands in the HCNRA.
    Response. The Forest Service is currently conducting analysis on 
active allotments. Much of this activity is actually a re-analysis 
updating information previously gathered. This information is 
supplemented through range administration and monitoring which is 
conducted on a regular basis. Each allotment has an annual operating 
plan which is part of the permit and included the Forest Plan standards 
and guidelines as well as any new standards developed for resource 
management reasons. In addition to the range analysis and monitoring, 
other resource areas such as fish, wildlife, botany, and silviculture 
are also gathering resource data within the allotments. The data 
collected from these studies adds to the cumulative picture of the 
condition of resources within the allotment. Terminating all livestock 
grazing activities pending the completion of these studies would result 
in a harsh and unreasonable penalty for many permittees by halting 
grazing activities on allotments which are in compliance with the terms 
of the permits and the standards and guidelines of the forest plan.
    The Forest Service is aware that if the standards in this section 
are to be successful in protecting and conserving the HCNRA as well as 
allowing traditional and valid grazing activities, the studies of range 
condition must continue. To that end, the Forest Service will, subject 
to the availability of appropriated funds, continue to take steps to 
analyze range condition and trend in the HCNRA following the final 
adoption of this rule. Priorities of the agency for range condition 
studies will be those areas which appear to be in less than 
satisfactory condition and those areas that are associated with permits 
that are scheduled to expire in the near future. No changes to the 
proposed rule are warranted based on this comment.
    Comment: A definition of rangelands in ``satisfactory condition'' 
should be supplied in the rule. Four reviewers encouraged the Forest 
Service to include a definition for ``satisfactory condition'' to 
further delineate the federal lands in the HCNRA where grazing by 
domestic livestock may occur. Two of the four reviewers offered 
criteria that could be used in a definition of ``satisfactory 
condition.''
    Response: The Forest Service determines rangeland conditions based 
on a professional review and assessment of forage and soil conditions, 
among other things. The precise contours of what constitutes 
``satisfactory condition'' may change over time as techniques for the 
review and assessment of forage and soil conditions change, as new 
information is discovered, or even as changes in societal norms and 
understandings occur. Accordingly, the appropriate location for the 
definition of satisfactory condition, like many other terms used in 
this rule, is in the Comprehensive Management Plan which can more 
readily address and respond to these potential future developments. Due 
to their rigidity and relative difficulty to amend, regulations are 
notoriously poor documents to set out definitions of terms which may 
change over time. Accordingly, the definition of ``satisfactory 
condition'' will appear in the Comprehensive Management Plan for the 
HCNRA rather than these regulations. The agency intends to identify 
goals, objectives, and standards pertaining to ``satisfactory 
condition'' when the Comprehensive Management Plan is revised. The 
public will have an opportunity to review and comment in the 
development of the plans.
    Comment: The rule should expressly exclude certain types of 
rangelands as ``suitable'' for grazing. One reviewer recommended that 
riparian areas, highly erodible lands, and threatened and endangered 
species habitat should be expressly declared as not ``suitable'' for 
grazing in the rule.
    Response: The Forest Service believes that the types of land listed 
by this reviewer may or may not be unsuitable for grazing depending on 
a variety of factors including, but not limited to, the type and amount 
of forage available, the impact of the grazing activity on the lands, 
and the management regime under which the livestock grazing activity is 
conducted. In many cases, grazing on riparian areas, highly erodible 
lands, and land that is habitat for threatened and endangered species 
may not negatively impact these areas. Therefore, a categorical 
exclusion in this rule of these areas from rangelands deemed suitable 
for livestock grazing would be inappropriate.
    Comment: Recreation livestock should not be covered by the 
standards in this section. One reviewer noted that the proposed rule 
failed to distinguish recreation livestock used in conjunction with 
recreational activities like hunting or trail riding from domestic 
livestock which are authorized by a grazing permit. This reviewer 
asserted that the standards of this rule should be applied only to 
domestic livestock grazing activities and should exclude recreational 
livestock grazing activities from its coverage.
    Response. The proposed rule was not intended to exclude recreation 
livestock from its coverage. It was intended to cover all domestic 
livestock grazing activities occurring on the HCNRA, regardless of the 
underlying purpose for that activity.
    The reviewer fails to offer any additional information upon which 
the Forest Service could discern a rational basis for distinguishing 
recreation livestock from other forms of livestock on the HCNRA and 
exempt them from the provisions of this rule. It may be that in a given 
situation, the determination of whether an incompatibility exists may 
differ between recreation livestock and other forms of livestock due to 
the nature, amount, and location of grazing use. This would be a fact 
dependent inquiry and would be made on a case-by-case basis. However, 
once an incompatibility is found to exist between livestock grazing and 
other listed values for which the HCNRA was established, it matters 
little whether the grazing is in furtherance of a commercial ranching 
operation or a commercial recreational enterprise. Under this rule, 
that livestock grazing activity will have to be modified or abolished. 
No additional modification of the proposed rule is warranted.
    Comment: The standard requiring rangelands to be in satisfactory 
condition before grazing may be authorized is insufficient for wild and 
scenic river corridors where that activity must be shown to protect and 
enhance the values for which the river was designated. Using the Forest 
Service's definition of ``satisfactory condition'' in the Forest 
Service Manual, one reviewer noted that this standard was adequate for 
federal lands in the HCNRA outside designated wild and scenic river 
corridors. Once on wild and scenic river corridor lands, however, this 
reviewer explained that the satisfactory condition standard failed to 
take into account Section 10 of the Wild and Scenic Rivers Act which 
requires designated rivers to be administered to protect and enhance 
the values which caused them to be added to the system. For the Snake 
and Imnaha Rivers, these values included, among others, vegetation. 
Merely maintaining the rangeland in satisfactory condition does not 
equate to ``protecting and enhancing'' the vegetation of these rivers.
    Response: The Forest Service disagrees for two reasons. The first 
reason is that the Forest Service Manual definition of ``satisfactory 
condition'' provided by this reviewer is sufficiently protective of 
wild and scenic river values. The Forest Service Manual (FSM 2210.5) 
defines ``satisfactory condition'' as ``[t]he condition in which * * * 
forage species composition and production meets forest plan objectives 
* * *''. The forest plan in this case is the Wallowa-Whitman National 
Forest Land and Resource Management Plan (LRMP). Under Section 6(f) of 
the National Forest Management Act, a LRMP is a forestwide document 
that establishes management direction for all National Forest System 
lands within its boundaries. As a forestwide document, it must, by 
necessity, take into account and be consistent with specially 
designated conservation system units that are within its boundaries. 
For the Wallowa-Whitman National Forest, this would mean that the LRMP 
must incorporate management direction for, among other areas, the 
HCNRA, the Hells Canyon Wilderness, and the Snake, Rapid, and Imnaha 
Wild and Scenic Rivers. This management direction for these ares may 
not be inconsistent with the statutes under which these units were 
established. In this case that would include the HCNRA Act, Wilderness 
Act, and Wild and Scenic Rivers Act. Consequently, the Wallowa-Whitman 
LRMP objectives for forage species composition and production take into 
account the different conservation system units located within the 
Forest. To that end, the objectives may, but need not be, different.
    The second reason that the Forest Service considers this section to 
be sufficient as applied to wild and scenic river corridor lands is 
based on the identification of the traditional ranching use of this 
area as one of the outstanding remarkable values for which the rivers 
in the HCNRA were designated. For instance, the Environmental 
Assessment for the Imnaha River Wild and Scenic River Management Plan 
states

    The Imnaha River canyon represents a living vestige typifying 
the economic and social history of the region and the American West. 
It is very difficult to describe the mystique which glorifies the 
frontier cowboy west that is so important to the American psyche. 
More specifically, and worthy of recognition -and protection, is the 
fact that the Imnaha River setting is a unique remnant of Euro-
American adaptation of the mountainous inland Northwest. [This] * * 
* is a value that meets the legislative intent of ``historical, 
cultural, or other similar value,'' of the Wild and Scenic Rivers 
Act and therefore is an Outstandingly Remarkable Value of the Imnaha 
Wild and Scenic River.

(Imnaha River EA, App. C. pp. 12-14 (Jan. 1993)). Based on the fact 
that both traditional ranching use and vegetation are outstandingly 
remarkable values for which rivers in the HCNRA may have been 
designated, the Forest Service considers the standards of this section 
to be a reasonable attempt to reconcile conflicts that may arise in 
administering the rivers to protect and enhance these values. No change 
to the proposed rule is warranted based on this comment.
    Comment: Concentrated livestock feeding areas should be closed in 
the HCNRA. One reviewer felt that the rule should specifically deal 
with confined animal feeding operations (CAFOs) that exist in the 
HCNRA. There are two CAFOs in the HCNRA, each of which exceeds 100 
acres. Cattle may occupy CAFOs anywhere from one to four months. 
According to this reviewer, CAFOs negatively impact the nearby fish and 
wildlife habitat, scenic, biological, recreation, and other values for 
which the HCNRA was established. This reviewer suggested that another 
standard should be added to this section but failed to note what it 
should say. Based on the tenor of this reviewer's comments, the 
proposed standard would prohibit all existing and proposed CAFOs within 
the HCNRA. Another reviewer inquired as to whether and how these CAFOs 
would be handled under this section.
    Response. The Forest Service does not have any CAFOs on National 
Forest System lands in the HCNRA. There are two allotments in the HCNRA 
where animals can be fed during part of the grazing season authorized 
by the grazing permit. On one allotment, this activity is for emergency 
purposes only when winter weather conditions or animal health require 
feeding for short periods of time. on the other allotment, cattle are 
moved to a pasture and are fed hay during calving. After calving, the 
cattle are moved to other pastures in the allotment in accordance with 
the terms of the grazing permit. It should be noted that both of these 
operations have been reviewed by the Environmental Protection Agency 
and neither fits the definition of a CAFO.
    If these grazing activities present a problem, the incompatibility 
provisions of Sec. 292.48(b) would apply and require a review of the 
operation to determine what modifications, if any, could be implemented 
to avoid the incompatibility. As this section expressly noted, if the 
incompatibility could not be avoided, the grazing activity would have 
to terminate. The Forest Service does not consider the addition of 
another standard addressing this situation to be necessary.
    Comment: Domestic sheep grazing should be terminated in the HCNRA. 
One reviewer noted that disease transmission from domestic to bighorn 
sheep has resulted in the decimation of bighorn herds in the HCNRA. 
Based on this impact, this reviewer recommended that the rule include a 
standard which prohibits domestic sheep grazing in the HCNRA.
    Response. As in the discussion concerning CAFOs above, this issue 
could be easily addressed through Sec. 292.48(b) which requires the 
modification of livestock grazing activity if it is incompatible with, 
among other things, the maintenance of wildlife and/or their habitat in 
the HCNRA. If the incompatibility persists even after the modification, 
then the grazing activity would have to cease. Accordingly, a specific 
standard prohibiting domestic sheep grazing in the HCNRA is 
unnecessary.
    It should also be noted that on June 10, 1994, the Forest 
Supervisor of the Wallowa-Whitman National Forest signed a decision to 
cancel all domestic sheep grazing permits in the HCNRA. This decision 
was made after a thorough review of all the research on the 
transmission of disease between domestic sheep and bighorn sheep. The 
conclusion drawn from this review was that continuation of domestic 
sheep grazing as that activity is currently conducted would likely 
result in the death of bighorn sheep in the future. This decision is 
fully consistent with the Act which recognized grazing as a traditional 
and valid use and provided for its continuation only to the extent that 
it did not impair the values, including protection of wildlife and 
their habitat, for which the HCNRA was established.
    Comment: The standard requiring that grazing permit include terms 
and conditions to protect and conserve riparian areas should be more 
specific. One reviewer noted that the standard directing that terms and 
conditions be included in grazing permits provide for the protection 
and conservation of riparian areas was ``another step in the right 
direction but [] essentially meaningless * * *''. This reviewer thought 
that specific criteria for grazing permits should be included as 
standards in this rule including compliance with state Best Management 
Practices, seasons of use, removal or exclusion of livestock, numbers 
of animals to be grazed, buffer zones, and unsuitable locations.
    Response. As with many of the other responses to comments made on 
the proposed rule, the Forest Service does not consider a regulation to 
be the appropriate document to include the level of detail sought by 
this reviewer. The regulation embodies the standard to which the agency 
must adhere. How the Forest Service meets this standard may vary and 
some flexibility must be built into this process to accommodate it. 
This is especially true in this situation where the variability of the 
affected riparian areas and management practices that can be employed 
at a given site may lead to a number of ways in which these areas can 
be protected and conserved. In this way, the agency can tailor the 
protection and conservation measures individually, recognizing that not 
all measures may be appropriate in all situations.
    Comment: Range improvement standard is inconsistent with the HCNRA 
Act. One reviewer contended that the standard in Sec. 292.48(c) 
concerning range improvements was contrary to the HCNRA Act's direction 
that any livestock grazing occurring in the HCNRA must be compatible 
with the protection of cultural and natural values for which the area 
was established. Specifically, this section required that range 
improvements be designed and located to have, to the extent 
practicable, the minimal impact on scenic, cultural, fish and wildlife 
and other values in the HCNRA. As an alternative, this reviewer 
suggested that the standard should be modified to simply prohibit any 
range improvement that has the potential to impact the ecological, 
recreational, or cultural values of the HCNRA.
    Response. As noted earlier in this discussion, Congress expressly 
recognized in Section 13 of the HCNRA Act that ranching and grazing 
were ``traditional and valid'' uses of the HCNRA. In keeping with this 
recognition, the Forest Service has formulated standards for grazing 
which will enable it to be continued in perpetuity provided that it is 
compatible with the management objectives for the HCNRA as articulated 
in Section 7 of the Act. In other words, this section provides for the 
continuation of grazing unless it is incompatible with the scenic, fish 
and wildlife, and other values for which the HCNRA was established. In 
that case, as the proposed rule makes clear, the ranching or grazing 
activity must yield.
    One means by which incompatibilities between grazing and HCNRA 
values can potentially be avoided is through the use of range 
improvements. Range improvements may either be structural or 
nonstructural in nature and are defined as

    [A]ny activity or program on or relating to rangelands which is 
designed to improve production of forage; change vegetative 
composition; control patterns of use; provide water; stabilize soil 
and water conditions; and provide habitat for livestock and 
wildlife.

(Forest Service Manual 2240.5(8). One example of a range improvement is 
a fence. Fences can be installed in order to limit access to important 
riparian areas or to facilitate the rotation of livestock to different 
parts of an allotment thereby avoiding overuse in any one area. Another 
example of a range improvement are water tanks or troughs which can be 
situated in such a way as to entice livestock away from natural water 
sources like streams and ponds. Suffice it to say that it would be 
extremely difficult to run a successful livestock operation without 
using at least some range improvements.
    This section of the rule provides that where range improvements are 
a necessary component of a successful livestock operation, they will 
have as little impact as possible on the scenic, fish and wildlife and 
other values for which the HCNRA was established while still 
accomplishing the objective of the improvement. The impact of range 
improvements can be reduced through, among other things, the use of 
special materials, locating the site of the improvement to blend in 
with the natural topography, and constructing the improvement at 
special times of the year.
    The reviewer's suggestion which would bar all range improvements 
based simply on their ``potential impact'' to the HCNRA resources is 
unreasonable and would inevitably lead to the partial or complete 
elimination of grazing in the HCNRA due to the exacerbation of 
incompatibilities between grazing and the other resource values in the 
HCNRA. No change to the rule has been made based on this reviewer's 
comment.
    Comment: Environmental analysis is necessary prior to the 
authorization of livestock grazing on allotments that are currently 
vacant as well as those where grazing activity is occurring. One 
reviewer noted that the rule should include two express provisions 
regarding the circumstances under which grazing may be authorized on an 
allotment in the HCNRA. The first case dealt with allotments currently 
being grazed. There, this reviewer explained that the rule should 
authorize grazing only when there has been current environmental 
analysis that considers range condition and the effects of past 
livestock use of the allotment. The second case dealt with allotments 
where no grazing is currently occurring. In this case, this reviewer 
noted that the rule should include a standard requiring a new 
environmental analysis prior to the authorization of livestock grazing 
which would justify that activity on that allotment.
    Response. Through the forest planning process, a schedule was 
established for updating all of the allotment management plans on the 
Wallowa-Whitman National Forest, including those in the HCNRA. It was 
recognized that funding would not be available to update all of these 
plans at once. Therefore, the allotments were prioritized for updating. 
Allotments with the highest priority were those where evidence 
suggested that some resource damage had occurred or was occurring. 
Allotments are also required to be in compliance with the relevant 
standards and guidelines in the forest plan. These standards and 
guidelines, as well as any updates, are built into the annual operating 
plans which become a term of the grazing permit.
    Permits for vacant allotments are not issued until the range 
analysis, NEPA documentation and the allotment management plan are 
complete.

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This rule will not have 
an annual effect of $100 million or more on the economy nor adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, nor State or local governments. This rule will not interfere 
with an action taken or planned by another agency nor raise new legal 
or policy issues. Finally, this action will not alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients of such programs. In short, little 
or no effect on the National economy will result from this rule, since 
it affects only public lands within the HCNRA. Accordingly, this final 
rule is not subject to OMB review under Executive Order 12866.
    Moreover, this final 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. To 
the extent that the rule imposes additional requirements on any small 
entity, these requirements are the minimum necessary to protect the 
public interest, are not administratively burdensome or costly to meet, 
and are well within the capability of small entities to perform.

Takings Implication

    This rule has been reviewed by the agency under Executive Order 
12630 to determine whether its adoption presents the risk of a taking 
which would require the payment of just compensation under the 5th 
Amendment to the United States Constitution. Because this rule 
primarily involves the administration of federal lands, neither the 
adoption of this rule nor its implementation presents the risk of a 
taking. Furthermore, where mining activities are concerned, the 
prohibitions contained herein are subject to valid existing rights 
which also insulates the government against the risk of an adverse 
decision in a takings claim.

Executive Order 12778, Civil Justice Reform Act

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

Environmental Impact

    This rule was discussed as a proposed rule in the final 
Environmental Impact Statement and Comprehensive Management Plan for 
the Hells Canyon National Recreation Area, pages 155-158. 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 (pages 1-2). 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.

Controlling Paperwork Burdens on the Public

    As outlined in the proposed rule, prior written authorization will 
be required under this rule for certain activities related to the 
scientific research of paleontological resources in the HCNRA and the 
use of motorized and non-motorized rivercraft use on the Snake and 
Salmon Rivers in the HCNRA. The information that will need to be 
submitted to the authorized officer represents a new information 
requirement as defined in 5 CFR Part 1320, Controlling Paperwork 
Burdens on the Public. In accordance with those regulations and the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., the Forest Service has 
requested the review and approval of the information required. The 
agency estimates that a private individual preparing seeking 
authorization under the provisions of this rule will spend an average 
of 5 hours to gather, prepare, and submit the application for 
authorization.

List of Subjects in 36 CFR Part 292

    National recreation areas.

    Therefore, for the reasons set forth in the preamble, part 292 of 
chapter II of title 36 of the Code of Federal Regulations is hereby 
amended 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: 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, 
archeological, and paleontological resources, the use of motorized and 
mechanical equipment, the use of motorized and non-motorized 
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 of 
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.
    ``Authorized Officer'' is a Forest Service line officer who has 
been delegated the authority to take certain actions pursuant to the 
provisions of this subpart.
    ``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 archeological resources.
    ``HCNRA'' is the abbreviation for the Hells Canyon National 
Recreation Area.
    ``Mechanical equipment'' means any contrivance which travels over 
ground, snow or water on wheels, tracks, skids, or by flotation that is 
powered by a living source. This term does not include non-motorized 
rivercraft which is defined separately herein, wheelchairs, or other 
similar devices used solely to assist persons with disabilities.
    ``Mining'' means any activity related to the discovery, extraction 
and exploitation of minerals under the Mining Act of 1872, 30 U.S.C. 22 
et seq., and the Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., 
through the use of, among other things, hydraulic equipment, pans, 
ground sluicing, sluice boxes, rockers, or suction dredges.
    ``Motorized equipment'' means any machine powered by a nonliving 
source. This term does not include motorized rivercraft which is 
defined separately herein or small, hand-held devices such as 
flashlights, shavers, wristwatches, and Geiger counters.
    ``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 National Forest System lands in the HCNRA 
except for Wild and Scenic Rivers and Wilderness Lands.
    ``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.
    ``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, with 
the sustainability and improvement of the forest using an ecosystem 
approach to management being 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 segments of the Snake, Rapid, 
and Imnaha Rivers designated as components of the National Wild and 
Scenic Rivers System and any other river or segment thereof in the 
HCNRA hereafter designated. Wild and Scenic Rivers include all National 
Forest System lands within the designated Wild and Scenic River 
corridor.
    ``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, 
Wild and Scenic Rivers, 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.
    (c) The standards and guidelines of this subpart may be enforced by 
the authorized officer pursuant to 36 CFR part 261.


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

    (a) Other Lands and Wild and Scenic Rivers. The following standards 
and guidelines of this section apply to the protection and preservation 
of cultural and paleontological resources on the Other Lands and the 
Wild and Scenic Rivers in 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 
scientific research, public education and enjoyment. Where 
interpretation of these sites for public benefit and knowledge is 
developed, it shall be compatible with the protection of cultural 
resources.
    (2) The authorized officer 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 authorized officer determines that off-site protection is 
preferable because adequate protection cannot be provided on-site, the 
resource is already adequately represented and protected on-site 
elsewhere, protection on-site is not consistent with the administration 
of 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 
scientific research. Paleontological resources may only be disturbed or 
removed in conjunction with scientific research and only upon the 
issuance of prior written authorization of the disturbance or removal 
activity.
    (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 and Wild and 
Scenic Rivers 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 use of such 
equipment in 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 
Sec. Sec. 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 roads, trails, and airstrips subject to terms and 
conditions deemed necessary by the authorized officer for the safe use 
of such facilities.
    (2) The use of motorized and mechanical equipment is prohibited off 
of designated Forest Service roads, trails, and airstrips unless 
authorized by the authorized officer subject to terms and conditions 
deemed necessary by the authorized officer for the safe use of such 
equipment and to ensure that its use is compatible with the Act.
    (b) Wild and Scenic Rivers. The following standards and guidelines 
apply to the use of motorized and mechanical equipment in the Wild and 
Scenic Rivers category in the HCNRA.
    (1) The use of motorized and mechanical equipment on designated 
Forest Service roads, trails and airstrips is permissible on wild and 
scenic river segments classified ``scenic'' or ``recreational'' subject 
to terms and conditions necessary for safe use of such equipment and to 
ensure its use is compatible with the Wild and Scenic Rivers Act.
    (2) The use of motorized and mechanical equipment on designated 
Forest Service roads, trails, and airstrips is prohibited on wild and 
scenic river segments classified ``wild'' except as provided for by the 
authorized officer upon a determination that such use is necessary for 
the administration of the river or to protect and enhance the values 
for which river was designated.
    (c) 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 rivers within the HCNRA.
    (a) The use of non-motorized rivercraft may be permitted subject to 
restrictions on size, type of craft, numbers, duration, seasons, or 
other matters which may be deemed by the authorized officer to be 
necessary to ensure the safe use and enjoyment of the rivers: Provided, 
that where wild and scenic rivers are concerned, the authorized officer 
may impose such additional terms and conditions as may be necessary to 
protect and enhance the values for which the river was designated.
    (b) The use of motorized rivercraft is prohibited except on the 
Snake River and that portion of the Salmon River in the HCNRA 
administered by the Forest Service where such activity may be permitted 
subject to restrictions on size, type of craft, numbers, noise limits, 
duration, seasons or other matters which may be deemed by the 
authorized officer necessary for the safe use and enjoyment of the 
rivers: Provided, that where wild and scenic rivers are involved, the 
authorized officer may impose such additional terms and conditions as 
may be necessary to protect and enhance the values for which the river 
was designated.
    (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 
River and that portion of the Salmon River in the HCNRA administered by 
the Forest Service requires prior written authorization from the 
authorized officer.
    (e) In authorizing the use of motorized and non-motorized 
rivercraft on the Snake River, the authorized officer 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 River, the authorized officer must ensure that 
the carrying capacity of the river is not exceeded.
    (g) In authorizing the use of motorized and non-motorized 
rivercraft on the Snake River, the authorized officer 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 only to protect and enhance ecosystem 
health, wildlife habitat, or recreational and scenic 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 insect infestation.
    (2) Where authorized, trees may be harvested by selective 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) Wild and Scenic Rivers. The following standards and guidelines 
apply to timber harvesting activities in the Wild and Scenic Rivers 
category of the HNCRA.
    (1) Timber may be harvested on river segments classified ``scenic'' 
or ``recreational'' to protect and enhance the values for which the 
river was designated.
    (2) Timber may be harvested on river segments classified ``wild'' 
only when necessary to provide for recreational facilities such as 
trails, to reduce the risk of hazard trees, or to respond to natural 
events provided that the activity is consistent with the Wild and 
Scenic Rivers Act.
    (3) Where authorized, timber harvesting activities on wild and 
scenic rivers may be conducted in accordance with and using the same 
methods as prescribed in section (a)(2) above.
    (c) 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 as of December 31, 1975.
    (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, 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 presents a safety hazard. When mineral materials are obtained 
from inside the HCNRA, the environmental effects at the source of 
extraction must be mitigated by site reclamation upon the termination 
of the extraction activity. Site reclamation may include contouring the 
land, re-establishing vegetation, and other measures deemed appropriate 
by the authorized officer to blend the site into the surrounding 
environment to the extent practicable. 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 and Wild and Scenic Rivers. The standards and 
guidelines of this section apply to mining activities in the Wilderness 
Lands and Wild and Scenic Rivers categories 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 and Wild 
and Scenic Rivers.
    (2) Extraction of mineral materials is prohibited on Wilderness 
Lands and Wild and Scenic Rivers subject to valid existing rights.


Sec. 292.48  Grazing activities.

    The following standards and guidelines apply to domestic livestock 
grazing activities on Other Lands, Wild and Scenic Rivers, and 
Wilderness Lands in the HCNRA.
    (a) Grazing may be authorized only on rangeland determined by the 
authorized officer to be suitable for grazing and meeting or moving 
towards satisfactory condition and meeting the conditions described in 
paragraph (b) of this section.
    (b) Where domestic livestock grazing is incompatible with the 
protection, restoration, or maintenance of fish and wildlife or their 
habitats; public outdoor recreation; conservation of scenic, 
wilderness, and scientific values; rare combinations of outstanding 
ecosystems, or the protection and enhancement of the values for which a 
wild and scenic river was designated, 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.
    (d) The authorization of grazing use, through a grazing permit, 
must provide for terms and conditions which protect and conserve 
riparian areas.

    Dated: July 13, 1994.
James R. Lyons,
Assistant Secretary, Natural Resources and Environment.
[FR Doc. 94-17521 Filed 7-18-94; 8:45 am]
BILLING CODE 3410-11-M