[Federal Register Volume 59, Number 12 (Wednesday, January 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1035]
[[Page Unknown]]
[Federal Register: January 19, 1994]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 292
RIN 0596-AB08
Hells Canyon National Recreation Area; Public Lands
AGENCY: Forest Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would establish management standards and
guidelines for the protection and preservation of historic,
archeological, and paleontological resources; the use of motorized and
mechanical equipment; the use of motorized and nonmotorized rivercraft;
and the degree and type of timber harvesting, mining, and grazing
permissible on National Forest System lands in the Hells Canyon
National Recreation Area. The intended effect is to ensure the
protection, preservation, and enjoyment of the Area as directed by
statute.
DATES: Comments must be received in writing by March 21, 1994.
ADDRESSES: Send written comments to Director, Recreation, Cultural
Resources and Wilderness Management Staff, Forest Service, USDA, P.O.
Box 96090, Washington, DC 20090-6090.
The public may inspect comments received on this proposed rule in
the Office of the Director, fourth floor, central wing, Auditors
Building 201 Fourteenth Street SW., Washington, DC, between the hours
of 8:30 a.m. and 4:30 p.m. Those wishing to inspect comments are
encouraged to call ahead (202) 205-1423 to facilitate entry into the
building.
FOR FURTHER INFORMATION CONTACT: Tom Lennon, Branch Chief, Special
Designations, Recreation, Cultural Resources, and Wilderness Management
Staff (2300) (202) 205-1423 or Ed Cole, Ranger, Hells Canyon National
Recreation Area (503) 426-4978.
SUPPLEMENTARY INFORMATION:
Background
The Act of December 31, 1975 (the ``Act''), established the Hells
Canyon National Recreation Area (the ``HCNRA'') ``to assure that the
natural beauty, and historical and archeological values of the Hells
Canyon area * * * are preserved for this and future generations, and
that the recreational and ecologic values and public enjoyment of the
area are thereby enhanced.'' 89 Stat. 1117; 16 U.S.C. 460gg et seq.
While the Act's overall thrust is to protect and enhance the identified
resource values within the HCNRA, Congress acknowledged in Section 13
of the Act that ``ranching, grazing, farming, timber harvesting, and
the occupation of homes and lands associated therewith, as they exist
on the date of enactment of this Act, are recognized as traditional and
valid uses of the recreation area.''
The HCNRA covers 658,457 acres. Almost 95% of the HCNRA, or 625,193
acres, is in federal ownership. Within the HCNRA is the Hells Canyon
Wilderness, totalling 219,500 acres of National Forest System land, and
a small section of the Eagle Cap Wilderness, totalling 3,553 acres of
National Forest System land. Also within the HCNRA are the Snake,
Rapid, and Imnaha Wild and Scenic Rivers, the corridors of which
include 33,767 acres of National Forest System lands.
Section 7 of the Act stipulates that the HCNRA shall be
administered for public outdoor recreation in a manner compatible with
the following objectives:
(1) The maintenance and protection of the free-flowing nature of
the rivers within the recreation area;
(2) Conservation of scenic, wilderness, cultural, scientific, and
other values contributing to the public benefit;
(3) Preservation, especially in the area generally known as Hells
Canyon, of all features and peculiarities believed to be biologically
unique including, but not limited to, rare and endemic plant species,
rare combinations of aquatic, terrestrial, and atmospheric habitats,
and the rare combinations of outstanding and diverse ecosystems and
parts of ecosystems associated therewith;
(4) Protection and maintenance of fish and wildlife habitat;
(5) Protection of archeological and paleontological sites and
interpretation of these sites for the public benefit and knowledge
insofar as it is compatible with protection;
(6) Preservation and restoration of historic sites associated with
and typifying the economic and social history of the region and the
American West; and
(7) Such management, utilization, and disposal of natural resources
on federally owned lands, including, but not limited to, timber
harvesting by selective cutting, mining, and grazing and the
continuation of such existing uses and developments as are compatible
with the provisions of the Act.
Section 10 of the Act authorizes the Secretary to promulgate rules
and regulations necessary to accomplish the purposes of the Act.
Section 10 expressly lists several subjects as possible topics for
rulemaking, including the following:
(1) Standards and guidelines to insure the full protection and
preservation of the historic, archeological, and paleontological
resources in the recreation area;
(2) Provision for the control of the use of the use of motorized
and mechanical equipment for transportation over, or alteration of, the
surface of any Federal land within the recreation area;
(3) Provision for the control of the use and number of motorized
and nonmotorized rivercraft: Provided, that the use of such craft is
hereby recognized as a valid use of the Snake River within the
recreation area; and
(4) Standards for such management, utilization, and disposal of
natural resources on federally owned lands, including, but not limited
to, timber harvesting by selective cutting, mining and grazing and the
continuation of such existing uses and developments as are compatible
with the provisions of this Act.
Section 10 also authorized rulemaking to establish standards for
the use and development of privately owned property in the HCNRA. This
is the subject of a separate rulemaking and, thus, is not included in
this proposed rule.
Following enactment of the Act in 1975, the Forest Service
construed Section 10's authority to promulgate regulations as
discretionary and that the issues identified therein could be
adequately addressed under existing statutory and regulatory authority.
This interpretation was challenged in a 1988 lawsuit which contended
that the regulatory authority in Section 10 was mandatory, not
discretionary. Oregon Natural Resources Council (ONRC) v. Lyng, slip
op. No. 88-680PA (D. Or. 1989). The district court in Oregon rejected
ONRC's argument that the Secretary had a non-discretionary duty to
issue regulations under Section 10 and dismissed the case. On appeal,
however, the Ninth Circuit, reversed the district court and concluded
that the regulations were, in fact, required by Section 10. According
to the Ninth Circuit, Section 10 ``compels the Secretary to promulgate
nonduplicative regulations of the sort described by subsections 10(a)
through 10(e).'' ONRC v. Lyng, 882 F.2d 1417, 1421 (9th Cir. 1989).
Within three months of the 9th Circuit's decision in ONRC v. Lyng,
an interim rule establishing standards and guidelines for federal lands
in the HCNRA had been adopted and public comment solicited (54 FR
41089; Oct. 5, 1989). Only two comments were received on the interim
rule. The interim rule has never been published as a final rule. Due to
the length of time that has passed since the issuance of the interim
rule, and the recognition that substantial modifications to the interim
rule would be required, the agency has decided to issue a new proposed
rule for public comment. Accordingly, an agency response to the
comments submitted on the 1989 interim rule is not needed.
For ease of reference, the proposed rule divides the HCNRA into two
categories--Wilderness Lands and Other Lands. Consistent with Congress'
recognition that the wilderness portions of the HCNRA should receive
substantially more protection than the rest of the HCNRA, some
standards and guidelines are more protective in the Wilderness Lands
category than in the Other Lands category. In other instances, however,
the standards and guidelines are the same.
Section-By-Section Explanation of the Proposed Rule
This proposed rule would established a new Subpart F of Part 292,
Hells Canyon National Recreation Area--Public Lands, in Title 36 of the
Code of Federal Regulations. A section-by-section explanation of the
proposed rule follows:
Section 292.40 Purpose and Scope.
Paragraph (a) of proposed Sec. 292.40 explains that the purpose of
this rule is to establish specific standards and guidelines for the use
of the National Forest System lands that comprise the Hells Canyon
National Recreation Area (HCNRA). The topics that are the subject of
these standards and guidelines correspond with the topics in Section 10
of the Act, except for the use and development of privately owned
property which, as previously noted, is the subject of a separate
rulemaking and not addressed herein. Paragraph (b) explains that,
unless directly in conflict with the standards and guidelines set forth
in the rule, all of the existing authorities generally applicable to
National Forest System lands are specifically applicable to the
National Forest System lands in the HCNRA. It also states that the
specific regulatory authority for the HCNRA embodied in the rule's
standards and guidelines would prevail over the Forest Service's
general regulatory authority for National Forest System lands, if a
conflict between the two should arise.
Section 292.41 Definitions
Proposed Sec. 292.41 defines terms used in the proposed rule.
Section 292.42 Management Standards and Guidelines
Proposed Sec. 292.42 would establish several guiding principles
that apply to the standards and guidelines called for in Section 10 of
the Act and set out in Secs. 292.43 through 292.48. These principles
include the recognition that the rule is a supplement to, not a
substitute for, existing regulatory authority; that uses or activities
authorized under the rule's standards and guidelines might require
additional site-specific environmental analysis; that programmatic
direction in the Comprehensive Management Plan must conform to the
standards and guidelines of the rule; and, that the standards and
guidelines for a given use or activity may vary depending on whether
that use or activity is located inside or outside the designated
wilderness in the HCNRA.
Section 292.43 Protection and Preservation of Cultural and
Paleontological Resources
Proposed Sec. 292.43 would create seven standards to guide Forest
Service administration of cultural and paleontological resources in the
HCNRA. Proposed paragraphs (a) (1)-(4) set forth the standards and
guidelines for cultural and paleontological resources on the Other
Lands in the HCNRA; proposed paragraphs (b) (1)-(3) set forth the
standards and guidelines for cultural and paleontological resources
located on the Wilderness Lands in the HCNRA. For ease of reference,
``cultural resources'' includes historic and archeological resources in
the HCNRA. Though not explicitly referenced, the relevant provisions of
the National Historic Preservation Act, 16 U.S.C. 470 et seq., the
Archeological Resources Protection Act, 16 U.S.C. 470AA et seq., and
the Antiquities Act, 16 U.S.C. 431 et seq. and the accompanying
regulations at 36 CFR parts 296 and 800 would also apply.
Paragraph (a)(1) would establish protection as the primary
management objective for cultural resources in the HCNRA. It would
additionally provide for public education and information opportunities
about cultural resources as a management objective unless this would
unreasonably interfere with protection efforts. This standard
acknowledges the importance of cultural resource protection and
education for the vast storehouse of information in the HCNRA but
recognizes that educating the public about cultural resources must be
secondary to protection and must occur only if the resources can be
adequately protected.
Proposed paragraph (a)(2) requires that the Ranger establish
management priorities for cultural resources based, in part, on whether
the appropriate State Historic Preservation Office has concurred with
the Forest Service's determination that a cultural resource is
``significant.'' By establishing priorities, the Ranger will be able to
allocate available moneys for protection, education, and enjoyment
based on the historical or scientific importance of a cultural
resource. The Ranger also may take into account the relative risk of
damage or destruction to the resource and steps that could be taken to
avoid or minimize that risk.
Paragraph (a)(3) would apply to cultural resources which meet the
significance threshold. It would require that information from these
resources be documented and favor on-site over off-site protection. The
Ranger may select off-site protection under certain conditions. For
instance, the Ranger may decide off-site protection is appropriate if
the resource is located on NRA Wilderness Lands and protecting it on-
site would significantly intrude on the wilderness resource. Another
example of when off-site protection might be preferred is if the cost
is less than on-site protection and significant cultural resources with
identical or similar values have already been protected on-site.
Proposed paragraph (a)(4) applies to all paleontological resources
in the HCNRA and would establish protection for scientific study as the
primary objective. Prior written authorization would be required before
any individual could disturb or remove a paleontological resource in
connection with scientific study activities.
Paragraph (b)(1) would incorporate the standards and guidelines for
Other Lands and apply them to the Wilderness Lands. This would ensure
consistency of Forest Service cultural and paleontological resource
administration within the HCNRA and, more importantly, the protection
of these resources into the future.
Paragraphs (b) (2) and (3) would establish two additional standards
for Wilderness Lands in recognition of the Agency's dual management
objectives of protecting cultural resources and minimizing impacts on
the wilderness. This would be accomplished by requiring that
information and education activities related to cultural resources on
Wilderness Lands be conducted outside of the wilderness and by
precluding the development of new or relocated trails on Wilderness
Lands which would be used primarily as a means of securing public
access to cultural resources. This will enable visitors to experience
cultural resources in their natural setting, unencumbered by the signs,
guided tours, or other devices normally used to inform and educate the
visitor about our past.
Section 292.44 The Use of Motorized and Mechanical Equipment
Proposed Sec. 292.44 would create five standards to guide Forest
Service administration of motorized and mechanical equipment on
National Forest System lands in the HCNRA. Proposed paragraphs (a)(1)-
(4) set forth the standards and guidelines for motorized and mechanical
equipment use in the Other Lands; proposed paragraph (b) would
establish the standard for such use in the Wilderness Lands. For ease
of reference, the term ``motorized and mechanical equipment'' in this
rule has the same meaning as ``motorized equipment'' and ``mechanical
transport'' which are defined in regulations promulgated under the
Wilderness Act at 36 CFR part 293 except that it would not include
motorized wheelchairs or other devices used solely to assist people
with disabilities. Nor would it include motorized or nonmotorized
rivercraft which are defined in and regulated under a separate
provision of this rule. Though not explicitly referenced, the relevant
provisions of the Wilderness Act, 16 U.S.C. 1131 et seq., and
regulations at 36 CFR parts 212, 261, 293, and 295 would also apply.
Paragraph (a)(1) would authorize the use of motorized and
mechanical equipment on any Forest Service roads or airfields within
the HCNRA subject to terms and conditions necessary to ensure the safe
use of these facilities. This provision applies to all Forest Service
transportation development facilities as that term is currently defined
in 36 CFR 212.1, except for Forest Service trails which are the subject
of paragraph (a)(2). This provision also does not purport to regulate
the use of motorized and mechanical equipment on public roads or
highways which are under the jurisdiction of a state or local
transportation authority.
Paragraph (a)(2) would authorize the use of motorized and
mechanical equipment on Forest Service trails subject to terms and
conditions necessary to ensure the safe use of these facilities and
when compatible with the management objectives identified in section 7
of the Act. As envisioned in the proposed rule, motorized and
mechanical equipment could only be used on Forest Service trails in the
non-wilderness portions of the HCNRA pursuant to a finding that such
use was compatible with, among other things, the protection of free-
flowing rivers, the conservation of wilderness and other values, the
maintenance of fish and wildlife habitat, and/or the protection of
historic, archeologic, and paleontologic sites. If a particular
proposed use was compatible with some of the management objectives but
not with others, the Ranger would have to decide whether, on balance,
the compatibility outweighed the incompatibility and the use could
proceed.
Paragraph (a)(3) would authorize the use of mechanical equipment
off National Forest airstrips, roads, or trails only if such use is
compatible with the management objectives of section 7 of the Act.
Paragraph (a)(4) would prohibit the use of motorized equipment off
Forest Service airstrips, roads, and trails except in those cases where
it is reasonably necessary to attain one or more of the management
objectives set out in section 7. Under this standard, use of an off-
road vehicle (ORV) might only be permitted if it were necessary to
protect fish and wildlife habitat or preserve historic resources. ORV
use also might be allowable if it were necessary to conduct the types
of timber harvesting, mining, and grazing that are provided for in the
proposed rule. It will be the responsibility of the proponent of such
use to demonstrate its necessity related to the management objectives
in section 7.
These standards, when read together, establish a three-tiered
system governing motorized and mechanical equipment use in the non-
wilderness portion of the HCNRA. The requirements by which use may be
authorized become increasingly rigorous depending on whether the
proposed use is contemplated on Forest Service roads/airfields, Forest
Service trails, or off Forest Service airstrips, roads, or trails. This
provision recognizes that off-road travel is generally not tolerated
within the HCNRA due to the fragile and difficult terrain, impacts to
wildlife and their habitat, and other issues associated with resource
protection.
Proposed paragraph (b) explains that there are no non-duplicative
regulations needed for managing motorized and mechanical equipment in
wilderness areas of the HCNRA since such use is already prohibited by
the Wilderness Act. Accordingly, the proposed rule would merely restate
the exiting prohibition and provide cross-references to exceptions
permitted in the Wilderness Act.
The proposed rule would exempt from its coverage all uses related
to Forest Service administration which might include, at a minimum,
research activities and public health and safety responses. It also
would exclude uses necessary to access privately owned lands or
interests in land wholly within the HCNRA.
Section 292.45 Use of Motorized and Non-Motorized Rivercraft
Proposed Sec. 292.45 would establish seven standards to guide
Forest Service administration of the use of motorized and non-motorized
rivercraft in the HCNRA. These standards and guidelines are only
applicable to those rivers or river segments that have been designated
as components of the Federal Wild and Scenic Rivers System. Though not
explicitly referenced, the relevant provisions of the Wild and Scenic
Rivers Act, 16 U.S.C. 1271 et seq., and regulations at 36 CFR part 297,
would also apply.
Paragraph (a) would authorize the use of non-motorized rivercraft
on Wild and Scenic Rivers subject to such rules and regulations the
Ranger deems necessary to protect and enhance the values which caused
the river to be designated wild and scenic or to ensure the public's
safe use and enjoyment of the river.
Paragraph (b) would prohibit the use of motorized rivercraft on all
Wild and Scenic Rivers except for the Snake River. This prohibition
will not prevent the exercise of any type of currently authorized
motorized rivercraft use in the HCNRA; rather, it will simply provide
for management of this use which is currently limited to the Snake
River. It does, however, effectively preclude expansion of motorized
rivercraft use to other Wild and Scenic Rivers which will facilitate
the protection and enhancement of the values which caused those rivers
to be designated.
Paragraph (c) would require that all authorized rivercraft use on
Wild and Scenic Rivers in the HCNRA be in compliance with State and/or
Federal boating safety and registration laws.
Proposed paragraph (d) establishes a requirement that all users of
motorized and non-motorized rivercraft on the Snake Wild and Scenic
River must receive prior written authorization for such use from the
Ranger. It also explains that such authorization may include terms and
conditions on numbers, duration, seasons of use, noise, or other
matters that will protect and enhance the river resource and ensure a
high quality river experience for users of all types.
Paragraphs (e) and (f) are extensions of paragraph (d) and would
require the Ranger, as part of the written authorization process for
the Snake Wild and Scenic River, to make sure that both private and
commercial rivercraft users are reasonably accommodated, and that the
user capacity of the river is not exceeded, respectively.
Finally, paragraph (g) would require the Ranger to identify and
minimize to the extent practicable any existing or potential conflicts
between motorized and non-motorized rivercraft users or between
rivercraft users in general and other individuals like fishermen or
researchers who may use or enjoy the Wild and Scenic Rivers in the
HCNRA.
These standards and guidelines have been narrowly tailored to
address those specific types of rivercraft use on those specific river
segments where the greatest potential risk exists to the agency's
ability to administer the HCNRA in such a way as to protect and enhance
its natural, cultural, recreational, fishery and other resource values.
With respect to the use of rivercraft, the greatest risk is currently
presented by the use of motorized rivercraft on the Snake Wild and
Scenic River. As a result, most of the standards and guidelines in this
section pertain to that use on that river. Though the authority exists,
it was deemed unnecessary to establish additional standards for other
Wild and Scenic Rivers or other rivers in the HCNRA at this time to
address future contingencies which may or may not ultimately
materialize.
Section 292.46 Timber Harvesting Activities
Proposed Sec. 292.46 would establish three standards to guide
Forest Service administration of timber harvesting activities on
National Forest System lands in the HCNRA. Proposed paragraphs (a)(1)-
(2) set forth the standards and guidelines for timber harvesting
activities in the Other Lands category of the HCNRA; proposed paragraph
(b) establishes the standard in the Wilderness Lands. Though not
explicitly referenced, the relevant provisions of the Wilderness Act,
16 U.S.C. 1131 et seq., and regulations at 36 CFR part 223, 261 and 293
would also apply.
Paragraph (a)(1) would specify that timber will not be harvested
solely for commercial gain but, rather, will be harvested only in
conjunction with other, non-commercial purposes including maintenance
or improvement of ecosystem health, wildlife habitat, or the
recreational use and enjoyment of the HCNRA. Trees could also be
removed to eliminate hazards to persons or their property. Finally,
timber harvesting could also be employed as an appropriate and measured
response to natural events including, but not limited to, fire, flood,
and disease or pest infestation. The significance of this provision is
that it does not provide for timber production in and of itself to be
an objective of the timber harvesting activity.
In those instances where one or more of the purposes for which
timber may be harvested is recognized, paragraph (a)(2) conditions the
manner by which the timber may be harvested. These silvicultural
prescriptions authorize timber harvesting only by means of selective or
intermediate cuttings. For the purpose of this proposed rule, the term
``selective cutting'' means ``selection cutting'' as that term is
defined by the Society of American Foresters. The Agency believes that
the Act, in discussing the permissible types of silvicultural
prescriptions in the HCNRA, incorrectly used the term ``selective
cutting'' which is a type of exploitation cutting generally referred to
as ``creaming'', ``culling'', or ``high-grading''. For that reason, the
Agency defined ``selective cutting'' as ``selection cutting'' which is,
in all likelihood, the term Congress intended to use in the Act and
which means the annual or periodic removal of trees individually or in
small groups. The other types of authorized cuttings are well
understood within the forestry profession and are defined in the
proposed rule as they appear in the book, Terminology of Forest Science
Technology Practice and Products, published by the Society of American
Foresters. These types of cuttings represent the most ecologically
sensitive methods by which harvesting can be accomplished. Additional
proposed restrictions on harvesting in this proposed section include
requirements that the smallest area and least number of clearings be
created, and that the clearings blend into the natural landscape to the
extent practicable. These provisions would ensure that any timber
harvesting allowable within the HCNRA would proceed as unobtrusively as
possible.
Proposed paragraph (b) explains that there are no non-duplicative
regulations needed for managing timber harvesting activities in
wilderness areas of the HCNRA since such use is already generally
prohibited by the Wilderness Act. Accordingly, it merely restates the
existing prohibition and provides cross references to exceptions
permitted in the Wilderness Act.
Section 292.47 Mining Activities
Proposed 292.47 would establish six standards to guide Forest
Service administration of mining activities throughout the entire
HCNRA. Proposed paragraphs (a)(1)-(4) set forth the standards and
guidelines for mining activities in the Other Lands category of the
HCNRA; proposed paragraphs (b)(1)-(2) establish the standards for the
Wilderness Lands category. Though not explicitly referenced, the
relevant provisions of the 1872 Mining Law, 30 U.S.C. 22 et seq., the
Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., the Mineral
Materials Act of 1947, 30 U.S.C. 601 et seq., the Wilderness Act, 16
U.S.C. 1131 et seq., the Wild and Scenic Rivers Act, 16 U.S.C. 1271 et
seq., and regulations at 36 CFR parts 228 and 293 would also apply.
Paragraph (a) prohibits mining activities in the HCNRA subject to
valid existing rights. This is a restatement of Section 11 of the Act
which withdrew all federal lands within the HCNRA from the operation of
the mining and mineral leasing laws subject to valid existing rights.
Accordingly, the only authorized mining activities that may occur in
the HCNRA are those in which the valid existing rights have been
established. Holders of mining claims and mineral leases must
demonstrate that they have valid existing rights before land disturbing
activities can be initiated. This requirement would also extend to what
in common parlance has become known as ``recreational mining.'' There
is no authority for recreational mining other than the statutes cited
in the preceding paragraph. Thus, even if an operator claims that an
activity involving the exploration and/or extraction of mineral
resources is ``recreational'' in nature, that operator must prove that
he or she has valid existing rights to conduct that activity under one
of the aforementioned statutes.
Paragraph (b) proposes that the impact of mining activities be
directed away from the Wilderness Lands and Wild and Scenic Rivers to
the extent practicable. This would enable the impacts of developmental
drilling operations and the construction of access routes, among other
things, to be concentrated on lands which may be better suited to such
uses or which may not possess the number or degree of resource values
exhibited on Wilderness Lands or Wild and Scenic Rivers.
Paragraphs (c) and (d) concern the extraction and use of mineral
materials in the HCNRA. Mineral materials include, but are not limited
to, common varieties of sand, gravel, and stone and are governed by the
Mineral Materials Act of 1947, 30 U.S.C. 601 et seq., rather than the
mining and mineral leasing laws. As a result, activities related to
mineral materials are not subject to the withdrawal of federal lands
from the operation of the mining and mineral leasing laws in Section 11
of the Act. These standards, in addition to the applicable provisions
of Subpart C of 36 CFR part 228, specify the circumstances under which
exploration, extraction and use of common variety mineral materials may
occur in the HCNRA. Paragraph (c) would provide that mineral materials
may only be used in the HCNRA for the purpose of constructing or
maintaining facilities such as roads, existing airfields, trails and
other recreation developments.
Paragraph (d) would require that mineral materials needed for use
in the HCNRA for one of the enumerated purposes in paragraph (c) or for
use outside the HCNRA on a project with specific and identifiable
benefits for the HCNRA must come from sources located outside the HCNRA
unless (1) the cost associated with using non-HCNRA mineral materials
adds significantly to the costs of the material, or (2) the
transportation of mineral materials from outside the HCNRA presents a
safety hazard to the motoring public.When mineral materials are
obtained from inside the HCNRA, environmental impact at the source must
be mitigated by contouring the land, re-establishing vegetation, and
other appropriate measures. This paragraph would further prohibit the
extraction of mineral materials from sources inside the HCNRA if the
use would be outside the HCNRA and would not directly benefit the
HCNRA.
Proposed paragraph (b)(1) would incorporate the standards and
guidelines in paragraphs (a)(1) and (a)(2) for Other Lands and apply
them to Wilderness Lands. This would ensure the consistency of Forest
Service administration of mining activities within the HCNRA and
further the protection and enhancement of the values which caused
Congress to designate the HCNRA.
Paragraph (b)(2) would prohibit the extraction of mineral materials
from the Wilderness Lands. This is a restatement of existing authority
in 36 CFR 293.14(c).
The effect of the foregoing standards is to provide for the
continued maintenance and development of facilities and transportation
routes necessary for the administration and safe use and enjoyment of
the HCNRA while at the same time minimizing the impacts of such
activities on HCNRA lands and directing such activities to non-HCNRA
lands wherever possible.
Section 292.48 Grazing Activities
Proposed Sec. 292.48 would create four standards to guide Forest
Service administration of grazing activities on National Forest System
lands throughout the entire HCNRA. The agency felt that one set of
standards and guidelines for the entire HCNRA would be simpler to
administer and would adequately provide for the continuation of grazing
and the protection and enhancement of the HCNRA resource values. Though
not expressly referenced, the relevant provisions of the Granger-Thye
Act, 16 U.S.C. 580 et seq., the Federal Land Policy and Management Act,
43 U.S.C. 1701 et seq., the Public Rangelands Improvement Act, 43
U.S.C. 1901 et seq., and regulations at 36 CFR part 222 would also
apply.
Paragraph (a) would authorize the grazing of domestic livestock
only on National Forest rangeland that has been found to be in
satisfactory condition. In those situations where the land is suitable
and in satisfactory conditions, livestock grazing could only take place
in such numbers, seasons, and methods which will ensure that the
satisfactory condition is maintained. This provision will ensure that
domestic livestock grazing will not occur on rangelands that are
currently in substandard condition nor will it occur in such a way as
to degrade rangelands that are currently in satisfactory condition.
Proposed paragraph (b) requires the Forest Service to administer
the grazing program to minimize or eliminate conflicts between domestic
livestock and fish and wildlife, outdoor recreation, and the
preservation and conservation of the other natural values for which the
HCNRA was established by adjusting the level, type of livestock, or
manner of grazing. This paragraph further requires that the domestic
livestock grazing must cease in the event that the adjustment in the
grazing activity has failed to eliminate the conflict. This ensures
that grazing will not continue if it can not be conducted in a manner
that is compatible with the purposes for which the HCNRA was
established.
Paragraph (c) would require that range improvements constructed or
implemented on National Forest System lands must be as unobtrusive as
possible while still accomplishing the purposes for which the
improvement was required. This could involve fences or water storage
facilities being constructed in a visually inconspicuous fashion or the
use of vegetative treatments in an environmentally sensitive manner.
Paragraph (d) would require that in administering the domestic
livestock grazing program, measures must be instituted to protect and
conserve riparian areas. This could take the form of restrictions on
place, time, or manner of livestock grazing and would be in furtherance
of protecting and enhancing fish and wildlife habitat which is one of
the management objectives of the HCNRA.
Summary
The proposed rule establishes standards for National Forest System
lands within the HCNRA to ensure that the activities which occur on the
National Forest System lands within the HCNRA are compatible with the
purposes for which the HCNRA was created. The proposed regulations have
been carefully drafted to include only those management standards and
guidelines which are nonduplicative.
Except in those instances in which there would be a direct and
irreconcilable conflict, this proposed rule would not supplant the
Forest Service's existing regulatory authority related to National
Forest System lands. This regulatory authority covers a panoply of
subjects including, but not limited to, range management (36 CFR part
222), timber (36 CFR part 223), minerals (36 CFR part 228), off-road
vehicle use (36 CFR part 295), archeological resources (36 CFR part
296), and historic and cultural properties (36 CFR part 800).
Nor would this proposed rule simply restate the current regulatory
authority of the Forest Service to administer the National Forest
System lands. Instead, this proposed rule would augment existing
regulatory authority to establish standards and guidelines that would
address the subject matter areas identified in section 10 that were of
particular concern to Congress when the HCNRA was established in 1975.
Public comment is invited and will be considered in adoption of a final
rule.
In summary, these standards and guidelines will protect and
preserve historic, archeologic, and paleontologic resources; provide
for the use of motorized and mechanical equipment; provide for the use
of motorized and nonmotorized rivercraft; and establish the permissible
scope and extent of timber harvesting, mining, and grazing on National
Forest System lands in the HCNRA. In so doing, the Forest Service will
be able to ensure that the natural beauty, historical, and
archeological values of the HCNRA are preserved for this and future
generations, and that the recreational and ecological values and public
enjoyment of the area are thereby enhanced.
Regulatory Impact
This rule has been reviewed under Executive Order 12866 on
``Regulatory Planning and Review.'' It has been determined that this is
not a significant rule.
This rule also has been considered in light of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., and it has been determined that
this action will not have a significant economic impact on a
substantial number of small entities as defined by that act.
Environmental Impact
This proposed rule is promulgated in accordance with section 10 of
the Act, 16 U.S.C. 460gg-7. The affected environment and consequences
of implementing management alternatives for the HCNRA were analyzed and
disclosed in the Environmental Impact Statement for the Comprehensive
Management Plan that was implemented by the Chief of the Forest Service
on May 23, 1981. The analysis completed for the Comprehensive
Management Plan was revalidated in April 1990 with the signing of the
Wallowa-Whitman National Forest Land and Resource Management Plan
Record of Decision (page 1). A review of this proposed rule indicates
no potential for significant effect on the quality of the human
environmental other than that previously disclosed in the Environmental
Impact Statement. The environmental consequences of any future projects
will be subject to site specific analysis pursuant to Forest Service
National Environmental Policy Act procedures (Forest Service Manual
Chapter 1950, Forest Service Handbook 1909.15). Therefore, no
additional environmental documentation is deemed needed on this rule.
Information pertaining to the environmental analysis may be obtained by
writing or calling the persons or offices listed under ADDRESSES and
FOR FURTHER INFORMATION CONTACT.
Takings Implication
In compliance with Executive Order 12630 and the Attorney General's
Guidelines for the Evaluation of Risk and Avoidance of Unanticipated
Takings, the takings implications of this proposed rule have been
reviewed and considered. It has been determined that there is no risk
of a taking.
Executive Order 12778, Civil Justice Reform Act
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If this proposed rule were adopted, (1) all state
and local laws and regulations that are in conflict with this proposed
rule or which would impede its full implementation would be preempted;
(2) no retroactive effect would be given to this proposed rule; and (3)
it would not require administrative proceedings before parties could
file suit in court challenging its provisions.
Paperwork Reduction
This rule will not result in additional paperwork not already
approved for use. Therefore, the review provisions of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3507) and implementing regulations at
5 CFR part 1320 do not apply.
List of Subjects in Part 292
National recreation areas.
Therefore, for the reasons set forth in the preamble, it is
proposed to amend Part 292 of Chapter II of Title 36 of the Code of
Federal Regulations by revising Subpart F to read as follows:
PART 292--NATIONAL RECREATION AREAS
Subpart F--Hells Canyon National Recreation Area--Federal Lands
Sec.
292.40 Purpose and scope.
292.41 Definitions.
292.42 Management standards and guidelines.
292.43 Protection and preservation of cultural and paleontological
resources.
292.44 Use of motorized and mechanical equipment.
292.45 Use of motorized and non-motorized rivercraft.
292.46 Timber harvesting activities.
292.47 Mining activities.
292.48 Grazing activities.
Subpart F--Hells Canyon National Recreation Area--Federal Lands
Authority: Sec. 10, Public Law 94-199, 89 Stat. 1117 (16 U.S.C.
460gg-7).
Sec. 292.40 Purpose and scope.
(a) Purpose. The rules of this subpart establish standards and
guidelines for the protection and preservation of historic,
archaeological, and paleontological resources, the use of motorized and
mechanical equipment, the use of motorized and nonmotorized rivercraft,
and the management, utilization, and disposal of natural resources by
timber harvesting, mining and grazing on National Forest System lands
that comprise the Hells Canyon National Recreation Area located in the
Wallowa-Whitman, Nez Perce, and Payette National Forests in the States
of Idaho and Oregon as established by the Act of December 31, 1975, as
amended (89 Stat. 1117, 16 U.S.C. 460gg et seq.).
(b) Scope. Management of National Forest System lands within the
Hells Canyon National Recreation Area is subject to all laws, rules,
and regulations applicable to the National Forest System, except as
otherwise provided in this subpart. In the event of a conflict or
inconsistency between rules of this subpart and other rules within this
title, the rules of this subpart shall take precedence to the extent
permitted by law.
Sec. 292.41 Definitions.
Special terms used in this subpart are defined as follows:
Act means the Act of December 31, 1975, as amended (Pub. L. 94-199,
89 Stat. 1117) which established the Hells Canyon National Recreation
Area.
Comprehensive Management Plan is the document that establishes the
array, levels, and manner of resource uses within the HCNRA. It is
incorporated as part of the Wallowa-Whitman National Forest Land and
Resource Management Plan.
Cultural Resources means historic and archaeological resources.
HCNRA is the abbreviation for the Hells Canyon National Recreation
Area.
Intermediate Cutting means any removal of trees from a stand
between the time of its formation and the harvest cutting. Examples of
intermediate cutting include, but are not limited to, cleaning,
thinning, liberation, improvement, hazard removal, salvage and
sanitation cuttings.
Mining means any activity related to the discovery, extraction and
exploitation of minerals or mineral materials including, but not
limited to, actions taken pursuant to the Mining Act of 1872, 30 U.S.C.
22 et seq., the Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., the
Mineral Materials Act of 1947, 30 U.S.C. 601 et seq., or any other
activity using hydraulic equipment, pans, ground sluicing, sluice
boxes, rockers, or suction dredges.
Motorized and Mechanical Equipment has the same meaning as
``mechanical transport'' and ``motorized equipment'' in 36 CFR 293.6(a)
and (b), except that this term does not include either motorized or
nonmotorized rivercraft or motorized wheelchairs or other devices used
solely to assist persons with disabilities.
Motorized Rivercraft means any boat capable of being mechanically
propelled by propeller(s) or jet pump(s) upstream through rapids.
Non-Motorized Rivercraft means any boat which is not a motorized
rivercraft.
Other Lands means all nonwilderness National Forest Systems lands
in the HCNRA.
Paleontological Resources means any remains, trace, or imprint of a
plant or animal that has been preserved in the Earth's crust prior to
the Holocene epoch.
Ranger is the HCNRA Area Ranger, Wallowa-Whitman National Forest,
with offices located in Enterprise, Oregon, Riggins, Idaho, and
Clarkston, Washington, except for the Rapid Wild and Scenic River where
the term refers to the Salmon River District Ranger, Nez Perce National
Forest, located in Whitebird, Idaho.
Selective Cutting means single tree or group selection cutting and
is the periodic removal of trees individually or in small groups from
an uneven aged forest in order to maintain diverse stands of irregular
constitution and for which the management of the forest ecosystem is a
primary consideration.
Suitable means it is appropriate to apply certain resource
management practices to a particular area of land, as determined by an
ecological and environmental analysis of the land. A unit of land may
be suitable for a variety of individual or combined management
practices.
Wild and Scenic Rivers means the designated segments of the Snake,
Rapid, Imnaha and any other river or segment thereof in the HCNRA
hereafter designated as components of the National Wild and Scenic
Rivers System.
Wilderness Lands means the Hells Canyon Wilderness, that portion of
the Eagle Cap Wilderness in the HCNRA, and any other wilderness in the
HCNRA hereafter designated as components of the National Wilderness
Preservation System.
Sec. 292.42 Management standards and guidelines.
(a) In addition to existing statutory and regulatory authority
governing administration of National Forest System lands and resources,
the standards and guidelines in Secs. 292.43 to 292.48 of this subpart
prescribe the scope and extent of certain activities that may occur in
the HCNRA. These standards and guidelines are consistent with the
overall objective of administering the HCNRA to preserve its natural
beauty, historical and archaeological values and enhance its
recreational and ecological values and the public's enjoyment. The
standards and guidelines may vary depending on whether the land where
the proposed activity is contemplated is within the Wilderness Lands or
the Other Lands.
(b) The standards and guidelines of this subpart govern the
previous programmatic direction in the Comprehensive Management Plan
that has been incorporated into the Wallowa-Whitman National Forest
Land and Resource Management Plan. Site specific environmental analysis
may be required even in those situations where a use or activity is
permissible under the standards and guidelines set forth in this
subpart.
Sec. 292.43 Protection and preservation of cultural and
paleontological resources.
(a) Other Lands. The following standards and guidelines of this
section apply to the protection and preservation of cultural and
paleontological resources in the Other Lands category of the HCNRA:
(1) The primary objective of managing cultural resources is the
protection of the resource from damage or destruction. To the extent
consistent with protection, cultural resources may also be managed for
public education and enjoyment.
(2) The Ranger shall establish priorities for management emphasis
and protection of cultural resources based, in part, on whether the
appropriate State Historic Preservation Office has concurred with the
Forest Service's determination that a cultural resource is significant.
(3) Significant cultural resources are to be protected on-site,
unless the Ranger determines that off-site protection is preferable
because the resource is already adequately represented and protected
on-site elsewhere, is within Wilderness Lands, or for other good cause
shown. Information about significant cultural resources shall be
documented.
(4) The primary objective of managing paleontological resources is
for scientific study. Written authorization from the Ranger must be
secured before paleontological resources can be disturbed or removed in
conjunction with scientific study.
(b) Wilderness Lands. The following standards and guidelines apply
to the protection and preservation of cultural and paleontological
resources in the Wilderness Lands category of the HCNRA:
(1) The standards and guidelines for Other Lands in paragraph (a)
of this section also apply to Wilderness Lands.
(2) Public education and information activities concerning cultural
resources on Wilderness Lands may not be offered or established inside
Wilderness Lands.
(3) New trails and relocations of existing trails may not be
developed for the sole purpose of providing public access to cultural
resource sites on Wilderness Lands.
Sec. 292.44 Use of motorized and mechanical equipment.
The standards and guidelines of this section apply to the use of
motorized and mechanical equipment in the HCNRA. These standards and
guidelines shall not be construed to impair or preclude the Forest
Service's administration of the HCNRA; authorized scientific and other
research activities within the HCNRA; timber harvesting, mining, or
grazing activities as authorized in Secs. 292.46-292.48 of this
subpart; responses by the Forest Service or any other federal, state,
or local agency to public health or safety emergencies; or access to
private inholdings within the HCNRA.
(a) Other Lands. The following standards and guidelines apply to
the use of motorized and mechanical equipment in the Other Lands
category of the HCNRA:
(1) Motorized and mechanical equipment may be used on designated
Forest Service access roads and existing airstrips subject to terms and
conditions necessary for the safe use of such facilities.
(2) The use of motorized and mechanical equipment is permissible on
designated National Forest trails subject to terms and conditions
necessary for the safe use of such facilities and if such use is
compatible with the management objectives set forth in Section 7 of the
Act.
(3) Use of mechanical equipment off designated Forest Service
access roads, National Forest trails, and existing airstrips is
permissible subject to terms and conditions necessary for the safe use
of such equipment and if such use is compatible with the management
objectives set forth in Section 7 of the Act.
(4) Use of motorized equipment is prohibited off designated Forest
Service access roads, National Forest trails, and existing airstrips
unless it is reasonably necessary to attain one or more of the
management objectives set forth in Section 7 of the Act.
(b) Wilderness Lands. Except as provided for in Sections 4 (c) and
(d) of the Wilderness Act and regulations at 36 CFR parts 261 and 293,
the use of motorized and mechanical equipment is prohibited on
Wilderness Lands.
Sec. 292.45 Use of motorized and non-motorized rivercraft.
The standards and guidelines of this section apply to the use of
motorized and non-motorized rivercraft on the Wild and Scenic Rivers
within the HCNRA.
(a) The use of non-motorized rivercraft may be permitted subject to
restrictions on numbers, duration, seasons, or other matters which may
be deemed by the Ranger necessary to protect and enhance the values for
which the rivers were designated wild and scenic or to ensure the safe
use and enjoyment of the rivers.
(b) The use of motorized rivercraft is prohibited, except on the
Snake River.
(c) The use of motorized and non-motorized rivercraft is subject to
all Federal and State boating registration and safety laws.
(d) The use of motorized or non-motorized rivercraft on the Snake
Wild and Scenic River requires prior written authorization from the
Ranger and may be subject to limitations on numbers, duration, seasons,
or noise limits, or other restrictions which may be deemed by the
Ranger necessary to protect and enhance the values for which the Snake
River was designated wild and scenic or to ensure the safe use and
enjoyment of the river.
(e) In authorizing the use of motorized and non-motorized
rivercraft on the Snake Wild and Scenic River, the Ranger must
reasonably accommodate both private and commercial users of each type
of rivercraft.
(f) In authorizing the use of motorized and non-motorized
rivercraft on the Snake Wild and Scenic River, the Ranger must ensure
that the user capacity of the river is not exceeded.
(g) In authorizing the use of motorized and non-motorized
rivercraft on the Snake Wild and Scenic River, the Ranger shall seek to
minimize, where practicable, conflicts between motorized and non-
motorized rivercraft users and between both types of rivercraft users
and all other users of the river.
Sec. 292.46 Timber harvesting activities.
(a) Other Lands. The standards and guidelines of this section apply
to timber harvesting activities in the Other Lands category of the
HCNRA.
(1) Timber may be harvested in order to protect and enhance
ecosystem health, wildlife habitat, or recreational uses; to reduce the
risk of harm posed by hazard trees; or to respond to natural events
such as wildfire, flood, earthquake, volcanic eruption, high winds, and
disease or pest infestation.
(2) Where authorized, trees may be removed by selective or
intermediate cuttings. Openings created by the timber harvesting
activity must be limited in size and number to the minimum necessary to
accomplish the purpose of the harvest, and must blend with the natural
landscape to the extent practicable.
(b) Wilderness Lands. Except as provided for in Sections 4 (c) and
(d) of the Wilderness Act and regulations at 36 CFR part 293, timber
harvesting is prohibited on Wilderness Lands.
Sec. 292.47 Mining activities.
(a) Other Lands. The standards and guidelines of this section apply
to mining activities in the Other Lands category of the HCNRA.
(1) All mining activities are prohibited subject to valid existing
rights.
(2) The impact of mining activities including, but not limited to,
drilling and the development of ingress and egress routes, must be
minimized and directed away from Wilderness Lands and Wild and Scenic
Rivers to the extent practicable.
(3) Mineral materials including, but not limited to common
varieties of gravel, sand, or stone may be used only within the HCNRA
for the purpose of construction and maintenance of facilities
including, but not limited to, roads, existing airfields, trails, and
recreation developments.
(4) Sources of mineral materials should be located outside the
HCNRA. Sources for mineral materials that may be used to benefit the
HCNRA may be located inside the HCNRA if the cost of obtaining the
materials outside the HCNRA adds significantly to the costs of the
materials, or the transportation of mineral materials from outside the
HCNRA present a safety hazard to the motoring public. When mineral
materials are obtained from inside the HCNRA, environmental impact at
the mineral source must be mitigated by contouring the land; re-
establishing vegetation, and other appropriate measures. The HCNRA
shall not be the source of mineral materials for use outside the HCNRA
for projects that do not directly benefit the HCNRA.
(b) Wilderness Lands. The standards and guidelines of this section
apply to mining activities in the Wilderness Lands category of the
HCNRA.
(1) The standards and guidelines for Other Lands in paragraphs
(a)(1) and (2) of this section also apply to Wilderness Lands.
(2) Extraction of mineral materials is prohibited on Wilderness
Lands.
Sec. 292.48 Grazing activities.
The following standards and guidelines apply to domestic livestock
grazing activities in the HCNRA:
(a) Grazing may occur only on rangeland determined to be suitable
for grazing and to be in satisfactory condition.
(b) Where domestic livestock grazing is incompatible with the
protection, restoration, and/or maintenance of fish and wildlife or
their habitats; public outdoor recreation; conservation of scenic,
wilderness, and scientific values; or rare combinations of outstanding
ecosystems, the livestock use shall be modified as necessary to
eliminate or avoid the incompatibility. In the event an incompatibility
persists after the modification, or modification is not feasible, the
livestock use shall be terminated.
(c) Range improvements must be designed and located to minimize
their impact on scenic, cultural, fish and wildlife, and other
resources in the HCNRA to the extent practicable.
(d) The authorization of grazing use, through a grazing permit,
must provide for terms and conditions which protect and conserve
riparian areas.
Dated: December 23, 1993.
William L. McLeese,
Acting Chief.
[FR Doc. 94-1035 Filed 1-18-94; 8:45 am]
BILLING CODE 3410-11-M
