[Federal Register Volume 60, Number 121 (Friday, June 23, 1995)]
[Proposed Rules]
[Pages 32632-32639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15360]



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[[Page 32633]]

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 292


National Recreation Areas; Smith River National Recreational Area

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This notice of proposed rulemaking sets forth the procedures 
by which the Forest Service proposes to regulate mineral operations on 
National Forest System lands within the Smith River National Recreation 
Area. Required by statute, this proposed rule would supplement existing 
Forest Service mineral regulations. The intended effect is to allow for 
mineral operations in a manner consistent with the purposes for which 
Congress established the Smith River National Recreation Area.

DATES: Comments must be received in writing by August 22, 1995.

ADDRESSES: Send written comments to Director, Minerals and Geology 
Management Staff (2800--AUD Bldg, 4 CEN), Forest Service, USDA, PO Box 
96090, Washington, DC 20090-6090.
    The public may inspect comments received on this proposed rule in 
the office of the Director, Fourth floor, Central Wing, Auditors 
Building, 201 Fourteenth Street SW., Washington, DC, between the hours 
of 8:30 am and 4:30 pm. Those wishing to inspect comments are 
encouraged to call (202) 205-1535 ahead of time to facilitate entry 
into the building.

FOR FURTHER INFORMATION CONTACT:
Sam Hotchkiss, Minerals and Geology Management Staff, (202) 205-1535.

SUPPLEMENTARY INFORMATION: The Smith River National Recreation Area 
(SRNRA) was established by the Smith River National Recreation Area Act 
of 1990 (the Act) (16 U.S.C. 460bbb et seq.). The purposes of the Act 
are to ensure, ``* * * the preservation, protection, enhancement, and 
interpretation for present and future generations of the Smith River 
Watershed's outstanding wild and scenic rivers, ecological diversity, 
and recreation opportunities while providing for the wise use and 
sustained productivity of its natural * * *'' In order to meet the 
purposes of the Act, Congress directed the Forest Service to administer 
the SRNRA to, among other things, provide for a broad range of 
recreation uses and improve fishery and water quality. Congress 
prohibited mining subject to valid existing rights and limited 
extraction of common variety mineral materials within the SRNRA to 
situations where the material extracted is used for construction and 
maintenance of roads and other facilities within the SRNRA and the 
excluded areas.
    The SRNRA consists of approximately 300,000 acres of National 
Forest System lands in the Six Rivers National Forest in northern 
California. The Act divided the SRNRA into eight distinct management 
areas and specified a management emphasis for each management area. One 
of these eight areas is the Congressionally designated Siskiyou 
Wilderness which the Act specifies is to be administered pursuant to 
the provisions of the Wilderness Act.
    The Act also designated the following rivers or river segments as 
components of the National Wild and Scenic Rivers System: (1) The Smith 
River; (2) the Middle Fork of the Smith River; (3) the North Fork of 
the Smith River; (4) the Siskiyou Fork of the Smith River; and (5) the 
South Fork of the Smith River. For these wild and scenic rivers, 
Congress directed that they be administered in accordance with the Act 
and the Wild and Scenic Rivers Act. In the event of a conflict between 
the provisions of these two statutes, Congress specified that 
provisions of the more restrictive statute apply. Finally, there are 
four areas that lie within the boundary of the SRNRA expressly excluded 
from the SRNRA.
    Prospecting for minerals and mining has been an important part of 
the history of the Smith River area since the 1850's. Mining operations 
within the Smith River area have historically been small-scale placer 
gold exploration and recovery operations within the bed and banks of 
the Smith River and its main tributaries. Panning, sluicing, and 
dredging operations occur predominantly during the summer months. In 
recent years, large, low-grade nickel-cobalt resources in the uplands 
of the Smith River watershed have attracted attention. Currently, there 
are approximately 5,000 mining claims covering about 30,000 acres of 
National Forest System lands within the SRNRA. In addition, there are 
outstanding mineral rights within the SRNRA. However, as of early June 
1995, there are no operators conducting operations.
    In section 8 of the Act, Congress addressed to what extent mineral 
operations would be authorized within the SRNRA. Section 8(a) of the 
Act withdrew all federal lands in the SRNRA from the operation of the 
mining, mineral leasing, and geothermal leasing laws subject to valid 
existing rights. Section 8(b) of the Act precluded the issuance of 
patents for locations and claims made prior to the establishment of the 
SRNRA. Section 8(c) of the Act prohibited all mineral operations within 
the SRNRA except where valid existing rights are established. Section 
8(c) also prohibited the extraction of common variety minerals such as 
stone, sand, and gravel except if it is used in the construction and 
maintenance of roads and other facilities within the SRNRA and the 
excluded areas. Finally, section 8(d) directed the Secretary to 
promulgate supplementary mineral regulations to promote and protect the 
purposes for which the SRNRA was designated.

Provisions of the Proposed Rule

    This proposed rule has been prepared pursuant to section 8(d) of 
the Act and would supplement existing Forest Service regulations 
pertaining to locatable mineral operations in the SRNRA and provide new 
regulations pertaining to outstanding mineral rights on National Forest 
System lands in the SRNRA. Accordingly, mineral operations in the SRNRA 
would not only be subject to the provisions of this rule but also to 
the applicable provisions of 36 CFR parts 228, 251, and 261, among 
others. The proposed rule clearly states that if there is a conflict or 
inconsistency with provision of other applicable regulations, the 
provisions of this rule would take precedence to the extent permitted 
by law.
    The proposed rule divides mineral operations in the SRNRA into 
three categories--operations under the General Mining Laws, operations 
pursuant to outstanding mineral rights, and extraction of common 
variety mineral materials. There are no reserved mineral rights in the 
SRNRA, consequently, there is no need to address this category of 
mineral ownership in the proposed rule. In the event of a land 
acquisition that results in reserved mineral rights in the SRNRA, the 
current regulations at 36 CFR 251.15 provide sufficient direction to 
govern this activity and to protect the values for which the SRNRA was 
established.
    The proposed rule is specifically designed to supplement existing 
locatable mineral regulations at 36 CFR part 228, subpart A, and thus 
to provide a greater degree of protection for the natural resources in 
the SRNRA than would be provided under 36 CFR part 228, subpart A, 
alone. This additional protection would be accomplished in several 
ways: (1) By the expansion of the types of mineral operations subject 
to the requirement for a plan of operations; (2) by setting additional 
reclamation standards; and (3) [[Page 32634]] providing expedited 
suspension procedures where harm or damage to resources or to people is 
imminent or is occurring. These and the other provisions of the 
proposed rule would enable the Forest Service to administer mineral 
operations in the SRNRA consistent with the purposes for which the area 
was established.
Section-by-Section Explanation of the Proposed Rule

    This proposed rule would establish a new subpart G, Smith River 
National Recreation Area, in part 292 of Title 36 of the Code of 
Federal Regulations. A section-by-section explanation of the proposed 
rule follows.
    Section 292.60, Purpose and scope. Paragraph (a) of the proposed 
Sec. 292.60 explains that the purpose of this rule is to establish the 
rules and procedures for regulating mineral operations on National 
Forest System lands in the SRNRA so that they are in conformance with 
the Act. Paragraph (b) explains that rules and procedures in this rule 
apply only to National Forest System lands in the SRNRA. Paragraph (c) 
notes that this rule supplements existing Forest Service mineral 
regulations and that mineral operations on National Forest System lands 
in the SRNRA will continue to be subject to other applicable 
regulations governing these activities, particularly parts 228, 251, 
and 261 of this chapter. Paragraph (d) provides that, to the extent 
provided by law, the provisions of this rule shall take precedence over 
the provisions of other applicable regulations if there is a conflict 
or inconsistency between them. Finally, the last paragraph states that 
mineral operations approved or determined to be acceptable before the 
effective date of this proposed rule would continue to operate under 
the conditions of approval or acceptability including the specified 
period of operations. While there are no known operations at the time 
of publication of this proposed rule, that could change by the time of 
adoption of a final rule; thus, a transitional provision is needed.
    Section 292.61, Definitions. This section defines special terms 
used in the proposed rule, some of which have been previously 
established or used in other rules or directives. However, the 
definitions included in the proposed Sec. 292.61 define the terms as 
they are used in the proposed rule.
    Section 292.62, Plan of operations requirements. Proposed 
Sec. 292.62(a) would reduce the amount of discretion that the 
authorized officer currently has under 36 CFR 228.4(a) in determining 
whether a plan of operations or a notice of intent is required for a 
proposed mineral operation. In addition to the requirements of 36 CFR 
228.4 for submitting a plan of operations or a notice of intent, this 
proposed rule would require a plan of operations for some mineral 
operations that in other locations have been routinely conducted under 
a notice of intent. For example, to operate mechanical or mechanized 
equipment such as a suction dredge and sluice under the proposed rule 
would require a plan of operations. Given the special status of the 
SRNRA and the special statutory management direction for the area set 
by Congress, further regulation of these kinds of operations is 
necessary in order to maintain the resource values which prompted its 
designation.
    The information requirements specified in proposed Sec. 292.62(b) 
are the same information that has been routinely gathered by the Forest 
Service from Bureau of Land Management records, county records, and the 
operator when a plan of operations is submitted for an area withdrawn 
from disposition under the General Mining Laws. The burden of gathering 
this information is now being shifted from the Forest Service to the 
operator since this information should be readily available to the 
operator if it does exist. The requirement to have the operator submit 
this information as part of the plan of operations should decrease the 
cost and the amount of time it takes for the Forest Service to collect 
the information, and, thereby, to make a valid existing rights 
determination.
    Proposed Sec. 292.62(c) outlines the minimum operating elements 
that must be included in a plan of operations in the SRNRA. The 
information requirements found at 36 CFR 228.4(c) and 228.8 that are 
generally applicable for a plan of operations on National Forest System 
lands are also applicable to a plan of operations proposed within the 
SRNRA. In addition to these specific information requirements, this 
proposed rule for the SRNRA would require an operator, who is not the 
claim owner, to submit a copy of the authorization granting the 
operator permission to conduct operations on a mining claim owned by 
another party. The existing regulations at 36 CFR 228.8(g) allow the 
authorized officer several options as to when reclamation activities 
can occur. These activities can take place upon depletion of the 
mineral deposit or sometime during the operation when it is practicable 
or within 1 year after the operations have concluded, unless the 
authorized officer allows for a longer time. In contrast, reclamation 
activities for mineral operations under the proposed rule would occur 
concurrently with the mineral operations whenever practicable. A 
requirement for concurrent reclamation would restore the land to 
another useful productivity in the shortest possible time. This 
requirement is essential to meet the statutory requirements to protect 
and preserve the values of the SRNRA.
    Section 292.63, Plan of operations. Proposed Sec. 292.63 
establishes the procedures by which a plan of operation for mineral 
operations on mining claims in the SRNRA would be processed.
    Proposed Sec. 292.63(a) explains that the first item considered by 
the authorized officer is whether the operator has furnished the 
information required by Sec. 292.62(b) to help substantiate valid 
existing rights. For reasons of efficiency, it is logical for the 
authorized officer to first determine whether the operator has 
discovered a valuable ore deposit before undertaking a review of that 
part of the plan of operations which describes in detail how the 
deposit is to be developed. Following the initial review, the 
authorized officer must notify the operator in writing whether the 
information required in Sec. 292.62(b) has been provided or whether 
additional information still needs to be provided. Once the information 
required by Sec. 292.62(b) has been provided, the authorized officer 
notifies the operator when the valid existing rights determination is 
expected to be completed.
    Proposed Sec. 292.63(b) explains that if the determination finds 
valid existing rights have not been established, the authorized officer 
must notify the operator of the determination, the reasons for such a 
determination, and that the development activities as contemplated in 
the plan of operations cannot be conducted.
    Proposed Sec. 292.63(c) explains that if the determination finds 
valid existing rights have been established, the authorized officer 
notifies the operator that this determination has been made and that 
the Forest Service is beginning a review of the proposed plan of 
operations and specifies the date when the Forest Service expects to 
complete the review.
    Proposed Sec. 292.63(d) directs that upon completion of the review 
of that part of the plan of operations that contains the operational 
and reclamation elements specified in proposed Sec. 292.62(c), the 
authorized officer must notify the operator in writing the results of 
the review as specified in Sec. 228.5(a).
    Proposed Sec. 292.63(e) would limit the maximum period for which a 
plan of operations is approved to five years; for operations beyond 5 
years, the operator [[Page 32635]] would have to submit a new plan in 
accordance with the specifications of Sec. 292.62 of this proposed 
rule. The 5-year limit was chosen with large projects in mind. It would 
provide the authorized officer a more frequent and consistent approach 
to reviewing and updating operating conditions and ensuring the 
approved plan of operations remains consistent with the purposes for 
which the SRNRA was established. The 5-year limit will have little to 
no effect on the typical small-scale operation which last only one or 
two years from start to finish.
    Proposed Sec. 292.63(f) explains that substantive changes to an 
approved plan of operations must be reviewed and approved by the 
authorized officer. Under this paragraph, the operator has the option 
to submit a modification of an approved plan of operations, as provided 
for in 36 CFR 228.4(e), which clearly identifies the elements that are 
different from the previously approved plan of operations, or to submit 
a supplemental plan of operations pursuant to 36 CFR 228.4(d).
    Section 292.64, Plan of operations suspension. Proposed Sec. 292.64 
authorizes the suspension of mineral operations under an approved plan 
of operations by the Forest Service authorized officer, if the operator 
is not in compliance with applicable law, regulations, or the terms and 
conditions of the approved plan. If an operator is found to be in 
noncompliance, the authorized officer must provide the operator with 
the reasons why the plan of operations is not in compliance with the 
laws, regulations, or the approved plan of operations and a reasonable 
time to abate the noncompliance. Generally, the operator will have at 
least 30 days after the notice of noncompliance is issued to correct 
the noncompliance before a suspension becomes effective. However, for 
those instances that present an imminent threat of harm to public 
health, safety, or the environment or where such harm is already 
occurring, the authorized officer can take immediate action to 
alleviate the threat or damage. This immediate suspension authority 
would allow the authorized officer to take steps to avoid or minimize 
the risk of harm to persons and the environment. Only after the harm or 
risk of harm has been abated would the authorized officer be required 
to notify the operator of the suspension and provide him or her with an 
opportunity to respond.
    Section 292.65, Operating plan requirements. Proposed Sec. 292.65 
establishes that operating plans are required for mineral operations 
involving outstanding mineral rights; that is, mineral rights owned by 
a party other than the surface owner at the time the surface estate was 
conveyed to the Federal government.
    Proposed Sec. 292.65(a) specifies that all individuals who want to 
exercise outstanding mineral rights in the SRNRA must submit an 
operating plan to the authorized officer at least 60 days in advance of 
surface occupancy.
    Proposed Sec. 292.65(b) specifies the information that an operator 
must provide in order to conduct mineral operations involving 
outstanding mineral rights where the surface estate is within the 
SRNRA. The operating plan must include information such as: (1) 
Evidence of ownership of the outstanding mineral rights, (2) the name 
of a designated field representative, (3) a map showing the location 
and dimension of all improvements, (4) a plan of operations including a 
schedule for construction and drilling, and (5) a soil erosion and 
sedimentation control plan.
    Section 292.66, Operating plan acceptance. Proposed Sec. 292.66 
establishes the procedures by which operating plans in the SRNRA would 
be processed.
    Proposed Sec. 292.66(a) requires the authorized officer to review 
that portion of the operating plan related to substantiating 
outstanding mineral rights and notify the operator whether the 
information required to substantiate ownership of outstanding mineral 
rights has been provided to the Forest Service. If more information 
must be provided by the operator, the Forest Service would specify what 
is needed. If no more information is necessary for the Forest Service 
to complete its review, the authorized officer would indicate when the 
review is expected to be completed.
    Proposed Sec. 292.66(b) would specify that if outstanding mineral 
rights have not been verified, the authorized officer would notify the 
operator of the finding, the reasons for such a finding, and that the 
proposed operation cannot be conducted.
    Proposed Sec. 292.66(c) would specify that if outstanding mineral 
rights have been verified, the authorized officer would notify the 
operator that outstanding mineral rights have been verified, that the 
Forest Service would begin a review of the proposed operating plan, and 
the date when the Forest Service would expect to complete the review.
    Proposed Sec. 292.66(d) explains that the authorized officer will 
focus the review of the operating plan on whether the development 
activities proposed are consistent with the rights granted by the deed, 
consistent with the SRNRA Management Plan, and whether the development 
activities will utilize the least amount of surface lands necessary for 
the operation.
    Proposed Sec. 292.66(e) would specify that upon completion of the 
review of the operating plan, the authorized officer would notify the 
operator of the findings. If the findings indicate that the proposed 
operating plan is consistent with the rights granted by the deed of 
conveyance, consistent with the SRNRA Management Plan, and uses only 
that portion of the surface as is absolutely necessary, the operating 
plan would be determined to be acceptable to the Forest Service. If the 
findings indicate that the proposed operating plan does not meet all 
three criteria listed at Sec. 292.66 (d)(1) through (d)(3), the 
authorized officer must specify the reasons why the proposed operating 
plan does not meet the three listed criteria, propose changes to the 
operating plan to make it consistent with the three criteria, and 
attempt to negotiate the proposed changes with the operator.
    Proposed Sec. 292.66(f) would require that another operating plan 
be submitted if additional operations not included in an acceptable 
operating plan are proposed and that the process as outlined in 
Sec. 292.66 would be followed. This provision is similar to that in 
Sec. 228.5(c) and Sec. 292.63(f) of the proposed rule.
    By requiring parallel information and review of operations under 
outstanding mineral rights, the Forest Service can ensure that the 
values for which the SRNRA was established are protected, and operators 
can be assured that requirements for negotiating modifications to an 
operating plan are consistent with those required of other mineral 
programs.
    Section 292.67, Mineral material operations. Proposed Sec. 292.67 
states that the disposal of common variety mineral materials would be 
governed by the existing mineral material regulations set forth at 36 
CFR part 228, subpart C, and would require that proposals for the 
extraction and removal of common variety mineral materials within the 
SRNRA would be approved only if the material is used within the SRNRA 
or in one of the four excluded areas identified by the Act.
    Section 292.68, Indemnification. This section would provide a means 
of protecting the United States Government from liability as a result 
of claims, demands, losses, or judgments caused by an operator's use or 
occupancy. In addition, the operator would be required to pay the costs 
[[Page 32636]] incurred by the Forest Service or other agencies 
resulting from noncompliance with an approved plan of operations or an 
agreed to operating plan.
    Operators have not had to bear any of the costs incurred by the 
Forest Service to administer mineral projects on National Forest System 
lands even if operations were not being conducted under the conditions 
approved or agreed upon. Proposed Sec. 292.68(c) would require those 
operators who do not abide by the conditions of an approved plan of 
operations or agreed upon operating plan to pay the costs incurred by 
the Forest Service resulting from noncompliance. It is believed that if 
an operator was required to reimburse the Forest Service for the costs 
incurred by the Forest Service resulting from noncompliance, there 
would be less noncompliance.

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this regulation is not a significant rule. This 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. 
Accordingly, this proposed rule is not subject to OMB review under 
Executive Order 12866.
    Moreover, this proposed rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities as defined by that Act 
because of its limited scope and application. Also, this proposed rule 
does not adversely affect competition, employment, investment, 
productivity, innovation, or the ability of United States based 
enterprises to compete in local or foreign markets.

Environmental Impact

    Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180; 
September 18, 1992) excludes from documentation in an environmental 
assessment or impact statement ``rules, regulations, or policies to 
establish Service-wide administrative procedures, program processes, or 
instructions.'' The agency's preliminary assessment is that this rule 
falls within this category of actions and that no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or environmental impact statement. A final determination 
will be made simultaneously with adoption of the final rule.

Controlling Paperwork Burdens on the Public
    Section 292.62(b) of this proposed rule specifies that in addition 
to the requirements of Sec. 228.4, an operator must provide information 
to support valid existing rights as part of a plan of operations. Also, 
proposed Sec. 292.65(b) requires those who wish to exercise outstanding 
mineral rights to submit an operating plan. The provisions of the 
proposed rule applicable to locatable minerals are supplementary to the 
existing information required by 36 CFR 228.4 which still apply for 
plans of operations. The provisions of the proposed rule applicable to 
outstanding mineral rights represent new information requirements as 
defined in 5 CFR part 1320, Controlling Paperwork Burdens on the 
Public. Although the proposed rule requires the operator to submit more 
information with a plan of operations than applies under part 228, 
subpart A, the information is readily available to the operator and 
does not require additional effort or information that the operator 
does not already have to acquire to conduct operations.
    In accordance with the rules of 5 CFR part 1320 and the Paperwork 
Reduction Act of 1980 as amended (44 U.S.C. 3507), the Forest Service 
is requesting Office of Management and Budget review and approval of 
the information required to be addressed in a plan of operations or an 
operating plan. The agency estimates that an operator preparing a plan 
of operations will spend an average of 2 hours gathering and submitting 
the information related to valid existing rights and another 2 hours 
preparing and submitting the minimal information on the proposed 
operation for Forest Service review and approval. The agency also 
estimates that an operator preparing an operating plan will spend an 
average of 2 hours gathering and submitting the information related to 
outstanding mineral rights and the operation itself for acceptability. 
Reviewers who wish to comment on these information requirements should 
submit their views to the Chief of the Forest Service at the address 
listed earlier in this document as well as to the: Forest Service Desk 
Officer, Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington, DC 20503.

No Takings Implications

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

Civil Justice Reform Act

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

List of Subjects in Part 292

    Administrative practice and procedure, Environmental protection, 
Mineral resources, National forests, National recreation areas, and 
Surety bonds.

    Therefore, for the reasons set forth in the preamble, it is 
proposed to amend part 292 of chapter II of title 36 of the Code of 
Federal Regulations by adding a new subpart G to read as follows:

PART 292--NATIONAL RECREATION AREAS

Subpart G--Smith River National Recreation Area

Sec.
292.60  Purpose and scope.
292.61  Definitions.

Valid Existing Rights

292.62  Plan of operations supplementary requirements.
292.63  Plan of operations approval.
292.64  Plan of operations suspension.

Outstanding Mineral Rights

292.65  Operating plan requirements.
292.66  Operating plan acceptance.

Mineral Materials

292.67  Mineral material operations.

Indemnification

292.68  Indemnification.

Subpart G--Smith River National Recreation Area

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


Sec. 292.60  Purpose and scope.

    (a) Purpose. The regulations of this subpart set forth the rules 
and [[Page 32637]] procedures by which the Forest Service regulates 
mineral operations on National Forest System lands within the Smith 
River National Recreation Area as established by Congress in the Smith 
River National Recreation Area Act of 1990 (16 U.S.C. 460bbb et seq.).
    (b) Scope. The rules of this subpart apply only to mineral 
operations on National Forest System lands within the Smith River 
National Recreation Area.
    (c) Applicability of other rules. The rules of this subpart 
supplement existing forest Service regulations concerning the review, 
approval, and administration of mineral operations on National Forest 
System lands including, but not limited to, those set forth at parts 
228, 251, and 261 of this chapter.
    (d) Conflicts. In the event of conflict or inconsistency between 
the rules of this subpart and other parts of this chapter, the rules of 
this subpart take precedence, to the extent allowable by law.
    (e) Applicability to ongoing operations. Operations under an 
acceptable operating plan or an approved plan of operations in effect 
prior to the effective date of these regulations shall be for a limited 
time not to exceed 5 years. If operations have a shorter specified 
operating time, the shorter operating time shall remain in effect.


Sec. 292.61  Definitions.

    The special terms used in this subpart have the following meaning:
    Act means the Smith River National Recreation Area Act of 1990 (16 
U.S.C. 460bbb et seq.).
    Authorized officer means the Forest Service officer to whom 
authority has been delegated to take actions pursuant to the provisions 
of this subpart.
    Hazardous substance means any substance so classified under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980, as amended (42 U.S.C. 9601).
    Operating plan means the document submitted in writing by the owner 
or lessee, or a representative acting on behalf of an owner or lessee, 
to exercise outstanding mineral rights for minerals underlying National 
Forest System lands.
    Outstanding mineral rights means the rights owned by a party other 
than the surface owner at the time the surface was conveyed to the 
United States.
    SRNRA is the abbreviation for the Smith River National Recreation 
Area, located within the Six Rivers National Forest, California.
    Valid existing rights for the purposes of this subpart means all 
mining claims on National Forest system lands in the SRNRA which: (1) 
Were properly located prior to November 16, 1990, for a mineral that 
was locatable at that time; (2) were properly maintained thereafter 
under the applicable law; (3) were supported by a discovery of a 
valuable mineral deposit within the meaning of the general mining law 
prior to November 16, 1990, which discovery has been continuously 
maintained since that date; and (4) continue to be valid.

Valid Existing Rights


Sec. 292.62  Plan of operations supplementary requirements.

    (a) Applicability. In addition to the activities for which a plan 
of operations is required under Sec. 228.4 of this part, a plan of 
operations is required when a proposed operation within the SRNRA 
involves mechanical or mechanized equipment, including a suction dredge 
and sluice.
    (b) Information to support valid existing rights. A plan of 
operations within the SRNRA must include at least the following 
information relevant to the existence of valid existing rights for the 
period from November 16, 1990, to the present except as otherwise 
specified:
    (1) The mining claim recordation serial number assigned by the 
Bureau of Land Management;
    (2) A copy of the original location notice and conveyance deeds, if 
ownership has changed since the date of location;
    (3) A copy of the affidavit of assessment work or notice of 
intention to hold the mining claim since the date of recordation with 
the Bureau of Land Management;
    (4) Verification by the Bureau of Land Management that the holding 
fees have been paid or have been exempted;
    (5) Sketches or maps showing the location of past and present 
mineral workings on the claims and information sufficient to locate and 
define the mining claim corners and boundaries on the ground;
    (6) For lode and placer mining claims--
    (i) An identification of the valuable mineral that has been 
discovered;
    (ii) An identification of the site within the claims where the 
deposit has been discovered and exposed;
    (iii) Information on the quantity and quality of the deposit 
including copies of assays or test reports, the width, locations of 
veins, the size and extent of any deposit; and
    (iv) Evidence of past and present sales of the valuable mineral; 
and
    (7) For millsite claims, information proving that the millsite is 
associated with a valid mining claim and that the millsite is used or 
occupied for mining or milling purposes.
    (c) Minimum information on proposed operations. A plan of 
operations must include the information required at 36 CFR 228.4 (c)(1) 
through (c)(3) which includes information about the proponent and a 
detailed description of the proposed operation. In addition, if the 
operator and claim owner are different, the operator must submit a copy 
of the authorization or agreement under which the proposed operations 
are to be conducted. A plan of operations must also address the 
environmental protection requirements of 36 CFR 228.8 which includes 
reclamation. In addition, when practicable, reclamation will proceed 
concurrently with the mineral operation.


Sec. 292.63  Plan of operations approval.

    (a) Upon receipt of a plan of operations, the authorized officer 
shall review the information related to valid existing rights and 
notify the operator in writing that one of the following circumstances 
apply:
    (1) That sufficient information on valid existing rights has been 
provided and the date by which the forest Service expects to complete 
the valid existing rights determination; or
    (2) That sufficient information on valid existing rights has not 
been provided and the specific information that still needs to be 
provided.
    (b) If upon receipt, review, and verification of all requested 
information, the authorized officer finds that there is not sufficient 
evidence of valid existing rights, the authorized officer shall so 
notify the operator in writing, providing the reasons for the 
determination, and advise that the proposed mineral operation cannot be 
conducted.
    (c) If upon receipt, review, and verification of all requested 
information, the authorized officer finds that there is sufficient 
evidence of valid existing rights, the authorized officer shall so 
notify the operator in writing, that a review of the proposed plan of 
operations is underway, and the date by which the review is expected to 
be completed. A prior determination that there is sufficient evidence 
of valid existing rights shall not bar the authorized officer from 
requesting the Department of the Interior to file a mineral contest 
against a mining claim if the authorized officer has a reasonable basis 
to question that determination.
    (d) Upon completion of the review of the plan of operations, the 
authorized officer shall ensure that the minimum information required 
by Sec. 292.62(c) has [[Page 32638]] been addressed and, pursuant to 
Sec. 228.5(b) of this chapter, notify the operator in writing whether 
or not the plan of operations is approved.
    (e) The period for which a plan of operations is approved may not 
exceed five years and must be explicitly identified by the authorized 
officer in giving notice of approval of a plan of operations.
    (f) If an operator desires to make substantive changes in the type, 
scope, or duration of mineral operations from those described in an 
approved plan of operations and those changes will result in resource 
impacts not anticipated when the original plan was approved, the 
operator must submit a supplemental plan or a modification for review 
and approval of the authorized officer pursuant to Sec. 292.62 of this 
proposed rule.


Sec. 292.64  Plan of operations suspension.

    The authorized officer may suspend mineral operations due to an 
operator's noncompliance with applicable statutes, regulations, or 
terms and conditions of the approved plan of operations. Except as 
otherwise provided in this paragraph, prior to suspending operations, 
the authorized officer must first notify the operator in writing of the 
basis for the suspension and provide the operator with a reasonably 
sufficient time to respond to the notice of the authorized officer or 
to bring the mineral operations into conformance with applicable laws, 
regulations, or the terms and conditions of the approved plan of 
operations. Generally, the authorized officer shall notify the operator 
not less than thirty days prior to the date of the proposed suspension; 
however, in those cases that present a threat of imminent harm to 
public health, safety, or the environment, or where such harm is 
already occurring, the authorized officer may take immediate action to 
stop the threat or damage without prior notice. In such case, written 
notice and explanation of the action taken, shall be given the operator 
as soon as reasonably practicable following the suspension.

Outstanding Mineral Rights


Sec. 292.65  Operating plan requirements.

    (a) Proposals for mineral operations involving outstanding mineral 
rights within the SRNRA must be documented in an operating plan and 
submitted in writing to the authorized officer for review at least 60 
days in advance of surface occupancy.
    (b) An operating plan for operations involving outstanding mineral 
rights within the SRNRA must include the following:
    (1) The name and legal mailing address of the operator, owner, and 
any lessees, assigns, and designees;
    (2) A copy of the deed or other legal instrument that conveyed the 
outstanding mineral rights;
    (3) Sketches or maps showing the location of the outstanding 
mineral rights, the proposed area of operations, including but not 
limited to, existing and/or proposed roads or access routes identified 
for use, any new proposed road construction, and the approximate 
location and size of the areas to be disturbed, including existing or 
proposed structures, facilities, and other improvements to be used;
    (4) A description of the type of operations which includes, at a 
minimum, a list of the type, size, location, and number of structures, 
facilities, and other improvements to be used;
    (5) An identification of the hazardous substances and any other 
toxic materials, petroleum products, insecticides, pesticides, and 
herbicides that will be used during the mineral operation, and the 
means for disposing of such substances;
    (6) An identification of the character and composition of the 
mineral wastes that will be used or generated and a method or strategy 
for their placement, control, isolation, or removal; and
    (7) A reclamation plan to reduce or control on-site and off-site 
damage to natural resources resulting from mineral operations.
    (i) The plan should provide, to the extent practicable, that 
reclamation proceed concurrently with the mineral operations and must 
show how public health and safety are maintained.
    (ii) Reclamation measures to be identified and described in the 
plan include, but are not limited to, the following:
    (A) Reduction and/or control of erosion, landslides, and water 
runoff;
    (B) Rehabilitation of wildlife and fisheries habitat to be 
disturbed by the proposed mineral operation; and
    (C) Protection of water quality.
    (iii) The area of surface disturbance must be reclaimed to a 
condition or use that is consistent with the SRNRA Management Plan.


Sec. 292.66  Operating plan acceptance.

    (a) Upon receipt of an operating plan, the authorized officer must 
review the information related to the ownership of the outstanding 
mineral rights and notify the operator in writing that one of the 
following circumstances apply:
    (1) That sufficient information on ownership of the outstanding 
mineral rights has been provided and the date by which the review is 
expected to be completed; or
    (2) That sufficient information on ownership of outstanding 
minerals rights has not been provided and the specific information that 
still needs to be provided.
    (b) If the review shows outstanding mineral rights have not been 
verified, the authorized officer must notify the operator in writing 
that outstanding mineral rights have not been verified, the reasons for 
such a finding, and that the proposed mineral operation cannot be 
conducted.
    (c) If the review shows outstanding mineral rights have been 
verified, the authorized officer must notify the operator in writing 
that outstanding mineral rights have been verified, that review of the 
proposed operating plan is underway, and the date by which the review 
is expected to be completed.
    (d) The authorized officer shall focus review of the operating plan 
to determine if all of the following criteria are met:
    (1) The operating plan is consistent with the rights granted by the 
deed;
    (2) The operating plan is consistent with the SRNRA Management 
Plan; and
    (3) The operating plan uses only so much of the surface as is 
necessary for the proposed mineral operations.
    (e) Upon completion of the review of the operating plan, the 
authorized officer shall notify the operator in writing that one of the 
following two circumstances apply.
    (1) The operating plan meets the criteria of paragraphs (d)(1) 
through (d)(3) of this section, and, therefore, the Forest Service has 
no objections to commencement of operations and that the Forest Service 
intends to monitor operations to ensure that operations conform to the 
operating plan; or
    (2) The operating plan does not meet all of the criteria in 
paragraphs (d)(1) through (d)(3) of this section and the reasons why 
the operating plan does not meet the criteria. In this event, the 
authorized officer shall propose changes to the operating plan and 
attempt to negotiate modifications that will enable the operating plan 
to meet the criteria in paragraphs (d)(1) through (d)(3) of this 
section.
    (f) To conduct mineral operations beyond those described in an 
acceptable operating plan, the owner or lessee must submit in writing 
an amended operating plan to the authorized officer at the earliest 
practicable date. The authorized officer shall have at least 60 days in 
which to review and respond to a proposed amendment before the new 
operations begin. The review will be conducted in accordance with 
[[Page 32639]] paragraphs (d)(1) through (d)(3) of this section.

Mineral Materials


Sec. 292.67  Mineral material operations.

    Subject to the provisions of part 228, subpart C and part 293 of 
this chapter, the authorized officer may approve contracts and permits 
for the sale or other disposal of mineral materials, including but not 
limited to, common varieties of gravel, sand, or stone. However, such 
contracts and permits may be approved only if the material is not 
within a designated wilderness area and is to be used for the 
construction and maintenance of roads and other facilities within the 
SRNRA and the four areas identified by the Act that are within the 
exterior boundaries of the SRNRA but are not classified as part of the 
SRNRA.

Indemnification


Sec. 292.68  Indemnification.

    The owner and/or operator of mining claims and the owner and/or 
lessee of outstanding mineral rights are jointly and severally liable 
in accordance with Federal and State laws for indemnifying the United 
States for:
    (a) Injury, loss, or damage, including fire suppression costs, 
which the United States incurs as a result of the mineral operations;
    (b) Payments made by the United States in satisfaction of claims, 
demands or judgments for an injury, loss, or damage, including fire 
suppression costs, which result from the mineral operations; and
    (c) Cost incurred by the Untied States for any action resulting 
from noncompliance with an approved plan of operations or activities 
outside a mutually agreed to operating plan.

    Dated: June 9, 1995.
David G. Unger,
Associate Chief.
[FR Doc. 95-15360 Filed 6-22-95; 8:45 am]
BILLING CODE 3410-11-M