[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]
=======================================================================
-----------------------------------------------------------------------
[[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.
-----------------------------------------------------------------------
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
